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United States District Court, Northern District of Illinois, E.D

September 22, 1983


The opinion of the court was delivered by: Shadur, District Judge.


Harold Haupt ("Haupt") sues International Harvester Co. ("IH") and Michael McGrath ("McGrath"), alleging:

    1. IH discharged him from his job because of his
  age in violation of the Age Discrimination in
  Employment Act ("ADEA"), 29 U.S.C. § 621-34*fn1
  (Count I).

    2. McGrath tortiously interfered with Haupt's
  employment contract with IH (Count II).

IH has moved for summary judgment on Count I, asserting two time-related arguments:

    1. Haupt did not file a timely charge with the
  Equal Employment Opportunity Commission ("EEOC").

    2. Haupt did not file this action within the
  applicable statute of limitations period.

For the reasons stated in this memorandum opinion and order IH's motion is granted.*fn2

Because Illinois is a "deferral state" under Section 633(b) Haupt had 300 days "after the alleged unlawful practice occurred" to file his charge with EEOC. Section 626(d)(2).*fn3 IH admits (R.Mem. 3-4) Haupt filed his EEOC charge April 8, 1982.*fn4

Under Section 626(e)(1) (incorporating by reference 29 U.S.C. § 255) Haupt had two years "after the cause of action accrued" to commence this action — and three years if his action "ar[ose] out of a willful violation."*fn5 Haupt filed this action November 30, 1982.

Both time clocks thus share the same beginning: when the "unlawful practice occurred" and therefore Haupt's "cause of action accrued." And that is the center of the present dispute. Harvester claims it is entitled to a judgment as a matter of law that the time clock ran out in one or both respects: that April 8, 1982 was more than 300 days, or November 30, 1982 was more than two years, from that beginning date. Though the parties dispute the beginning date (and though IH's own analysis of the subject is flawed), IH's claim must ultimately prevail on the first of those two calculations.

It is uncontroverted Haupt was told sometime before November 12, 1980 his job as an IH pallet control coordinator would be abolished November 30, 1980. February 7, 1983 Affidavit of IH Personnel Manager Mary Frestel ("Frestel Aff.") ¶ 5; Haupt's February 18, 1983 Affidavit ("Haupt Aff.") ¶ 17. Focusing alternatively on that mid-November 1980 date of notification and on the November 26, 1980 date Haupt last worked,*fn6 IH says (Mem. 6, 9) Haupt had to file (1) his EEOC charge before mid-September 1981 and (2) this action some days before November 30, 1982.

But Haupt tells a more complex story. In a November 12, 1980 letter to Harvester Board Chairman A.R. McCardell ("McCardell") (written just after Haupt had been informed of his pending layoff), Haupt reported various irregularities in his department involving McGrath. Haupt Aff.App. A; Frestel Aff.Ex. A. Haupt says (Aff. ¶¶ 21-41) that letter triggered a series of communications with various IH officials in which he was told (1) not to report to work pending IH's completion of an investigation of McGrath, (2) to go on layoff status as of November 26, 1980 and (3) to await word from personnel officials about possible employment openings at IH. Haupt also says (id. ¶ 42) he wrote a January 20, 1982 letter to McCardell after those personnel officials had been unresponsive to his various and repeated inquiries over the intervening thirteen months. Id. App. B; Frestel Aff. Ex. B. That 1982 letter (1) pleaded Haupt's contribution to IH on the McGrath matter — McGrath had resigned December 5, 1980 in the face of IH's investigation (Haupt Aff. ¶ 30) — and (2) asked McCardell's aid in getting better treatment by Harvester's personnel officials. In response to that letter a Harvester Vice President wrote to Haupt February 11, 1982, informing him both (1) the supplemental unemployment benefits ("SUB") following his layoff*fn7 and (2) his employment with IH would be terminated March 1, 1982. Id. App. C. Accordingly Haupt says (Ans. Mem. 4-5) February 11 or March 1, 1982 was the date on which the administrative and statutory clocks started ticking — rendering both his EEOC charge and this action timely.

Both IH and Haupt have oversimplified matters. As the party opposing summary judgment, Haupt is entitled to reasonable inferences in his favor from the facts submitted in support of and opposition to the motion. Thornton v. Evans, 692 F.2d 1064, 1074-75 (7th Cir. 1982). That concept defeats IH's argument for the November 1980 starting dates, for Haupt Aff. ¶ 28 says:

  Mr. Evans eventually told me to come into the company
  on November 26, 1980. He said that Mr. McGrath would
  not be in on that day. I was told to go through the
  normal process of a lay off, even though I was still
  an employee, so as not to make Mr. McGrath
  suspicious. He said that the investigation was still
  going on.

Taking Haupt at his word (as it must), this Court cannot view him as having then received a "final decision" as to his employment status — so as to trigger the accrual of his action for employment discrimination. See Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981) (per curiam); Delaware State College v. Ricks, 449 U.S. 250, 257-62, 101 S.Ct. 498, 503-06, 66 L.Ed.2d 431 (1980).*fn8

On the other hand, Haupt glosses over the critical significance of his own Aff. ¶¶ 30-33:

    30. On December 8, 1980, while I was on lay off,
  Mr. Evans contacted me by phone. He said that Mr.
  McGrath had been confronted with the evidence against
  him. Mr. McGrath was asked to make any statement in
  his defense. Mr. Evans said that Mr. McGrath said
  nothing but resigned on December 5, 1980.

31. Mr. Evans thanked me for my cooperation.

    32. I then asked Mr. Evans about my status with
  Harvester, and reminded him of my layoff and his
  promise. He said that he was in the process of
  checking with the Personnel Department and also with
  some other department heads in purchasing. Mr. Evans
  said he would call me in a week.

    33. Mr. Evans never called me back. Instead I
  called him the week of December 15, 1980. I asked
  about my status. Mr. Evans said that there was
  nothing that they could do for me right away because
  there were no openings. I reminded him about his
  promise and my cooperation. This time he said that he
  never promised me anything.

On his own version of the facts, as of December 15, 1980 Haupt knew both that (1) IH regarded him as a regularly laid-off employee and (2) from his own perspective its action in laying him off had been age-discriminatory. On that date, then, he had received the "notification of discharge"*fn9 that marked the beginning of the ADEA time periods. And the possibility of recall if another job became available did not stop the time clock from beginning. Price v. Litton Business Systems, Inc., 694 F.2d 963, 965-66 (4th Cir. 1982); Lawson, 683 F.2d at 864; Wagner v. Sperry Univac, 458 F. Supp. 505, 512-13 (E.D.Pa. 1978), aff'd, 624 F.2d 1092 (3d Cir. 1980).

Accordingly this action was timely filed (because it was brought less than two years after December 15, 1980), but Haupt's prerequisite EEOC charge was not (because it was filed more than 300 days after the same date). Though EEOC filing is not truly a jurisdictional precondition to an ADEA suit, Haupt has advanced nothing to support an equitable tolling once he had been given the December 15 notification. On Haupt's own facts, at least by December 15 it was not IH's conduct, but rather his own self-hypnosis, that led to inaction on his part instead of pursuing his claim through EEOC.


There is no genuine issue as to any material fact. IH is entitled to a judgment as a matter of law. Complaint Count I is dismissed with prejudice.

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