The opinion of the court was delivered by: Gettleman, District Judge.
MEMORANDUM OPINION AND ORDER
On November 12, 1997, plaintiff Carmela Rios filed an amended complaint
against defendant AT&T, a New York corporation, alleging violations of
Title VII of the Civil Rights Act, 42 U.S.C. § 2000 (e) et seq.
Plaintiff alleges that defendant has denied and continues to deny
plaintiff employment on the basis of her race, national origin and sex.
Defendant moved for summary judgment, arguing that: (1) plaintiff's
complaint is time-barred, and (2) even if plaintiff's complaint is not
time-barred, defendant is entitled to summary judgment on the merits. On
October 30, 1998, this court held an evidentiary hearing limited solely
to the statute of limitations issues. For the reasons set forth below,
defendant's motion is granted.
The following facts are uncontested unless otherwise noted. Plaintiff
began working for defendant on June 9, 1980, and for the next seven years
held various hourly technical positions. In November 1987, she was
promoted to management. In February 1991, plaintiff became a network
engineer and retained that title until her termination. In March 1992,
plaintiff was transferred into a new business unit that performed network
access engineering, known as the Technical Marketing Access Networking
In March 1994, defendant implemented a "reduction-in-force" in
plaintiff's department through its Force Management Program.*fn1 On March
31, 1994, defendant notified plaintiff she would lose her job on June 1
unless she found another position within the company or another employee
left. Plaintiff did not seek or find another position within the company
and was terminated on June 1, 1994.
According to plaintiff, she visited the Equal Employment Opportunity
Commission ("EEOC") on April 14, 1994, and met with Michael Davidson, an
investigator, about her impending termination and her allegations of
discrimination.*fn2 Davidson advised her to attempt to resolve her
claims through defendant's internal claims procedure, which she agreed to
do. Davidson then contacted Carmen Johnson of defendant's EEO/AA office,
who initiated an internal investigation. It is undisputed that plaintiff
did not file a written complaint with the EEOC on this date. However,
plaintiff testified in her deposition and at the evidentiary hearing that
she left the office believing that she had filed a
charge through her conversation with Davidson. Plaintiff further
testified in her deposition and at the evidentiary hearing that she came
away from this meeting with the "understanding" that her written charge
would be "back-dated" to April 14, 1994. Plaintiff further testified that
a few days after this meeting, she spoke to Davidson on the phone, and
that he explained during that conversation that her charge needed to be
filed within 300 days of the alleged discrimination.
Davidson, as noted above, testified that he does not remember the
substance of his meeting with plaintiff. However, he testified by
affidavit and again at the evidentiary hearing that he had never told a
potential charging party that a charge could be back-dated and that this
practice would violate EEOC policy.*fn3 He further testified that at that
time he had handled all charges against AT&T and is familiar with their
internal complaint resolution process. Davidson testified that it is his
practice to explain to employees that they can either use AT&T's internal
process, file a charge with the EEOC or do both concurrently, and that he
would not tell a potential charging party that he or she could not file a
charge. Finally, Davidson testified at the hearing that he "commonly"
discusses the 300-day statute of limitations period with potentially
charging parties, but does not always do so.
Defendant's EEO/AA office informed plaintiff on June 21, 1994, that it
had completed its investigation with a finding of "no cause." Plaintiff
claims she called Davidson that afternoon that he told her not to worry
and that the investigation of her claim would continue.*fn4 Plaintiff
claims that she tried to contact Davidson by phone several times after
this, but was unable to reach him. Plaintiff did not return to the EEOC
office in person, however, until March 21, 1995, and was told that there
was no record of her charge.*fn5 She then filed a written charge with an
unidentified EEOC employee. This charge was forwarded to Davidson, who
dismissed it as time-barred and issued plaintiff a "right-to-sue"
STANDARDS FOR SUMMARY JUDGMENT
Summary judgment is proper "if 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); Cox v. Acme Health Services, Inc., 55 F.3d 1304,
1308 (7th Cir. 1995). A genuine issue of material fact exists for trial
when, in viewing the record and all reasonable inferences drawn from it
in a light most favorable to the non-moving party, a reasonable jury
could return a verdict for the non-movant. Hedberg v. Indiana Bell Tel.
Co., Inc., 47 F.3d 928, 931 (7th Cir. 1995). Rule 56(c) mandates the
entry of summary judgment. against a party "who fails to make a showing
sufficient to establish the existence of an element essential to that
party's case, and in which that party will bear the burden of proof at
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,
2552-53, 91 L.Ed.2d 265 (1986). Waldridge v. American Hoechst Corp.,
24 F.3d 918, 920 (7th Cir. 1994). This requires more than merely showing
"there is some metaphysical doubt as to the material facts." Matsushita
Elec. Indua Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
I. The 90-day limitation, period
Under 42 U.S.C. § 2000e-5 (f)(1), a plaintiff must file suit within
90 days of receiving a "right-to-sue" letter from the EEOC. Plaintiff
filed her original complaint on January 31, 1997. Plaintiff initially
testified in her deposition that she received her "right-to-sue" letter
on October 31 or November 1, 1996. At the beginning of the second day of
her deposition, she amended her answer and testified that she received
the letter November 4, 1996. This brought her within the 90-day statutory
period. Plaintiff testified in her deposition and at the evidentiary
hearing that she was not home on the original date of delivery, October
31, and that the Post Office left a notice that they had attempted
delivery. The ...