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WINTERS v. PRUDENTIAL-BACHE SEC.

December 31, 1984

JUDITH E. WINTERS, PLAINTIFF,
v.
PRUDENTIAL-BACHE SECURITIES, INC., DEFENDANT.



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

  MEMORANDUM OPINION AND ORDER

This employment discrimination action is before the court on the motion for full summary judgment of defendant Prudential-Bache Securities, Inc. Plaintiff Judith Winters has brought a three-count complaint charging defendant with sex and age discrimination in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), the Equal Pay Act of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("EPA"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"). For the reasons stated below, the motion is granted in part and denied in part.

Title VII

1. Scope of the EEOC Charge

Defendant argues that the Title VII allegations in Count I far exceed the scope of the EEOC charge filed in this case. Winters filed two charges before commencing the present action. The first contains a one-sentence description of the challenged incident. In it, Winters states, in part, that, "I believe I have been discriminated against . . . in that I was denied a salary increase from May 1, 1983 until November 14, 1983 (when I resigned my position) by Terrence Brennan. . . ." The second charge expands on the original allegation of salary discrimination, and adds that "[a]s a result of the discriminatory treatment I received I resigned my position on November 14, 1983."

In examining the proper scope of the allegations of a Title VII civil complaint, the courts have allowed plaintiffs to expand the scope of the EEOC charge, so long as the allegations are reasonably related to the charge. The Fifth Circuit articulated this rule in Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970), when it held that "the `scope' of the judicial complaint is limited to the `scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." The Seventh Circuit accepted this standard of construing EEOC charges and civil complaints. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976). In addition, the courts should be solicitous of plaintiffs who, while in district court are represented by counsel, completed the EEOC charge without legal aid. See Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972).

Even construing broadly the two EEOC charges in this case, the court agrees with defendant that the constructive discharge allegations exceed the scope of Winters' filings with the EEOC. In neither is there a hint that she had any complaint other than the denial of a salary increase. There is simply no allegation of the other discriminatory treatment of which she now complains. Winters does state in both charges that she "resigned." And, in the second charge she states that the resignation was prompted by discriminatory treatment. However, in that charge the discriminatory treatment is described only as defendant's refusal to give her a salary increase. No other discrimination, such as the demeaning attitude of her supervisor, Terrence Brennan, is included to warn the EEOC that circumstances other than a salary dispute were responsible for the resignation. While there may be incidents of salary discrimination so outrageous as to rise to the level of constructive discharge, the allegations and evidence here fall squarely within the holding of Held v. Gulf Oil Co., supra, and alone cannot support a constructive discharge claim. The EEOC, therefore, would not have known to investigate any incident of Winters' employment besides that described in her two charges, namely, the single failure to obtain a salary increase. Carillo v. Illinois Bell Telephone Co., 538 F. Supp. 793 (N.D.Ill. 1982). Moreover, Winters does not present any evidence that would suggest the EEOC did investigate beyond this one discrete incident.

This conclusion does not require a complainant to use legal terms in the charge or to make an exhaustive list of discriminatory acts. However, neither can a complainant set forth one act of discrimination and thereafter file a complaint alleging others not even suggested by the charge. Apart from failing to notify the employer of the type of discrimination charged, such a system would vitiate the EEOC's attempts to resolve discrimination actions extra-judicially.

The court therefore finds that the allegations of the complaint regarding constructive discharge should be stricken. The court accepts Winters' claim that the complaint does not attempt to state a sexual harassment claim (this would be beyond the EEOC charge in any case). Hence, Count I may state a claim only for the discriminatory denial of a salary increase. Of course, the allegations and evidence that Winters was treated in a demeaning way by her supervisor remain evidence in Winters' claim of discrimination, although they are not actionable in themselves.

2. Statute of Limitations

Defendant next argues that the claim of salary discrimination is time-barred. The court agrees with defendant that the salary discrimination in this case cannot be termed a "continuing violation." See Stewart v. CPC International, Inc., 679 F.2d 117, 120-21 (7th Cir. 1982). The continuing violation cases cited by Winters, concerning unlawful salary differentials between women and men, are not on point. While Winters alleges such salary discrimination in her EPA count, it is certainly not alleged in Count I or the EEOC charge. Rather, as the allegations of this disparate treatment case clearly illustrate, Winters claims she was discriminatorily denied a salary increase at one point in time. Her Title VII allegations register no other complaint regarding her salary than this one event.

As a continuing violation theory is not applicable to this case, the court must determine the date on which defendant denied Winters a raise. This is the appropriate date from which to measure the period, as the limitations period "normally commence[s] when the employer's decision is made." Delaware State College v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 505, 66 L.Ed.2d 431 (1980). The period may be tolled to the date on which the "facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to plaintiff." Wolfolk v. Rivera, 729 F.2d 1114, 1117 (7th Cir. 1984) (quoted in Janowiak v. The Corporate City of South Bend, 750 F.2d 557 at 560 (7th Cir. 1984).

In this case, the date of the discriminatory act is unclear. It is undisputed that defendant's practice concerning salary increases was to review the employee's performance annually on the date of the last promotion, which in Winters' case was in May. (Brennan Aff. ...


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