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EGAN v. PALOS COMMUNITY HOSP.

June 21, 1995

MARY A. EGAN, Plaintiff,
v.
PALOS COMMUNITY HOSPITAL, Defendant.



The opinion of the court was delivered by: RUBEN CASTILLO

 Plaintiff Mary A. Egan ("Egan") sues defendant Palos Community Hospital ("PCH") for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 et seq. Egan alleges that her age was a motivating factor in several adverse employment actions taken by PCH toward her. Pursuant to Rule (12)(b)(6), PCH moves to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below, the motion is granted.

 BACKGROUND

 Egan was employed as a Registered Dietitian with PCH since March of 1965. For over twenty years Egan performed her job in a competent manner and satisfied PCH's performance standards. Am. Compl. P 13. In April of 1985, one year after receiving an excellent job evaluation, Egan's superiors told her that "only young people could make changes and that a lot of changes had to be made." Am. Compl. P 14. In February of 1986, she was directed to resign as Director of Nutrition and Food Service and accept a position as a Staff Dietitian at a reduced hourly rate. Am. Compl. P 16. Jamie Shepherd, a women in her twenties, replaced her. Am. Compl. P 17. In September of 1987, Egan's position was changed again to that of Operation Analyst. Am. Compl. P 19. Three years later, on approximately October 18, 1990, "plaintiff's pay grade was lowered from grade 11 to grade 4, the effect of which eliminated any chance of a pay increase for approximately seven years." Am. Compl. P 20. During the period since her forced resignation as Director of Nutrition, PCH continuously subjected Egan to demotions, reductions in pay, and exclusion from employment duties appropriate to her professional experience.

 In early June of 1992, Egan was "informed by her supervisor that her current job may be downgraded once again." Am. Compl. P 21. At the time Egan was informed that her job was to be downgraded, there were other positions available in her field for which she was qualified, but because of her age, those positions were assigned to others who were not in the protected age category. Id. On November 2, 1992, Egan filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that PCH discriminated against her on the basis of her age.

 PCH challenges Egan's complaint on several interrelated grounds. In the first place, PCH contends that all of Egan's allegations pertaining to events predating her notification in June of 1992 that her job may be downgraded are time barred. Second, PCH contends that Egan's timely allegation that in June of 1992 she was informed that her job may be downgraded does not state a claim upon which relief can be granted. Finally, in response to Egan's efforts to invoke the "continuing violation" doctrine, PCH argues that the doctrine is inapplicable to the facts as alleged by Egan and that there is no timely alleged violation that can serve as the anchor claim for Egan's otherwise time barred allegations. In this latter regard, PCH contends that Egan's "failure to promote" claim, which is articulated in her response to PCH's motion to dismiss, falls outside the scope of the charge of discrimination Egan filed with the EEOC. For the reasons that follow, we agree that Egan's complaint must be dismissed.

 ANALYSIS

 Rule 12(b)(6) Standards

 A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129 (1990). The only question is whether relief is possible under any set of facts that could be established consistent with the allegations. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). In considering this question, all well-pleaded facts are taken as true, all inferences are drawn in favor of the plaintiff and all ambiguities are resolved in favor of the plaintiff. Id.

 Timeliness, Continuing Violation & the Scope of the EEOC Charge

 Under § 626(d)(1) of the ADEA, a party must file a charge of discrimination "within 180 days after the alleged unlawful practice occurred." 29 U.S.C. § 626(d)(1). In a "deferral state" such as Illinois, the time for filing a charge is extended to 300 days. 29 U.S.C. § 626(d)(2); see Stark v. Dynascan Corp. 902 F.2d 549, 551 (7th Cir. 1990). Egan did not file a charge until November 2, 1992. Therefore, as PCH argues, Egan's claims based on events that occurred prior to approximately May of 1992 are time barred unless saved by a tolling doctrine. *fn1"

 In order to circumvent the untimeliness defense raised by PCH with respect to the events predating May of 1992, Egan attempts to invoke the so-called continuing violation doctrine. *fn2" Egan's "argument" is conclusory and unsupported by any specific facts. The pertinent passages of Egan's memorandum in opposition to the motion to dismiss are as follows:

 
The events described in Plaintiff's complaint are intended to allege a continuing pattern of discrimination on account of Plaintiff's age from her forced resignation as director in 1985 until she filed her charge with the EEOC in November of 1992.
 
Although limitations periods are ordinarily triggered at the time a discriminatory act occurs, the limitations period will be tolled during continuing violations. Thus, where an employer continues discriminatory activities during the limitations period and engages in a series of discriminatory acts at least one of which occurs within the limitations period, the limitations period is tolled as to the earlier discriminatory acts. [citations omitted]
 
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