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VITELLO v. LITURGY TRAINING PUBLS.

July 19, 1996

BERNARD VITELLO, Plaintiff,
v.
LITURGY TRAINING PUBLICATIONS, Defendant.



The opinion of the court was delivered by: ALESIA

 Before the court is defendant Liturgy Training Publications' ("Liturgy") motion to dismiss plaintiff Bernard Vitello's ("Vitello") amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. For the reasons that follow, the court grants in part and denies in part Liturgy's motion.

 I. BACKGROUND1

 Vitello, a 46-year-old male, began working for Liturgy in January 1989 as a shipping warehouse manager. In January 1993, Vitello's co-worker filed a charge with the Illinois Department of Human Rights ("IDHR"), alleging that Liturgy had discriminated against her based on her age and sex. Vitello provided information to the IDHR on his co-worker's behalf. At a hearing in the case in September 1993, Liturgy found out that Vitello had provided information in the case.

 In November 1993, Vitello was told by his supervisor that his position as shipping warehouse manager was being eliminated and a new position, distribution manager, created. The supervisor told Vitello that he would be demoted to shipping clerk because of his incompetence. However, in June 1993, Vitello had received an excellent performance evaluation.

 In March 1994, Vitello was given a significantly lower and false performance appraisal. He was demoted to shipping clerk, while his younger and less qualified co-workers were promoted. One of the promoted employees, who was assigned to supervise Vitello, previously had been under Vitello's direct supervision and control.

 In June 1994, Vitello gave his supervisor a doctor's note restricting the lifting that Vitello could do, but rather than decreasing Vitello's lifting duties, the supervisor assigned Vitello to a job that required heavier lifting than his normal duties had required. In September 1994, Vitello was suspended without pay for a day and a half after being falsely accused of making noise in the shipping department and harassing a temporary employee.

 On October 5, 1994, Vitello filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that he was demoted in May 1994 in retaliation for assisting in his co-worker's EEOC claim against Liturgy, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e-2000e-17. On October 20, 1994, Vitello amended the charge to allege that the retaliation was also in violation of the Age Discrimination in Employment Act ("ADEA"), as amended, 29 U.S.C. §§ 621-634. The EEOC issued a right-to-sue letter on March 10, 1995.

 After Vitello filed his EEOC charge and made other complaints to various Liturgy personnel, Liturgy subjected Vitello to suspension, harassment, and different terms and conditions of employment, and engaged in actions including diverting Vitello's career path, undermining and curtailing his authority, eroding his responsibilities and duties, reducing his rank and position with Liturgy compared to less qualified but younger employees, and segregating him in an isolated area that was not close to the stock area.

 Vitello felt compelled to quit his job with Liturgy, and did so on February 22, 1995. On April 24, 1995, Vitello filed a second EEOC charge, alleging that he was discriminated against because of his age and retaliated against because of his filing the first EEOC charge. He received a right-to-sue letter based on that charge on August 17, 1995, and filed a complaint in this court on October 16, 1995.

 In his amended complaint, Vitello alleges that beginning in November 1993, Liturgy engaged in a continuing pattern of discriminatory employment practices because of Vitello's age and in retaliation for his providing assistance in his co-worker's IDHR claim and filing his own EEOC charge, in violation of the ADEA and Title VII.

 Liturgy now moves to dismiss Vitello's amended complaint, contending that Vitello did not timely sue after receiving his first right-to-sue letter and therefore that his claim is now barred pursuant to 42 U.S.C. § 2000e-5(f)(1) and 29 U.S.C. § 626(e), both of which require a plaintiff to sue his employer within 90 days of receiving a right-to-sue-letter.

 II. DISCUSSION

 A. Basis of Liturgy's motion to dismiss

 Liturgy based its motion to dismiss on this court's purported lack of subject matter jurisdiction, arguing that the court does not have subject matter jurisdiction over Vitello's claim because Vitello did not comply with Title VII's and the ADEA's time limit for filing his lawsuit. However, Title VII's and the ADEA's 90-day filing requirement is not jurisdictional but instead acts as a statute of limitations. See St. Louis v. Alverno College, 744 F.2d 1314, 1316 n.2 (7th Cir. 1984). Consequently, the court ...


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