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FARR v. CONTINENTAL WHITE CAP

April 30, 1991

A. LAWRENCE FARR, Plaintiff,
v.
CONTINENTAL WHITE CAP, INC., a Delaware Corporation, CONTINENTAL CAN CO., INC., an Illinois Corporation, and CONTINENTAL GROUP, INC., a Delaware corporation, Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 FACTS

 Farr was 31 years old when he started his tenure with White Cap. Throughout his career, he held a number of positions including Assistant General Manager-Sales, Regional Sales Manager, and Director of Marketing. His final position was as Director of Package Development.

 On August 17, 1988, Farr was approached by managers and executives at White Cap. *fn1" They asked Farr whether he was interested in early retirement. When he responded in the negative, they mentioned that another position might be available. Sometime between September 23 and October 6, 1988, Farr was given the details of the position. The position was as National Accounts Manager. Farr would enjoy the same salary grade as his current job along with the same benefits package. A company car would also be available for his use. However, the position had its drawbacks. Farr would be servicing only one account, albeit White Cap's largest account. The position would not involve any supervisory duties. Instead, Farr would be reporting to a Regional Sales Manager. Farr would also be ineligible for promotions or salary increases in the new position. Upon learning these details, Farr chose early retirement. Farr retired on June 30, 1989.

 On July 11, 1989, Farr sent a letter to the Equal Employment Opportunity Commission ("EEOC") to register an age discrimination complaint against White Cap. The EEOC notified White Cap on July 26, 1989 that an ADEA charge had been filed against it. Farr filed this action on August 8, 1990.

 ANALYSIS

 I. Timely Filing of EEOC Charge

 White Cap rests its first challenge on procedural grounds. The companies claim that Farr failed to timely file his ADEA claim. According to 29 U.S.C. § 626(d), civil actions which allege ADEA violations must be filed within 180 or 300 days after the alleged unlawful practice. The 300-day limit applies here since Illinois is a deferral state. See Mitilinakis v. City of Chicago, 735 F. Supp. 839, 841 (N.D. Ill. 1990). This 300-day limit can be likened to a statute of limitations. If a plaintiff does not file his claim within the period, he forfeits his claim. That is precisely what defendants argue: Farr failed to file within the 300-day limit, so he cannot proceed with his claim.

 The court will begin by examining the parameters of the 300-day limit. At one end of the limitations period is the date of the alleged unlawful practice. The Supreme Court has determined that an alleged violation occurs and, thus, the filing limitations period commences "at the time the [adverse employment] decision [is] made and communicated. . . ." Delaware State College v. Ricks, 449 U.S. 250, 258, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980). This end of the limitations period may be tolled by equitable modification. Indeed, the Seventh Circuit has applied equitable tolling to delay the running of the limitations period until "an employee receives unambiguous notice of the alleged discriminatory action. . . ." Mull v. Arco Durethene Plastics, Inc., 784 F.2d 284, 291 (7th Cir. 1986).

 At the far end of the limitations period is the date when a charge is filed with the EEOC. The relevant regulation requires that a charge be in writing, name the prospective respondent, and allege the discriminatory act. 29 CFR § 1626.6 (1989). "The ADEA's charge-filing requirement was not intended to hold persons to elaborate pleading requirements . . . ." Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 543 (7th Cir. 1988), cert. denied, 491 U.S. 907, 105 L. Ed. 2d 699, 109 S. Ct. 3191 (1989). On the contrary, a charge may be considered filed when the EEOC is given the kind of notice that "would convince a reasonable person that the grievant has manifested an intent to activate the Act's machinery." Bihler v. Singer Co., 710 F.2d 96, 99 (3d Cir. 1983) quoted in Mulcahey v. Hydro-Line Mfg. Co., 707 F. Supp. 331, 333 (N.D. Ill. 1988). The Seventh Circuit has found that submission of an intake questionnaire satisfies these requirements. Steffen, 859 F.2d at 543. A letter sent by a grievant which details parties, facts, and charges also fulfills these requirements. Mulcahey, 707 F. Supp. at 334.

 In this case, White Cap claims that the limitations period began to run on August 17, 1988, the date the company first discussed Farr's options. Defendants refer to July 11, 1989 as the day the charge was filed, that being the date Farr sent his letter to the EEOC. While the court agrees with defendants' contention that the charge was filed on July 11, 1989, the court disagrees with defendants' suggested commencement date. The court is more inclined to adopt a date in line with Farr's argument that the proper date for the start of the limitations period is one arising after September 14, 1988.

 Contrary to defendants' assertions, Farr was not given unambiguous notice of the adverse employment decision on August 17, 1988. On that date, he was only informed that he could retire early or transfer to an unidentified position. With the vague details he was given about the position, he could not have known that the job he was being offered was, in fact, a demotion. Therefore, he could not have known at that time that he was being faced with a Hobson's choice -- accept a demotion or retire early. Nor was it Farr's doing that he lacked this information. Farr sought details about the position, as indicated by his August 23, 1988 memorandum. The companies were dilatory in providing additional information, information which was peculiarly within their knowledge. Farr claims that he was not given information about the title of the position, its salary level, or its benefit package until personnel sent him a letter dated September 20, 1988. Even after being apprised of these preliminary details, it appears that issues such as the responsibilities associated with the position and its ineligibility for promotions or salary increases were not discussed, according to both parties' accounts, until, at the earliest, September 23, 1988. These were the details that Farr needed to form a ...


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