Beckel, Stephanie v. Wal-Mart Associates ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 02-1208
STEPHANIE BECKEL,
Plaintiff-Appellant,
v.
WAL-MART ASSOCIATES, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00-CV-4196-DRH—David R. Herndon, Judge.
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ARGUED JULY 9, 2002—DECIDED AUGUST 29, 2002
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Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The plaintiff appeals from the
grant of summary judgment to her former employer, argu-
ing only that the defendant should have been equi-
tably estopped to plead the bar of the statute of limita-
tions to her Title VII suit for sexual harassment. The doc-
trine of equitable estoppel, when invoked as a defense
to the statute of limitations, requires the plaintiff to
show that the defendant took steps deliberately to pre-
vent the plaintiff from bringing a timely suit, whether by
concealing the existence of the plaintiff’s claim or by
promising not to plead the statute of limitations. Glus v.
2 No. 02-1208
Brooklyn Eastern District Terminal, 359 U.S. 231, 235 (1959);
Hedrich v. Board of Regents, 274 F.3d 1174, 1182 (7th Cir.
2001); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-52
(7th Cir. 1991); Smith-Haynie v. District of Columbia, 155 F.3d
575, 580-81 (D.C. Cir. 1998). Which shows, by the way, that
the doctrine is not, as argued by Wal-Mart’s lawyer, a
synonym for fraudulent concealment. A promise not to
plead the statute of limitations is a common basis for
equitable estoppel even if the promise, though later broken,
was honestly intended when made, so that there is no
element of fraud or concealment. Singletary v. Continental
Illinois Nat’l Bank & Trust Co., 9 F.3d 1236, 1241 (7th Cir.
1993); Cange v. Stotler & Co., 826 F.2d 581, 587 (7th Cir.
1987); cf. Kosakow v. New Rochelle Radiology Associates, 274
F.3d 706, 726 (2d Cir. 2001).
When the plaintiff, who worked as a loss-prevention
associate at a Wal-Mart distribution center, complained to
her superiors that her immediate supervisor was harassing
her sexually, the center’s general manager told her not
to discuss her allegations with anyone other than himself
and the center’s other management-level employees. She
understood this to mean that she could not hire a lawyer
or file a complaint with the EEOC without jeopardizing
her employment, and as a result she delayed filing her
complaint until she was fired (for what the company
claims were unrelated reasons). The consequence of the
delay was that the complaint was filed more than 300 days
after her claim of harassment accrued and so was untime-
ly; and the filing of a timely administrative complaint is
a prerequisite to suit. 42 U.S.C. § 2000e-5(e). She argues that
the implicit and effective threat to retaliate against her if
she took legal action should estop the company to plead
the statute of limitations.
If the employer merely orders the employee not to talk
to anyone except the employer’s managers about her al-
No. 02-1208 3
legation of sexual harassment, and she misunderstands
this to mean that talking to a lawyer or filing an admin-
istrative complaint or a lawsuit would be considered
employee misconduct and jeopardize her job, there is no
basis for finding equitable estoppel unless the employer
phrases the order in a way calculated to mislead a reason-
able person. See Teamsters & Employers Welfare Trust of
Illinois v. Gorman Bros. Ready Mix, 283 F.3d 877, 882-84 (7th
Cir. 2002); Mull v. Arco Durethene Plastics, Inc., 784 F.2d 284,
292 (7th Cir. 1986); Smith-Haynie v. District of Columbia,
supra, 155 F.3d at 581. For an employer has a right to take
steps to prevent an employee from spreading what may
be groundless rumors concerning improper conduct by
another employee. Kersting v. Wal-Mart Stores, Inc., 250 F.3d
1109, 1118 (7th Cir. 2001); Matima v. Celli, 228 F.3d 68, 79 (2d
Cir. 2000); Felty v. Graves-Humphreys Co., 785 F.2d 516, 519
(1986), aff’d after remand, 818 F.2d 1126 (4th Cir. 1987);
Enforcement Guidance: Vicarious Employer Liability for Unlaw-
ful Harassment by Supervisors (EEOC June 18, 1999), EEOC
Compliance Manual (CCH) § 615, ¶ 3116, p. 3257.
We have described the threat of retaliation as implicit
but the plaintiff also claims that at the same meeting
the general manager told her, in the words of her affidavit,
“that my employment would be terminated if I disclosed
the incident to anyone other than management.” This al-
legation, however, cannot be credited, because of its in-
consistency with her deposition, where, when asked wheth-
er she remembered “anything else” that had been said to her
at the meeting, she replied “no.” Affidavits, though signed
under oath by the affiant, are typically and here written
by the affiant’s lawyer, and when offered to contradict
the affiant’s deposition are so lacking in credibility as to
be entitled to zero weight in summary judgment proceed-
ings unless the affiant gives a plausible explanation for the
discrepancy. Cleveland v. Policy Management Systems Corp.,
4 No. 02-1208
526 U.S. 795, 806-07 (1999); Russell v. Acme-Evans Co., 51 F.3d
64, 67-68 (7th Cir. 1995); Hackman v. Valley Fair, 932 F.2d
239, 241 (3d Cir. 1991). The explanation, moreover, must
come in the affidavit itself, see Miller v. A.H. Robins Co., 766
F.2d 1102, 1104-05 (7th Cir. 1985); Babrocky v. Jewel Food Co.,
773 F.2d 857, 861-62 (7th Cir. 1985); Colantuoni v. Alfred
Calcagni & Sons, 44 F.3d 1, 4-5 (1st Cir. 1994); Camfield Tires,
Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir.
1983), not in a lawyer’s musings, see EEOC v. United Parcel
Service, 94 F.3d 314, 316 n. 2 (7th Cir. 1996), which are not
evidence. See Campania Management Co. v. Rooks, Pitts &
Poust, 290 F.3d 843, 852-53 (7th Cir. 2002); In re Morris
Paint & Varnish Co., 773 F.2d 130, 134 (7th Cir. 1985); Wood
ex rel. United States v. American Institute in Taiwan, 286 F.3d
526, 534 (D.C. Cir. 2002).
The plaintiff’s affidavit, filed a suspiciously long seven
months after the deposition, offers no reason for the dis-
crepancy. Her lawyer argues that “the reason it [the threat
to terminate her] was not mentioned in her deposition
was because it was never addressed by Wal-Mart’s coun-
sel during the deposition.” The argument is entitled to
no weight because it is just a lawyer’s unsworn argument,
not the affiant’s testimony (or testimonial equivalent)
under oath. It is also a very poor argument, since he was
present at his client’s deposition and could have asked
her about the threat; and if it was apparent that she was
having memory problems, he could even have asked her
leading questions about it. Fed. R. Evid. 611(c) and Note
of Advisory Committee; Roberson v. United States, 249 F.2d
737, 742 (5th Cir. 1958); 3 Wigmore on Evidence § 777, p. 169
(James H. Chadbourn ed. 1970). He adds that the threat
“was also not mentioned by Beckel’s own attorney [i.e.,
himself, during her deposition] for tactical reasons at
that time.” That is another bad as well as weightless rea-
son, which at oral argument he abandoned, arguing instead
No. 02-1208 5
that he had slipped up at the deposition and should have
tried to jog his client’s memory. Too late; the mistake of a
deponent’s lawyer is no ground for allowing his client
to contradict her deposition by a subsequent affidavit.
Perma Research & Development Co. v. Singer Co., 410 F.2d 572,
578 (2d Cir. 1969); see generally Kagan v. Caterpiller Tractor
Co., 795 F.2d 601, 611 (7th Cir. 1986).
Even if there were admissible evidence that Wal-Mart
had threatened the plaintiff with firing her if she sued,
this would not make out a defense of equitable estoppel.
Such a threat would be a form of anticipatory retaliation,
actionable as retaliation under Title VII. Johnson v. ITT
Aerospace/Communications Division, 272 F.3d 498, 500-01
(7th Cir. 2001); Sauers v. Salt Lake County, 1 F.3d 1122, 1128
(10th Cir. 1993); cf. Heuer v. Weil-McLain, 203 F.3d 1021, 1023
(7th Cir. 2000); McEwen v. Delta Air Lines, 919 F.2d 58, 59-60
(7th Cir. 1990). Rather than deterring a reasonable person
from suing, it would increase her incentive to sue by giving
her a second claim, in this case a claim for retaliation on
top of her original claim of sexual harassment. To allow
the use of retaliation as a basis for extending the statute
of limitations would not only distort the doctrine of equi-
table estoppel but circumvent the limitations that Title VII
imposes on suits for retaliation, including the statute of
limitations, which the plaintiff’s argument implies never
runs on such a suit.
A threat to retaliate is different from a payment to the
potential plaintiff in circumstances reasonably understood
as constituting a bribe not to sue. See Felty v. Graves-
Humphreys Co., supra, 784 F.2d at 519-20 (“a generous sev-
erance arrangement conditioned upon compliance with
a code of silence would be a powerful inducement that
might well lure an older worker into failing to defend his
rights”); cf. Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 3576 No. 02-1208
(8th Cir. 1984) (per curiam). Actually the impropriety of
such a “bribe” is unclear to us, since another way to de-
scribe it is as an offer to settle a dispute out of court. But
we need not decide the effect of such “bribes”; it is
enough in this case to hold that a threat to retaliate is
not a basis for equitable estoppel. Kirk v. Hitchcock Clinic,
261 F.3d 75, 78 (1st Cir. 2001).
The judgment for the defendant on the basis that the
plaintiff’s suit was time-barred is
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-29-02