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ENRIGHT v. ILLINOIS STATE POLICE

September 14, 1998

DOLORES M. ENRIGHT, Plaintiff,
v.
ILLINOIS STATE POLICE, Defendant.



The opinion of the court was delivered by: GETTLEMAN

MEMORANDUM OPINION AND ORDER

 Plaintiff Dolores M. Enright ("Enright") filed an action for discrimination on the basis of sex (female) and retaliation against the defendant Illinois State Police ("Defendant") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended. Enright claims defendant continually failed to promote her to the position of Master Sergeant while promoting less qualified male candidates. Defendant filed a Fed.R.Civ.P. 12(b)(6) motion to dismiss certain of Enright's claims on the ground that they are time-barred. Both parties have submitted affidavits and other supporting documents for consideration. Therefore, defendant's motion to dismiss will be treated as one for summary judgment pursuant to Rule 56.

 STANDARD OF REVIEW

 Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the moving party has demonstrated that no genuine issue of material fact exists, the non-moving party must show, by specific factual allegations, the existence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). "A genuine issue of material fact exists if there is sufficient evidence for a jury to return a verdict in favor of the nonmoving party." La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 905 (7th Cir. 1990). While any inferences drawn from the facts must be viewed in the light most favorable to the non-moving party, only reasonable inferences need to be drawn. Celotex, 477 U.S. at 322. "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).

 FACTS

 The following facts are uncontested: Enright was hired by Defendant on November 10, 1980. After completing her training at the police academy, Enright became an Illinois State Trooper in March 1981. On July 16, 1985, Enright was promoted to Sergeant. Between February 16, 1988, and November 13, 1993, ten officers were promoted from Sergeant to the rank of Master Sergeant. During this period, Enright consistently applied for promotion, but was denied.

 Defendant promotes officers to Master Sergeant by generating a list of eligible candidates and promoting from that list until the promotion period is closed. On July 16, 1987, a promotional list was issued on which Enright ranked among the top ten officers. Four eligible individuals were promoted from that list before the promotion period closed on November 1, 1988. On December 1, 1988, a second promotional list was issued on which Enright was ranked among the top ten officers eligible for promotion. Three eligible officers were promoted from that list before the second promotion period closed on April 1, 1990. On December 11, 1991, a third promotional list was issued on which Enright again ranked in the top ten officers for promotion. Three eligible officers were promoted from that list before the third promotion period closed on November 13, 1993.

 On December 14, 1993, Enright filed a charge of sex discrimination with the Equal Employment Opportunity Commission for failure to promote. In March and November 1996, three more people were promoted to the rank of master sergeant. Enright continued to seek and was denied promotion during this period. On April 22, 1997, Enright filed a charge of sex discrimination and retaliation with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission.

 DISCUSSION

 Statute of Limitations :

 Defendant argues that Enright's discrimination claim for conduct prior to February 18, 1993, is time-barred because Enright did not file a complaint with the EEOC until December 14, 1993. In Illinois, a charge of employment discrimination must be filed with the Illinois Department of Human Rights or the Equal Employment Opportunity Commission within 300 days of the discriminatory act. Failure to do so bars litigation over those claims. 42 U.S.C. § 2000e-5(e); Speer v. Rand McNally & Co., 123 F.3d 658, 662 (7th Cir. 1997); Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 707 (7th Cir. 1995). Enright concedes that the pre-February 18,1993, claims exceed the 300 day statute of limitations, but argues that, under the continuing violations doctrine, this conduct can be treated as part of one continuous act.

 The continuing violation doctrine allows a plaintiff to seek relief for a time-barred act by linking it with an act that is within the limitations period. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). "The plaintiff may not base her ... suit on conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct, as in a case in which the conduct could constitute, or be recognized, as actionable harassment only in the light of events that occurred later, within the period of the statute of limitations." Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996); see also, Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 446 (7th Cir. 1994) ("The purpose of permitting a plaintiff to maintain a cause of action on the continuing violation theory is to permit the inclusion of acts whose character as discriminatory acts was not apparent at the time they occurred"). However, if the plaintiff knew, or "with the exercise of reasonable diligence would have known after each act that it was discriminatory and had harmed" her, she must sue over the act within the relevant statute of limitations. Jones v. Merchants National Bank & Trust Company of Indianapolis, 42 F.3d 1054 (7th Cir. 1994).

 There are three scenarios in which the continuing violations doctrine is applicable: (1) cases where the employer's decision-making process takes place over a period of time, making it difficult to pinpoint the exact day the 'violation' occurred; (2) cases in which the employer has an express, openly espoused policy that is alleged to be discriminatory; and (3) cases in which "the plaintiff charges that 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." Stewart v. CPC International, Inc., 679 F.2d 117, 120 (7th Cir. 1982). Enright argues that this third scenario, also known as the "serial violation" theory, applies to defendant's conduct.

 The question before this court is whether, in response to defendant's motion for summary judgment, Enright has produced sufficient evidence to establish that there existed a genuine issue of fact whether the defendant'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 L.S.U., 715 F.2d 971, 981 (5th Cir. 1983)). Courts consider three factors in determining whether conduct is part of a continuing violation: (1) the subject matter, (2) the frequency, and (3) the degree of permanence. Id. Both parties agree that the alleged acts of discrimination involve the same subject matter: namely, promotion. Enright was denied promotion during each round of promotions, therefore, the ...


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