impertinent or scandalous" allegations, the timely claim makes relevant Sears' allegedly discriminatory acts which occurred outside the limitations period. See Patton v. University of Chicago Hospitals, 706 F. Supp. 627, 629 (N.D.Ill. 1989).
The discussion, of course, could end here. Since this construction of the complaint would defeat Sears' motion, and since, on Rule 12(b) motions, courts must construe complaints in the light most favorable to the plaintiff, the defendant cannot obtain dismissal of Count I. Yet, the plaintiff's briefs in opposition to the motion indicate that this construction of the complaint may not be what he had in mind, and thus require some additional commentary to clarify this court's ruling.
The gravaman of Sears' motion is that the plaintiff's allegations regarding the 1985 and 1986 transfers represent more than mere evidentiary background; instead, Sears argues, the plaintiff is seeking to recover on the basis of these allegedly discriminatory acts. As noted above, the complaint need not be read that way. Yet, the plaintiff, in addition to defending his pleading under the analysis presented above, also insists that he may predicate claims on the earlier acts despite their occurrence more than 300 days before he filed his EEOC charge. The plaintiff posits two theories justifying this position.
1. The Continuing Violation Theory
According to the plaintiff, the fact that the 1985 and 1986 transfers were part of a continuing pattern of discrimination against him means that the limitation period does not apply to them. He is mistaken.
To be sure, under the so-called continuing violation doctrine, a plaintiff may sue an employer whose discrimination against him began outside the limitations period so long as the employer has continued his discriminatory policies or practices into the limitation period. See Torres v. Wisconsin Department of Health & Social Services, 838 F.2d 944 (7th Cir. 1988). This is so, however, not because the continuing violation serves as some talismanic device which resurrects stale claims, but rather because the existence of a continuing violation means that some discriminatory acts, not merely the present consequences of those acts, have occurred within the limitations period. Mack v. Great Atlantic and Pacific Tea Company, Inc., 871 F.2d 179, 183 (1st Cir. 1989); see Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S. Ct. 2261, 2269 n. 5, 104 L. Ed. 2d 961 (1989); Roberts v. North American Rockwell Corp., 650 F.2d 823, 827 (6th Cir. 1981). In order to establish a continuing violation, and thus to recover, the plaintiff must prove discrimination within the limitations period. Stewart v. CPC International, Inc., 679 F.2d 117, 121-22 (7th Cir. 1982).
The plaintiff in this case, then, will have to prove that Sears discriminated against him within 300 days of his EEOC charge. He may do so by showing, through the prima facie case method, that Sears forced him to take the market planning coordinator position because of his age. See 29 U.S.C. sec. 623(a)(1). Even if he cannot so prove, he may prevail if he can establish that Sears' alleged pattern of harassing him became so extreme as to violate the terms and conditions of his employment. See 29 U.S.C. secs. 623(a)(1); cf. Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Under either approach, the plaintiff may be able to rely on his 1985 and 1986 demotions as evidencing Sears' discriminatory motive.
See Waltman v. International Paper Co., 875 F.2d 468, 474-75 (5th Cir. 1989). The plaintiff will not prevail, however, merely by proving that some act or statement, insufficient in itself to give rise to an ADEA claim, occurred within the limitations period, and by then bootstrapping onto it now-untimely claims that the earlier transfers violated his ADEA rights.
2. The Temporary Assignment Theory
The plaintiff next suggests that claims predicated on his 1985 and 1986 transfers are timely because Sears treated the Staff Coordinator and Group Coordinator assignments as temporary. Again, the plaintiff is incorrect.
Of course, an employer may not avoid the ramifications of its discrimination by "temporarily" assigning an employee to another position, filling the employee's old position with a youngster, waiting 301 days, and then informing the employee that he cannot have his old job back. In this situation, the employee's transfer, and the youngster's replacement of him, occur when the employer informs the employee that the "temporary" reassignment is a permanent one; the plaintiff has 300 days from this date to file his charge. See Ricks, 449 U.S. at 259 (limitations period commences to run when the decision is made and the plaintiff is notified); Dugan v. Ball State University, 815 F.2d 1132, 1134 (7th Cir. 1987).
According to the complaint, Sears informed the plaintiff that his position as Staff Coordinator would be temporary, and that he could have his Senior Buyer position back at any time. If so, then Sears cannot rely on the date of this assignment as starting the limitations clock. The complaint, however, proceeds to allege that the plaintiff, when this temporary assignment ended, demanded return to his Senior Buyer position, but that Sears, without further promises of a future return to this position, refused. At this point, the plaintiff's termination from his Senior Buyer position matured. Because this occurred more than 300 days before the plaintiff filed his EEOC charge, the plaintiff may not pursue a claim predicated on it. See Malik v. Trustees of Indiana University, 1989 U.S. Dist. LEXIS 7304, 49 Fair Empl. Prac. Cas. (BNA) 561, 563-64 (S.D.I. 1989). With these clarifications, the court will deny Sears' motion to dismiss.
The motion to dismiss is denied.
DATE: August 4, 1989