Opinion
IP 00-1284-C B/S
October 9, 2002
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Introduction.
This is an employment discrimination case pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. The plaintiff, James Robinson, alleges that his former employer, Dan Young Chevrolet, refused on four occasions to promote him from his sales job to open positions as Finance Manager on the basis of his race (African American) and his age (over forty).
The case is before the court on defendant's motion for summary judgment on statute of limitations grounds. Dan Young initially argued on summary judgment that Mr. Robinson's first three allegations of discrimination are time barred because they occurred more than three hundred days prior to his filing an EEOC charge on January 6, 1998. It then argued in its reply brief that Mr. Robinson admitted his way out of his fourth and last allegation of discrimination by conceding that the fourth alleged act also occurred more than three hundred days before he filed his EEOC charge. Mr. Robinson argues that his case is not subject to dismissal on summary judgment because the most recent claim was clearly timely, while the earlier three, otherwise time-barred claims survive dismissal because they are part of a continuing violation.
For the reasons that follow, we hold that Mr. Robinson's first three allegations of discrimination are barred by the EEOC charge-filing statute of limitations, but that there is a genuine issue of material fact as to whether the fourth allegation — that he was refused promotion on the basis of his race and age in June 1997 — was the subject of a timely charge of discrimination. Accordingly, we GRANT defendant's motion for summary judgment as to the timeliness of Mr. Robinson's earliest three claims, but DENY defendant's motion as to the timeliness of the June 1997 failure to promote claim.
II. Statement of Facts Pertinent to Defendant's Motion.
Since defendant's motion for summary judgment is based solely on the theory that the plaintiff failed to comply with the EEOC charge-filing statute of limitations, there are few pertinent facts. We set forth only undisputed facts or construe those that are disputed in a light reasonably most favorable to the plaintiff.
Mr. Robinson is an African American who, on January 6, 1998, was 53 years of age. Complaint ¶¶ 1, 14; Complaint Ex. 1. Mr. Robinson worked as a used car salesman for Dan Young from January 1995 to July 26, 1997. Complaint ¶ 2; Def. Facts ¶ 1. He applied for promotions to the Finance Manager or Finance Director position on four separate occasions: in April 1995; in April 1996; in June 1996; and in June 1997. Robinson Aff., ¶ 4. Alan V. Young, the President of Dan Young, acknowledges that the Finance and Insurance Manager positions were vacant on those four occasions. Young Aff., ¶ 4. Mr. Robinson was not promoted on any of the four occasions. Instead, it is undisputed that younger white employees were hired or promoted into the positions Mr. Robinson sought. Robinson Aff., ¶¶ 6, 10, 13, 16.
Mr. Robinson filed two affidavits: one on June 25, 2001 and a second on August 29, 2001. Both are entitled "Affidavit of James E. Robinson"and both contain numbered paragraphs beginning with the number 1. It should be unnecessary to explain to experienced counsel that they could have promoted clarity by entitling the second affidavit "Supplemental Affidavit" or by numbering the second affidavit beginning with paragraph 22. In any event, Mr. Robinson's August affidavit is the subject of defendant's motion to strike. We DENY defendant's motion for reasons outlined later in this opinion. But we note for the present that we do not rely on Mr. Robinson's second affidavit to resolve the issues before us.
III. Analysis. A. The Standard on Summary Judgment.
Summary judgment will be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To determine whether a genuine issue of material fact exists, we construe all facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the initial burden of showing that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.
B. The Parties' Motions to Strike.
Before turning to the merits of defendant's motion, we address the parties' respective motions to strike. Mr. Robinson argues that Dan Young initially filed a motion for partial summary judgment seeking to dismiss on timeliness grounds only the claims based on the April 1995 and the April and June 1996 failures to promote. Dan Young later filed a reply brief calling for a dismissal of all claims — including the claim involving the June 1997 failure to promote — because Mr. Robinson's alleged admissions show that this "fourth" claim was also time barred. Mr. Robinson asks us to strike defendant's reply brief because it addresses issues that its initial brief did not.
Meanwhile, Dan Young asks the Court to strike Mr. Robinson's second (August 2001) affidavit because it tries to invent an issue of fact by making vague claims about the fourth allegation of discrimination.
We DENY both motions because they are moot. Striking defendant's reply brief will accomplish nothing because we DENY Dan Young's motion for summary judgment as to the timeliness of the fourth failure-to-promote claim notwithstanding its reply brief. Striking Mr. Robinson's second affidavit will accomplish nothing because we have not relied on it to reach our conclusions.
C. The Statutory Charge-Filing Period.
Title VII and the ADEA both contain charge-filing requirements, including statutes of limitations. 42 U.S.C. § 2000e-5(e); 29 U.S.C. § 626(d)(1). Since the parties have focused on the 300-day charge filing period, we do so here. See Alexander v. Wisconsin Dept. of Health and Family Services, ___ F.3d ___, 2001 WL 965938, (7th Cir. Aug 27, 2001) (Title VII), *13, n. 1; Snider v. Belvidere Township, 216 F.3d 616, 618 (7th Cir. 2000) (Title VII); EEOC v. North Gibson School Corporation, 2001 WL 1083940 (7th Cir. Sept. 11, 2001) (ADEA), *5; Daugherity v. Traylor Bros., Inc., 970 F.2d 348, 350 n. 2 (7th Cir. 1992) (ADEA).
There are two statute of limitations issues before us. First, whether Mr. Robinson's EEOC charge of January 6, 1998 was timely. That issue rests on the further question of whether he has presented sufficient evidence to raise a reasonable inference that he applied for a promotion in June 1997 and was denied that promotion. Second, if the answer to the first question is "yes," whether Mr. Robinson's failure-to-promote claims dating back to April 1995 and April and June 1996 — which are clearly time barred by the 300-day charge-filing statute of limitations — are subject to resurrection under the "continuing violation" doctrine.
1. The June 1997 Promotion.
The first issue is readily resolved on the record before us. Mr. Robinson swears that he applied for the Finance Manager position in June 1997 and that he was passed over in favor of one or more younger, white employees. Robinson Aff., ¶¶ 4, 16. Mr. Young acknowledges that the Finance Manager position was open in June 1997. Young Aff., ¶¶ 4, 5. Mr. Young does not deny that a younger white employee was either hired or promoted into that position. Mr. Robinson filed his charge on January 6, 1998, fewer than 300 days after the alleged discriminatory act. It follows that his charge was timely.
But, says Dan Young in its reply brief, Mr. Robinson couldn't have meant that he applied for the job in June 1997 because he said that the job filled in June 1997 was filled by two candidates internal to Dan Young and that those two — Jon Thomas and Brad Albright — were actually hired in April and June 1996; similarly, the June 1997 slot was filled by one candidate, Greg Grissom, and Grissom came from outside. It follows that Mr. Robinson really meant that the last act of discrimination occurred in 1996 — the occasions on which the two internal candidates were promoted — and that, therefore, the June 1997 incident is not actionable because it is time barred.
There are two fatal problems with Dan Young's argument. First, it is unsupported by a shred of evidence. Second, even if there were evidentiary support, its argument construes disputed facts in its own favor.
As to the first problem, Dan Young presents no evidence to support its assertion that Messrs. Thomas and Albright were the internal candidates who were hired in April and June 1996. It presents no evidence to support its assertion that Greg Grissom was hired from outside Dan Young in June 1997. Perhaps most important, it presents no evidence to support its assertion that Mr. Robinson was really referring to June 1996 as the last discriminatory act. These putative "facts" appear simply as assertions in Dan Young's brief; lawyers' assertions are not evidence.
This lack of evidence is surprising, since questions concerning the dates on which an employer made certain employment decisions are uniquely susceptible to proof. One would imagine that an employer could readily provide payroll records or employee work histories, or even check stubs or changes on employee benefit schedules to show when Messrs. Thomas, Albright, and Grissom were hired or promoted to Finance Manager. Such proof of timing is particularly important where, as here, the employer asks us to dismiss a lawsuit because it is entitled to judgment as a matter of law on statute of limitations grounds. Defendant also might have presented Mr. Robinson's sworn deposition testimony as to which promotions he sought on which dates and who was hired instead of him. Instead, defendant asks us to infer what Mr. Robinson must have meant from statements which Mr. Robinson made in an affidavit and which defendant wishes to construe in its own favor.
Which brings us to the second problem. Even if Dan Young had presented evidence to support its factual assertions, the most we could reasonably infer on the present record is that Mr. Robinson was wrong about who was hired as Finance Manager in June 1997. Dan Young wishes us to infer from Mr. Robinson's statements that, since he identified the wrong hiree (or hirees) in June 1997 then he must have been referring to events in 1996 when those individuals were actually hired. We cannot make such a sweeping inference on the facts before us, especially when it is equally plausible that Mr. Robinson was correct about the June 1997 date, though wrong about the person(s) hired.
We are required to read the summary judgment record as showing that: Mr. Robinson applied for a position as Finance Manager in June 1997; he was refused the promotion; a younger, white person was placed in the position in his stead. Nothing Dan Young offers refutes these facts. Accordingly, Dan Young has not satisfied its initial burden of showing the absence of a genuine issue of material fact, and its motion for summary judgment as to the timeliness of the charge pertaining to the fourth claim — that Dan Young denied Mr. Robinson a promotion based on his race and/or his age on June 26, 1997 — is DENIED.
2. Continuing Violation.
Plaintiff fares less well on its continuing violation argument. Mr. Robinson asserts that, even though he did not file a charge of discrimination until January 6, 1998, his failure-to-promote claims founded on employment decisions made in April 1995 and April and June 1996 are actionable because they constitute a continuous series of events that link up with his one timely claim, the June 1997 failure to promote. We disagree and hold that Dan Young's promotion decisions in 1995 and 1996 were the kind of discrete, singular, identifiable acts that should have put Mr. Robinson on notice that his rights had been violated and that tend to defy continuing violation theory. Accordingly, the 1995 and 1996 failures to promote are not actionable.
Mr. Robinson correctly observes that a plaintiff may "get relief for a time-barred act by linking it with an act that is within the limitations period." Miller v. Am. Family Mutual Insurance Co., 203 F.3d 997, 1003 (7th Cir. 2000), quoting Speer v. Rand McNally, 123 F.3d 658, 663 (7th Cir. 1997). See Place v. Abbott Labs., 215 F.3d 803, 808 (7th Cir. 2000), cert. denied, 531 U.S. 1074, 121 S.Ct. 768, 148 L.Ed.2d 668 (2001). But the continuing violation doctrine does not apply "when the time-barred incident alone should have triggered the plaintiff's awareness that his rights had been violated." North Gibson, 2001 WL 1083940 at *6 (emphasis added). That is the case here.
The Seventh Circuit has outlined three circumstances in which continuing violation doctrine may be applied. See Place, 215 F.3d at 807; Selan v. Kiley, 969 F.2d 560, 565-566 (7th Cir. 1992). First, circumstances in which it is difficult to pin-point the date on which the violation occurred because the violation occurred over time. This category is best exemplified by harassment cases, in which the potential plaintiff is caught between competing demands which create opposing dilemmas: filing too early — at a point at which the alleged conduct does not yet rise to the level of harassment — and filing too late — after the plaintiff should have figured out she was the victim of harassment and after the charge-filing period has expired. See, e.g., Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1166 (7th Cir. 1996). Second, circumstances in which the decisional process that is alleged to be discriminatory is open and ongoing. For example, an employer's continuing discriminatory wage practice is, in effect, reenacted in each pay period and amounts to a continuing violation. E.g., Wagner v. The Nutrasweet Company, 95 F.3d 527, 534 (7th Cir. 1996) (and cases cited there).
Third, circumstances in which the employer's discrimination is so subtle or covert as to defy its identification as discrimination by a reasonably diligent employee until the employee has the advantage of retrospect. Selan, 969 F.2d at 965; Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 281-82 (7th Cir. 1993). Common to all three is that a continuing violation "is one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period." Place, 215 F.3d at 807, quoting, Dasgupta v. University of Wisconsin Board of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997).
Mr. Robinson invokes the third form of continuing violation. He argues that he had insufficient information to conclude that he was the victim of race and age discrimination on the first three occasions on which he was passed over for promotion in favor of younger, white candidates and could not have been expected to file a charge until after the fourth failure to promote in June 1997. This argument fails even the venerable red-face test.
Two points suffice. First, we aren't dealing here with an arguably continuous act. We are presented with discrete, identifiable employment actions: four decisions not to promote Mr. Robinson and to promote, instead, younger, white candidates. As the Seventh Circuit has noted, discharges, demotions, job transfers, failures to hire, and failures to promote are single, significant events, and not a continuing act. "[U]nlike low-level harassment that over time grows in intensity or in cumulative effect," such individual employment actions are "concrete, discrete development[s]." Place, 215 F.3d at 208. Second, an employee cannot invoke continuing violation theory where he knew, or with the exercise of reasonable diligence should have known, that each act was discriminatory and that he was injured by it. Id.
Mr. Robinson argues that he should not have been expected to file a charge alleging race and/or age discrimination after the first failure to promote because he was told that he wouldn't make as much money as Finance Manager as he was making as a salesman. The trusting Mr. Robinson apparently found out that this wasn't true only after conducting discovery, which indicates that even used car salesmen are vulnerable to misrepresentations. He argues, similarly, that he should not have been expected to recognize age and race discrimination after the second and third failures to promote because his supervisor, Steve Faulkner, told him that he wasn't qualified for the position and he had no reason not to believe Mr. Faulkner. Thus, even after three younger, white employees were promoted in his stead, he didn't suspect that age and/or race figured in the decisions. (He did, however, believe that he was the victim of race discrimination in 1996 when he was not permitted to use an agency car on vacation when a white employee was. And he knew that no African American had been hired into the position of Finance and Insurance during his employment. Robinson Aff., ¶ 7.) Thus, according to Mr. Robinson, it wasn't until the fourth occasion that Dan Young refused to promote him and instead selected a younger white candidate that he got the message: age and/or race must be playing a role here. Assuming these facts to be true, Mr. Robinson was, in addition to being long suffering, inattentive to his rights. The law will not permit a 53 year old African American man who is refused promotions on three separate occasions and who watches three younger, Caucasian candidates assume the positions for which he applied to invoke the continuing violation doctrine in order to bootstrap otherwise untimely acts into viable claims of age and race discrimination.
To do so would be to render the statute of limitations meaningless. We find the alleged discriminatory acts to have been "discrete, isolated, and completed acts which must be regarded as individual violations." Selan, 969 F.2d at 565-566. Additionally, even making allowances for naivete and a conscientious reliance on his boss's representations, we find that Mr. Robinson should have known his rights had been violated (if at all) at the latest after being rebuffed in June 1996.
IV. Conclusion.
For the reasons addressed, we hold that the alleged failures to promote in April 1995 and in April and June 1996 are barred by the charge-filing statute of limitations and therefore are not actionable. We also hold that the alleged failure to hire in June 1997 was made the subject of a timely charge of discrimination, so that it is an actionable claim. We thus GRANT defendant's motion as to the first three allegations of discrimination, but DENY its motion to dismiss the complaint in its entirety.
It is so ORDERED this 9th day of October 2002.