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PHAUP v. PEPSI-COLA GEN. BOTTLERS

April 5, 1991

MARTHA PHAUP, DOROTHY MOORE, SHIRLEY FITZPATRICK and CAROL MALESKE, Plaintiffs,
v.
PEPSI-COLA GENERAL BOTTLERS, INC., Defendant


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Martha Phaup ("Phaup"), Dorothy Moore ("Moore"), Shirley Fitzpatrick ("Fitzpatrick") and Carol Maleske ("Maleske") have sued their former employer *fn1" Pepsi-Cola General Bottlers, Inc. ("Pepsi"), alleging discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII," 42 U.S.C. §§ 2000e to 2000e-17). *fn2" To demonstrate that claimed discrimination, plaintiffs point to events and circumstances surrounding their repeated layoffs beginning in approximately 1987 and culminating in a permanent layoff in June 1989. *fn3"

 Both sides have now moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Pepsi's motion is granted to a minor extent and denied in principal part, while plaintiffs' motion is denied in its entirety. *fn4"

 Facts5

 Plaintiffs were hired by Pepsi as bottle inspectors at its 650 West 51st Street, Chicago, Illinois facility (the "51st Street facility"). Each worked in that capacity for many years. *fn6"

 For the most part, Pepsi's 51st Street facility comprised two departments: the Production Department and the Maintenance Department. When plaintiffs were employed at Pepsi, three separate lines made up the Production Department: the returnable bottle line ("Line 3"), the nonreturnable bottle line ("Line 2") and the can line. Plaintiffs' jobs as bottle inspectors were part of Line 3. In addition, the types of jobs within a department were divided into job classifications that determined wages. For instance, plaintiffs' jobs placed them in the machine crew classification, immediately above the general plant classification that involved various duties in the warehouse. *fn7" Out of the 22 people in the machine crew classification, Phaup was the fifth most senior, Moore the sixth, Maleske the seventh and Fitzpatrick the eleventh (D. Mem. Ex. M).

 There were at least three ways in which a Pepsi employee might change jobs within the 51st Street facility. Because those different possibilities are relevant to plaintiffs' claims, they will be outlined briefly.

 First, an employee could obtain a permanent job change to a higher job classification according to the procedure set out in the collective bargaining agreement (the "Agreement") *fn8" between Pepsi and Teamsters Local Union No. 744 ("Union," D. Mem. Ex. G). *fn9" Section 16.2 provides in relevant part:

 
Permanent job vacancies in the job classifications covered by this Agreement in the Production Department or the Maintenance Department shall be posted for a period of three (3) working days during which time employees in lower rated job classifications in the department where the vacancy occurs shall be eligible to bid thereon. Such posting shall contain the job classification, the wage rate for the position, and the usual starting time. Eligible employees desiring to bid on such jobs shall sign their names in the space provided on the bulletin board posting sheet. Where the ability to perform the job which includes physical fitness is relatively equal among the employees bidding for the job, preference in filling the position will be given to the qualified bidder on the basis of his departmental seniority. The Employer will not exercise its discretion as to the relative ability of the employees bidding in an arbitrary and capricious manner and any complaint that the Employer has exercised its discretion in an arbitrary and capricious manner shall be subject to the Grievance and Arbitration Procedure.

 Only Fitzpatrick sought a permanent job change through the formal bidding procedure. She signed her name to a posting on three separate occasions. Initially in June 1987 she bid on the Can Line Filler Operator position. It was awarded to a man with less seniority than Fitzpatrick. Next she bid on the Machine Operator Can Line position in August 1988. She was awarded an opportunity to qualify and then trained for two weeks. At that point William Heenan ("Heenan"), the immediate supervisor for that position, and Production Manager Phil Weigand ("Weigand") determined that she could not handle the duties of the position and therefore did not qualify. That position was awarded to a man with less seniority than Fitzpatrick. Finally in June 1989 Fitzpatrick bid for a forklift operator job in the warehouse. She had the most seniority of the 15 employees who bid -- all the rest were male. Five men were chosen for the job.

 As a second type of job change, an employee could hold a different position on an interim basis by filling in temporary job openings (due to vacations, illness or other absenteeism). Such openings were not covered by the Agreement and were filled according to a procedure formulated by management. *fn10"

 Finally, employees could find work in a different position during a layoff. That type of transfer followed the procedures set out in Section 16.3:

 
In the event of a decrease in the working force, employees with the least seniority in the job classifications to be reduced shall be removed from the classification. An employee thus displaced shall be assigned to displace the least senior employee in a lower paid job classification within his department who has less departmental seniority than he, provided that he is able to perform the work as demonstrated by previous experience and physical fitness.
 
Where it is determined that the most senior employee seeking a particular job lacks the ability to perform, he will be advised, in detail, as to the basis for such determination and any dispute regarding the ability of an employee to perform a job shall be subject to the Grievance Procedure of this Agreement.
 
No new employee shall be hired as long as seniority employees are on layoff status. Laid-off employees shall be recalled to their regular job classification in the reverse order of their layoff. Any employee who is laid off due to a reduction in the work force shall receive one (1) week's notice or one (1) week's pay in lieu thereof.

 Beginning in 1987 layoffs at the 51st Street facility became a frequent occurrence for Plaintiffs. Between May 1987 and the June 1989 permanent layoff Phaup was laid off approximately 17 times (Phaup Aff. para. 3, P. Mem. Ex. E), while each of Moore, Fitzpatrick and Maleske was laid off about 14 times (Moore Aff. para. 8, P. Mem. Ex. F; D's Response to P's First Request to Admit para. 51, P. Mem. Ex. H; Maleske Aff. para. 2, P. Mem. Ex. G). While plaintiffs were laid off on those occasions, less senior men in the machine crew classification were working (Barry Aff., Attachment 2, D. Mem. Ex. Y; P. Mem. Ex. "A" (attached to that memorandum itself) *fn11" ).

 In May 1987 Administrative Assistant Carolyn Barry ("Barry"), whose supervisors were Operations Manager Pat Harris ("Harris") as well as Weigand, prepared and gave Phaup and Fitzpatrick a letter to sign stating that they did not wish to be considered for Line 2 (D. Mem. Ex. T). They both signed the letter and were laid off. Fitzpatrick later recanted. No male employee was ever tendered such a statement.

 On May 1, 1988 this provision was added to Section 16.3:

 
Employees in the Production Department may volunteer to qualify for pallet building within 2 months after May 1, 1988 and in January annually. When a layoff occurs only those employees previously qualified may secure pallet building positions.

 Qualification tests were conducted in mid-1988 and mid-1989 and involved stacking cans or bottles five layers high. Plaintiffs never signed up to qualify.

 On January 6, 1989 Weigand met with Phaup, Moore and Maleske to discuss various job opportunities due to their impending layoff (Fitzpatrick had already been laid off). Phaup and Moore requested that they be allowed to do bottle sorting. As one result of that meeting, on that same day Weigand tendered this statement for Phaup and Moore to sign (D. Mem. Ex. N):

 
Please be advised that the classification that you have requested to bump down to is a "General Plant" Classification.
 
This position would require that you would be able to handle cases, move pallets, be able to pallet build-fulls or empties as well as bottle sort. If a reasonable amount of work is not accomplished, you will be disqualified from this position and will be sent home. This will void your 40 hours work guarantee.

 That final reference is to Section 6.1, which provides that except in certain situations an employee is guaranteed payment for a 40-hour week as long as the employee reports for work during that week and is available and willing to work each day. Phaup and Moore were laid off after that meeting. They later filed a grievance charging that the letter discriminated against them because they were female and demanding pay for the week they were laid off (Moore Aff. Exs. 4 and 5, P. Mem. Ex. F). They lost the grievance.

 On June 9, 1989 plaintiffs were laid off when their jobs as bottle inspectors were eliminated because Line 3 was moved to a different facility. Moore obtained a position -- without a reduction in pay -- on Line 2 at the 51st Street facility as of June 19, 1989, and she has continued to hold that position. Maleske trained on that same position in October 1989. She then sent the supervisor a letter stating that the job was too physically demanding and that she would not return to that position (D. Mem. Ex. S). Fitzpatrick was offered the opportunity to train on the same line but refused. Phaup, Maleske and Fitzpatrick did not work after the June 9 layoff and were terminated effective Christmas Eve 1989.

 Each plaintiff filed a separate sex-discrimination claim in 1989 with the Equal Employment Opportunity Commission ("EEOC"), and each obtained a Notice of Right to Sue on August 10, 1989 (Complaint Ex. A). This action was filed within the requisite 90 day period. *fn12"

 Continuing Violation

 At the outset this opinion addresses Pepsi's contention that plaintiffs may not obtain relief for any events occurring more than 300 days before their EEOC filing. Though the question can be posed in that single sentence, the answer requires a good bit of analysis.

 In Illinois a claimant has 300 days after a discriminatory act within which to file a charge with EEOC ( Stark v. Dynascan Corp., 902 F.2d 549, 551 (7th Cir. 1990) (citing 29 U.S.C. § 626(d)(2))). Phaup, Fitzpatrick and Moore filed their EEOC charges on January 12, 1989, and Maleske did so on July 11, 1989. Pepsi contends that any claims that Phaup, Fitzpatrick and Moore had before March 19, 1988 and that Maleske had before September 14, 1988 are time-barred.

 For plaintiffs to predicate recovery on events occurring before the 300-day watershed, they must successfully assert either a theory of "equitable tolling" or of "continuing violation." *fn13" Though they cannot invoke the former, they qualify in terms of the latter.

 Under the equitable tolling doctrine, the time limitation period is tolled until ( Vaught v. R.R. Donnelley & Sons Co., 745 F.2d 407, 410-11 (7th Cir. 1984) (citation omitted)):

 
facts that would support a charge of discrimination . . . were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff.

 Alternatively, among the various continuing violation theories set out in Stewart v. CPC International, Inc., 679 F.2d 117, 121 (7th Cir. 1982)(per curiam), this case falls into the category of cases where (citations omitted):

 
the plaintiff charges that the employer has, for a period of time, followed a practice of discrimination, but has done so covertly, rather than by way of an open notorious policy. . . . In such cases the challenged practice is evidenced only by a series of discrete, allegedly discriminatory, acts.

 In such a situation (id. (citations omitted, emphasis in original)):

 
An employer may be held liable for a continuing practice of discrimination if the plaintiff can demonstrate that the practice has actually continued into the "present" -- that is, into the time period relevant to the date the charge of discrimination was filed. At least one discriminatory act must have occurred within the charge-filing period. Discriminatory acts that occurred prior to this period constitute relevant evidence of a continuing practice, and may help to demonstrate the employer's discriminatory intent; and they will of course be used to determine the extent of the remedy that is in order. But the ...

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