* District Judge of the Northern District of Ohio, sitting by

designation.

** Pursuant to 5 TH CIR

. R

. 47.5, the court has determined that

(continued...) UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-10299

HAROLD EAVENSON and ROBERT L. McDANIEL,

Plaintiffs-Appellants,

VERSUS

AMRESCO, INC.,

Defendant-Appellee.

***************************************

No. 99-10346

HAROLD EAVENSON and ROBERT L. McDANIEL,

Plaintiffs-Appellees,

VERSUS

AMRESCO, INC.,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of Texas

(3:96-CV-338)

April 21, 2000

Before JOLLY and DeMOSS, Circuit Judges, and DAVID D. DOWD, JR., *

District Judge.

DOWD, District Judge: **(...continued)

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH CIR

. R

. 47.5.4.

2 Before this Court are consolidated appeals of Harold Eavenson

and Robert L. McDaniel (herea fter "Plaintiffs") and their former

employer Amres co, Inc. (hereafter "Amresco"). Plaintiffs filed

suit against Amresco alleging tha t their employment had been

terminated in violation of the Age Discrimination in Employment Act

("ADEA"), 29 U.S.C. §§ 621-634. Amresco filed two motions for

summary judgment which were both denied. Two and one half years

after the case had commenced, it was reassigned to the docket of a

newly-appointed judge. Amresco sought reconsideration of the

denial of its second motion for summary judgment or, in the

alternative, it sought summary judgment for a third time.

Reconsideration was denied, but the third summary judgment motion

was granted on the ground that Plaintiffs had failed to timely file

their charges of discrimination with the Equal Emplo yment

Opportunity Commission ("EEOC"). Judgment was then entered in

favor of Amresco, but only after the district court permitted

filing of an amended answer to conform Amresco's affirmative

defenses to the ground on which judgment was granted. Plaintiffs

sought post-judgment reconsideration and asked that the record be

reopened to permit an opportunity for discovery on the belatedlyraised defense upon which judgment had been granted. The district

judge gave reconsiderati on but denied the request to reopen the

record for limited discovery.1 We are relating in significant detail w hat was filed and

when, as well as what arguments were raised at various times. This

will supply the necessary context for our decision.

3 Plaintiffs filed their notice of appeal. Thereafter, Amresco

filed a separate notice of ap peal with respect to the denials of

their first two summary judgment motions. The appeals were

consolidated. We now vacate summary judgment in favor of Amresco

and remand.

I

The factual background relating to the substantive ADEA claims

of Plaintiffs is, for the most part, undisputed. The casedispositive dispute arose over whether the EEOC charges were timely

filed. We begin by setting forth the underlying facts and

proceedings before the district court. 1

Amresco was initially a division of NationsBank. Performing

under contracts, it managed assets foreclosed all over the country

by NationsBank, various other banks, the Federal Deposit Insurance

Company ("FDIC"), and the Resolution Trust Company ("RTC"). In

1993, after its sale to outside investors, Amresco became a

separate comp any and the former NationsBank employees became

Amresco employees. In 1994, Amresco merged with BEI, a publicly

t raded company that also managed foreclosed assets and performed

other real estate related services. The merged companies continued

to operate under the Amresco name.

Because several of Amresco's major contracts were due to

expire in late 1994 and early 1995, the volume of its traditional

business was decreasing. A new CEO, Robert Lutz, was hired in June2 Hereafter , similar references to the record shall indicate

the volume and page number as follows:"R2:279."

3 Repeatedly in the record and th e briefs it has been stated

that the December 13, 1994 letter announced a reduction in force

("RIF") and that the recipient was on the list of those to be

terminated and that January 31, 1995 would be the recipient's last

day of employment. This is not really what that letter said and,

in any event, the letter contained no mention of January 31, 1995

as the termination date. Since all parties seem to be in

agreement, however, that the two Plaintiffs were on the "list" for

termination, we simply accept that general proposition as true. As

this opinion discusses, precisely when they possessed that

knowledge is an issue.

4 As just noted, it is not clear why the parties all agree that

(continued...)

4 1994. A new CFO, Barry Edwards, was hired in October 1994, after

the former CFO was terminated. Rob Adair, who had previously held

the position of President at BEI, served as President of Amresco.

In the late summer of 1994, a task force was appointed to

assess the future of Amresco and to evaluate the organization and

staffing needs in light of the projected future. It was ultimately

determined that reductions in staff and reassignments were needed.

A letter dated December 13, 1994, was sent to all employees.

It stated that the workforce had already been reduced from 2000 to

800 and that "there will be a reduction in staff of approximately

45 people over the next several months in addition to the

previously stated

... reduction. " Record, Vol. 2, at 279. 2 It

went on to say that "[t]he employees affected have been or will be

notified promptly." I d

. All parties seem to be in agreement, 3

although why is unclear from the record, that this letter signaled

the termination of employment for both Plaintiffs effective January

31, 1995. 4(...continued)

the two Plaintiffs' employment was terminated by the December 13,

1994 letter. The letter itself is simply too general to be read in

t hat fashion. The Court has combed the record and can find no

place where either Plaintiff was asked point blank when he actually

found out that he was on the "list" for termination. Although both

Plaintiffs admit they received the December 13, 1994 letter, by

this Court's reading of the letter that admission has virtually no significance. The closest thing the Court has found to suggest

that they both knew they were slated for termination is mention of

a second memo from someone in the Human Resources Department, also

dated December 13, 1994, which purportedly discussed COBRA

benefits. See , Eavenson Dep. at 41-42, R2:288; McDaniel Dep. at

36, R2:283. From this one m ight conclude that each Plaintiff knew

he was being terminated because he got some information about his

COBRA rights.

5 McDaniel was 50 years old and Eavenson was 56 at the time of

the RIF. Allegedly, in October 1994, McDaniel was on an elevator

with President Adair and a senior vice presi dent, when Adair,

looking directly at McDaniel, purportedly said to the VP that they

had to "get rid of the old banker s." This formed the basis of

Plaintiffs' belief that age played a role in their terminations.

5 After their terminations, both Plaintiffs decided the y had

been victims of age discrimination. 5 Eavenson visited an attorney

in July 1995. He did not retain the attorney to represent him;

however, he was informed that he should file a charge of

discrimination with the EEOC. Both he and McDaniel went together

on September 15, 1995 to register their complaint with the EEOC.

McDaniel was apparently the first to be interviewed. He claims

that the EEOC agent told him he did not have a case and could not

file a charge of discrimination. McDaniel went to the waiting room

where he told Eavenson what he had learned. Eavenson left without

talking to an agent because he believed that, since his potential

claim was based on the same facts as that of McDaniel

(spe cifically, the "old bankers" statement overheard in the

elevator), he would also be told he could not file a charge.6 Amresco actually filed two motions, one for each Plaintiff's

claims; however, for simplicity, we refer to these motions in the

singular.

6 In early November 1995, Eavenson had a conversation with

another attorney. He claims this was the first time he was told

that he had to file an EEOC charge before he could file a lawsuit

and that he had only 300 days in which to do so. Eavenson went

back to t he EEOC the very next day, November 7, 1995, and he was

allowed to file a charge. Alerted by Eavenson of the need for

haste, McDaniel went to the EEOC on November 8, 1995 and filed his

charge.

Plaintif fs filed their complaint in the district court on

February 5, 1996, expressly alleging that they had each filed a

timely charge with the EEOC and had received their right-to-sue

letters. Amresco filed its original answer wherein it raised only

three affirmative defenses: (1) failure to state claims for which

relief could be granted; (2) that Eavenson was terminated because

his whole department was eliminated; and (3) that McDaniel was

replaced by a person older than McDaniel. In that answer, Amresco

stated that it did not have sufficient information to admit or deny

whether charges had been timely filed.

Pursuant to the district court's scheduling order, Amresco

filed its first motion for summary judgment on February 28, 1997. 6

The motion did not raise the issue of timeliness but simply

attacked the Plaintiffs' claims on their merits. This motion was

denied by Order dated June 30, 1997. The district judge concluded

that a prima facie case had been established and that there were7 On November 3, 1997, prior to this first scheduled trial

date, Amresco filed a motion in limine seeking to exclude any

evidence that Plaintiffs had received right-to-sue letters.

Amresco argued that receipt of such letters was of no consequence

with respect to the merits of Plaintiffs’ case because " [ i]f a

charge is timely filed

, the EEOC must issue all charging parties a right-to-sue letter even if there is no determination regarding the

merits of the charge." R1:136 (emphasis added). Amresco's motion

could be read as conceding timeliness. The district court,

however, never had occasion to rule on the motion since it did not

reach the trial and rescheduled it for June 15, 1998.

7 genuine issues of material fact regarding whether Amresco included

Plaintiffs in the RIF based on their ages. A month later, Amresco

filed a motion for reconsideration of the district court's ruling,

again with no mention of timeliness. This motion was also denied.

The case was set for trial on November 17, 1997. 7

On December 8, 1997, with leave of court, Amresco filed a

second round of motions for summary judgment. Once again Amresco

attacked only the merits, with no mention of the timeliness issue.

The district judge concluded that there were genuine factual

disputes precluding s ummary judgment. The motion was denied on

June 11, 1998, four days before the second trial date.

Once again the trial date passed and the case was rescheduled

for trial on September 14, 1998. However, on August 25, 1998, the

case was tran sferred to the docket of a newly-appointed district

judge. This judge ordered a joint status report. It was in this

report, filed on October 8, 1998, that Amresco raised for the very

first time that it was considering "filing [a] Motion for Summary

Judgment on a limitation issue and supp lementing the Pre-Trial

Order[.]" R1:235.8 While that schedule was playing out, Amresco apparently

recognized the significant factual dispute which it had belatedly

raised. It filed amended proposed jury instructions and questions,

adding two questions for the jury regarding whether each plaintiff

"was informed on or before January 1, 1995, that his employment

would be terminated." R2:320-21.

8 On November 30, 1998, the trial was once again continued to

January 4, 1999. On December 3, 1998, one month before this fourth

trial date, Amresco filed a motion seeking reconsideration of the

denial of its second summary judgment motion or, in the

alternative, a third summary judgment motion based on the issue of

the timeliness of the EEOC charges. On this latter issue, Amresco

asserted that Plaintiffs had failed to file their EEOC charges

within the statutory time limit, i.e., within 300 days of December

13, 1994. Plaintiffs objected to the filing of this motion on the

eve of trial. Thereafter, the court allowed the filing and set up

an expedited briefing schedule. 8

Plaintiffs' response to this "johnny-come-lately" motion

contained their separate affidavits asser ting that they had both

attempted to file charges with the EEOC on September 15, 1995 and

had been rebuffed, but that, in any event, even after December 13,

1994, they had each had good reason to believe that the employment

decision was being reconsidered by the company and that they did

not definitively know they were terminated until January 31, 1995.

Amresco made no specific reply to these latter assertions,

arguing only that the official EEOC records reflected no visit by

the Plaintiffs in September 1995 and that the Plaintiffs could not9 We note that this was the fourth time the claims had survived

on the merits: twice on initial summary judgment motions and twice

on reconsideration motions.

1 0 In his Memorandum Opinion and Order of January 8, 1999, the

district judge declared that Plaintiffs' affidavits in support of

their position were conclusory, containing no more than their

subjective beliefs without any specifics as to why they held those

beliefs. He stated that "the record is devoid of any evidence that

the decision to terminate Plaint iffs on December 13, 1994 was

tentative." R2:403. He concluded that because "the deadline for

Plaintiffs to file charges with the EEOC was October 9, 1995[ ]

... Plaintiffs filings ... were not timely." Id

.

1 1 Although the court noted that Amresco had failed to plead the

limitations defense, in his view, since it had been raised in the

third motion for summary judgment and in a December 21, 1998 joint

pretrial order submitted to the court, Plaintiffs "were given ample

time to respond to this issue

... and [had] presented no evidence"

that they could ever defeat the limitations defense. R2:407. The

court concluded that Plaintiffs would not be prejudiced by allowing

Amresco to amend its answer to add the affirmative defense. The

(continued...)

9 avail themselves of equitable tolling because they had consulted an

attorney as early as July 1995.

The district judge cancelled the trial and set th e third

motion for summary judgment for argument on January 4, 1999. In a

ruling issued four days after the hearing, the district c ourt

denied reconsideration of the second motion for summary judgment,

expressly concluding, as had the first district judge assigned to

the case, that there were genuine issues of material fact in

dispute and that a reason able jury could find for either party. 9

However, the district court then granted Amresco's third summary

judgment motion, 10 with the understanding that final judgment would

be deferred for a few days to allow Amresco the opportunity to

amend its answer to include the affirmative defense upon which

summary jud gment had been granted. 1 1 This Amresco did and, on(...continued)

judge, therefore, ruled in Amresco's favor stating that "based on

the assumption that Defendant will file an amended answer by 5:00

p.m., January 11, 1999 as directed, the court will later enter

judgment by separate document." R2:408.

1 2 Plaintiffs specified that they wanted to depose Lutz and redepose Edwards regarding events between December 13, 1994 and

January 31, 1995, matters which had not previously been raised

because there had been no issue taken with timeliness, and that

they wanted to give Amresco the opportunity to test the facts they

had asserted in their recent affidavits regarding their beliefs

that the decision to terminate them was being reviewed during that

time frame. They also sought to do limited discovery about the

specifics of their claim that they had been rebuffed by the EEOC on

September 15, 1995.

10 January 19, 1999, the district court entered final summary judgment

in Amresco's favor, taxing costs against the Plaintiffs.

On the same day that the Judgment was entered against

Plaintiffs, they filed a motion to reopen the summary judgment

record, for reconsideration, a nd for discovery of the facts

surrounding the limitations defense. Plaintiffs asserted that the

district judge had improperly failed to draw all inferences in

their favor and pointed to specific deposition testimony that

created a material factual dispute. The district court then

ordered a hearing on Plaintiffs' motion, accusing Plaintiffs of

"misconstru[ing] the court's opin ion" and warning them not to be

"unnecessarily dramatic." R3:511. The court ordered Plaintiffs to

put in writing the specific discovery they needed, which Plaintiffs

did. 12

On March 17, 1999, the district judge denied Plaintiffs'

motion to reopen discovery and, in a reconsidered analysis of the1 3 The court specified that it had reviewed "the motion and

briefs, the response, the reply, the specification, the arguments

of counsel, the previously filed pleadings, and the applicable

authority[.]" R3:524.

11 summary judgment ruling, 13 affirmed its previous declaration that

December 13, 1994 was the date of the adverse employment action

requiring an October 9, 1995 filing of EEOC charges. The district

court adhered to its original decision that Plainti ffs were not

entitled to equitable tolling and that their claims were timebarred.

II

On appeal, Plaintiffs challenge the district court's ruling

on the third motion for summary judgment and assert that the court

abused its discretion by refusing to reopen the record to allow

discovery on the timeliness issue . In response, Amresco asserts

that this Court lacks jurisdiction to review the January 8, 1999

summary judgment order or the January 19, 1999 final judgment

because these matters are not specified in Plaintiffs' notice of

appeal. In its own appeal, apparently filed as a precautionary

measure, Amresco challenges the denial of the first tw o summary

judgment motions.

We shall first address the scope of this Court's jurisdiction,

followed by a discussion of the i ssues raised in Plaintiffs'

appeal, and then by a brief discussio n of the issue in Amresco's

appeal.

A1 4 The appealed Order was signed by the district judge on March

16, 1999, but filed (and entered on the docket) on March 17, 1999.

Since a court can speak only through its record, the filing date is

the official date of the Order.

12 Plaintiffs' notice of appeal, filed on March 19, 1999, states

that they are "appealing from the judgment of the District Court

dated March 16, 1999, which denied Plaintiffs' Motion for

reconsideration, to reopen the summary judgment record and permit

further discovery, following the Courts [sic] granting of

Defendant's Motion for Summary Judgment by Order dated January 19,

1999." R3:534. 14

Amresco argues that Plaintiffs' app eal can only be from the

ruling issued by the district court in March 1999, and cannot

address the Memorandum Opinion and Order of January 8, 1999, or the

Judgment of January 19, 1999. Amresco holds the view that, under

Fed. R. App. P. 3, Plaintiffs are bound by the language of their

notice of appeal. S ee C.A. May Mar ine Supply Co. v. Brunswick

Corp.

, 649 F.2d 1049, 1056 (5th Cir.), cert. denied

, 454 U.S. 1125

(1981) (although Rule 3 is interpreted liberally, "[w]here the

appellant notices the appeal of a specified judgment only or a part

thereof

... this court has no jurisdiction to review other

judgments or issues which are not expressly referred to and which

are not impliedly intended for appeal").

Plaintiffs do not directly address Amresco's position; rather,

they characterize the actions of the dist rict court in

reconsidering its judgment of January 19, 1999, as implicitly

setting aside that judgment. They rely on the fact that the15 The file-stamp used by the Clerk contains only the date of

filing, without the time. Therefore there is no way to determine

whether Plaintiffs' motion was actually filed before or after the

Judgment. The district court later ruled, based on the order that

the documents appeared on the docket of the Clerk, that the motion

was a post-judgment motion. We merely note that, since it is not

all that hard to manipulate the order of documents received and

manually docketed, it might be a better practice to use a filestamper that contained a time indicator so that documents could be

entered on the docket in both time and date order.

13 district court conducted a hearing on their motion to reopen the

summary judgment record and ultimately wrote a new opinion on the

limitations issue.

The F ederal Rules of Civil Procedure make no provision for

"motions for reconsideration" much less for "motions to reopen."

However, such motions may be treated by a cou rt as either a Rule

59(e) motion to alter or amend judgment or a Rule 60(b) motion for

relief from judgment. A Rule 59(e) motion must be filed no later

than ten (10) days after the entry of judgment. A Rule 60(b)

motion "shall be made within a reasonable time [but] not more than

one year after the judgment, order, or proceeding was entered or

taken." Either type of motion suspends the time for filing an

appeal until the district court rules on the motion. Fed. R. App.

4(a)(4).

Plaintiffs' Motion to Reopen the Summary Judgment Record, for

Recon sideration, and to Permit Discovery on the Issue of

Limitations was filed on the very day the Judgment was entered.

Therefore, this Court need not consider whether it was (or should

have been) treated by the district court as a Rule 59 or a Rule 60

motion. 15 Either way, it is properly viewed under Fed. R. App. 414

as tolling th e time for filing an appeal. Once the motion was

r esolved on March 17, 1999, the time for filing the notice of

appeal began to run again. Therefore, Plaintiffs' notice of appeal

filed on March 19, 1999, was timely under Fed. R. App. P. 4.

The next question relates to what was actually appealed: only

the March 17 Order or also the Order of January 8 and the Judgment

of January 19, 1999? The liberal view expressed by case law in

this circuit, including the two cases relied upon by the Amresco,

allows review of both the March Order and the January

Order/Judgment.

In C.A. May Marine Supply Co.

, supra

, a panel of this Court

stated:

Generally a n otice of appeal "shall

designate the judgment, order or part thereof

appeale d from." Fed.R.App.P. 3(c) (1980).

H owever, a policy of liberal constructi on of

notices of appeal prevails in situations where

the intent to appeal an unm entioned or

mislabeled ruling is apparent and there is no

prejudice to the adverse party. Simpson v.

Norwesco, Inc. , 583 F.2d 1007, 1009 n.2 (8th

Cir. 1978). The party who makes a simple

mistake in designating the judgment a ppealed

from does not forfeit his right of appeal

whe re the intent to pursue it is clear.

Kicklighter v. Nails by Jannee, Inc.

, 616 F.2d

734, 738-39 n.1 (5th Cir. 1980). See Hammond

v. Public Finance Corpo ration , 568 F.2d 1362

(5th Cir. 197 8); J ones v. Chaney & James

Construction Com

pany , 399 F.2d 84 (5th Cir.

1968); Markham v. Holt

, 369 F.2d 940 (5th Cir.

196 6). Also, where claims or issues are

inextricably entwined, each may be re viewed

even though not referred to in the notice of

appeal. Marshall v. K irkland , 602 F.2d 1282,

1302 n.17 (8th Cir. 1979). See also Comfort

Trane Air Conditioning v. Trane Co. , 592 F.2d

1373 (5th Cir. 1979); I n re Nissan Motor

Corporation Antitrust Litigatio n

, 552 F.2d

1088 (5 th Cir. 1977). This circuit tends to16 See note 14, supra , regarding the date discrepancy.

15 be more lenient than other cir cuits in this

respect.

Where the appellant notices the appeal of

a specified judgment only or a pa r t thereof,

however , this court has no jurisdiction to

review other judgments or issues which are not

expressly referred to and which are not

impliedly intended for appeal. See Elfman

Motors, Inc. v. Chrysler Corp.

, 567 F.2d 1252

(3d C ir. 1977); S ymons v. Mueller Co.

, 526

F.2d 13 (10th Cir. 1975).

649 F.2d at 1056.

Plaintiffs' notice of appeal identifies the March 16, 1999

"judgment" as the order appealed f rom; 1 6 however, it also makes

express reference to the judgment dated January 19, 1999. Since

the March order dealt with a motion seeking reconsideration of the

court's earlier granting of summary judgment, r eference in the

notice of appeal to the earlier judgment on a January 8, 1999

opinion and order is sufficient.

Under the circumstances of this case, a liberal construction

of the law ju stifies our review of both the March order (which

indisputably is on appeal) and the January Order and Judgment.

Amresco is not prejudiced by such review.

B

A district court’s grant of summary judgment i s reviewed d e

novo

, applying the same standard used by th e district court.

Summary jud gment is appropriate "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to16

any material fact and that the mo ving party is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c). In reviewing

the record, any factual inferences are drawn in favor of the nonmoving party. U ni ted States v. Arron , 954 F.2d 249, 251 (5th

Cir.), r eh'g denied

, 957 F.2d 869 (5th Cir. 1992). A summary

judgment may be reversed if the appellant shows "that a genuine

fact issue exists that is material to the outcome of the dispute."

Id

. "A fact is material if it might affect the outcome of the suit

under the governing substantive law." Id

.

"Control of discovery is committed to the sound discretion of

the trial court and its discovery rulings will be reversed only

where they are arbitrary or clearly unreasonable." M ayo v.

Tri-Bell Industries, Inc.

, 787 F.2d 1007, 1012 (5th Cir.1986);

Dukes v. South Carolina Ins. Co.

, 770 F.2d 545, 548-49 (5th

Cir.1985). If discovery could uncover one or more substantial fact

issues, a party is entitled to reasonable discovery to do so. S ee

Trevino v. Celanese Corp. , 701 F.2d 397, 405 (5th Cir.), reh'g en

banc denied , 707 F.2d 515 (5th Cir. 1983). "Generally, a ruling

that denies a party an adequate opportunity to discover facts to

oppose a moti on for summary judgment is unreasonable if summary

judgment is subsequently entered against that party." Williamson

v. U.S. Dept. of Agriculture , 815 F.2d 368, 382 (5th Cir. 1987).

The difficulty in this case was created largely by Amresco's

filing of "rolling" summary judgment motions. Dissatisfied with

the district court's repe ated determinations against it, Amresco

kept coming up with new arguments until it finally managed to "ring1 7 The district court's orders set the discovery deadline for

March 3, 1997. The third motion for summary judgment was filed on

December 3, 1998.

1 8 Eavenson's affidavit (R2:336-45) asserted the following: (1)

that he and McDaniel had gone to the EEOC office on September 15,

1995, as shown by his attached appointment calendar page for that

day; (2) that McDaniel, after first speaking to an agent, told

Eavenson the agent said they did not have a claim and there was no

need to sign any paperwork; (3) that he (Eavenson) decided it would

be futile to talk to an agent since he had the very same facts as

McDaniel, who had already been turned away by the agent; (4) that

after later learning there was a time limit for filing charges, he

returned to the EEOC, was interviewed by a different agent, and was permitted to file a charge; (5) that he told McDaniel to go

promptly to the EEOC to file his charge; (6) that, since neither he

nor McDaniel had hired a lawyer until some time in 1996 after they

received their right to sue l etters, neither one of them knew in

September of 1995 whether or not they had a legitimate age

discrimination claim; (7) that be tween December 13, 1994 and

January 31, 1995, he had conversations with Barry Edwards and

Robert Lutz which led him to believe that they were still

evaluating whether he should be retained with the company; (8) that

between December 13, 1994 and January 31, 1995, he was aware that

several other company officials were questioning how certain tasks

would ever be accomplished if the company clo sed his department;

and (9) that he was awa re that, after December 13, 1994, the

company had changed its mind about the terminations of some

employees.

McDaniel's affidavit (R2:347-52) asserted the following: (1)

that he was interviewed on September 15, 1995 by a female EEOC

agent who told him that h e did not have a case and that he could

not file a charge of discrimination based on what he had recounted;

(2) that he and Eavenson had decided to leave the EEOC office based

(continued...)

17 the bell" by raising the timeliness issue in its third motion for

summary judgm ent. By that time, the deadline for completing

discovery had long since passed. 17 Never presented with a need to

do so, Plaintiffs had not conducted any discovery on the timeliness

issue. Therefore, the best they could do in the face of this third

motion filed on the very eve of trial was just what they did:

submit their personal affidavits att esting to the facts as they

knew them. 18 Based on those facts, Plaintiffs argued that December(...continued)

o n what the agent told him; (3) that, in November 199 5 after

Eavenson called and told him that he needed to act quickly because

a time limit was about to run out, he went again to the EEOC and

spoke with a different agent who helped him file his charge; (4)

that in January 1995, he had conversations with Barry Edwards and

Robert Lutz which led him to believe they were reconsidering the

decision to terminate his employment; (5) that he was aware that

some people who had been selected for termination were instead

going to be retained because the company had changed its mind; and

(6) that he knew the company was planning to expand in certain

areas in which he had many years of experience, buttressing his

belief that he might not be terminated.

1 9 Under 29 U.S.C. § 626(d), in a deferral state such as Texas,

an age discrimination charge must be filed within 300 days after

the alleged unlawful act occurred. Failure to timely file a charge

does not necessarily prevent a party from pursuing an action in

(continued...)

18 13, 1994 was not the date of the adverse employment action but

that, even if it were, they were entitled to equitable tolling of

the 300-day time limit for filing their EEOC charges for either of

two reasons: (1) because after December 13, 1994, Amresco

executives had led each Plaintiff to believe that the termination

decision with respect to each of them was not yet final, and (2)

because the Plaintiffs had been misl ed by an EEOC agent who, on

September 15, 1995, told them they could not file charges, an error

which Plaintiffs did not then detect until earl y November 1995,

when they promptly did file charges.

In a somewhat lengthy opinion filed Ma rch 17, 1999, the

district court reexamined and ul timately adhered to its earlier

decision to grant Amresco's third motion for summary judgment. In

doing so, the court relied in part on Delaw are State College v.

Ricks , 449 U.S. 250 (1980), where the Supreme Court held that the

filing limitations pe riod 19 commences at the time the employment(...continued)

federal court. S ee Zipes v. Trans World Airlines

, 455 U.S. 385,

393 (holding that "filing a timely charge of discriminati on with

the EEOC is not a jurisdictional prerequisite to suit in federal

court, but a requirement that, like a statute of limitations, is

subject to waiver, estoppel, and equitable tolling." ) (footnote

omitted). The burden is on the plaintiff to demonstrate a factual

basis for equitable tolling. Blumberg v. HCA Management Co. , 848

F.2d 642, 644 (5th Cir. 1988), cert. denied

, 488 U.S. 1007 (1989).

We have held equitable tolling to apply in the

following situations: (1) during the pendency of an

action before a state cou rt that has jurisdiction over

the subject matter of the suit, but that is the wrong

forum under state law; (2) until the claimant knows or

should know the facts giving rise to her Title VII claim;

and (3) when the EEOC misleads the claimant about the

natur e of her rights under Title VII. S ee Chappell v.

Emco Mach. Works Co.

, 601 F.2d 1295, 1302 (5th Cir.1979).

We have indicated that circumstances besides these might

merit equitable toll ing. S ee Blumberg

, 848 F.2d at

644-45.

Hood v. Sears Roebuck & Co. , 168 F.3d 231, 232 (5th Cir. 1999).

19 decision has been both made and communicated to the employee. I d

.

at 258. The R icks Court recognized that determining timeliness

requires two things: (1) identification of the unlawful employment

act; and (2) identification of the date when that act occurred.

Here, the first element was not in dispute, whereas the second one

was a point of contention.

The district court declared the record "unequivocally clear "

and made the factual determination "that Defendant's management did

not alter its [December 13, 1994] decision to terminate

Plaintiffs[.]" R3:527 (emphasis added). It therefore upheld its

earlier decision that "the limitations period began to run on that

date" and found "no reason to reopen and allow any further

discovery regarding that issue." Id

.2 0 There are really two ways of looki ng at this: either the

adverse employment decision did not occur until January 31, 1995,

which then triggered the running of the limitations period, or

although the decision occurred on December 13, 1994 and the

limitations period should have begun to run on that date, the

period was tolled by management's actions which misled Plaintiffs

into believing that the decision was not final.

2 1 Although the dis trict court made its determination on the

incomplete record before it, there was still a significant amount

of evidence to suggest the error of summary judgment. For example,

the following appears in the record to support a conclusion that

there was a material factual dispute, sufficient to support the

need for some limited discovery, regarding whether Amresco's

decision to terminate the Plaintiffs was really def inite on

December 13, 1994: (1) the deposition testimony of Edwards that

(a) he does recall having convers ations with McDaniel after

December 13, 1994, where he expressed concern that Amresco, in its

haste, was letting too much talent like McDaniel's escape (R4:068),

and (b) he met with Eavenson several times between December 13,

(continued...)

20 Plaintiffs have apparently never denied tha t they were told

on December 13, 1994 that their positions would be terminated. At

issue here is whether that decision, although communicated, was

actually firmly made

, that is, whether it was final and understood

as final by all concerned within the meaning of R icks

. The fact

that Defendant's management ultimately did not alter its decision

to terminate Plaintiffs does not mean that there could not have

been reason for Plaintiffs to believe that the "decision" was under

reconsideration. It is possible that Defendant's management could

have engaged in behavior which engendered such a belief. If so,

equitable tolling of the time for filing EEOC charges would be in

order. 20 The district court improperly denied the requested

discov ery which might have clarified the facts surrounding this

issue, w ith the result that it misapplied the "made and

communicated" test of Ricks

. 21(...continued)

1 994 and January 31, 1995 to discuss Eavenson's suggestion th at,

because his department added value going forward, he and at least

one other employee from the department should be retained (R4:072);

(2) deposition testimony of Adair that although an employee by the

name of Andrus had been slated f or the RIF, Edwards had changed

that decision and transferred him to another department, making him

treasurer of the company (R4:087); (3) Ea venson's affidavit that

several people in the organ ization were concerned about how they

would receive the services his department had offered, coupled with

his awareness that during the relevant time period Amresco was taking no steps to provide for those services although it would

certainly need the services even if he were terminated, which led

him to believe the decision was not final (R2:339-40); and (4)

McDaniel's affidavit that (a) he had a conversation with Lutz (who

had never been deposed) during January 1995 where Lutz also

expressed conce rn over losing talent and left McDaniel with the

impression that his termination would be reconsidered (R2:348-49),

and (b) he was aware that Amresco planned to expand in the very

areas where he had over 30 years of expertise (R2:349). The

district court dismissed all of this evidence, stating: "Based upon

Plaintiffs' own affidavits and the deposition of a senior

management official o f Defendant, [Plaintiffs] held a tenuous

belief on their part that the termination decision might be

reversed." R3:527 (emphasis in original).

2 2 For example, in addition to the facts attested to in

affidavits fi led in support of their opposition to the third

summary judgment motion, see

, n ote 18, s upra

, additional facts

contained in a subsequent affidavit (R2:424-26) filed in support of

their post-judgment mo tion offer further clarification. There,

Eavenson acknowledged that in July 1995 he had spoken with an

attorney who told him to go to the EEOC. However, he characterized

that discussion as "not detailed." He reiterated that he "was not

(continued...)

21 When the limitations period began to run was not the only

point of contention. Plaintiffs also asserted that the period was

subject to equitable tolling because they had been misled by the

EEOC in September 1995 and did not discover that fact until

November 1995 . Materials submitted by the Plaintiffs indeed

supported both this possibility and the fact that they had not

actually obtained legal advice which would have alerted them to the

true nature of their rights. 22(...continued)

informed by anyone and did not know until November 1995 that the

filing of a formal Charge was a prerequisite to the filing of a

suit nor did [he] know that there was a three hundred (300) day

deadline in doing so until November 1995." R2:425. Eavenson also

acknowledged that in November 1995, after learning from "someone"

that he must file a formal charge, he contacted an attorney to

confirm that fact.

2 3 Perhaps Plaintiffs could have assisted the process by seeking

some limited discovery under Fed. R. Civ. P. 56(f) before the

district court actually ruled on the third motion for summary

judgment. S ee Exxon Corp. v. Crosby-Mississippi Resources, Ltd

, 40

F.3d 1474, 1487 (5th Cir. 1995) (the party moving for a continuance

of discovery should "re quest extended discovery prior to the

district court's ruling on summary judgment"). However, it is

completely conceivable that Plaintiffs were trying their best to

respond to an untimely argument regarding timeliness while hoping

to preserve their January 4, 1999 trial date, the fourth date set

for the trial of a matter filed almost three years earlier. This

one strategic slip on P laintiffs' part should not doom their

l awsuit and their legitimate post-judgment request for some

discovery.

2 4 We note that, in the event limit ed discovery reveals that

Plaintiffs hold one view of the facts and Amresco's decision-makers

hold another, this is the very stuff of trial s. In that case,

there would be a genuine issue as to material facts, rendering

(continued...)

22 Plaintiffs absolutely were prejudiced by a complete inability

to conduct discovery on the significant factual disputes related to

the timeliness issue. Prior to Amresco's belated third motion for

summary judgment, there had been no incentive to pursue discovery

on this issue. Under these circumstances, the district court

abused its discretion by failing to permit th e limited discovery

sought by the Plaintiffs, including when the period began to run

and whether that period was equitably tolled by subsequent events. 23

Accordingly, we vacate the district court's grant of Amresco's

third motion for summary judgment and we remand for further

proceedings consistent with this opinion. 24(...continued)

summary judgment improper. Further, our disposition today does not,

of course, rule out the possibility that it may ultimately be

decided that the EEOC charges were not timely filed.

23 C

In view of our dis position of Plaintiffs' appeal on the

q uestion of discovery related to timeliness, we need not address

Amresco's challenge to the district court's two denials of summary

judgment. It is textbook law that this Court ge nerally has

jurisdiction to review only final orders. 28 U.S.C. § 1291. A

denial of summary judgment does not fall into the category of a

final order. P almer v. Johnson

, 193 F.3d 346, 350 (5th Cir. 1999);

Francis v. Forest Oil Corp. , 798 F.2d 147, 149 (5th Cir. 1986).

Accordingly, Amresco's appeal must be dismissed for lack of

jurisdiction.

III

For the reasons se t forth above, we VACATE the district

court's grant of summary judgment to Amresco and we REMAND for

further proceedings. In addition, we DISMISS Amresco's appeal.