X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The full case caption appears at the end of this opinion. Diane P. Wood, Circuit Judge. Carole Bailey andHelen Fulk worked for many years for theInternational Brotherhood of Boilermakers, IronShip Builders, Blacksmiths, Forgers and Helpers,Local 374 (“Local 374″ or “the International,” asappropriate). After they took sides in a uniondispute in 1987, Local 374′s business manager,Salvatore Carlino, eventually chased them fromtheir jobs in 1990. For years, they believed thatthey would be reinstated once Local 374 got itsown affairs in order, but in September 1996, theygave up hope and filed this suit, some nine yearsafter the initial incidents and six after thealleged constructive discharge. The districtcourt dismissed, finding that a two-year statuteof limitations barred the claims they arepursuing on this appeal. Assuming that mattersdeveloped as they have portrayed them, wecertainly do not condone everything thathappened, but we agree with the district courtthat these claims are time-barred, and wetherefore affirm its judgment. I Bailey began working for Local 374 in 1983, andFulk started her work there in 1971. At all timesrelevant to this case, Bailey worked as asecretary and Fulk as a phone operator andrecords clerk. In December 1987, Local 374 becameinvolved in a labor arbitration proceeding withthe union that represented its office andsecretarial staff (the Office and ProfessionalEmployees International Union, or OPEIU, Local28). After Bailey testified unfavorably to Local374 during that proceeding, Carlino beganharassing her. He refused to speak to her evenwhen she needed job instructions, he took awayher major responsibilities as office secretary,he commented that the office would be better offwithout her, and finally, in April 1988, heterminated her. Upon her complaint, the NationalLabor Relations Board (“NLRB”) decided in 1989that this termination was based on Bailey’s unionactivity and was therefore unlawful, and itordered her reinstated to a substantiallyequivalent position. After Bailey was reinstated,Carlino continued to make life miserable for her.For example, he limited her assignments to menialtasks, denied her access to certain areas of theoffice, refused to give her an office key, forcedher to ask permission to use the washroom, andmonitored her telephone calls. Helen Fulk had testified on Bailey’s behalfduring the 1989 NLRB proceedings. For herefforts, she was rewarded with similar treatmentfrom Carlino. He refused to speak to her, heassigned her photocopying tasks, he denied her anoffice key, he disconnected her telephone withoutany stated reason, and he systematically reducedher work assignments. After a year or so of thishostile treatment, Bailey and Fulk eachcapitulated and resigned in 1990, regardingthemselves as constructively discharged. The reason they now have a problem is that theydid not immediately file a lawsuit. Theyrefrained from rushing into court because otherrepresentatives of both Local 374 and theInternational led them to believe that they wouldbe reinstated. Charles Vanover, a member of Local374 who hoped to succeed Carlino as its businessmanager and eventually did so in October 1995,repeatedly spoke to Bailey about bringing herback to work at Local 374. Most of the promisesVanover made pre-dated his election as businessmanager, but in January 1997, after heindisputably possessed the actual power to rehireBailey, he explained to her that Local 374′sparent organization and co-defendant here, theInternational, had ordered him not to reinstateher. For her part, Fulk alleges two promises ofrehire: one by Vanover when she retired from herjob at Local 374 in 1990, and another sometimelater (Fulk is uncertain of the date) by arepresentative of the International after shedrove to the Chicago area to give theInternational information about Carlino, whom theInternational had begun investigating. In 1996, shortly before it became clear thatneither woman would be rehired, Bailey and Fulkfiled suit against Local 374 and theInternational in Indiana state court. Theircomplaint alleged claims for breach of employmentcontract, fraudulent misrepresentation,intentional infliction of emotional distress, andwrongful termination. In October 1996, notingthat the employment contract at issue was acollective bargaining agreement, the defendantsremoved the case to federal district court, onthe theory that the state claims were preemptedby the Labor Management Relations Act, 29 U.S.C.sec. 185. On September 10, 1997, eight monthsafter Vanover had once and for all refused torehire Bailey, Bailey and Fulk amended theircomplaint to add claims for tortious interferencewith a business relationship and wrongful refusalto rehire. Local 374 and the International separately movedfor summary judgment a month later, and thedistrict court granted their motions on February2, 1998. Four of the six claims, it concluded,were each governed by a two-year statute oflimitations borrowed from Indiana law, I.C. sec.34-1-2-1.5. Because the claimed injuries occurredin 1990 but the suit was not filed until sixyears later, the claims were time-barred. Thecourt dismissed the remaining two claims afterfinding that the National Labor Relations Actpreempted them and they were subject to thejurisdiction of the NLRB. Bailey and Fulk do notcontest the latter findings. They appeal only theadverse finding on the four time-barred claims,arguing that principles of equitable estoppelshould apply to toll the statute of limitations. II On an appeal like this from a grant of summaryjudgment, we of course view the record and allreasonable inferences drawn from the record inthe light most favorable to Bailey and Fulk. Reidv. Norfolk & Western Ry. Co., 157 F.3d 1106, 1110(7th Cir. 1998). Reviewing the district court’sgrant of summary judgment de novo, Unterreiner v.Volkswagen of America, Inc., 8 F.3d 1206, 1209(7th Cir. 1993), we will uphold it only if thereis no disputed issue of material fact which wouldnecessitate a trial. See Fed. R. Civ. P. 56(c);Celotex Corp. v. Catrett, 477 U.S. 317, 322-23(1986). Local 374 and the International would like toblock Bailey’s and Fulk’s appeals at thethreshold, on the ground that they have waivedany argument that the statute of limitationsshould be tolled by failing to present it to thedistrict court. The record confirms that Baileyand Fulk did not present to the district court asdeveloped an equitable estoppel argument as theynow press on appeal. Their briefs in oppositionto the appellees’ motions for summary judgmentcontained only the assertion that the statute oflimitations should be tolled due to the”continuing wrongful acts” of the appellants, forwhich they cited Cooper v. United States, 442F.2d 908, 912 (7th Cir. 1971), as authority.Cooper itself only mentioned “continuing wrongfulacts” as an available tolling theory in passing,and Bailey and Fulk elaborated no further intheir briefs, leaving it to the district court tointuit just what “continuing wrongful conduct”meant in this context and how it might apply tothis case. Nevertheless, the district court choseto address the argument on the merits:
The only alleged wrongful conduct after Plaintiffsleft Local is Defendants’ refusal to rehirePlaintiffs. Alleging failure to rehire does nottoll a statute of limitations because to do sowould effectively nullify the statute oflimitations in an employee termination context.This was not the intent of the Indiana legislaturebecause “failure to rehire” and “discharge” arespecifically included in Indiana Code section 34-1-2-1.5.

Even though it is well settled that argumentspresented for the first time on appeal arewaived, e.g., Robyns v. Reliance Standard LifeIns. Co., 130 F.3d 1231, 1238 (7th Cir. 1997),the question here is whether that rule fits thesecircumstances. In our view, it does not. In thiscase, we have the somewhat different situation inwhich a party has presented a skeletal argumentbelow, which the district court recognized andaddressed, and which the party has now fleshedout and emphasized on appeal. In this gray zone,it is helpful to consider why we have the waiverrule to begin with. One reason is to be certainthat the trial court has had the firstopportunity to pass on the appellant’s theory andavoid error. United States v. Payne, 102 F.3d289, 293 (7th Cir. 1996); In re Perez, 30 F.3d1209, 1213 (9th Cir. 1994). Another is to avoidusurping the trial court’s proper role byrefusing to consider issues for the first time onappeal that require the factfinding abilities ofthe district judge. See United States v. Andreas,150 F.3d 766, 769-70 (7th Cir. 1998) (percuriam); In re Newman, 903 F.2d 1150, 1151 n.1(7th Cir. 1990). Finally, proper presentation tothe trial court helps ensure that we have anadequate record to review on appeal. See Murphyv. Keystone Steel & Wire Co., 61 F.3d 560, 568n.4 (7th Cir. 1995); Perez, 30 F.3d at 1213. These considerations convince us that the waiverrule does not bar us from reaching the merits ofthis case. Although Bailey and Fulk presented theissue inartfully to the trial court, we know fromits opinion that the court indeed considered thequestion whether Local 374′s alleged failure torehire them should toll the statute oflimitations. Moreover, this question can beanswered without resort to the specialfactfinding competence of the trial court.Finally, there is nothing undeveloped in therecord that will be central to the issue beforeus. We therefore turn our attention to the meritsof the appeal. Bailey and Fulk urge that the two-year statuteof limitations of sec. 34-1-2-1.5, which theyagree is applicable to their sec. 301 claims,should not apply strictly because Vanover’s andthe International’s ultimately unfulfilledpromises of returning them to their jobs at Local374 dissuaded them from filing suit in a timelyfashion. To toll the statute of limitations,Bailey and Fulk seek to invoke the doctrine ofequitable estoppel. This doctrine, as its nameimplies, springs from basic considerations offairness, Fields v. General Motors Corp., 121F.3d 271, 275 (7th Cir. 1997), and “comes intoplay if the defendant takes active steps toprevent the plaintiff from suing in time, as by[falsely] promising not to plead the statute oflimitations.” Cada v. Baxter Healthcare Corp.,920 F.2d 446, 450-51 (7th Cir. 1990); see alsoHentosh v. Herman M. Finch Univ. of HealthSciences, 1999 WL 60393, at *3 (7th Cir. Feb. 9,1999); Speer v. Rand McNally & Co., 123 F.3d 658,663 (7th Cir. 1997). In such a case, thedefendant’s ruse postpones the date at which acourt will consider the injury to have accrued;the statute of limitations only begins to runonce the defendant’s wrongful actions to inducea filing delay have ceased. Cada, 920 F.2d at451. Accordingly, if equitable estoppel were toapply here, the statute of limitations might havebegun to run as late as January 1997, whenVanover informed Bailey that he would not rehireher after all. Of course, this would be fourmonths after Bailey and Fulk filed suit, astrange time for a statute of limitations tobegin to run. Bailey and Fulk cannot invoke equitable estoppelhere for a more fundamental reason. Even takingthe facts as favorably to them as we can, nothingin this record suggests that either Local 374 orthe International ever intended their promises(generously assuming for the sake of argumentthat Vanover’s promises can be attributed toLocal 374 even before he became its businessmanager) to induce the two women to refrain fromfiling their complaint. As we have explained:

[A] company’s attempt to rehire an employee onlyimplies equitable estoppel when the attemptconstitutes an effort to prevent the plaintifffrom suing in time. The attempt to rehire,standing alone, does not create the inferencethat the company was trying to prevent the filingof a lawsuit. To raise this inference, aplaintiff must show something more–for instance,an offer to rehire coupled with a request not tofile suit.

Unterreiner, 8 F.3d at 1212. Bailey and Fulk havenot produced the crucial “something more” fromwhich a trier of fact could infer a request notto file suit. Certainly neither plaintiff hasindicated that any of the alleged promises ofreinstatement were accompanied by a request fora release of liability or even a more informalcommitment to drop any possible litigationarising out of the events of 1987-1990. In fact,as we hinted above, the timing of events tells adifferent story. Remember that Bailey and Fulkfiled suit four months before Vanover made clearthat Bailey, at least, would not be rehired. Thisshows that they were not ultimately dissuadedfrom legal action by Vanover’s promises ofrehire, because those promises were stilloutstanding at the time they filed suit. We alsofail to see why Local 374 and the Internationalwould not have abandoned their conspiracy tostring Bailey and Fulk along, had there been sucha conspiracy, in 1992 once the statute oflimitations had run. If the promises of rehirewere just a ruse keyed to the statute oflimitations, it is difficult to understand whythey continued into 1997. Indeed, if there is “something more” here thanLocal 374′s unfulfilled promises to rehire, it isBailey’s and Fulk’s own hopes for a return towork without a lawsuit. They argue, with sometruth, that a refusal to find equitable estoppelin these circumstances creates an incentive forpeople to dash into court at the first hint oftrouble, rather than seeking to resolve problemsconsensually. But that point, taken to itslogical extreme, would eviscerate statutes oflimitations, which also serve an importantpurpose of placing an outer limit on legalexposure. Normally, it is the legislature thatdraws the balance between a plaintiff’s interestin enough time to work out problems withoutlitigation and the potential defendant’s need forclosure. Only in narrow circumstances, such aswhen the requirements for equitable estoppel aresatisfied, is that balance redrawn in particularcases. See Wheeldon v. Monon Corp., 946 F.2d 533,537 (7th Cir. 1991) (“[The] granting of equitableestoppel should be premised on a defendant’simproper conduct as well as a plaintiff’s actualand reasonable reliance thereon.”). BecauseBailey and Fulk have offered no evidence thatLocal 374 and the International engaged inconduct that was intended to induce them to delayfiling suit, they are not entitled to invokeequitable estoppel of the statute of limitations,and their claims are time-barred. Accordingly, we Affirm the district court’s grantof summary judgment for Local 374 and theInternational.


Carole Bailey and Helen Fulk v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers,Local 374, and International Brotherhood of Boilermakers No. 98-1497 United States Court of Appeals for the Seventh Circuit Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:96-CV-530-RL-2–Rudy Lozano, Judge. Argued September 24, 1998–Decided April 23, 1999 Before Cummings, Bauer, and Diane P. Wood, Circuit Judges.
 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

GlobeSt. Healthcare Real Estate 2022

December 06, 2022 - December 07, 2022
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More

GlobeSt. INDUSTRIAL 2022

December 08, 2022 - December 09, 2022
Scottsdale, AZ

This conference brings together the industry's most influential & knowledgeable industrial real estate executives


Learn More

Global Leaders in Consulting (GLC) 2023

February 16, 2023
London

The Global Leaders in Consulting awards are for those who are making a big impression within the industry, but also worldwide.


Learn More

CORPORATE ATTORNEYS - REMOTE, CT


Shipman is seeking two attorneys, one with 4-6 years of experience and one with 8+ years of experience, to join our corporate and transactio...


Apply Now ›

COMMERCIAL FINANCE ATTORNEY - CT OFFICES; REMOTE will be considered


We are seeking an attorney to join our commercial finance practice in either our Stamford, Hartford or New Haven offices. Candidates should ...


Apply Now ›

Education Law Associate- Connecticut


Berchem Moses PC, a prominent Connecticut law firm with offices in Milford and Westport, is actively recruiting candidates for the following...


Apply Now ›

ANAPOL WIESS

11/22/2022
TLI Web

ANAPOL WEISS IS PLEASED TO ANNOUNCE THAT ATTORNEY JORDAN SOLARZ HAS JOINED THE FIRM


View Announcement ›

ANAPOL WIESS

11/21/2022
TLI Web

ANAPOL WEISS PROUDLY ANNOUNCES THE APPOINTMENT OF KILA BALDWIN AS AN EQUITY SHAREHOLDER


View Announcement ›

LAWYERS OF DISTINCTION

11/18/2022
NLJ Web

Lawyers of Distinction would like to announce...


View Announcement ›