Civil Procedure, the court merely looks at the sufficiency of
the complaint, see Autry v. Northwest Prem. Serv., Inc.,
144 F.3d 1037, 1039 (7th Cir. 1998); the court does not decide
whether the plaintiff has a winning claim. See Herdrich v.
Pegram, 154 F.3d 362, 369 (7th Cir. 1998). The court will deny
the motion unless "it is impossible [for the plaintiff] to
prevail `under any set of facts that could be proved consistent
with her allegations.'" Albiero v. City of Kankakee,
122 F.3d 417, 419 (7th Cir. 1997) (quoting Hishon v. King & Spalding,
467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). The
court "must look to see whether there is any possible
interpretation of the complaint under which it can state a
claim." Martinez v. Hooper, 148 F.3d 856, 858 (7th Cir. 1998).
When reviewing the complaint, the court must accept all
well-pleaded factual allegations in the complaint as true, and
draw all reasonable inferences therefrom in the light most
favorable to the plaintiff. See Fredrick v. Simmons Airlines,
Inc., 144 F.3d 500, 502 (7th Cir. 1998).
A. COUNT I — CIVIL RIGHTS
Count I of Finnane's Amended Complaint alleges sexual
harassment in violation of Title VII. Pentel claims that a
majority of the allegations of harassment are time-barred and
thus should be dismissed and stricken. The court agrees.
Sexual harassment is a recognized subset of gender
discrimination. See Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 63-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Title VII
deems unwelcome sexual advances as unlawful sex discrimination
because they create an offensive or hostile working
environment. See Hartman v. Pena, 914 F. Supp. 225, 228
(N.D.Ill. 1995). "`When the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment,
Title VII is violated.'" Oncale v. Sundowner Offshore Serv.,
Inc., 523 U.S. 75, ___, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201
(1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21,
114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). With respect to
harassment by a co-worker, an employer may be held responsible,
but only if it knew or should have known of the conduct and did
not take proper remedial action. See Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, ___, 118 S.Ct. 2257, 2267, 141 L.Ed.2d
633 (1998) (citing McKenzie v. Illinois Dept. of Transp.,
92 F.3d 473, 480 (7th Cir. 1996)).
To bring an action in federal court for sexual harassment
under Title VII, a plaintiff must have filed her EEOC charge
within 300 days of the occurrence of the allegedly illegal
conduct. See 42 U.S.C. § 2000e-5(e)(1); Hentosh v. Herman M.
Finch Univ. Health Sciences, 167 F.3d 1170, 1174 (7th Cir.
1999) (citing EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963,
970 (7th Cir. 1996) ("Illinois is a `deferral state,' and so
the limitation period runs for 300 days from the date of the
alleged discrimination.")). The 300-day limitations period
"starts to run with `the discriminatory act, not the point at
which the consequences of the act become painful.'" Lever v.
Northwestern Univ., 979 F.2d 552, 553 (7th Cir. 1992) (quoting
Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 70 L.Ed.2d 6
(1981)). With few exceptions to this rule, a plaintiff must
base a Title VII action on occurrences entirely within the
scope of the 300-day period. See Galloway v. General Motors
Serv. Parts Operations, 78 F.3d 1164, 1166 (7th Cir. 1996).
In this case, Finnane claims to have been harassed in
incidents occurring between 1995 and 1998. Admittedly, because
many of the allegations fall outside the 300-day limit, which
extends only as far back as July 22, 1997, they appear
time-barred. Finnane argues, however, that
she alleges a continuing violation, an exception to the 300-day
rule, and thus her allegations arising outside the 300 days
form a proper basis of recovery under Title VII.
The Seventh Circuit recently described the continuing
violation doctrine as follows:
"The continuing violation doctrine allows a
plaintiff to get relief for a time-barred act by
linking it with an act that is within the
limitations period. For purposes of the
limitations period, courts treat such a
combination as one continuous act that ends within
the limitations period." Selan v. Kiley,
969 F.2d 560, 564 (7th Cir. 1992). In Galloway v. General
Motors Parts Operations, 78 F.3d 1164 (7th Cir.
1996), we placed limitations on the circumstances
in which acts of sexual harassment may be linked
together to defeat the statute of limitations. Acts
that fall outside the statute of limitations may be
joined to an act within the statute only if a
reasonable person in the position of the plaintiff
would not have known, at the time the untimely acts
occurred, that she had a claim; rather, she could
only tell by hindsight that the untimely acts
represented the early stages of harassment. See id.
at 1166 (sexual harassment, in its early stages,
"may not be diagnosable as sex discrimination, or
may not cross the threshold that separates the
nonactionable from the actionable. . . .").
Garrison v. Burke, 165 F.3d 565, 569-70 (7th Cir. 1999). More
recently, the court explained:
[the] doctrine is designed to "accommodate
plaintiffs who can show that there has been a
pattern or policy of discrimination continuing
from outside the limitations period, so that all
discriminatory acts committed as part of the
pattern or policy can be considered . . . timely."
Peatzold & O'Leary, Continuing Violations and
Hostile Environment Sexual Harassment: When is
Enough, Enough?, 31 AM.BUS.L.J. 365 (1994). When it
would be unreasonable to expect the plaintiff to
perceive offensive conduct as Title VII harassment
before the limitations period runs, or the earlier
discrimination may only be recognized as actionable
in light of "events that occurred later, within the
period of the statute of limitations" the
continuing violation doctrine applies. Galloway, 78
F.3d at 1167. The doctrine also may be used when,
after an initial incident of discrimination, a
plaintiff does not feel "sufficient distress to . . .
mak[e] a federal case." Id. at 1166.
On the other hand, the continuing violation
doctrine has delineated limits. Where a pattern of
harassment spreads out over years, and it is
evident long before the plaintiff sues that she
was a victim of actionable harassment, she "cannot
reach back and base her suit on conduct that
occurred outside the statute of limitations."
Id. at 1167; Doe v. R.R. Donnelley & Sons, Co.,
42 F.3d 439, 446 (7th Cir. 1994).
Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir.
1999). See also Moskowitz v. Trustees of Purdue Univ.,
5 F.3d 279, 281-82 (7th Cir. 1993).