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VITUG v. MULTISTATE TAX COMMN.

July 27, 1994

JOSELITO VITUG, Plaintiff,
v.
MULTISTATE TAX COMMISSION; DAN R. BUCKS, as Executive Director; LES KOENIG, as Director of Audit; and MEMBER COMMISSIONERS, in their capacity as Commissioners, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Joselito Vitug brings this two count complaint, alleging discrimination in employment practices by defendants Multistate Tax Commission, Executive Director Dan Bucks, Director of Audit Les Koenig, and member commissioners. Presently before the court is defendants' motion for summary judgment. For the reasons set forth below, defendants' motion is granted.

 I. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

 II. Background

 Joselito Vitug is a male Filipino who was employed as an auditor at defendant Multistate Tax Commission (MTC) from April, 1985 until January 1, 1993. In June, 1991, Vitug was one of six applicants interviewing for the position of Field Audit Supervisor with MTC. The interviews were conducted by three MTC employees: Les Koenig, a white male who was Vitug's manager at the time, Alice Davis, an African-American female, and Anita Williams, a white female. Each interviewee was asked the same ten questions; the responses were separately evaluated by each interviewer and given a score. Each interviewer independently tallied his or her scores; the panel then compared the scores that each interviewer had given the candidates. Of the candidates, Vitug was given the lowest score by each of the interviewers. Another applicant, Harold Jennings, who is white, was given the highest score by each of the interviewers, and was offered the position. Jennings and Koenig were both born-again Christians and attended the same church; indeed, Koenig had informed Jennings about the opening at MTC at church. *fn1"

 When Vitug was informed that he had not received the promotion, he submitted a written grievance to MTC. Scott Smith, one of MTC's employees from its Washington, D.C. office, conducted hearings, and recommended in a written memorandum dated August 16, 1991 that the grievance be denied. Further hearings were conducted by MTC Executive Director Dan Bucks in September, 1991. In a letter dated January 29, 1992, Bucks denied Vitug's grievance. On April 10, 1992, Vitug filed a charge with the Illinois Department of Human Rights (IDHR); that agency referred the charge to the Equal Employment Opportunity Commission (EEOC) on May 17, 1992, which subsequently issued a Right to Sue letter. On December 16, 1992, claiming that the denial of the promotion and deteriorating conditions at MTC had created a hostile work environment, Vitug tendered his resignation, effective January 1, 1993. He filed the instant lawsuit on September 1, 1993.

 III. Discussion

 In his complaint, Vitug raises essentially two challenges to defendants' employment practices. First, he asserts that he was wrongfully denied a promotion in June of 1991. Second, he claims that defendants' various actions created an intolerable work environment, compelling him to terminate his employment on January 1, 1993. Accordingly, he asserts, he was constructively discharged. Vitug further alleges that defendants' wrongful actions constituted discrimination based upon his race, ethnic origin, and religion. Each of Vitug's claims will be considered in turn.

 A. Failure to Promote

 Vitug's first claim, and indeed, the crux of Vitug's complaint, is that he was denied a promotion to Field Audit Supervisor because of his race, ethnic origin, and/or religion in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, and of 42 U.S.C. § 1981. Defendants contend that Vitug's promotion claim is time barred under both Title VII and § 1981. We agree.

 We first consider Vitug's Title VII claim. It is well established that a condition precedent to the maintenance of a Title VII action in court is the timely filing of a discrimination charge with the EEOC. See Perkins v. Silverstein, 939 F.2d 463, 469-70 (7th Cir. 1991). As a general rule, a complainant must file the EEOC charge within 180 days of the claimed discrimination. 42 U.S.C. § 2000e-5(e). In the present case, Vitug was informed that he did not receive the promotion on June 20, 1991. He filed a charge of discrimination with the IDHR *fn2" on April 10, 1992, some 293 days after he was denied the promotion. He nonetheless maintains that his filing was timely, and offers several arguments in support of this conclusion.

 Vitug first suggests that his case falls within an exception to the 180 day requirement. ...


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