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DICKER v. ALLSTATE LIFE INS. CO.

October 19, 1989

VELMA DICKER, PATRICIA HOOD, and RHONDA MOORE, Plaintiffs
v.
ALLSTATE LIFE INSURANCE CO. and ALLSTATE INSURANCE CO., Defendants


Suzanne B. Conlon, United States District Judge.


The opinion of the court was delivered by: CONLON

SUZANNE B. CONLON, UNITED STATES DISTRICT JUDGE

 Plaintiffs Velma Dicker, Patricia Hood, and Rhonda Moore sue defendants Allstate Life Insurance Co. and Allstate Insurance Co. (collectively "Allstate") alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I), and 42 U.S.C. § 1981 (Count II). On July 31, 1989, this court granted Allstate's motion for a more definite statement. Plaintiffs filed an amended complaint and Allstate now moves for summary judgment pursuant to Fed.R.Civ.P. 56 on both counts. Additionally, Allstate moves for sanctions against plaintiffs' counsel under Fed.R.Civ.P. 11.

 BACKGROUND

 Plaintiffs are black Allstate employees who hold lower level, non-exempt positions. Amended complaint para. 2. Allstate employees may be promoted in a line of progression from non-exempt positions in data entry, clerical and processing, to exempt positions as unit managers. Id. P 5. Non-exempt employees are paid substantially less than exempt employees, are paid by the hour, and are paid for overtime. Moore affidavit para. 2. Exempt employees are involved in management, do not receive overtime, and are required to participate in supervisors' meetings. Id. Promotions, transfers and reassignments that lead to advancement occur frequently and irregularly and are not posted in advance. Amended complaint para. 5. An employee does not apply for most of these positions; vacancies are filled by management review. Moore affidavit para. 3.

 Plaintiffs allege that Allstate utilizes a racially discriminatory double standard in evaluating and promoting its employees. Amended complaint paras. 7-11. Plaintiffs contend that throughout their employment they, and other black employees, have received less training, lower productivity and performance evaluations, and fewer promotions than similarly situated white employees. Id. Plaintiffs also allege an ongoing atmosphere of racial harassment, including more stringent review criteria and more frequent penalties. Id. P 14. In support of their amended complaint, plaintiffs each submit affidavits specifying instances of promotions denied, salary increases delayed, and other facts suggesting a double standard.

 Count I

 A motion for summary judgment should be granted only if there are no material facts in dispute and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Summary judgment is rarely appropriate in Title VII cases because issues of discriminatory intent are often proven by circumstantial evidence. Powers v. Dole, 782 F.2d 689, 694 (7th Cir. 1986). With respect to Count I, however, Allstate predicates its motion on the contention that plaintiffs' claims are time-barred under 42 U.S.C. § 2000e-5(e). Reply at 3.

 Allstate argues that in determining whether plaintiffs' Title VII claims are time-barred the court should look solely at the amended complaint and should ignore plaintiffs' affidavits filed in opposition to the motion for summary judgment. Allstate contends that plaintiffs' amended complaint is still vague and does not comply with this court's order of July 31, 1989. Federal courts require only a short, plain statement of a claim, indicating the basis for entitlement to relief. Fed.R.Civ.P. 8(a). Plaintiffs' original complaint failed to meet Rule 8(a) requirements. Plaintiffs were ordered to amend by including "specific factual allegations such as names, dates and places" to enable Allstate to respond. Minute order of July 31, 1989. Plaintiffs amended their complaint to include the time period that they were employed by Allstate, the division of their employment, and their position titles. Plaintiffs allege that Allstate has applied a racially discriminatory double standard to them throughout their employment. See amended complaint paras. 8, 10, 14, 15. Plaintiffs also added specific factual allegations regarding lack of training, lower performance appraisals, fewer promotions and less pay during their tenure with Allstate. Id. PP 7-12. Thus, plaintiffs amended complaint contains sufficient factual support to allow Allstate to frame a responsive pleading. Plaintiffs' amended complaint does not contain every factual allegation they might rely on to support their lawsuit. However, Rule 8(a) requires only that a complaint indicate the nature of a plaintiff's claim with sufficient specificity to enable the parties to determine the preclusive effect of a judgment. American Nurses Ass'n v. State of Illinois, 783 F.2d 716, 723 (7th Cir. 1986). Simplified notice pleading is made possible by the liberal opportunity for discovery and other pretrial procedures, such as Allstate's motion for summary judgment, to define disputed facts and issues more narrowly. Conley v. Gibson, 355 U.S. 41, 47-48 n. 9, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 Allstate further argues that plaintiffs' affidavits should not be used in determining whether the Title VII claim is time-barred because their affidavits contain claims of Title VII violations different from those in the amended complaint. Reply at 4, 8. The amended complaint alleges a continuing violation of Title VII, namely that Allstate used and continues to use a racially discriminatory double standard in its employment practices. It would be unreasonable to require plaintiffs to sue separately on numerous, continuing Title VII violations. Malhotra v. Cotter & Co., 885 F.2d 1305 slip op. 6 (7th Cir. 1989). Plaintiffs' amended complaint alleges a wide variety of seemingly minor infractions that establish a visible pattern of discriminatory treatment. These allegations present a typical continuing violation. Id. The affidavits set forth specific instances of discriminatory treatment supporting a continuing violation, as required by Rule 56(e). Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 78 L. Ed. 2d 336, 104 S. Ct. 392 (1983). Plaintiffs' affidavits shall be considered in determining whether plaintiffs' Title VII claim is time-barred. Fed.R.Civ.P. 56(c).

 Title VII requires plaintiffs to file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") no more than 300 days after the alleged violation. 42 U.S.C. § 2000e-5(e); Gilardi v. Schroeder, 833 F.2d 1226, 1229-30 (7th Cir. 1987). The filing period is strictly applied. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 80 L. Ed. 2d 196, 104 S. Ct. 1723 (1984). In the case of a continuing violation, the plaintiff must allege that one discriminatory act occurred within the 300 days prior to filing the charge. Malhotra, 885 F.2d 1305, slip op. at 6; Stewart v. CPC Int'l, Inc., 679 F.2d 117, 121 (7th Cir. 1982).

 Accordingly, plaintiffs' Title VII claim is not ...


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