complaint charging discriminatory rejection was due in this
Court no later than March 31, 1980. This suit, however, was
filed on May 2, 1980.
Regardless, Herman and Mullaney claim that the statute of
limitations for filing was tolled because NBC's alleged
"continuing violation" occurred sometime after their late May
and June 1978 terminations. Under their view, a suit for
nonwillful ADEA violations filed on May 2, 1980 is timely. The
plaintiffs argue that they told the EEOC about the continuing
violations incident to the EEOC's investigation of NBC. The
Court does not doubt that the plaintiffs told the EEOC their
versions of NBC's post-termination actions and motives.
Furthermore, the Court notes that the EEOC investigation of
NBC continued at least through 1979. However, those facts are
irrelevant to the issue here. Herman and Mullaney
misunderstand the legal nature of a "continuing violation" and
the effect such a finding has on the timing of ADEA
A "continuing violation" derives from an ongoing
discriminatory policy which adversely affects persons within
the protection of ADEA or Title VII.*fn6 See, e.g., Roberts v.
North American Rockwell Corp., 650 F.2d 823 (6th Cir. 1980); 2
Larson, "Employment Discrimination" 9A § 48.54 (1980). Unlike a
discrete violation, such as a discriminatory discharge, it is
difficult to date a violation bottomed on a failure to hire or
promote due to the employer's ongoing unlawful policy. For
example, where there is proof that a plaintiff has made
numerous inquiries of the status of a previously rejected
application for hire or promotion, and he is again rejected or
put off, the most recent rejection in the continuing series is
the violation date. Roberts v. North American Rockwell Corp.,
supra; Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th
The effect of finding a "continuing violation" is to toll
the 180 day period for filing with the EEOC. The last
violation, rather than the first in a series, is the triggering
event. So long as a plaintiff claims, when he or she eventually
files with the EEOC, that there was within the preceding 180
days a present violation and not just the lingering effects of
a past violation, the filing is timely. United Air Lines, Inc.
v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977);
Farris v. Board of Education, 576 F.2d 765 (8th Cir. 1979).
Here the plaintiffs timely filed their charges of unlawful
rejection with the EEOC. It is only later that they alleged
other or an ongoing series of discriminatory acts. Since the
180 day filing period was met, however, no EEOC filing period
for the unlawful rejections need be tolled. The continuing
violation doctrine is meaningless under the facts of this case.
See Scaramuzzo v. Glenmore Distilleries Co., 501 F. Supp. 727,
729 n. 2 (N.D.Ill. 1980).
When Herman and Mullaney filed with the EEOC in April 1978,
they unequivocally announced that at least one violation,
their rejections for new positions, preceded that filing
within 180 days. Those charges of improper rejection were lost
unless suit was instituted by March 31, 1980. Plaintiffs'
argument that it was only after their respective terminations
that they were able to discern a pattern of age discrimination
is to no avail. They obviously were suspicious enough of NBC's
motives against them before their terminations to file an age
discrimination charge with the EEOC. Having properly filed
with the EEOC in the first instance, they cannot now ignore
the reason for that filing and its applicable limitations'
Had Herman and Mullaney timely sued on their charges of
discriminatory rejection, they could have raised NBC's
post-termination conduct as evidence of a discriminatory
pattern of behavior which NBC allegedly practiced against its
older employees or at least against Herman and Mullaney. This
Circuit holds, albeit in a Title VII context, that a claim may
encompass any acts of discrimination similar or reasonably
related to the allegations made in the initial EEOC charge.
Jenkins v. Blue Cross Mutual Hospital Insurance, Inc.,
538 F.2d 164, 167 (7th Cir.) (en banc), cert. denied, 429 U.S. 986, 97
S.Ct. 506, 50 L.Ed.2d 598 (1976). An administrative charge only
triggers the EEOC investigation and its efforts at
conciliation. Id. at 168. Any civil action subsequently filed
"grows out of the administrative investigation rather than the
employee's specific allegations." McCray v. Standard Oil Co.
(Indiana), 76 F.R.D. 490, 497 (N.D.Ill. 1977). See also
Scaramuzzo v. Glenmore Distilleries Co., supra, at 730.
No cases were located, however, which hold that the time for
bringing suit on new or old claims is open-ended so long as
the initial 180 filing period for the old claim is respected
and the new claims are raised in the course of the EEOC
investigation. It is possible that an EEOC investigation of
NBC could have continued until 1980 or beyond. Also possible
is that during the investigation Herman and Mullaney would
have remained in NBC's temporary and allegedly discriminatory
employ. Under the plaintiffs' theory, if they told the EEOC
about any of NBC's so-called continuing violations, they could
have stalled suing for the allegedly discriminatory rejections
and for the new claims until 1982 or beyond — even though the
only EEOC charge was filed in 1978.
ADEA is to the contrary. A suit for nonwillful violations
must be brought within two years of the unlawful act. The
continuing violation doctrine does not alter that law. After
the 180 filing period is met for the later rather than the
earlier violation, the two year limitation period inalterably
follows. Unless Herman and Mullaney separately filed EEOC
charges within 180 days of any violations occurring after
March 31, 1978, those claims as well as the discriminatory
rejection claims are forfeited.
The Seventh Circuit's recent admonition that in an
employment discrimination context all doubts on a
jurisdictional point must be resolved in favor of plenary
trial rather than dismissal at the pretrial stage is not
controlling here. See Pastrana v. Federal Mogul Corp.,
683 F.2d 236, 242 (7th Cir. 1982) (dismissal inappropriate where issue
is whether plaintiff alleged national origin and physical
handicap discrimination before the EEOC where EEOC intake
officer checked only one box despite plaintiff's oral charge of
both types of discrimination). Here, there is no question as to
when the rejections occurred. The plaintiffs timely filed and
described their allegations of rejection in April of 1978. They
were not prevented from bringing other claims to the attention
of the EEOC at that time: the alleged continuing violations
were still in the future. Similarly the plaintiffs did not
formally charge NBC with continuing violations in such a way as
to fix a timeframe for commencing suit two years after those
subsequent violations allegedly occurred. Having failed to sue
within two years of the rejections or bring separate charges of
post-termination violations, this action is untimely as a
matter of law. No genuine issues of material fact on those
points remain for trial and partial summary judgment in NBC's
favor is appropriate. Fed.R. Civ.P. 56.
The plaintiffs' fall back position is that NBC waived its
right to raise the statute of limitations by allegedly failing
to raise or preserve the defense by answer or otherwise. The
plaintiffs are incorrect. First, NBC's answer denies that
plaintiffs complied with all procedural prerequisites to
bringing an ADEA action. Second, NBC's second affirmative
defense is that the plaintiffs' complaint is deficient because
it does not assert that the plaintiffs complied with various
filing prerequisites under ADEA. Based on NBC's answer and
affirmative defense, the Court finds that the plaintiffs were
properly apprised of NBC's concerns for the jurisdictional
basis of this suit. NBC was not required to specifically
amend its affirmative defense once it discovered the dates
critical to this suit. NBC properly filed this motion for
partial summary judgment.
IT IS THEREFORE ORDERED that
1. Summary judgment is granted in favor of NBC and against
Herman and Mullaney on Count I.
2. Summary judgment is granted in favor of NBC and against
Herman and Mullaney on the allegations of nonwillful
violations of ADEA made in Count II.
3. The allegations of willful violations of ADEA in Count II
remain for trial.
4. A status hearing will be held on June 10, 1983 at 9:30
a.m. to set a date for submission of an amended pretrial