Virginia Fugate v. Dolgencorp LLC, et al
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Joel M. Flaum, Circuit Judge; Daniel A. Manion, Circuit Judge and Michael S. Kanne, Circuit Judge. [6548906-1] [6548906] [13-1681]
Case: 13-1681 NONPRECEDENTIAL DISPOSITION
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Filed: 01/30/2014
To be cited only in accordance with
Fed. R. App. P. 32.1
Pages: 8
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 23, 2014*
Decided January 30, 2014
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 13‐1681
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
VIRGINIA FUGATE,
Plaintiff–Appellant,
v.
No. 3:10‐CV‐344
DOLGENCORP, LLC, and
DOLLAR GENERAL CORPORATION,
Defendants–Appellees.
Rudy Lozano,
Judge.
O R D E R
Virginia Fugate worked at a Dollar General store in New Carlisle, Indiana. She
quit after four‐and‐a‐half years as manager and sued Dollar General Corporation (and a
subsidiary, which for simplicity we ignore) under the Age Discrimination in
Employment Act. See 29 U.S.C. § 623(a)(1). Fugate, who was 49 when she left her job,
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and record.
See FED. R. APP. P. 34(a)(2).
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alleged that she was constructively discharged because of her age. The district court
granted summary judgment for Dollar General on the ground that Fugate did not
timely submit her administrative charge of discrimination to the Equal Employment
Opportunity Commission. We affirm the judgment on the alternative ground that the
working conditions that led to Fugate’s resignation, though unpleasant, did not
constitute a constructive discharge.
We recount the facts in the light most favorable to Fugate. See Tradesman Int’l, Inc.
v. Black, 724 F.3d 1004, 1009 (7th Cir. 2013). Fugate was hired in 2001 to stock shelves at
the New Carlisle store and worked her way up to store manager in 2004. At the end of
Fugate’s first year in charge of the store, her district manager noted that sales at the
store had been “strong” but rated her overall performance as “standard.”
Then in the middle of 2006, Fugate’s store was assigned to a different district
manager, Maude Neely. She wrote Fugate’s annual performance reviews for 2006 and
2007; the reviews were mixed. For 2006, Neely gave Fugate a lower overall score than
the previous year—though still in the “standard” range—and a very low score for store
cleanliness. In the review for 2007, Neely rated Fugate’s overall performance as “good”
(equivalent to the “standard” score she had received the prior year), resulting in Fugate
receiving a 2.5% raise.
Neely, who was 33 when she began supervising Fugate, has not denied that she
made disparaging or offensive comments that Fugate reasonably understood to be age‐
related. One day, Fugate came to work without her dental bridge and Neely exclaimed,
“Oh my god, I can’t believe you forgot your teeth!” When discussing the store’s
organization with Fugate, Neely also said: “What’s the matter, is this work getting too
much for you? Is it too much for you to handle?” Neely made similar comments to
Fugate’s assistant manager, Charlene Wind, who was in her sixties. When Wind offered
to put up a sign in the window, Neely said, “Oh, you probably can’t get up on a ladder,
right?” Later, Neely again commented that Wind may not be able to climb a ladder and
twice made comments about Wind being incapable of heavy lifting. Once, when
another assistant store manager had forgotten something, Neely said to Wind: “Well,
you’d know how it is because you guys are the same age. You’d probably forget it too.”
Neely also told Fugate to discipline that assistant manager (who was in her sixties) “as
often as possible,” and eventually demoted that assistant manager to sales associate.
Every couple of weeks or so, Neely would inspect Fugate’s store and criticize the
store’s cleanliness and organization, usually in front of customers and Fugate’s
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subordinates. During visits, Neely also would complete a scorecard used by all Dollar
General district managers to assign the store one of four grades: “Outstanding,”
“Wow,” “How,” or “Help.” With the exception of one higher rating, Neely consistently
gave Fugate’s store a “How” grade, indicating that the store needed to be tidier and
cleaner. Neely also frequently criticized Fugate’s management skills, accusing her of not
keeping her employees accountable.
In April 2008, Neely not only rated Fugate’s store “How” but also issued a
disciplinary note to Fugate; the record does not indicate the consequences of receiving
such a writeup. Although Wind was not disciplined, she called the company’s hotline
and complained that Neely was harassing her and Fugate based on their age. In
response, the regional manager visited the store. He showed Fugate photographs that
Neely had sent him of a dirty store. Neely had told him that the pictures were of
Fugate’s store, but Fugate recognized that they were taken at a different store and told
the regional manager as much. He replied that he would discuss the incident with
Neely. He then inspected the store, noting several improvements from his last visit
years before and giving Fugate advice on how she could make further improvements.
Neely’s criticisms continued. On her next visit, she noticed some wax on the floor
and—in front of the other employees—made Fugate scrape it up. During an inspection
in November 2008, Neely threatened to issue another disciplinary note because one
section of an aisle was slightly disordered. Fugate walked out, and within hours Neely
replaced her with a manager who was in her thirties. That news prompted Wind to
walk out as well.
Fugate’s husband encouraged Fugate to file an age‐discrimination charge with
the EEOC, but she was reluctant to do so. In May 2009, the week before the 180‐day
deadline for filing an age‐discrimination charge in Indiana, see EEOC v. N. Gibson Sch.
Corp., 266 F.3d 607, 617 (7th Cir. 2001), overruled in part on unrelated grounds by EEOC v.
Waffle House, 534 U.S. 279 (2002); Daugherity v. Traylor Bros., Inc., 970 F.2d 348, 350 n.2
(7th Cir. 1992), Fugate’s husband called the South Bend Human Rights Commission,
which accepts ADEA charges under a work‐sharing agreement with the EEOC (Fugate
was reluctant to make the call herself). He inquired about the procedure for filing a
charge, and an investigator told him that Fugate and Wind might have a case but that
she would need to discuss the facts with them in more detail. The next day Fugate
called the same investigator and spoke to her for over an hour about the events leading
up to her resignation from Dollar General. Fugate was still hesitant to file a charge of
discrimination, but the investigator encouraged her to talk to Wind and then call back to
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make an appointment. Fugate spoke with Wind, and the two agreed to file charges.
Fugate then called the investigator on May 21, 2009—five days before the deadline—and
the investigator scheduled an appointment for Fugate and Wind on May 28, 2009.
Fugate and Wind signed formal charges at that appointment, which was 182 days after
Fugate had resigned. The EEOC investigated the charges but could not substantiate the
allegation of age discrimination.
Fugate (and Wind, who is not a party to this appeal) then hired counsel and sued
Dollar General for age discrimination, alleging that Neely constructively discharged her
based on her age by giving the store unwarranted negative ratings, submitting the false
photographs to the regional manager, making offensive comments, and disciplining
Fugate without cause.1 There is no evidence that the EEOC thought that Fugate’s
administrative charge was untimely, and Dollar General did not raise the 180‐day
statute of limitations as an affirmative defense in its answers to her initial complaint or
amended complaint. It was not until two years after Fugate had filed suit, when Dollar
General moved for summary judgment, that the company argued for the first time that
the EEOC charge was untimely because Fugate signed it 182 days after she quit her job.
1
In her complaint, Fugate also stated that Neely created a hostile work
environment, but it is unclear whether Fugate intended this to be a stand‐alone claim
(rather than a part of her claim of constructive discharge). We have assumed without
deciding that plaintiffs may bring a claim of a hostile work environment under the
ADEA. See Racicot v. Wal‐Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir. 2005); Bennington v.
Caterpillar, Inc., 275 F.3d 654, 660 (7th Cir. 2001). (Two circuits have explicitly held that
such claims may be brought. See Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 441 (5th Cir.
2011); Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996).) In this case,
however, no remedy would be available to Fugate for a hostile work environment:
Unlike Title VII, the ADEA permits damages only in the form of lost wages (past or
future), not compensatory damages for pain and suffering or emotional distress,
compare Barton v. Zimmer, Inc., 662 F.3d 448, 454–55 (7th Cir. 2011) (discussing ADEA
damages), and Franzoni v. Hartmarx Corp., 300 F.3d 767, 773–74 (7th Cir. 2002) (same),
with Williams v. Pharmacia, Inc., 137 F.3d 944, 952 (7th Cir. 1998) (discussing damages
under Title VII), and Fugate presented no evidence of lost wages apart from those
related to her claim of a constructive discharge. We therefore treat Fugate’s claim as one
of constructive discharge, just as the parties did at summary judgment (and do again on
appeal).
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At summary judgment Dollar General also maintained that Fugate had not
established age discrimination because, in the company’s view, she did not offer
evidence that Neely’s conduct was motivated by age and because the actions Fugate
complained of did not rise to the level of a constructive discharge. Fugate opposed the
motion, arguing that Neely’s criticisms, offensive comments, and poor reviews of her
performance effectively had compelled her to quit and established a discriminatory
motive. Fugate also contended that Dollar General had waived its statute‐of‐limitations
defense by not raising it earlier, and that, in any event, her charge was timely because
she had told her story to the investigator for the South Bend Human Rights
Commission before expiration of the 180‐day deadline. It was not her fault, Fugate
insisted, that the investigator had scheduled her appointment for two days after the
deadline without alerting her to the statute of limitations.
In granting Dollar General’s motion for summary judgment, the district court
first concluded that Dollar General had not waived its statute‐of‐limitations defense by
failing to raise it earlier because Fugate still was able to respond and was not unduly
prejudiced. Second, the judge concluded that Fugate’s administrative charge was
untimely and that the doctrine of equitable tolling did not apply because, the judge
reasoned, making an appointment with the Commission was not essential to submit a
charge of discrimination and Fugate never contended that she was “lulled or misled
into believing” that the deadline would be extended beyond 180 days. Because the
judge granted summary judgment on timeliness grounds, he did not consider the merits
of Fugate’s claim.
On appeal Fugate argues that her charge was timely because she filed it on May
21, 2009, when she telephoned the investigator and confirmed that she wanted to
proceed. Fugate cites 29 C.F.R. § 1626.7(b)(3), which states that a charge made orally or
by telephone and later reduced to writing is deemed filed with the EEOC on the date
the oral communication is made. She contends that the investigator should have filed
her charge on May 21—five days before the deadline—instead of scheduling an in‐
person appointment for the following week without mentioning the 180‐day deadline.
Dollar General not only leaves this argument unanswered, but in its brief goes so
far as to assert that “Fugate does not dispute that she failed to file a timely Charge of
Discrimination.” But Fugate does dispute the conclusion that her charge was untimely,
and her contention that she filed by phone is supported by the record. In a declaration
submitted to the district court, Fugate averred that a week before the 180‐day deadline
she had discussed her case with the investigator by phone for over an hour. Although
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she was hesitant to file at that time, the investigator should have mentioned the statute
of limitations because the EEOC’s regulations and compliance manual require
investigators to describe the filing deadline to potential charging parties. See 29 C.F.R.
§ 1626.7; 1 EEOC Compliance Manual § 2.4(d)(2) (2009). In any event, when Fugate
called a second time before the deadline, she had decided to file a charge. Charges of age
discrimination under the ADEA may be submitted by telephone. See 29 C.F.R. § 1626.5.
And the investigator could have recognized—indeed, presumably did recognize—that
the 180‐day deadline would expire in a few days and thus deemed Fugate’s charge to
have been made by phone. 1 EEOC Compliance Manual § 2.3(a) (“If a caller declines or
cannot visit EEOC to file or complete the filing of a charge/complaint, counsel the
person and take or complete the potential charge/complaint by phone.”). The Supreme
Court has endorsed the EEOC’s position that “if a filing is to be deemed a charge it
must be reasonably construed as a request for the agency to take remedial action to
protect the employee’s rights or otherwise settle a dispute between the employer and
the employee.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). And on this
record, a finder of fact could conclude that the investigator construed Fugate’s second
phone call as such a request.
Moreover, a plaintiff’s failure to file a timely charge with the EEOC is an
affirmative defense, so Dollar General had the burden of demonstrating the absence of a
genuine factual dispute about the timeliness of Fugate’s charge. See Laouini v. CLM
Freight Lines, Inc., 586 F.3d 473, 475 (7th Cir. 2009). Yet the company offered no evidence
that the EEOC believed Fugate’s charge to be untimely. In fact, the right‐to‐sue letter
issued by the EEOC evidences that the agency believed just the opposite, further
supporting Fugate’s argument.2 See Philbin v. Gen. Elec. Capital Auto Lease, Inc., 929 F.2d
321, 323–24 (7th Cir. 1991) (concluding that intake questionnaire and signed note that
plaintiff submitted to EEOC constituted a timely charge, relying partly on the fact that
the agency accepted documents and assigned a charge number to the claim). The letter
is a form document, and “charge was not timely filed” is listed as one of seven potential
reasons for dismissal. But the box next to “charge was not timely filed” is not checked;
2
Even if the EEOC had not treated Fugate’s charge as timely, her suit would not
necessarily have been barred. See Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1138
(7th Cir. 1994) (“[W]hile it is relevant that the EEOC treated the questionnaire as a
charge, we have also held that inaction by the EEOC should not, for time limit
purposes, bar an ADEA suit.” (citing Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 542–44
(7th Cir. 1988))); see also Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1321 (11th Cir. 2001).
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rather, the letter indicates that the charge was dismissed because the EEOC lacked
sufficient evidence to confirm a violation of the statute.
Although not addressed by the district court, we believe it is possible that the
investigator’s actions in this case led Fugate “to believe that she had done everything
required of her.” See Prince v. Stewart, 580 F.3d 571, 574–75 (7th Cir. 2009) (concluding
that equitable tolling applied where district court granted pro se litigant’s motion to
reopen and thus “lulled him into thinking he didn’t have to refile his complaint”); Early
v. Bankers Life & Cas. Co., 959 F.2d 75, 80–81 (7th Cir. 1992) (concluding that equitable
tolling applied when EEOC told plaintiff he had completed all necessary paperwork for
charge when he had only completed intake questionnaire). But in the end, because there
is a clearer path to support the outcome arrived at by the district court, we need not
decide whether Fugate’s charge was untimely. It is well established that we may affirm
a grant of summary judgment on any ground that is preserved and supported by the
record. See Hester v. Ind. State Dep’t of Health, 726 F.3d 942, 946 (7th Cir. 2013); Jajeh v.
Cnty. of Cook, 678 F.3d 560, 568 (7th Cir. 2012). Because we are persuaded by Dollar
General’s argument (made at summary judgment and on appeal) that the conduct
Fugate complained of—negative performance reviews, constant and perhaps unfair
criticisms, manufactured evidence (the photographs) of an unclean store, and offensive
comments—does not establish a constructive discharge.
For Fugate to establish a constructive discharge, she needed proof that because of
her age she was subjected to working conditions “so intolerable that a reasonable
person would have been compelled to resign.” Bennington v. Caterpillar, Inc., 275 F.3d
654, 660 (7th Cir. 2001). Her claim of a constructive discharge could survive summary
judgment only if Fugate presented evidence of working conditions even more egregious
than those required to establish a hostile work environment. Chapin v. Fort‐Rohr Motors,
Inc., 621 F.3d 673, 679 (7th Cir. 2010). Fugate’s evidence would permit a jury reasonably
to find that Neely’s conduct was unprofessional, boorish, and age‐based at least in part.
But the working conditions created by Neely, though unpleasant, do not meet the
extremely high standard for a constructive discharge. Compare Pa. State Police v. Suders,
542 U.S. 129, 135–36, 152 (2004) (concluding that plaintiff’s claim survived summary
judgment where her supervisors constantly made obscene sexual comments and
gestures, one supervisor pounded on furniture to intimidate her, and supervisors
devised and executed a plan to have her arrested for theft), Porter v. Erie Foods Int’l, Inc.,
576 F.3d 629, 640 (7th Cir. 2009) (concluding that evidence that African‐American
plaintiff’s co‐workers repeatedly displayed noose and threatened violence qualifies as
“egregious for purposes of constructive discharge”), and Taylor v. W. & S. Life Ins. Co.,
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966 F.2d 1188, 1190–91, 1199 (7th Cir. 1992) (concluding that considerable evidence
supported district court’s finding of constructive discharge where plaintiff’s boss
constantly made racist comments, brandished gun, took photograph of himself holding
gun to plaintiff’s head, and passed that photo around office), with Harriston v. Chi.
Tribune Co., 992 F.2d 697, 705 (7th Cir. 1993) (concluding that plaintiff was not
constructively discharged where she was excluded from office activities, unfairly
reprimanded, assigned undesirable sales territory, denied new accounts, barred from
supervising two white employees, and refused assistance from her boss).
At summary judgment, Fugate also presented an alternative constructive‐
discharge argument: that she quit because she reasonably believed that, had she not
resigned, she would have been fired immediately. See Chapin, 621 F.3d at 679
(describing this form of constructive discharge). But Fugate’s evidence does not support
this theory; she consistently testified that she quit because she could no longer take
Neely’s unfair criticisms, not because she believed that her job would be terminated.
We AFFIRM the judgment of the district court because the working conditions
that led to Fugate’s resignation did not constitute a constructive discharge.
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