Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 94 C 3101 Richard Mills, Judge.
Before HARLINGTON WOOD, JR., KANNE, and DIANE P. WOOD, Circuit Judges.
DECIDED SEPTEMBER 16, 1996
When John Noreuil sought to return to work at Peabody Coal Company after a long recovery period from a work-related injury, he was informed that his position had been eliminated, and thus he was forced to retire. Soon thereafter, he filed an administrative charge alleging that his forced retirement had been retaliation for an earlier, unrelated age discrimination claim that he had filed against Peabody. When this charge was denied, Noreuil filed a civil action in district court, claiming that the forced retirement had, in fact, been age discrimination. Finding that Noreuil's suit for age discrimination was procedurally barred because he had failed to file a prior administrative charge encompassing his claims, the district court granted summary judgment in favor of Peabody, and we affirm.
Noreuil, born March 24, 1930, had been working at Peabody for twenty-two years when he injured his shoulder while on the job in February 1991. The injury required Noreuil to undergo two surgeries and to be absent from work for an extended period of time. Pursuant to Peabody's policy concerning injury-related absences, Noreuil remained on active status and received full salary continuance for the first six months of his absence. After six months, Noreuil was placed on inactive status, and although he no longer received his full salary, he became eligible for, and received, long-term disability benefits. In March 1992, while Noreuil was still absent from work, Peabody offered him early retirement, which he refused because he expressed a desire to work up until age sixty-five. But unfortunately for Noreuil, his position (floating foreman) was eliminated due to a reduction in force while he was absent from work during his recovery period. Under Peabody's return-to-work policy, employees on inactive status may only return to active status if there is an opening available; inactive employees are not guaranteed that a position will be open when they are physically capable of resuming work. Thus, when his doctor certified him able to return to work on July 20, 1992, Noreuil was informed by Peabody that there was no position available to accommodate him, and he was essentially forced to retire on July 21, 1992.
During June 1991, while he had still been an active employee of Peabody, Noreuil filed an administrative charge of age discrimination with the Illinois Department of Human Rights (which subsequently transferred the charge to the Equal Employment Opportunity Commission), claiming that he had been forced to change shifts, had been verbally harassed, and had received unfavorable performance evaluations because of his age. On July 28, 1992, prior to the EEOC's determination of this first charge and one week after his leaving Peabody's employ, Noreuil filed a second charge with the IDHR, alleging that Peabody had forced him to retire in retaliation for his filing the June 1991 administrative charge.
On September 30, 1992, the EEOC issued a right-to-sue letter concerning Noreuil's first charge, in which it explained that its investigation had uncovered no evidence to support Noreuil's claim of age discrimination. On the other hand, during its investigation of Noreuil's claim, the EEOC had found evidence that Peabody's Fair Treatment Review Procedure--the mechanism through which Peabody employees may air work-related concerns and grievances--is retaliatory because the procedure is unavailable to those employees who have filed administrative charges with the EEOC or a state agency. *fn1 After receiving the right-to-sue letter, Noreuil declined to file an age discrimination suit within the ninety-day limitation period.
On September 17, 1993, the IDHR issued a notice of dismissal announcing that it had found insufficient evidence to support Noreuil's claim that he was discharged in retaliation for filing an administrative claim. *fn2 Noreuil appealed the decision to the Illinois Human Rights Commission. On his appeal, Noreuil argued that his charge of retaliation should also include a claim that his forced retirement had been discrimination on the basis of age, but the IHRC rejected this argument, stating: "Complainant's allegation in his Request for Review that he was discharged because of his age does not support his charge in the case at bar. Complainant's charge alleges only retaliation for filing a previous charge."
On April 19, 1994, Noreuil filed an action in the Central District of Illinois, alleging that his forced retirement had violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. sec. 621 et seq. The complaint specifically targets as discriminatory Peabody's salary continuance and return-to-work policies because under these policies inactive employees can only return to work if there is an available position, without regard to the inactive employee's past performance, seniority, or age. The complaint asserts that this failure to affirmatively consider age in the return-to-work decision somehow deprives those over forty of the same opportunities available to younger employees, and it concludes:
As a consequence of the foregoing, the Company's program has produced both a disparate adverse treatment and a disparate adverse impact upon employees who are at least 40 years of age in that the effect of the Company's policies and practices in this regard is to cause directly and indirectly the disproportionate elimination of substantial numbers of employees who are at least age 40, such as the Plaintiff.
Peabody filed a motion for summary judgment on May 22, 1995, arguing: (1) that insofar as claims in the complaint were based on allegations in Noreuil's June 1991 administrative charge, they were time barred because the complaint was not filed within ninety days of the EEOC's adverse determination of that charge; (2) that all other claims in the complaint were procedurally barred because Noreuil had not raised them in a timely administrative charge; and (3) that even if the claims were not barred, Noreuil could not adduce sufficient evidence to support either a disparate treatment or a disparate impact theory of discrimination.
In his response to Peabody's summary judgment motion, Noreuil made several concessions, which significantly narrowed the issues before the district court. First, Noreuil agreed with Peabody's first argument that any claims based on his June 1991 charge of age discrimination would be time barred because the suit was not filed within ninety days of the EEOC's issuing a right-to-sue letter for that charge, see 29 U.S.C. sec. 626(e), and he accordingly asserted that his complaint did not seek to raise any claims of age discrimination based on his first administrative filing. Second, Noreuil admitted it was "clear" that his "Second Charge filed July 28th, 1992, was ...