Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Civ. No. 82-0667.
Seitz and Higginbotham, Circuit Judges, and Giles, District Judge.*fn*
This is a consolidated appeal from an order of the district court entering judgment in favor of the defendants in this action brought pursuant to the Age Discrimination and Employment Act ("ADEA"), 29 U.S.C. ) 621 et seq. (1982). Jurisdiction for this appeal exists under 28 U.S.C. § 1291 (1982).
Plaintiffs are four former employees of the defendant Follmer Trucking Company ("Follmer"). On July 19, 1980, Follmer closed the Hummels' Wharf terminal where plaintiffs worked. Under a Change of Operations plan, a select number of Hummels' Wharf employees were permitted to transfer to Follmer's Harrisburg and Wilkes-Barre terminals. The remaining Hummels' Wharf employees, including plaintiffs, were placed on layoff status. The laid-off employees were eligible for temporary work at the remaining terminals but were required under the Change of Operations to forfeit their prior seniority. Plaintiffs Byers and Schell received casual work assignments at the Harrisburg terminal through the early part of October 1980. Plaintiff Kline continued to work for Follmer on a temporary basis until August of 1981.
On March 15, 1982, plaintiffs filed age discrimination charges with the Equal Employment Opportunity Commission (the "EEOC") against Follmer, North Penn Transfer, Incorporated ("North Penn") and Local 776 of the International Brotherhood of Teamsters ("Local 776"), the union representing the Harrisburg employees Plaintiffs alleged that defendants' Change of Operations plan discriminated against them on the basis of their age because it deprived them of their prior seniority causing plaintiffs to be treated less favorably than younger employers who were on layoff status at the remaining Follmer terminals. Plaintiffs also raised a claim of unlawful retaliation, contending that they had been terminated because of their continued opposition to the loss of their seniority.
Proceedings commenced in the district court in May of 1982. Defendants moved for summary judgment, arguing that plaintiffs had failed to make out a prima facie case of age discrimination and that their claims were time-barred. The district court denied the motion, but agreed to hold a limited evidentiary hearing on the timeliness issue. Plaintiffs, conceding that all of their claims except Kline's retaliation charge had not been timely filed, maintained that the 300-day filing period should be equitably tolled because the defendants had failed to post notices informing employees of their rights under the ADEA. The posting of such notices is required under 29 U.S.C. § 627.
The court ruled against plaintiffs on the tolling issue and entered judgment in favor of the defendants. This appeal followed. Defendants Follmer and North Penn cross-appeal, contending that they were entitled to judgment as a matter of law on the merits of plaintiffs' claims.
Plaintiffs have the burden of establishing the facts necessary to justify equitable tolling. See Swietlowich v. County of Bucks, 610 F.2d 1157, 1162 (3d Cir. 1979). The district court held that they had not satisfied this burden and further found that the required notices had been properly posted during the relevant period in both th Hummels' Wharf and Harrisburg terminals.
Plaintiffs assert two bases for attacking the district court's finding of fact. First, they argue that the district court erred in finding that a notice had been posted at the Hummels' Wharf terminal. Second, they contend that the district court's findings with respect to the Harrisburg terminal are inadequate because the court failed to find that the required notice had been conspicuously posted. To succeed on ...