This appeal is from a summary judgment for defendant Merrill Lynch & Co., Inc., in a suit brought by Robert Cocke for an alleged discriminatory termination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621-634. The summary judgment was grounded on the fact that Cocke failed to file a timely charge with the Equal Employment Opportunity Commission (EEOC) within the statutorily prescribed filing period. 29 U.S.C.A. § 626(d)(1). Under a view of the facts most favorable to the plaintiff, however, there is arguable merit to the contention that equitable tolling of the limitations provision should apply. We vacate the summary judgment and remand for reconsideration of equitable tolling.
There is no doubt that Cocke did not file an EEOC charge within the time required by the statute. The law is clear, however, that under certain circumstances, equitable tolling prevents that limitation from barring a lawsuit. The district court held as a matter of law that equitable tolling was not justified in this case, because when Cocke received notice of termination he was cognizant of his ADEA rights and was suspicious that he was the object of discriminatory conduct. Whatever the eventual outcome may be, however, it appears from this record that the factual issues upon which an equitable tolling decision would be based should be tried, and not decided on summary judgment.
Cocke received a written notice of termination, dated August 28, 1984, which states:
Cocke was discharged on March 29, 1985. On June 21, 1985 Cocke filed his charge alleging discrimination with the EEOC. After receiving a right to sue letter, Cocke filed his complaint in the district court on September 17, 1985.
The statutory filing period requires in pertinent part:
29 U.S.C.A. § 626(d)(1). A final decision to terminate the employee, rather than actual termination, constitutes the "alleged unlawful practice" that triggers the filing period. See Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981); Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Thus, the 180-day period is counted from the date the employee receives notice of termination. It is settled law, however, that the charging period of the ADEA is subject to equitable modification. Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir. March 1981) (en banc). See Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982).
The standard for equitable modification in this case is governed by Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir.1975). Equitable modification suspends a limitations period "until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights." Id. at 930. While Reeb is a Title VII case, the equitable modification standard applies to ADEA actions. See Coke, 640 F.2d at 587. See generally B. Schlei & P. Grossman, Employment Discrimination Law 491 (2d ed. 1983) (courts in ADEA cases look to Title VII precedent concerning equitable extension).
Equitable tolling is a type of equitable modification, which "often focuses on the plaintiff's excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant." Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.1981). Summary judgment is often inappropriate when tolling is at issue in an ADEA action. Aronsen v. Crown Zellerbach, 662 F.2d 584, 595 (9th Cir.1981), cert. denied, 459 U.S. 1200, 103 S.Ct. 1183, 75 L.Ed.2d 431 (1983). See also Ott v. Midland-Ross Corp., 600 F.2d 24, 30-31 (6th Cir.1979); Naton, 649 F.2d at 701 n. 8.
Applying these principles, the Court holds that while the employer is actively trying to find a position within the company for the employee, the 180-day filing period of section 626(d)(1) is equitably tolled until such time as it is or should be apparent to an employee with a reasonably prudent regard for his rights that the employer has ceased to actively pursue such a position. This Court's application of equitable tolling to the situation here is in harmony with the ADEA's purpose of facilitating informal conciliation. See 29 U.S.C.A. § 626(d). See also 45A Am.Jr.2d Job Discrimination § 1372 (1986) (extent to which the limitations period's purpose has been satisfied is a factor in determining the appropriateness of tolling).
The Court has previously held in Kazanzas v. Walt Disney World Co., 704 F.2d 1527 (11th Cir.), cert. denied, 464 U.S. 982, 104 S.Ct. 425, 78 L.Ed.2d 360 (1983), that an employer's attempt to mitigate the harshness of a decision terminating an employee by pursuing employment within the company does not rise to equitable estoppel absent employer fraud or misrepresentation. Id. at 1531-33. See generally B. Schlei & P. Grossman, Employment Discrimination Law 85-86 (2d ed. Supp.1983-84) (courts evince a reluctance to toll the filing period absent misconduct or bad faith attributable to the defendant). Unlike Kazanzas, however, equitable tolling does not require employer misconduct. See Reeb, 516 F.2d at 930. Rather, equitable tolling focuses on the employee with a reasonably prudent regard for his rights. Id.
It is too much for the law to expect an employee to sue his employer for age discrimination at the same time he is led to
For the foregoing reasons, we vacate the judgment of the district court and remand the case for further proceedings consistent with this opinion.
VACATED AND REMANDED.