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HILL v. RUNYON

March 11, 1997

ROBERT E. HILL, Plaintiff,
v.
MARVIN RUNYON, Postmaster General, United States Postal Service, Defendant.



The opinion of the court was delivered by: BUCKLO

 The plaintiff, Robert E. Hill, has sued his employer, the Postmaster General of the United States Post Office, Marvin Runyon ("Post Office"), for gender, race, and age discrimination. The defendant has moved to dismiss or, in the alternative, for summary judgment. For the following reasons, summary judgment on Mr. Hill's claim that he was not selected for one of the Postal Career Executive Service positions is entered in favor of the defendant because these claims are barred by the statute of limitations. Summary judgment is also entered against Mr. Hill on his ADEA claims involving the Executive and Administrative Schedule positions. Mr. Hill's remaining claims involving Executive and Administrative Schedule Positions are dismissed without prejudice since he has failed to exhaust his administrative remedies.

 Background *fn1"

 Born in 1932, Mr. Hill is a white male. The executive level workers at the Post Office are divided into two grades and pay schedules. The top executive tier is known as the Postal Career Executive Service ("PCES"). The tier beneath PCES is known as the Executive and Administrative Schedule ("EAS"). There are several grades within each tier. In 1992 and 1993, the Post Office underwent a restructuring.

 At the beginning of restructuring, Mr. Hill was a General Manager, Real Estate, grade level PCES-01 in the Chicago office of the Illinois Facilities Service Center ("Facilities"). *fn2" Mr. Hill claims that the defendant's failure to select him for any PCES and EAS positions during restructuring constituted gender, racial, and age discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act ("ADEA"). *fn3" 29 U.S.C. § 633a. The Post Office has moved to dismiss or, in the alternative, for summary judgment, arguing that Mr. Hill's PCES-related claims are time-barred, that I lack jurisdiction over the EAS-related claims because the plaintiff failed to exhaust administrative remedies, and that Mr. Hill has not raised an inference of discrimination with respect to his age claims.

 18 PCES Managerial Positions

 Post Office employees "who believe [that] they have been discriminated against on the basis of race, color, . . . sex, . . . [or] age . . . must . . . initiate contact with an EEO Counselor within 45 days . . . of the effective date of the [personnel] action" claimed to be discriminatory. 29 C.F.R. § 1614.105(a)(1); Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir. 1995). In the instant case, Mr. Hill claims that he was not selected for one of the 18 PCES managerial positions. The dates on which these positions were filled are the effective dates of the relevant personnel actions. Jakubiak v. Perry, 101 F.3d 23, 26-27 (4th Cir. 1996). November 28, 1992 and December 12, 1992 were the dates for the selection of these managers. *fn4" Therefore, the 45-day period began to run, at the latest, on December 12, 1992. Mr. Hill filed an EEO Request for Counseling, complaining of his failure to be selected for the 18 PCES managerial positions, on February 10, 1993. Accordingly, Mr. Hill did not initiate his contact with an EEO counselor in a timely fashion. Id.

 The 45-day deadline "is construed as a statute of limitations and not as a jurisdictional prerequisite." Johnson, 47 F.3d at 917 (Title VII); Bohac v. West, 85 F.3d 306, 311 (7th Cir. 1996) (ADEA). It will be extended

 
when the individual shows [(1)] that he or she was not notified of the time limits and was not otherwise aware of them, [(2)] that he or she did not know and reasonably should not have known that the discriminatory . . . personnel action occurred, [(3)] that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or [(4)] for other reasons considered sufficient by the agency or the Commission.

 29 C.F.R. § 1614.105(a)(2). Although Mr. Hill is a non-movant in this summary judgment motion, he "has the burden of proof on this issue since []he is claiming the benefit of an exception from the operation of a statute of limitations." Mirza v. Department of Treasury, 875 F. Supp. 513, 518 (N.D. Ill. 1995) (quotation omitted). Mr. Hill cannot create a factual issue that he meets any of the four criteria for tolling the limitations period.

 In a sworn affidavit of August 18, 1994, attached to Mr. Hill's submission to the Merit Systems Protection Board (MSPB), see supra note 2, the plaintiff stated that "on November 19, 1992, Mr. Dennis Bryan, the current Manager, Chicago FSO, told me that Headquarters Facilities Office had decided that I would not be selected or offered any position at any level in the restructured department. I was to stay in my office until I received a directed reassignment." *fn5" (Maclin Declaration, Ex. 15.) Nevertheless Mr. Hill now says that he "did not know and reasonably should not have known that the discriminatory . . . personnel action occurred," 29 C.F.R. § 1614.105(a)(2), until he received the January 6, 1993 letter. *fn6" (Pl.'s Ex. 14.)

 Mr. Hill argues that it was not reasonable for him to rely on Mr. Bryan's statement because, at the time of the conversation, selections were still being made. However, if he knew that selections were still being made, he surely had the means for finding out when the PCES managerial positions, in which he was interested, became filled. Mr. Hill also argues that Mr. Bryan did not have the authority to notify him that he had not been selected. The deposition of the Manager of Corporate Personnel, Stephen Leavey, contradicts this characterization of Mr. Bryan's scope of authority. (See Leavey Dep. at 140-41.) In addition, the January 6, 1993 letter, which the plaintiff credits with informing him of the discriminatory personnel actions, is signed by Mr. Bryan. *fn7"

 Mr. Hill's broadly sweeping assertions such as that the Post Office did not follow its standard selection process, that it provided scant or incorrect information to its employees regarding restructuring, and that it did not inform the employees of their MSPB appeal rights cannot undermine the impact of his admission to his conversation with Mr. Bryan in November 1992. Mr. Bryan was Mr. Hill's superior. At the very least, this conversation put Mr. Hill on notice and enabled him to engage in the necessary investigation so as to learn the effective dates of selection of the 18 PCES managers. 29 C.F.R. § 1614.105(a)(2) ("reasonably should . . . have known that the discriminatory . . . personnel action occurred"). *fn8"

 The "continuing violation" doctrine does not help Mr. Hill. This doctrine "allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period." Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir. 1994) (quotation omitted). This doctrine recognizes that the discriminatory nature of an act may only become apparent in light of subsequent acts if an employer follows a covert practice of discrimination. Id. at 445-46. Here, Mr. Hill argues that he initiated timely contact with an EEO counselor regarding the EAS positions; he seeks to link these to the 18 PCES managerial positions. He argues that the defendant's restructuring, designed to protect women and minorities, constituted an on-going discrimination policy. The "continuing violation" doctrine is not available if the plaintiff "knows or with the exercise of reasonable diligence would have known after each act that it was discriminatory and had harmed him." Moskowitz v. Trustees of Purdue ...


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