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holding that discrimination at the time of plaintiff's hiring and promotion are two distinct events and cannot establish a continuing violation
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No. 98 C 6730
March 13, 2000
MEMORANDUM OPINION AND ORDER
Rosa V. Cervantes sues her former employer, FCC National Bank ("FCC"), alleging various discrimination claims under Title VII, 42 U.S.C. § 2000e et seq. Cervantes contends that FCC violated her civil rights by discriminating against her on the basis of national origin and gender. Cervantes alleges, in essence, that FCC failed to promote her and improperly compensated her; retaliated against her when she complained about the discriminatory treatment; and constructively discharged her by defaming her and failing to advance her career opportunities. FCC has filed a motion to dismiss arguing that Cervantes' claims are either time barred or beyond the scope of her two EEOC charges. We agree with FCC that Cervantes' promotion, compensation, and retaliation claims are time barred because Cervantes failed to file a charge with the EEOC within 300 days of FCC's allegedly discriminatory acts. Cervantes has, however, adequately stated a cause of action for constructive discharge under Title VII. Therefore, we grant in part and deny in part FCC's motion to dismiss, (R. 23).
FACTS
Because this case is before us on a motion to dismiss, we assume the truth of Cervantes' allegations and base our recital of the facts on those contained in her complaint. See Antonelli v. Sheehan, 81 F.3d 1422, 1427 (7th Cir. 1996).
Cervantes' amended complaint contains facts which are inconsistent with her original complaint. For example, Cervantes' original complaint lists March 2, 1992 as the date FCC hired her, (R. 1, Compl. ¶ 7), but her amended complaint lists her date of hire as May 3, 1997, (R. 22, Second Am. Compl. ¶ 11).
On March 3, 1992, FCC hired Rosa V. Cervantes as a grade-level 14 programmer analyst. (R. 1, Compl. at ¶ 7.) Cervantes alleges that from the time of her hire, FCC identified her national origin as "Mexican," even though it was irrelevant to her work performance, (R. 22, Second Am. Compl. at ¶ 12.A), and hired her at a grade lower than those with similar qualifications who were not of Mexican origin, ( id. at ¶ 12.B). FCC assured Cervantes at the time of her hire that she would be reviewed in 90 days and promoted accordingly at that time. ( Id. at ¶ 12.C.) FCC did not evaluate or promote Cervantes, however, until nearly four years later. ( Id. at ¶ 12.D.) The only time FCC evaluated Cervantes was when she raised the issue with her supervisors. ( Id.)
Throughout her employment, Cervantes complained about the inaction of her supervisors with respect to her advancement. ( Id. at ¶ 13.) Other non-Mexican persons with less experience than Cervantes were initially hired at a higher grade level, ( id. at ¶ 12.E), or promoted within 90 days of their hire, ( id. at ¶ 12.D). In contrast, Cervantes received no promotions, ( id. at ¶ 12.I), recognition of her accomplishments, ( id. at ¶ 12.H.), or classes to help advance her career, ( id. at ¶ 12.I). FCC also failed to take any action when she reported having been verbally abused, humiliated, and ostracized by other FCC employees. ( Id. at ¶¶ 12.3, 17, 20.)
In October 1996, FCC abruptly transferred Cervantes and a number of other employees to a project known as "NCS." ( Id. at ¶ 12.F.) of those who were transferred, FCC promoted 60 percent of the white males but none of the minority women. ( Id.) Cervantes claims that the white males who were promoted "performed the same job duties, worked less, and were less qualified than any of the minority women." ( Id.) Cervantes' supervisor at the time allegedly stated that he did not promote minority women. ( Id. at ¶ 12.K.) In contrast to the white employees who were promoted, the minority women were not given a choice with respect to the transfer, ( Id. at ¶ 12.L), did not receive personal assistants, ( id. at ¶ 12.G), and received less pay for the same work assignments, ( id.).
Nearly 6 years after her hire and 15 months after the transfer, on January 5, 1998, Cervantes filed her first charge of discrimination against FCC with the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC"). (Second Am. Compl. Ex. II.) In her first charge, Cervantes alleged that (1) FCC discriminated against her on the basis of her national origin by failing to promote her and by failing to pay her wages comparable to those of non-Mexican Americans, and (2) after she complained about the discrimination in May 1997, FCC retaliated against her by shuffling her around and giving her a negative evaluation. ( Id.) On July 27, 1998, the EEOC issued a Notice of Right to Sue on Cervantes' first charge. (Second Am. Compl. Ex. I.) She received her first right-to-sue letter on August 5, 1998. (Compl. ¶ 10.)
On October 13, 1998, Cervantes resigned "due to her inability to advance in Defendant's company." (Second Am. Compl. ¶ 15.) Shortly thereafter, on October 21, 1998, Cervantes filed a second charge of discrimination with the IDHR and EEOC. (Second Am. Compl. Ex. II.) The second charge detailed new incidents of discrimination and alleged that FCC discriminated against her by (1) not selecting her for a Senior Business Analyst position in June 1998 even though she was the only applicant, (2) not electing her as an officer in September 1998 while electing white males with less seniority, and (3) constructively discharging her in October 1998. ( Id.) On December 7, 1998. the EEOC issued a Right to Sue Notice on her second charge. ( Id.)
Cervantes does not state anywhere in the record when she received her second right-to-sue letter.
On October 26, 1998, five days after she filed the second charge, but before receiving her second right-to-sue letter, Cervantes filed a four-count pro se complaint against FCC in this Court, alleging claims for breach of contract, national origin discrimination, retaliation, and defamation. Almost a year later, on October 14, 1999, Cervantes filed an amended complaint with the assistance of counsel. (R. 22.) Cervantes' amended complaint retains many of the allegations contained in her original complaint, but, most noticeably, adds a claim for constructive discharge. Cervantes' amended complaint alleges three identifiable claims: FCC hired her at a grade lower than her experience warranted and failed to promote her because she is a Mexican-American (the "Hiring Claim"); FCC retaliated against her by transferring her to an undesired project (the "Transfer Claim"); and FCC constructively discharged her by defaming her and failing to provide her with career advancement opportunities (the "Constructive Discharge Claim").
On February 22, 1999, we dismissed Cervantes' original pro se complaint with leave to amend. (R. 9, Order of Feb. 11, 1999.) Subsequently, we dismissed her case twice without prejudice, (R. 13, Order of Aug. 5, 1999; R. 19, Order of Sept. 16, 1999), for want of prosecution. We granted Cervantes' motion to reinstate the case and file an amended complaint. (R. 21, Order of Oct. 14, 1999.) On October 14, 1999, Cervantes filed a second amended complaint, (R. 22), without having filed a first amended complaint.
Cervantes fails to differentiate her claims into separate counts. Initially, Cervantes claims that she is seeking relief for "the national origin discrimination suffered by the plaintiff in her constructive discharge from the defendant." (Second Am. Compl. ¶ 1.) Yet, she later lists FCC's numerous allegedly discriminatory acts throughout her employment, starting from the date she was hired. ( Id. at ¶¶ 12-25.)
FCC seeks dismissal of this lawsuit on three grounds. First, FCC claims that Cervantes' Hiring and Transfer Claims are time-barred because she violated the 300-day statute of limitations for filing a charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1). Second, FCC argues that Cervantes' Hiring and Transfer Claims are beyond the scope of her EEOC charges. Finally, FCC asserts that Cervantes' Constructive Discharge Claim is time-barred because Cervantes failed to act on this claim within 90 days of receiving her second right-to-sue letter as required under 42 U.S.C. § 2000e-5 (f)(1).
STANDARD OF REVIEW
A 12(b)(6) motion to dismiss should be granted when the complaint fails to state a claim that entitles the plaintiff to relief See Pleva v. Norquist, 195 F.3d 905, 911 (7th Cir. 1999). In reviewing the motion, we must accept as true factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 977-78 (7th Cir. 1999). We will not dismiss a complaint "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court, however, need not ignore facts in the complaint that undermine the plaintiff's case. See Hamilton v. O'Leary, 976 F.2d 341, 343 (7th Cir. 1992).
ANALYSIS
I. Timely Filing with EEOC
FCC first argues that Cervantes' Hiring and Transfer Claims are time-barred because she filed a charge with the EEOC more than 300 days after FCC's allegedly discriminatory acts. As a general rule, a Title VII plaintiff's right to sue in federal court depends on first filing a timely charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5 (e)(1), (f)(1). In Illinois, a Title VII plaintiff must file a charge within 300 days of the discrimination. See Filipovic v. K R Exp. Sys., Inc., 176 F.3d 390, 396 (7th Cir. 1999). The 300-day limitation period commences on the date the employee learned of or should have learned of the allegedly discriminatory actions. See Delaware State College v. Ricks, 449 U.S. 250, 256-57 (1980); Maskowitz v. Trustees of Perdue Univ., 5 F.3d 279, 281-82 (7th Cir. 1993). When the allegations in the complaint show that the plaintiff did not file her EEOC charge within the 300-day time limit, dismissal under Rule 12(b)(6) is appropriate. See Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173-74 (7th Cir. 1999).
A. Hiring Claim
After a careful examination of Cervantes' factual allegations, we conclude that her Hiring Claim is barred because she did not timely file her EEOC charge. According to Cervantes' amended complaint, FCC began discriminating against her at the time of her hire on March 2, 1992, when FCC identified her national origin as "Mexican" and hired her at a grade lower than her experience warranted, (Second Am. Compl. at ¶ 12.B.) At best, according to FCC, FCC's alleged discrimination took place no later than approximately June 1992, when it failed to evaluate and promote her. At the time of her hire, FCC assured Cervantes that "persons such as her were never hired at Grade 15, but they were reviewed in 90 days and promoted to a level 15 at that time." ( Id. at ¶ 12.C). Despite FCC's failure to evaluate or promote her, Cervantes unfortunately did not file her EEOC charge until almost 6 years later, on January 5, 1998. Under these factual circumstances, we must conclude that Cervantes' EEOC charge complaining of FCC's failure to promote or compensate was beyond the 300-day statutory time period. See Heuer v. Weil-McLain, a Div. of the Marley Co., No. 99-1370, 2000 WL 193055, at *1 (7th Cir. Feb. 18, 2000).
B. Transfer Claim
Similarly, Cervantes' Transfer Claim is barred because she did not timely file her EEOC charge. According to Cervantes' amended complaint, FCC unilaterally transferred her to the NCS project in October 1996. Cervantes alleges that at the time of the transfer, FCC promoted 60 percent of the white males but none of the minority women. Further, FCC denied minority women, including herself a choice with respect to accepting the transfer, personal assistants, and equal compensation when compared to the white males who were promoted. Taking these facts into consideration, we conclude that Cervantes knew or had reasons to know that FCC had engaged in an actionable discriminatory act in October 1996. The statutory time period began to run in October 1996 when the discriminatory act occurred. However, Cervantes again delayed filing her charge until 15 months later on January 5, 1998. Thus, we conclude that Cervantes' EEOC charge regarding her Transfer Claim failed to meet the 300-day statutory time limitation.
C. Continuing Violation
Cervantes argues, however, that the doctrine of continuing violation equitably tolls the statute of limitations because her Hiring and Transfer Claims form a continuing pattern of discrimination that "began on March 2, 1992 and continued until at least January 5, 1998," when she filed her first charge. (R. 25, Pl.'s Resp. at 3). The continuing violation doctrine allows a complainant to obtain relief for a time-barred act of discrimination by linking the time-barred act with acts that fall within the statutory limitations period. See Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). Where a continuing violation exists, courts will treat the series of discriminatory acts as one continuous act that ends within the limitations period. See id.
The Seventh Circuit in Selan adopted the following three-factor analysis to determine the existence of a continuing violation: the subject matter, whether the acts involve the same type of discrimination; the frequency, whether the acts are recurring or isolated events; and, most importantly, the degree of permanence, whether the acts of discrimination would "trigger an employee's awareness of and duty to assert his or her rights." Id. at 565-67. In general, the continuing violation doctrine applies only when the plaintiff could not reasonably have recognized the defendant's discriminatory conduct as actionable within the statutory time period, or the plaintiff realizes that the earlier discriminatory acts were actionable only in the light of events that occurred later, within the period of the statute of limitations. See Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996).
Applying the Selan factors to the present case, we conclude that the continuing violation doctrine does not apply to Cervantes' Hiring and Transfer Claims. First, although the discriminatory acts of March 1992 and October 1996 both stem from national origin discrimination, the Hiring Claim focuses on FCC's failure to promote while the Transfer Claim focuses instead on FCC's retaliatory actions. Second, the two discriminatory claims are not parts of recurring events, but rather "more in the nature of an isolated work assignment or employment decision." Selan, 969 F.2d at 567. Almost four years passed between FCC's failure to promote Cervantes and its decision to transfer her. "This considerable separation weighs heavily against finding a continuing violation." Id.
Most importantly, Cervantes' Hiring and Transfer Claims were two discreet events that should have triggered Cervantes' awareness that her rights were violated. Cervantes knew in March 1992 that she was hired at a grade lower than her experience warranted. When, after 90 days, FCC did not evaluate or promote her, FCC's failure to do so should have triggered Cervantes' awareness of and duty to assert her rights. Assuming, arguendo, that Cervantes could not have reasonably realized that her rights were violated in March or June 1992, Cervantes should have realized at the very latest that her rights were violated in October 1996 when FCC unilaterally transferred her to the NCS project. Thus, despite the fact that FCC's acts were similar types of discrimination, Cervantes' claims consist of two discreet events that should have triggered her awareness to assert her rights. See Miller v. American Family Mut. Ins. Co., No. 99-1537, 2000 WL 174623, at *5 (7th Cir. Feb. 16, 2000). A plaintiff may not "sit back and accumulate all the discriminatory acts and sue on all within the statutory period applicable to the last one." Maskowitz, 5 F.3d at 282.
Therefore, we reject Cervantes' argument that the continuing violation doctrine equitably tolls her 300-day statutory time period, and we dismiss her Hiring and Transfer Claims as untimely. Having disposed of Cervantes' Hiring and Transfer Claims, we turn our attention to her Constructive Discharge Claim.
Having dismissed as untimely, we need not address FCC's argument that Cervantes' Hiring and Transfer Claims are outside the scope of her EEOC charges. (Mot. to Dismiss at 12-14.) For the purposes of the record, however, we note that Cervantes' Hiring Claim is within but her Transfer Claim is beyond the scope of her EEOC charges.
Viewed in the light most favorable to Cervantes, her Hiring Claim is reasonably related to the allegations of her first charge. See Cheek v. Peabody Coal Co., 97 F.3d 200, 202 (7th Cir. 1996). Cervantes specified in the first charge that she began her employment "in or about March 1992" and that "throughout [her] employment . . . [FCC] has failed to promote [her] despite [her] qualifications." (Second Am. Compl. Ex. II.) She complained, "I believe I was discriminated against because of my national origin . . . in that I have not been promoted, and I have not been paid the same as non-Mexican Americans. ( Id.)
Cervantes' Transfer Claim, however, is beyond the scope of her two charges, because her charges fail to describe the October 1996 transfer or FCC's allegedly discriminatory acts related to that transfer. Cervantes' first charge simply states that FCC "shuffled [her] around," but she explains that FCC did this only after she complained in May 1997. ( Id.) Thus, we cannot conclude that her Transfer Claim is reasonably related to her EEOC charges. See Harper v. Godfrey Co., 45 F.3d 143, 147 (7th Cir. 1995).
II. Constructive Discharge Claim
FCC next urges the dismissal of Cervantes' Constructive Discharge Claim on the ground that she filed this lawsuit more than 90 days after receiving her right-to-sue letter. As a general rule, a Title VII plaintiff has 90 days from the receipt of the right-to-sue letter to file a suit. See 42 U.S.C. § 2000e-5 (f)(1). Failure to comply with the 90-day limitation period may result in a dismissal of the plaintiff's Title VII action. See Luckett v. Rent-A-Center, Inc., 53 F.3d 871, 872-73 (7th Cir. 1995).
Here, FCC does not dispute that Cervantes did file a complaint within 90 days of receiving her right-to-sue letter. Cervantes received her first right-to-sue letter on August 5, 1998, and filed her original complaint 82 days later on October 26, 1998. FCC asserts, however, that Cervantes did not timely file her Constructive Discharge Claim, because she failed to present this claim until after the 90-day limitation period for this claim had expired. Cervantes filed her amended complaint on October 14, 1999, approximately 14 months after receiving her first right-to-sue letter and about 10 months after EEOC issued the second right-to-sue letter. FCC argues, in essence, that Cervantes' Constructive Discharge Claim is untimely because she failed to amend her original complaint to include her Constructive Discharge Claim within 90 days of receiving her second right-to-sue letter.
Under the relation back doctrine, however, Cervantes's failure to amend her original complaint within 90 days of EEOC's issuance of her second right-to-sue letter does not necessarily render her Constructive Discharge Claim untimely. See Fed.R.Civ.P. 15(c)(2). Under Rule 15 (c)(2), we may allow Cervantes to amend her complaint to include a constructive discharge claim if her claim arises out of the same "conduct, transaction, or occurrence" set forth in her original complaint. Bularz v. Prudential Ins. Co. of America, 93 F.3d 372, 379 (7th Cir. 1996). Thus, Cervantes' Constructive Discharge Claim, which would otherwise be time-barred, relates back to the date of the original pleading provided it stems from the same core of facts or conduct that she alleged in the original complaint.
Applying the relation back doctrine to the present case, we conclude that Cervantes' Constructive Discharge Claim is not time-barred because it arises out of the same core of facts or conduct alleged in her original complaint. Cervantes' amended complaint specifies that she was constructively discharged as a "direct result of [FCC's] retaliation, and failure to rise in the company." (Second Am. Compl. ¶ 15). In the original complaint, Cervantes alleged, inter alia, that FCC's failure to recognize her accomplishments "ultimately had a severe adverse impact on [her] career and personal professional history within the company at large." (Compl. at ¶ 31). FCC discriminated against Cervantes by providing her with unequal compensation and by failing to promote her, ( id. at ¶¶ 28, 29), subjecting her to "ridicule, humiliation, and harassment," ( id. at ¶ 32), and retaliating against her through negative evaluations, ( id. at ¶¶ 50-52, 54, 55). Despite her "Masters of Project Management" degree, FCC failed to provide a "rewarding career opportunity" for Cervantes, ( id. at ¶¶ 20, 21), and on October 13, 1998, Cervantes was "forced to resign [her] position . . . due to the inability to advance [her] career." ( Id. at ¶ 12). Taking these allegations from Cervantes' original complaint, we are satisfied that Cervantes' Constructive Discharge Claim relates back to the same core of facts or conduct contained in her original complaint.
FCC asserts that at the time of Cervantes' original complaint, the EEOC had not yet issued the second right-to-sue letter, and thus, she could not have included statements about her constructive discharge in her complaint. Even if we were to strike Cervantes' statements about her constructive discharge, (Compl. ¶ 11, 12), we would still conclude that Cervantes' Constructive Discharge Claim arises out of the same core of facts or conduct alleged in her original complaint.
In so concluding, we reject FCC's argument that Cervantes' Constructive Discharge Claim must be barred because it did not arise out of the specific factual situation alleged in the original complaint. (Reply at 11.) To take such a narrow reading of the relation back doctrine would undermine the principles of Rule 15(c)(2). See Hill v. Shelander, 924 F.2d 1370, 1376 (7th Cir. 1991). "It is well settled that the Federal Rules of Civil Procedure are to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits. . . . To this end, amendments pursuant to Rule 15(c) should be freely allowed." Staren v. American Nat'l Bank Trust Co., 529 F.2d 1257, 1263 (7th Cir. 1976).
Therefore, because we conclude that Cervantes' Constructive Discharge Claim relates back to the date of her original complaint, we deny FCC's motion to dismiss her Constructive Discharge Claim.
CONCLUSION
FCC's motion to dismiss Cervantes' amended complaint is partially granted and partially denied as indicated herein. All discovery in this case must be concluded by May 30, 2000. Any dispositive motions are due on or before June 30, 2000.
A status hearing will be held in open court on March 15, 2000, at 9:45 a.m.