Ralph A. NIELSEN, Plaintiff-Appellant, v. W. Elec. Co., INC., Defendant-Appellee, 603 F.2d 741 (8th Cir. 1979). · Go Syfert
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Ralph A. NIELSEN, Plaintiff-Appellant, v. W. Elec. Co., INC., Defendant-Appellee, 603 F.2d 741 (8th Cir. 1979). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 1979 · …the district court correctly concluded that the notice requirement is not jurisdictional but is similar to a statute of limitations and therefore subject to equitable tolling ✓
61 citation events (4 in the last 25 years) across 26 distinct courts.
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
examined Cited as authority (quoted) Melvin LARSON, Appellant, v. AMERICAN WHEEL AND BRAKE, INC., Appellee (2×)
8th Cir. · 1979 · quote attribution · 2 verbatim quotes · confidence low
the district court correctly concluded that the notice requirement is not jurisdictional but is similar to a statute of limitations and therefore subject to equitable tolling
discussed Cited as authority (rule) Florida International University Board of Trustees v. Florida National University, Inc.
11th Cir. · 2016 · confidence medium
Co., 603 F.2d 741, 743 (8th Cir. 1979) (declining to treat the district court's resolution as a summary judgment where "[t]he record reflected] that both parties treated the proceedings as a trial on the factual issues[,] ... [and pjlaintiff's counsel conceded at oral argument that he presented all available evidence in support of his position”); Starsky v. Williams, 512 F.2d 109, 112 (9th Cir. 1975) (concluding the district court properly resolved factual disputes without holding a trial where "the parties in fact agreed that all of the underlying material facts were those reflected by the …
cited Cited as authority (rule) Does v. Snyder
E.D. Mich. · 2015 · confidence medium
Co., 603 F.2d 741, 743 (8th Cir.1979); Starsky v. Williams, 512 F.2d 109, 112-13 (9th Cir.1975).
cited Cited as authority (rule) Cox v. Momar Inc. (In Re Affiliated Foods Southwest Inc.)
8th Cir. · 2014 · confidence medium
Co., 603 F.2d 741, 743 (8th Cir.1979).
cited Cited as authority (rule) Rafter Seven Ranches L.P. v. WNL Investments, L.L.C. (In Re Rafter Seven Ranches L.P.)
10th Cir. BAP · 2009 · confidence medium
Co., Inc., 603 F.2d 741, 743 (8th Cir.1979) (treating proceedings below as a trial on disputed issues even though cast in the form of a motion for summary judgment). 68 .
discussed Cited as authority (rule) Garcia-Ayala v. Lederle Parentals
1st Cir. · 2000 · confidence medium
Co., 603 F.2d 741, 743 (8th Cir. 1979); Vetter v. Frosch, 599 F.2d 630, 632-33 (5th Cir. 1979); U.S. Manganese Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 576 F.2d 153, 156 (8th Cir. 1978); United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606-07 (9th Cir. 1978) (per curiam); United States v. Articles of Device Consisting of Three Devices . . .
discussed Cited as authority (rule) Zenaida Garc A-Ayala v. Lederle Parenterals, Inc. (2×)
1st Cir. · 2000 · confidence medium
Co., 603 F.2d 741, 743 (8th Cir. 1979); Vetter v. Frosch, 599 F.2d 630, 632-33 (5th Cir. 1979); U.S. Manganese Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 576 F.2d 153, 156 (8th Cir. 1978); United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606-07 (9th Cir. 1978) (per curiam); United States v. Articles of Device Consisting of Three Devices . . .
cited Cited as authority (rule) McKenzie v. Lunds, Inc.
D. Minnesota · 1999 · confidence medium
Co., Inc., 603 F.2d 741, 743 (8th Cir.1979)); Walker v. St.
discussed Cited as authority (rule) Acuff-Rose Music, Inc. v. Jostens, Inc.
2d Cir. · 1998 · confidence medium
Co., 603 F.2d 741, 743 (8th Cir.1979); Star-sky v. Williams, 512 F.2d 109, 112-13 (9th Cir.1975); see also William W Schwarzer et al., The Analysis and Decision of Summary Judgment Motions 39-40 (1991) (“A court may determine that a full 'trial would add nothing to the paper record and, after proper notice, decide a case on that record, making a decision on a ‘trial without witnesses’ rather than on summary judgment.”).
cited Cited as authority (rule) Mummelthie v. City of Mason City, Iowa
N.D. Iowa · 1995 · confidence medium
Co., Inc., 603 F.2d 741, 743 (8th Cir. 1979)); Walker, 881 F.2d at 557 (quoting the above from Kriegesmann).
cited Cited as authority (rule) Tokley v. State Farm Insurance Companies
D.S.D. · 1992 · confidence medium
Co., 603 F.2d 741, 743 (8th Cir.1979).
discussed Cited as authority (rule) Glass v. IDS Financial Services, Inc.
D. Minnesota · 1991 · confidence medium
Co., Inc., 603 F.2d 741, 744 (8th Cir.1979) (no tolling because plaintiff was well educated, had supervisory position, had attended educational seminars, meetings and lectures and was generally familiar with the ADEA); Fressell v. AT & T Technologies, Inc., 35 Fair Empl.Prac.Cas.
discussed Cited as authority (rule) Market Street Associates Limited Partnership and William Orenstein v. Dale Frey
7th Cir. · 1991 · confidence medium
May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1115-16 (7th Cir.1986); Lac Courte Oreilles Band v. Voigt, 700 F.2d 341 , 349 (7th Cir.1983); Nielsen v. Western Electric Co., 603 F.2d 741, 743 (8th Cir.1979); Starsky v. Williams, 512 F.2d 109, 112-13 (9th Cir.1975).
cited Cited as authority (rule) Leo HEIDEMAN and Shirley Heideman, Appellants, v. PFL, INC., Appellee
8th Cir. · 1990 · confidence medium
Co., 603 F.2d 741, 743 (8th Cir.1979).
discussed Cited as authority (rule) Carl Kale v. Combined Insurance Company of America, Carl Kale v. Combined Insurance Company of America
1st Cir. · 1988 · confidence medium
See Dillman v. Combustion Engineering Corp., 784 F.2d 57, 59 (2d Cir.1986); McClinton v. Alabama By-Products Corp., 743 F.2d 1483, 1485 (11th Cir.1984); Vance v. Whirlpool Corp., 716 F.2d 1010, 1012 (4th Cir.1983), cert. denied, 465 U.S. 1102 , 104 S.Ct. 1600 , 80 L.Ed.2d 130 (1984); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 594-95 (5th Cir.1981) (en banc); Nielsen v. Western Electric Co., Inc., 603 F.2d 741, 743 (8th Cir.1979); Naton v. Bank of California, 649 F.2d 691, 695-96 (9th Cir.1981); Wright v. State of Tennessee, 628 F.2d 949, 952-53 (6th Cir.1980) (en banc); Bonham v. D…
discussed Cited as authority (rule) Hoover v. Armco, Inc.
W.D. Mo. · 1988 · confidence medium
Plaintiff argues, however, that filing an untimely claim is not indicative of bad faith since the filing of a charge with the EEOC “is not jurisdictional but is similar to a statute of limitations and therefore subject to equitable tolling.” Nielsen v. Western Electric Co., Inc., 603 F.2d 741, 743 (8th Cir.1979).
cited Cited as authority (rule) James v. United States Postal Service
E.D. Mo. · 1987 · confidence medium
Co., 603 F.2d 741, 743 (8th Cir.1979).
discussed Cited as authority (rule) Alex John, Jr. v. State of Louisiana (Board of Trustees for State Colleges and Universities)
5th Cir. · 1985 · confidence medium
See, e.g., Vetter, 599 F.2d at 632-33 ; Nielsen v. Western Electric Co., 603 F.2d 741, 743 (8th Cir.1979) (“The record reflects that both parties treated the proceedings as a trial on the factual issues____ Plaintiff’s counsel conceded at oral argument that he presented all available evidence in support of his position.”); Starsky v. Williams, 512 F.2d at 112 ("the parties had in fact agreed that all of the underlying material facts were those reflected by the written record”); Allen v. United Mine Workers, 726 F.2d 352, 353 (7th Cir.1984) ("When, as in this case, the trial court with …
discussed Cited as authority (rule) Wilfred H. VANCE, Appellee, v. WHIRLPOOL CORPORATION, Appellant (2×)
4th Cir. · 1983 · confidence medium
See, e.g., Naton, 649 F.2d at 696 (9 Cir.1981); Coke, 640 F.2d at 595 (5 Cir.1981); Wright v. State of Tennessee, 628 F.2d 949, 953 (6 Cir.1980) (en banc); Nielsen v. Western Electric Company, Inc., 603 F.2d 741, 743 (8 Cir.1979); Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1289 (7 Cir.1978).
cited Cited as authority (rule) Mogley v. Chicago Title Ins. Co.
E.D. Mo. · 1983 · confidence medium
Nielsen v. Western Electric Co., Inc., 603 F.2d 741, 743 (8th Cir.1979).
discussed Cited as authority (rule) Mayor v. Western Elec. Co., Inc. (2×) also: Cited "see"
W.D. Mo. · 1980 · confidence medium
Although the Eighth Circuit noted in dicta that it has not yet decided the issue, Larson v. American Wheel & Brake, Inc., 610 F.2d 506 (8th Cir. 1979), it has stated that “the notice requirement is not jurisdictional but is similar to a statute of limitations and therefore subject to equitable tolling.” Nielsen v. Western Electric Company, 603 F.2d 741, 743 (8th Cir. 1979).
discussed Cited as authority (rule) Sanford v. O'Neill
3rd Cir. · 1980 · confidence medium
Cf. Carter v. Hewitt, 617 F.2d 961 at 965 n. 3 (3d Cir. 1980) (order granting “summary judgment” construed as final factual determination where the Magistrate expressly declared that a hearing would resolve disputed factual contentions and where all parties admitted their understanding that final determination was contemplated); Nielsen v. Western Electric Co., 603 F.2d 741, 743 (8th Cir. 1979) (“summary judgment” construed as final determination where district court and all parties treated hearing as full trial of factual issues and where all relevant evidence was presented).
discussed Cited as authority (rule) 35 Fair empl.prac.cas. 1523, 22 Empl. Prac. Dec. P 30,722 Lucy Sanford, Shirley Black, Mari Pritchard, Patricia Sullivan, Carolyn Carter, Brenda Williams and Ernestine McCullough v. Joseph F. O'neill, the Philadelphia Police Department, and the City of Philadelphia
3rd Cir. · 1980 · confidence medium
Cf. Carter v. Hewitt, 617 F.2d 961 at n. 3 (3d Cir. 1980) (order granting "summary judgment" construed as final factual determination where the Magistrate expressly declared that a hearing would resolve disputed factual contentions and where all parties admitted their understanding that final determination was contemplated); Nielsen v. Western Electric Co., 603 F.2d 741, 743 (8th Cir. 1979) ("summary judgment" construed as final determination where district court and all parties treated hearing as full trial of factual issues and where all relevant evidence was presented). 23 Thus, we must det…
discussed Cited as authority (rule) Reginald Carter v. Lowell D. Hewitt, Superintendent John Fuiek, C.O. Duane D. Pyles, C.O. And Gilbert Levi, C.O. (2×)
3rd Cir. · 1980 · confidence medium
Nielsen v. Western Electric Co., 603 F.2d 741, 743 (8th Cir. 1979). .
discussed Cited "see" Lac Courte Oreilles Band of Lake Superior Chippewa Indians, Plaintiffs- Cross-Appellees v. Lester P. Voigt, Cross-Appellants. United States of America, Plaintiff-Cross-Appellee v. State of Wisconsin, a Sovereign State, and Sawyer County, Wisconsin, Defendants-Cross-Appellants
7th Cir. · 1983 · signal: accord · confidence high
This of course amounts to a trial of the case and is not technically a disposition by a summary judgment.' " Id. at 200 (quoting 3 Barron & Holtzoff Sec. 1239); accord, Nielsen v. Western Electric Co., 603 F.2d 741, 743 (8th Cir.1979); Starsky v. Williams, 512 F.2d 109, 113 (9th Cir.1975); 10 C.
discussed Cited "see" LAC Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt
7th Cir. · 1983 · signal: accord · confidence high
This of course amounts to a trial of the case and is not technically a disposition by a summary judgment.’ ” Id. at 200 (quoting 3 Barron & Holtzoff § 1239); accord, Nielsen v. Western Electric Co., 603 F.2d 741, 743 (8th Cir.1979); Starsky v. Williams, 512 F.2d 109, 113 (9th Cir.1975); 10 C.
cited Cited "see" Joseph J. Hrzenak v. White-Westinghouse Appliance Co., a Division of White-Westinghouse Corporation
8th Cir. · 1982 · signal: see · confidence high
See Nielsen v. Western Electric Co., 603 F.2d 741 (8th Cir. 1979) (Nielsen).
discussed Cited "see" United States v. B & L SUPPLY CO.
N.D. Tex. · 1980 · signal: accord · confidence high
Accord, Nielsen v. Western Electric Co., 603 F.2d 741 (8th Cir. 1979); Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1288-89 (7th Cir. 1978); Gabriele v. Chrysler Corp., 573 F.2d 949 (6th Cir. 1978), vacated mem. on other grounds, 442 U.S. 908 , 99 S.Ct. 2819 , 61 L.Ed.2d 273 (1979); Bonham v. Dresser Industries, Inc., 569 F.2d 187, 192-93 (3d Cir.), cert. denied, 439 U.S. 821 , 99 S.Ct. 87 , 58 L.Ed.2d 113 (1978); Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976), aff'd per curiam by an equally divided court, 434 U.S. 99 , 98 S.Ct. 600 , 54 L.Ed.2d 270 (1977); Franci v. Avco Cor…
discussed Cited "see, e.g." Chambers v. European American Bank and Trust Co.
E.D.N.Y · 1985 · signal: see also · confidence medium
See also Nielsen v. Western Electric Co., 603 F.2d 741, 744 (8th Cir. 1979) (Because there were “sufficient facts in the record from which [a] trial court could conclude that plaintiff was generally aware of his cause of action at the time he was demoted,” it upheld the lower court’s refusal to toll the filing requirement.).
Retrieving the full opinion text from the archive…
20 Fair empl.prac.cas. 1003, 20 Empl. Prac. Dec. P 30,219 Ralph A. Nielsen
v.
Western Electric Company, Inc.
78-1900.
Court of Appeals for the Eighth Circuit.
Aug 24, 1979.
603 F.2d 741
Thomas G. Kokoruda, Shughart, Thomson & Kilroy, Kansas City, Mo. (argued), R. Lawrence Ward and George A. Barton, Kansas City, Mo., on brief, for plaintiff-appellant., Sandra L. Schermerhorn, Spencer, Fane, Britt & Browne, Kansas City, Mo., (argued), and Jack L. Whitacre, Kansas City, Mo., on brief, for defendant-appellee.
Lay, Heaney, Devitt.
Cited by 53 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 88%
Citer courts: Eighth Circuit (2)
DEVITT, Chief District Judge.

Plaintiff appeals from the district court’s entry of summary judgment finding his claim of discriminatory demotion in employment on account of age to be barred by failure to file a notice of intent to sue within the statutorily required 180 day period and from its ruling that neither damages for pain and suffering nor punitive damages are recoverable under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. We affirm.

Plaintiff started employment at Western Electric on January 7, 1957 as a planning engineer and worked up to department chief. He was demoted on August 15,1975 to senior engineer, Quality Control, and was thereafter, on several occasions, denied voluntary layoff status. [1] He filed notice of intent to sue with the Secretary of Labor on August 31, 1976, more than one year after his demotion. The statute, 29 U.S.C. § 626(d)(1), requires the notice to be filed within 180 days. [2]

Plaintiff alleged that his demotion and inability to obtain voluntary layoff status were part of a continuing pattern of discrimination and therefore the 180 day notice period did not begin to run until August 2,1976, the time when Nielsen was last denied voluntary layoff status. [3] Alternatively, plaintiff alleged that equitable considerations justify the tolling of the notice period until August 2, 1976. Plaintiff prayed for actual and liquidated-damages as well as punitive damages for pain and suffering.

Defendant moved for summary judgment or, alternately, to strike or dismiss those portions of the complaint based on Nielsen’s demotion, claiming such was barred because Nielsen failed to timely file his notice of intent. to sue. Defendant also moved to[*743] strike claims for pain and suffering and punitive damages on grounds that such damages are not recoverable under the Act.

The district court treated plaintiff’s claims based on his demotion and the company’s refusal to grant him voluntary layoff status as separate claims. After a full trial-type evidentiary hearing on whether the notice was timely filed, the district court granted Western Electric’s motion for summary judgment.

The district court also granted Western Electric’s motion to strike the claims for punitive damages and for pain and suffering on the grounds that such damages are not recoverable under the Act. [4] Nielsen’s remaining claim based on Western Electric’s refusal to grant voluntary layoff status was tried to a jury on November 13, 14 and 15, 1978. It returned a verdict for defendant. The judgment based on that verdict is not challenged on this appeal.

In ruling on Nielsen’s claim that equitable considerations require tolling the 180 day notice period, the district court correctly concluded that the notice requirement is not jurisdictional but is similar to a statute of limitations and therefore subject to equitable tolling. See, e. g., Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir. 1978); Reich v. Dow Badische Co., 575 F.2d 363 (2d Cir. 1978); Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir. 1978); Charlier v. S.C. Johnson & Son, Inc., 556 F.2d 761, 765 (5th Cir. 1977); Dartt v. Shell Oil Company, 539 F.2d 1256 (10th Cir. 1976), aff'd by an equally divided court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977).

While summary judgment under Rule 56 is intended for the disposition of legal issues where “there is no genuine issue as to any material fact,” and it would be improper to grant summary judgment where questions of fact exist on the issue of tolling the 180 day notice requirement, Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d. Cir. 1978), we do not view the proceeding below as one for summary judgment. The record reflects that both parties treated the proceeding as a trial on the factual issues underlying plaintiff’s claim for equitable tolling. [5] Plaintiff testified under oath and was subject to cross examination; objections were made and ruled on. Plaintiff’s counsel conceded at oral argument that he presented all available evidence in support of his position.

Since all the evidence on the issue of equitable tolling was presented and argued, we consider the district court proceeding to have been a hearing in the nature of a trial on that issue. There is no reason why parties cannot agree to try certain issues on the merits and if the parties have done so, we properly may treat such proceeding as a trial on those issues even though cast in the form of a motion for summary judgment. Starsky v. Williams, 512 F.2d 109 (9th Cir. 1975); Gillespie v. Norris, 231 F.2d 881 (9th Cir. 1956); Tripp v. May, 189 F.2d 198 (7th Cir. 1951).

Because we treat the lower court proceeding as a trial on the factual issues underlying Nielsen’s claim for equitable tolling, we are bound by the findings of the district court unless they are clearly erroneous. Fed R. Civ.P. 52(a); Layne-Minnesota p. r., Inc. v. Singer Co., 574 F.2d 429 (8th Cir. 1978).

The district court found that Nielsen “had sufficient facts in the fall of 1975 from which he could have determined that the company might be guilty of age discrimination.” (Briefs, Joint Appendix at p. 24.) The district court found that Nielsen’s failure to file was not due to the employer’s concealment, misrepresentation or failure to post adequate notice. Based on those findings, the district court concluded that Niel[*744] sen failed to establish adequate reason to toll the 180 day notice period. Id. at 25.

We conclude that the findings of the trial court are not clearly erroneous and that it properly applied the law. There are sufficient facts in the record from which the trial court could conclude that plaintiff was generally aware of his cause of action at the time he was demoted. Plaintiff is well educated (Joint Appendix at p. 54); he had attended educational seminars, lectures and meetings in employment discrimination laws including the ADEA; he had read and was generally familiar with the provision of the ADEA prior to his demotion. Id. at 73-74. Plaintiff also admitted on cross-examination that he reported to a man of his former rank, Id. at 55; that he had lost all his supervisory and administrative responsibilities, Id. at 56; that his new duties previously had been performed by a man below his former rank, Ibid; and that within two weeks after his demotion he knew and understood that he had been demoted. Id. at 57. He also admitted that in the fall of 1975 he knew that a number of the other department chiefs who had been demoted were over the age of 40. Id. 62. The district court’s findings are well supported by the record.

The judgment of the district court is AFFIRMED.

1

. Voluntary layoff was a program under which, prior to a forced reduction in personnel, employees were given the opportunity to leave, receiving a specified amount of pay as separation pay.

2

. Section 626(d) provides, inter alia, No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days notice of an intent to file such action. Such notice shall be filed—

(1) within one hundred and eighty days after the alleged unlawful practice occurred.
3

. This issue was not raised on appeal and is not addressed in this opinion.

4

. Since we affirm the district court’s ruling that Nielsen’s claim was barred by his failure to timely file a notice of intent to sue, we do not address the issue of what damages are recoverable under the Act.

5

. Indeed, Nielsen characterized the district court proceeding as an evidentiary hearing on the issues underlying his claim. (Appellant’s Brief at p. 5).