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HUNTER v. COUNTRYSIDE ASSN. FOR THE HANDICAPPED

April 6, 1989

CHARLOTTE HUNTER, Plaintiff,
v.
COUNTRYSIDE ASSOCIATION FOR THE HANDICAPPED, INC. and ROBERT HEMPHILL, Defendants



The opinion of the court was delivered by: BUA

 HONORABLE NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE.

 Plaintiff Charlotte Hunter filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against her former employer, Countryside Association for the Handicapped, Inc. ("Countryside"), and her former supervisor at Countryside, Robert Hemphill. This order concerns Countryside's motion to dismiss the two counts in which it is named as a defendant. For the reasons stated herein, Countryside's motion is granted in part and denied in part.

 FACTS

 Hunter's complaint contains the following factual allegations, which the court must accept as true for the purpose of resolving this motion to dismiss. Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 733 (7th Cir. 1986), cert. denied, 482 U.S. 915, 107 S. Ct. 3188, 96 L. Ed. 2d 676 (1987). For some time during 1987, both Hunter and Hemphill were employed by Countryside. Hemphill was Hunter's immediate supervisor. As a Countryside supervisor, Hemphill's duties included calling meetings of the employees he supervised. Countryside authorized Hemphill to conduct these employee meetings outside of the workplace.

 On November 9, 1987, Hunter arrived at Hemphill's apartment to attend a Countryside employee meeting which Hemphill had advised her to attend. Upon arriving, however, Hunter discovered she was alone in the apartment with Hemphill. Hemphill then allegedly beat her, raped her, and attempted to force her to commit other deviate sexual acts against her will.

 Subsequently, Hunter related the incident to other supervisory staff at Countryside. She requested that Countryside not require her to work with Hemphill, but her request was denied. For the next two weeks, she continued to work under Hemphill's supervision. During that time, Hemphill confronted Hunter and commented on the incident. On November 24, 1987, Hemphill was arrested. Countryside then gave Hemphill a leave of absence, which currently is still in effect. Hunter submitted a written resignation to Countryside on January 11, 1988. Hunter's resignation became effective on January 22, 1988.

 Hunter's six-count amended complaint asserts two claims against Countryside. In Count Two, Hunter alleges that as a result of the sexual assault and harassment inflicted by Hemphill, Countryside violated Title VII, which makes it unlawful for any employer "to discriminate against any individual with respect to his [or her] . . . terms, conditions or privileges of employment because of such individual's . . . sex." 42 U.S.C. § 2000e-2. *fn1" In Count Six, Hunter invokes the theory of respondeat superior, claiming that Countryside is liable for the intentional torts committed by Hemphill. *fn2"

 Countryside contends that both counts should be dismissed. Regarding Count Two, Countryside first argues that dismissal is warranted because Hunter's Title VII claim was not timely filed. Countryside also argues that Count Two should be dismissed on the merits because Hunter is not entitled to any type of relief available under Title VII. With respect to Count Six, Countryside maintains that if Hunter's Title VII claim is dismissed, there is no federal jurisdiction over the pendent state claim in Count Six. In addition, Countryside argues that it cannot be liable under the theory of respondeat superior set forth in Count Six because Hemphill's intentional torts were not committed in the course of his employment with Countryside. Therefore, Countryside argues that Count Six fails to state a claim.

 DISCUSSION

 I. Count Two

 A. The 90-day Filing Requirement Under Title VII

 Section 706 of Title VII requires a Title VII claimant to file a charge with the Equal Employment Opportunity Commission ("EEOC") within 180 days after the alleged unlawful employment practice occurs. 42 U.S.C. § 2000e-5(f)(1). If the EEOC declines to pursue the claimant's charge, the EEOC must notify the claimant, and the claimant may then file a civil action in federal court. Id. The claimant must file his federal action within 90 days of receiving his "right-to-sue" notice from the EEOC. Id. The 90-day filing requirement is not a jurisdictional prerequisite to bringing suit in federal court. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349 n.3, 76 L. Ed. 2d 628, 103 S. Ct. 2392 (1983). Rather, the 90-day limit is akin to a statute of limitations. Id.

 Countryside points out that although Hunter received her right-to-sue notice from the EEOC on June 14, 1988, she did not file the instant complaint until October 12, 1988. Therefore, Hunter failed to file her complaint within 90 days of receiving her right-to-sue notice. Countryside argues that as a result, Hunter's Title VII claim is time-barred. The court, however, finds that under the special procedural circumstances in ...


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