dissenting:
The majority is quite right in its conclusion that “the repose that statutes of limitations provide will be lost if their applicability is ‘up for grabs’ in every case.” Supra, majority slip op. at 201. Precisely to avoid such a situation the Court in English v. Pabst Brewing Co., 828 F.2d 1047 (4th Cir.1987), fashioned a test to be applied when determining whether the filing period should be equitably tolled.
In English, 828 F.2d at 1049, the Court found that “[t]o invoke equitable tolling the plaintiff must therefore show that the defendant attempted to mislead him and that the plaintiff reasonably relied on the misrepresentation by neglecting to file a timely charge.” (Citations omitted.) The case decided today presents just the facts necessary to justify sending the question of equitable tolling of the 180-day limitation period to the jury. See Vance v. Whirlpool Corp., 716 F.2d 1010, 1013 (4th Cir.1983) (proper for district court to submit question to jury of whether plaintiff filed his charge in timely manner); Blumberg v. HCA Management Co., Inc., 848 F.2d 642, 644 (5th Cir.1988) (question of when plaintiff should have known age a factor in termination submitted to the jury).
I find the majority’s conclusion that Mobil’s acts did not constitute active concealment to be totally insupportable. All factu*204al disputes must be resolved in Olson’s favor and all inferences to be drawn from the underlying facts must be viewed in the light most favorable to him. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
It is largely undisputed, certainly at the summary stage the record establishes, that Mobil, through Frank Nevins, told Olson that his job as Manager, Plant Engineering was to be eliminated, divided up, split between himself and others. Mobil reorganization charts to which Olson was not privy, however, show the Manager, Plant Engineering position at the SG 20 level to be filled by Heald with Olson being demoted to an SG 19. The record also contains a memo dated August 19, 1986 (after Heald resigned), stating quite clearly that “... we would like to offer P. Del Vecchio the position of Manager, Plant Engineering (S/G 20) with a return date to U.S. Marketing of around January 1, 1987.” Yet, at precisely that time Olson was falsely told that Phil Del Vecchio would replace Heald at the SG 19 level and that nothing had changed in the proposed reorganization. While Mobil protests that it concealed nothing from Olson, the record is to the contrary and Mobil cites no record evidence to demonstrate the contention. The first part of the English test, active concealment by Mobil, is clearly shown.
Mobil, apparently conceding the futility of successfully winning the day on the active concealment issue, then argues that, even if it did conceal from Olson that his job would continue at the SG 20 level and indeed was promised to a younger man, those facts are immaterial. Mobil claims, and the majority accepts, that Olson knew enough in November 1986 to file a complaint. Thus, he could not reasonably have relied on Mobil’s misrepresentations.
The majority concludes that Olson has not satisfied the burden of justifying equitable tolling since there were events that were or should have been apparent to Olson which were enough to have caused him to file a complaint on pain of a limitations bar for failing to do so. The events referred to include (1) Olson’s knowledge that his job was to be divided up and absorbed by other, younger employees, who would be maintained in their same positions (SG 19), while Olson was demoted to SG 19; (2) the reassignment of an important project to a younger man, (3) his exclusion from organizational planning meetings of the reorganization, and (4) the refusal of Nevins to upgrade him and assign him jobs that Olson felt he was more qualified for that also went to younger people.
Certainly Olson knew of all the facts outlined in the majority opinion. Indeed, such facts may have made a suspicious person, one predisposed to litigation, rush to the EEOC and file a complaint. An analogy to tort law, however, is appropriate here: a tortfeasor takes the plaintiff as he finds him. Olson was a “company man,” one not inclined to believe that the company which he had served successfully and loyally for almost twenty years was deliberately and surreptitiously trying to replace him merely on the basis of his age. Disenchantment on the part of Nevins, rather than age discrimination, appears a quite reasonable assumption. Olson thus “reasonably relied” on Mobil’s misrepresentation in neglecting to file a timely charge. English, 828 F.2d at 1049. One in such circumstances is not to be compelled to be suspicious to the point of paranoia. The district court and the majority emphasize the slant Olson gave to events stated in the complaint filed with the district court. The later time when he filed the complaint is not, however, the moment his claim accrued. It is in November 1986 that Olson’s knowledge must be examined, not an interpretation of events aided by his subsequent discovery of the truth.
For all of the allegedly obvious instances of discrimination, there were also legitimate business explanations by Mobil. It obviously intended to mislead and Olson should not pay a price for believing a longtime employer. Olson knew that he must share his former position with other younger engineers at a lower salary grade. Olson also understood that a massive reorganization at Mobil was taking place, that several plants were closing and engineers, most younger than he, needed to be relo*205cated. Though demoted, Olson did not lose salary. He had been demoted before through a reorganization which was rationally related to changing business needs. Indeed Olson was excluded from important planning meetings. However, another employee older than Olson, Jack Berry, was, until his retirement, included in the meetings. Olson was told Del Yecchio was to be placed in a SA 19 position, but did not know Del Yecchio or his age, only that he was returning from Saudi Arabia and had to be placed somewhere.
Though not particularly happy with those events, Olson testified in deposition that the proposed reorganization assignments “seemed to be appropriate to [employee] experience and past assignments.” Olson also concluded that Nevins did not favor him and wanted him out. Yet Olson did not relate Nevins’ attitude to age discrimination, attributing it rather to supervisory discretion. At the time Olson, relying on his previous experience with Mobil, should not necessarily have been expected to view these events as age discrimination. It was not until Olson discovered, contrary to Mobil’s positive misrepresentations, that his job was still intact, occupied by a younger individual, that he suspected age discrimination. A jury could find, with reasonable support in the record, that a man in Olson’s position reasonably relied on Mobil’s misrepresentations in failing to file until that discovery of Mobil’s lack of candor — indeed untruths — was made.
The majority considers the information that Del Vecchio was to have Olson’s job at SG 20 as simply additional evidence, citing Blumberg v. HCA Management Co., Inc., 848 F.2d 642, 645 (5th Cir.1988) (“not necessary for a claimant to know all of the evidence ... to file a claim”). Blumberg is, however, distinguishable. The claimant there knew at the time of her termination that she was being replaced by a younger employee. Olson did not.
Certainly it is “not necessary to the filing of a charge that one possess a proven case.” Supra, majority slip op. at 202. Nevertheless, in order to make out a pri-ma facie case of age discrimination, a plaintiff must submit evidence to show “(1) the plaintiff is in the protected age group, (2) the plaintiff was discharged or demoted, (3) at the time ... plaintiff was performing at a level that met his employer’s legitimate expectations, and (4) following discharge the plaintiff was replaced by someone of comparable qualifications outside the protected class.” EEOC v. Western Electric Co., Inc., 713 F.2d 1011, 1014 (4th Cir.1983) (citations omitted) (emphasis added). Olson beyond dispute met the first three tests. As to the fourth, Olson did not know he had a basis to challenge the decision to demote him until he discovered his job was not abolished but given to a younger man outside the protected class. To deny equitable tolling here would be to reward Mobil for its success in concealing from Olson through the promulgation of untruths the factual basis of his prima facie case. Even accepting the position that the proper inquiry here is what Olson knew or should have known, the facts described show a genuine issue of material fact as to what a ■ reasonable person in Olson’s position before his discovery of the truth should have concluded about the actions of Mobil.
Additionally, there are important facts which distinguish Olson’s case from that of the plaintiff denied equitable tolling in English. In English the court found that it was “doubtful that Lex was in fact a replacement for English at all.” English, 828 F.2d at 1051. No such doubt about Del Vecchio as Olson’s replacement exists here. Secondly, the plaintiff in English waited six additional months after learning of the supposed younger replacement to file his charge. Olson filed promptly upon learning that his job had not in fact been abolished. Third, in English “there has been no showing that [the employer] concealed or misrepresented anything about its own reorganization or about English’s dismissal.” English, 828 F.2d at 1050. The record evidence here shows, in spite of the majority’s statement to the contrary, that Mobil did actively conceal its intention and misrepresent the reorganization to Olson.
Whether a man in Olson’s position “reasonably relied” on Mobil’s misrepresenta*206tions by neglecting to file is a material fact open to dispute. Summary judgment should, therefore, be precluded.
Accordingly, I respectfully dissent.