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.
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 will treat Liturgy's motion to dismiss as one pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim.
B. Standard for deciding a Rule 12(b)(6) motion to dismiss
When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED. R. CIV. P. 12(b)(6); Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). However, the court may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).
C. Retaliation and age discrimination claims
Liturgy acknowledges that Vitello filed his complaint within 90 days of receiving the right-to-sue letter based on the second EEOC charge. However, it contends that all of the allegedly discriminatory incidents set forth in Vitello's amended complaint occurred prior to October 5, 1994, when Vitello filed his first EEOC charge, and that Vitello's amended complaint contains none of the allegations set forth in the second EEOC charge. Thus, Liturgy argues that because Vitello did not file his complaint until well after the 90-day period for filing an action based on the first EEOC charge had lapsed, Vitello has no cause of action for any of the incidents of discrimination alleged in his complaint.
Vitello counters that his amended complaint alleges a continuing pattern of discriminatory and retaliatory practices that continued through February 1995, when Vitello was constructively discharged, and that the second EEOC charge also alleged retaliation and age discrimination. Vitello argues that he filed his original complaint within 90 days of receiving the second right-to-sue letter, and therefore that his amended complaint was timely filed and states a cause of action against Liturgy.
1. Retaliation for assisting in co-worker's IDHR case
Vitello concedes that he did not file his lawsuit within 90 days of receiving his first right-to-sue letter. Thus, unless some exception to the 90-day filing requirement applies, Vitello is barred from bringing a cause of action based on the retaliation that was the subject of his first EEOC charge. See, e.g., Alverno College, 744 F.2d at 1317 (district court correctly dismissed case not brought within 90-day limitation period).
Since the 90-day time limit is akin to a statute of limitations, it is subject to the doctrines of equitable tolling and waiver. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 n.6, 104 S. Ct. 1723, 1726 n.6, 80 L. Ed. 2d 196, reh'g denied, 467 U.S. 1231, 104 S. Ct. 2691, 81 L. Ed. 2d 885 (1984); Alverno College, 744 F.2d at 1316 n.2. Vitello does not expressly argue that either equitable tolling or waiver saves his claim. However, he repeatedly contends that he has alleged a continuing violation. Thus, the court assumes that Vitello is invoking the continuing violation doctrine, a form of tolling.
The continuing violation doctrine allows a plaintiff to base a claim on a time-barred act by showing that the time-barred act is part of an ongoing pattern of discrimination and that at least one of the alleged acts of discrimination occurred within the relevant limitations period. Courts treat such a combination as one continuous act within the limitations period. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992); Young v. Will County Dept. of Public Aid, 882 F.2d 290, 292 (7th Cir. 1989).
A plaintiff may establish a continuing violation under three scenarios. First, usually in cases involving hiring or promotion practices, "the employer's decision-making process takes place over a period of time, making it difficult to pinpoint the exact day the violation occurred." Selan, 969 F.2d at 565 (citing Stewart v. CPC Int'l, Inc., 679 F.2d 117, 120-121 (7th Cir. 1982). Second, "the employer has an express, openly espoused policy that is alleged to be discriminatory." Id. Third, "the employer has, for a period of time, followed a practice of discrimination, but has done so covertly, rather than by way of an open notorious policy.... In such cases the challenged practice is evidenced only by a series of discrete, allegedly discriminatory, acts." Id.
If Vitello's situation falls under any of these scenarios, it is the last one. The question under this scenario is whether the allegations of Vitello's amended complaint indicate that Liturgy's acts were "'related closely enough to constitute a continuing violation' or were 'merely discrete, isolated, and completed acts which must be regarded as individual violations.'" Selan, 969 F.2d at 565 (quoting Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983)).
The Seventh Circuit has adopted the Fifth Circuit's three-factor inquiry in making a determination under the "covert practice of discrimination" scenario:
'The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring ... or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?'