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BOWERS v. RADIOLOGICAL SOC. OF NORTH AMERICA

March 18, 2000

BEVERLY BOWERS, PLAINTIFF,
V.
RADIOLOGICAL SOCIETY OF NORTH AMERICA, INC., AND DANA DAVIS, INDIVIDUALLY, DEFENDANT.



The opinion of the court was delivered by: Bucklo, District Judge.

  MEMORANDUM OPINION AND ORDER

Beverly Bowers worked for the Radiological Society of America (the "Society") from 1994 to 1998, when she was fired. She claims that Dana Davis, her immediate supervisor, sexually harassed her on and off throughout the entire period, making passes that Bowers rejected, brushing against her physically in inappropriate ways, using foul and graphic sexual language, cracking dirty jokes and so forth Bowers was fired on February 27, 1998. On May 1, 1998, she filed discrimination charges with the EEOC. On November 19, 1998, she filed this sexual harassment lawsuit against the Society and Davis.*fn1 The Society moves for partial summary judgment on all of Bower's factual claims prior to July 5, 1997, arguing that these are time barred I deny the motion

I.

In order to bring a Title VII discrimination suit in federal court, a plaintiff must have filed a charge with the EEOC detailing the basis of the allegations within 300 days of the date of its occurrence. 42 U.S.C. § 2000e-5 (e)(1); EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 970 (7th Cir. 1996). When she fails to do so, the complaint is untimely. Hentosh v. Herman M. Finch University of Health Sciences/the Chicago Medical School, 167 F.3d 1170, 1173-74 (7th Cir. 1999). The factual claims the Society wants me to throw out occurred outside the 300-day limit if that is computed as the Society wants.

However, Ms. Bowers invokes the continuing violation doctrine to bring these events back into her lawsuit. On this doctrine, conduct that falls outside the limitations period is actionable if it is linked with related acts that fall within the period, and the acts are then treated as one continuous act ending within the limitations period. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). The continuing violation doctrine is applicable if the conduct can only be recognized as actionable in the light of later events that occurred within the limitations period. Filipovic v. K & R Express Systems, Inc., 176 F.3d 390, 396 (7th Cir. 1999). The justification for treating a series of separate violations as a continuing violation is that the plaintiff had no reason to believe that she had been subject to actionable discrimination when the events outside the limitations period occurred. Selan v. Kiley, 969 F.2d 560, 565-66 (7th Cir. 1992).

The Society argues that the continuing violations doctrine does not apply in this case because Bowers believed that she was being sexually harassed as early as 1993. As evidence of Bowers' beliefs, it offers the following:

1. Bowers said that Davis made a pass at her in 1993 while they were working for a different employer, the American Health School Association (the "Association"), and when Davis offered Bowers the job working for the Society, Bowers sought assurances that her rejection of this unwanted attention would not affect her employment at the Society. Bowers wrote in her journal on February 23, 1993 that she had been told that Davis' conduct "could be sexual harassment."

2. Bowers testified in her deposition that in July 1995, after receiving a poor performance evaluation from Davis, she told Davis that she did not appreciate being sexually harassed.

3. Bowers stated that in December 1995, she kept a copy of a sexually graphic document that Davis created as evidence of discrimination.

4. On April 18, 1996, Bowers wrote in her journal, "I have it in mind that if Dana goes through what I fear, I will sue [the Society]."

5. On April 26, 1996, Bowers wrote in her journal that Davis was "crude," made "sexual harassing comments," and so forth. Bowers had done some searching . . . [into] court cases on discrimination. . . . It seems that people have won cases even when they don't have as much evidence as I do about my situation. I could get Dana on all of these issues right now!"

6. On June 5, 1996, Bowers wrote in her journal: "If [my performance review] is bad again, I'll have to submit another rebuttal and consider officially registering a sexual harassment complaint against [Davis]."

The Society maintains that this evidence shows that Bowers knew from before it hired her, and knew all along during her employment, that she was being sexually harassed, and therefore she has no continuing violation to save the events outside the limitations period.

The clock started ticking for Bowers' claims when a reasonable person would have known that she had a cause of action for sexual harassment, that is, when the basis for her lawsuit actually accrued, Thelen v. Marc's Big Boy Corporation, 64 F.3d 264, 267 (7th Cir. 1995) ("The plaintiffs action accrues when [s]he discovers that [s]he has been injured."); Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1144 (7th Cir. 1992), and she would have reasonably realized this — not when she might have wrongly believed that it had accrued. See Hardin v. S.C Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir. 1999) ("Where . . . 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.' ") (emphasis added). But it must have been evident to a reasonable person that the harassment was in fact serious enough to be actionable. A complaint "would [have] ...


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