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.
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."
The present complaint alleges both a constructive discharge
and a discriminatory
denial of a salary increase. (While certain allegations appear
to be attempting to state a sexual harassment claim, Winters
explains in her responding memorandum that no such claim is
being asserted.) The question before the court is whether the
constructive discharge claim is sufficiently related to the
EEOC charges to allow jurisdiction over it in this forum.
Before examining this issue, the court notes that the
constructive discharge claim rests not only on defendant's
failure to award Winters a salary increase, which alone could
not state a claim for constructive discharge, Held v. Gulf Oil
Co., 684 F.2d 427, 434 (6th Cir. 1982), see also Geisler v.
Folsom, 735 F.2d 991, 996 (6th Cir. 1984), but also on
defendant's alleged demeaning attitude towards Winters based on
her age and sex.
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.
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
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.
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. ...