necessarily commenced to run before that date." Ricks, 449 U.S. at 259.
In Washburn's case, like Ricks, there is only one challenged employment decision, and this decision was made and communicated to Washburn on August 12, 1992. Washburn acknowledges that he was not allowed to return to his Sauer-Sundstrand job after August 12, 1992, and that he stopped receiving paychecks after that date. Washburn Dep. at 15-16. He further acknowledges that he filed for unemployment compensation at some point after August 12, 1992, and before the end of that year. Washburn Dep. at 34. There is nothing in this record to suggest that Washburn could reasonably have regarded a discharge as discriminatory but an indefinite suspension as non-discriminatory. If discrimination occurred, it occurred when Washburn was disciplined for his absenteeism. Under the discovery rule, therefore, it is immaterial whether the adverse employment decision of August 12, 1992, was communicated to Washburn in terms of discharge or indefinite suspension.
In addition to the discovery rule, the Seventh Circuit has recognized that the two tolling doctrines mentioned in plaintiff's brief -- equitable estoppel and equitable tolling -- can modify the limitations period in ADA and Title VII cases. Cada, 920 F.2d 446 at 451. However, like the discovery rule, neither of these doctrines will defeat summary judgment in Washburn's case. Equitable estoppel tolls the limitations period in cases where "the defendant takes active steps to prevent the plaintiff from suing in time, as by promising not to plead the statute of limitations." Cada, 920 F.2d at 450-51. Washburn has presented no evidence that shows, or supports the inference, that Sauer-Sundstrand was actively trying to prevent him from suing in time. In fact, as of March 22, 1993, the date that Washburn claims he first learned he had been discharged and not suspended, he still had plenty of time because the end of the limitation period was 78 days away.
Equitable tolling, on the other hand, allows a plaintiff to avoid a time-bar if "despite all due diligence he is unable to obtain vital information bearing on the existence of his claim." Id. at 451. Washburn fails to satisfy the due diligence requirement, because, assuming he needed to know whether he was discharged or suspended in order to be able to bring a claim, all he had to do was ask the union representatives who were handling his grievance. Also, equitable tolling is inapplicable because, again, at the time Washburn learned he had been discharged, 78 days remained in the limitations period. "When as here the necessary information is gathered after the claim arose but before the statute of limitations has run, the presumption should be that the plaintiff could bring suit within the statutory period and should have done so." Id. at 453. Washburn offers nothing to rebut this presumption.
Finally, plaintiff argues that the EEOC filing requirement should be waived because it violates the Fifth Amendment by denying due process and equal protection to a class of plaintiffs alleging employment discrimination. Plaintiff acknowledges that legislation like Title VII "that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose." Hodel v. Indiana, 452 U.S. 314, 331, 69 L. Ed. 2d 40, 101 S. Ct. 2376 (1981). Plaintiff ignores the fact, however, that "such legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality." Id. at 331-32. There is no such showing here. Plaintiff simply asserts that the EEOC filing requirement is arbitrary and capricious. This assertion is particularly unpersuasive in view of the fact that the Supreme Court has recognized that limitations periods provide a reasonable means of accommodating the competing congressional interests of "guaranteeing the protection of the civil rights laws to those who promptly assert their rights, . . . [and] protecting employers from the burden of defending claims arising from employment decisions that are long past." Ricks, 449 U.S. at 256-57. Moreover, Washburn's equal protection argument fails to identify any class of persons receiving unequal treatment under the filing requirement, and his due process contention fails to identify any liberty or property interest of which these persons have been deprived.
For the reasons stated in this opinion, defendants' motion for summary judgment is granted, and summary judgment will be entered against the plaintiff.
DATED: November 1, 1995
John F. Grady, United States District Judge