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LEFFINGWELL v. SEARS

August 4, 1989

EDWIN W. LEFFINGWELL, Plaintiff,
v.
SEARS, ROEBUCK AND CO., Defendant



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Plaintiff Edwin W. Leffingwell has sued defendant Sears, Roebuck & Co. under the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. secs. 621 et seq., and Illinois common law. He alleges that from 1985 to late 1987 Sears discriminated against him by twice transferring him to inferior jobs and then by constructively firing him because of his age. Sears has moved to dismiss the allegations regarding the first two allegedly discriminatory acts on the grounds that they are barred by the statute of limitations. For the reasons set forth below, the motion will be denied.

 THE COMPLAINT

 For the purposes of this motion, the court accepts as true the allegations in the complaint. *fn1" The plaintiff, an Illinois resident, is currently 58 years old. He began working for Sears in February, 1956, and by 1967 had attained the position of Senior Buyer. In the summer of 1985, Vern Page, a Sears vice-president, asked the plaintiff if he would consider a reassignment to a temporary position as Staff Coordinator for the Sears Store of the Future project. When the plaintiff expressed a fear that such a reassignment would forfeit the tenure and responsibilities he had acquired as Senior Buyer, Page assured him that the new position would enhance his opportunities for promotion, and that he could return to his position as Senior Buyer when his temporary position terminated. Based on these representations, the plaintiff accepted the new position. As had been the case when he was a Senior Buyer, the plaintiff performed his new job in an exemplary fashion.

 In the summer of 1986, Sears terminated the plaintiff's Staff Coordinator position. When the plaintiff requested that he return to his job as Senior Buyer, however, David Stewart, Page's successor, rejected the request and urged the plaintiff to voluntarily retire. The plaintiff refused.

 Sears then assigned the plaintiff to an inferior job assignment as a Group Coordinator of the Quick Response Project. Sears also embarked on a campaign to degrade and humiliate the plaintiff by physically segregating him from his colleagues and by excluding him from important decisions and responsibilities. The plaintiff continued to request that Sears return him to Senior Buyer, but Sears chose instead to fill available Senior Buyer positions with younger employees.

 In late October, 1987, Sears terminated the plaintiff's position as Group Coordinator and told him that he would have to accept an inferior position, that of marketing planning director. The plaintiff refused to accept this assignment, insisting that it involved an unacceptable loss of salary, benefits, and responsibility. Sears then gave the plaintiff an ultimatum: either become marketing planning coordinator, or leave. On December 2, 1987, the plaintiff chose the latter, and on January 25, 1988, he filed a charge of employment discrimination with the Equal Employment Opportunity Commission. After the EEOC declined to pursue his charge, the plaintiff filed this lawsuit.

 Count I alleges that, through its actions, Sears constructively discharged the plaintiff, and that in doing so it discriminated against him because of his age. Counts II and III, claims not at issue here, allege that Sears' conduct also violated Illinois common law. Sears has moved to dismiss a portion of Count I on the grounds that it is barred by the ADEA statute of limitations.

 DISCUSSION

 Before a plaintiff may pursue judicial relief under the ADEA (or its brother, Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et seq.), he first must file a timely charge of discrimination with the EEOC. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-93, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982) (Title VII); Steffen v. Meridian Life Insurance, Co., 859 F.2d 534, 541-42 (7th Cir. 1988) (ADEA). If he does so, then he may file suit in court after giving the EEOC 60 days to act on the charge. 29 U.S.C. sec. 626(d). If he does not, then his judicial avenues will be time-barred. 29 U.S.C. sec. 626(d)(2) provides a 300-day limitations period for plaintiffs living in deferral states, such as Illinois.

 Sears concedes that the plaintiff has a timely claim of age discrimination for his alleged constructive discharge in December 1987. Nevertheless, Sears has moved to dismiss those allegations in Count I which are predicated on the plaintiff's transfer to Staff Coordinator in 1985 and to Group Coordinator in 1986. According to Sears, the 300-day limitations period renders these allegations untimely since the plaintiff did not bring his EEOC charge until January, 1988.

 The Supreme Court has held that, as a general rule, a plaintiff may not bring suit under the ADEA for discriminatory acts falling outside the limitations period, even if the effects of those acts continue into the limitations period. Delaware State College v. Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980). Thus, when a plaintiff allegedly was denied tenure as a college professor for discriminatory reasons, and this denial meant that he would be discharged from his position the following year, the limitations period for him to file a charge began to run from the date of the tenure denial, not the date he finally lost his job. See id. at 258.

 On the other hand, a plaintiff who suffers an act of discrimination but fails to bring a timely EEOC charge, and then suffers another discrete act of discrimination, may challenge the new act of discrimination by filing a charge within the limitations period. Caldwell v. National Association of Home Builders, 771 F.2d 1051, 1057 (7th Cir. 1985). Thus, for example, had the plaintiff in Ricks alleged that "the manner in which his employment was terminated differed discriminatorily from the manner in which the college terminated other professors who has also been denied tenure," then his discriminatory discharge claim would have been timely. Ricks, 449 U.S. at 258. Furthermore, evidence regarding allegedly discriminatory acts occurring outside the limitations period may be admissible in suits predicated on ...


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