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HESSON v. FIREMAN'S FUND INS. CO.

September 6, 1995

FRANCES HESSON, Plaintiff, -vs- FIREMAN'S FUND INSURANCE COMPANY, CORRINE GIBSON, Defendants.


The opinion of the court was delivered by: JOHN T. CURTIN

 CURTIN, District Judge

 Plaintiff Frances Hesson filed suit against her former employer and supervisor, Fireman's Fund Insurance Company and Corrine Gibson, respectively, for violations of the Age Discrimination in Employment Act of 1967 (ADEA) as amended (29 U.S.C. § 621 et seq.), Title VII race and sex discrimination (42 U.S.C. § 2000e-2(a)(1)), and conspiracy (42 U.S.C. § 1985(3)). Defendant moves to dismiss all claims as barred by the applicable statute of limitations. Item 9. Plaintiff concedes that the statutes of limitations have run on all claims except the ADEA and conspiracy claims. In response, defendant argues that even if plaintiffs ADEA claim is covered under the old three-year statute of limitations for willful claims, plaintiff has neither alleged nor demonstrated willfulness. Item 9. Defendant further states that plaintiffs claim of conspiracy must be dismissed because a Title VII right cannot be the basis for a cause of action under 42 U.S.C. § 1985(3).

 BACKGROUND

 Ms. Hesson worked at Fireman's, primarily as a receptionist, from 1974 until she felt compelled to quit on October 31, 1991. Plaintiff was 56 years old when she left Fireman's Fund. Plaintiff alleges that she was harassed at work beginning in 1987. The harassment allegedly intensified until she felt compelled to quit on October 31, 1991. Item 13, Exhibit A, p. 1; Item 12, p. 2. The allegedly discriminatory actions consisted principally of name-calling, Item 13, Exhibit A, p. 1; the use of "substandard English" expressions such as "yassum" and "yo" "that mocked illiterate Blacks' way of speaking," Item 13, Exhibit A, p. 5; criticism of plaintiffs age and race, Item 13, Exhibit A, p. 1; disparate treatment of caucasian co-workers by a supervisor, Item 13, Exhibit A, pp. 2, 3, 4; and a number of harassing activities such as causing all the phone lines at plaintiffs work station to ring simultaneously and then reprimanding plaintiff when she could not answer them all. Item 13, Exhibit A, p. 4. In addition, plaintiff claims she was intentionally exposed to toxic paint fumes. Item 13, Exhibit A, p. 3.

 Because of the stress she experienced at work, Ms. Hesson was under a physician's care from May 25, 1991, until December 27, 1991. Item 8, Exhibit A, p. 1. She also consulted a psychiatrist and was required to take an extended disability leave of absence. Item 8, Exhibit A, pp. 2, 4.

 Plaintiff filed a complaint with the EEOC and subsequently received a Notice of Right to Sue letter from the EEOC on or about August 12, 1993. Item 9, p. 2. Plaintiff filed the instant action on November 23, 1993. Item 12, p. 2.

 Defendants moved for summary judgment on August 4, 1994, stating that plaintiff missed the 90-day statute of limitations established pursuant to Title VII (42 U.S.C. § 2000e-5(f)(1)), and the Age Discrimination in Employment Act (29 U.S.C. § 626(e)).

 Plaintiff filed an affirmation in opposition to defendant's motion for summary judgment on September 6, 1994, alleging that she wasn't properly notified that the 90-day statute of limitations applied to her claim because her Notice of Right to Sue from the EEOC, received on or about August 12, 1993, said:

 
While Title VII and the ADA require EEOC to issue this notice of right to sue before you can bring a lawsuit, you may sue under the Age Discrimination in Employment Act (ADEA) any time 60 days after your charge was filed until 90 days after you receive notice that EEOC has completed action on your charge. (and for any violations alleged to have occurred before the November 21, 1991 effective date of the 1991 Civil Rights Act, any suit should be brought within 2 years of the alleged violation (3 years for willful violations) in order to assure the right to sue.)

 Item 12, Exhibit A.

 This was the only notice plaintiff received from the EEOC. Item 8, Exhibit E, p. 1.

 The ADEA was amended effective November 21, 1991. Prior to that date, the ADEA allowed a two-year statute of limitations for violations, and three years if the violation was willful. As amended, the ADEA allows plaintiffs 90 days after receipt of Notice of Right to Sue from the EEOC. 29 U.S.C. § 626(e). The violations plaintiff alleges occurred prior to the 1991 amendment, but plaintiff filed her EEOC complaint after enactment of the amendment.

 Ms. Hesson requests that the 90-day limitation period be subject to equitable tolling because of the plain ...


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