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FLEMMING v. UNITED PARCEL SERVICE

October 12, 2004.

REGINALD FLEMMING, WILLFREDO VASQUEZ, PETER D. CARTER, DARRYL D. McARTHUR, EDWARD BANEVICIUS, THOMAS BALLUFF, JOHN BAPTISTE, RICARDO BEATON, LARRY BORTKO, DALE CHOBAK, ROBERT DISTENFIELD, THOMAS PSIHOGIOS, and RICKY WHITE, Plaintiffs,
v.
UNITED PARCEL SERVICE and INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 705, Defendants.



The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs were truck drivers for United Parcel Service in the company's Metro Chicago district, and were represented by the International Brotherhood of Teamsters Union, Local 705. Between January and March 2002, each plaintiff was laid off by UPS. Plaintiffs Reginald Flemming, Peter Carter, Willfredo Vasquez, and Darryl McArthur have asserted claims of race discrimination, disparate impact, and hostile work environment against UPS. All of the plaintiffs have also sued UPS for breach of the company's collective bargaining agreement with Local 705 and have sued the Union for breach of its duty of fair representation. UPS has moved to dismiss all of the claims against it. For the reasons stated below, UPS' motion is granted in part and denied in part. Facts

According to plaintiffs' amended complaint, the collective bargaining agreement between UPS and Local 705 that was in effect until October 1, 2002 gave laid off "feeder drivers" like the plaintiffs the option of bumping (replacing) feeder drivers working in other UPS districts. The bumping policy was based entirely on seniority. If a laid off driver exercised the bumping option, after thirty days in the new district he could bid for permanent placement in that district. The bidding policy was also based on seniority.

  After they were laid off from the Metro Chicago district, plaintiffs Carter, Flemming, and McArthur, who are African-American, and Vasquez, who is Hispanic, tried to take advantage of the bumping policy to obtain new positions in either the Central or Northern Illinois districts. They claim, however, that UPS refused to allow them to bump less senior, Caucasian feeder drivers in other districts. Furthermore, they claim that UPS refused to allow them to bid for permanent placement in other districts. They argue that this constituted prohibited race and national origin discrimination and that UPS created a hostile work environment by advising white drivers that the plaintiffs were trying to bump them off their jobs.

  In August 2002, UPS and Local 705 adopted a new collective bargaining agreement. Under the new agreement, laid-off drivers were no longer allowed to bump or to bid for permanent placement in other districts. All of the plaintiffs allege that Local 705 breached its duty of fair representation by, among other things, failing to timely pursue their grievances before the new displacement policy took effect. Vasquez, Carter, Flemming, and McArthur also allege that the new policy, though facially neutral, disproportionately impacted minorities. They allege that most layoffs occur in metro districts, like Chicago, where the percentage of minority and female drivers is much higher than in non-metro districts. Plaintiffs also allege that the Chicago Metro district had drivers with much more seniority than the drivers in the surrounding districts of Northern and Central Illinois. Plaintiffs contend the new UPS policy allowed less senior, white feeder drivers to maintain their jobs while more senior, minority drivers were laid off.

  Discussion

  In ruling on a motion to dismiss, the Court looks at the sufficiency of the complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). A claim will be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th Cir. 1996).

  1. Counts 4 and 7: McArthur's claims

  UPS argues that McArthur's race discrimination and hostile work environment claims in Counts 4 and 7 of the amended complaint should be dismissed as untimely because they were not filed within ninety days of McArthur's receipt of a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). McArthur appears to concede that his claims were untimely but argues that he should be allowed to "piggy-back" onto the timely claims of Flemming, Vasquez, and Carter. Under the so-called single filing rule, a plaintiff who faced similar discriminatory treatment during a similar time period as a co-plaintiff, but missed the EEOC filing deadline, is allowed to piggyback on the timely EEOC filing of the similarly affected co-plaintiff. Anderson v. Montgomery Ward & Co., 852 F.2d 1008, 1014 (7th Cir. 1988); see also, Gitlitz v. Compagnie Nationale Air France, 129 F.3d 554, 557 (11th Cir. 1997). UPS argues that McArthur's claims fall under an exception to the single filing rule that prohibits a claimant who has filed an EEOC complaint and received a right-to-sue letter from piggy-backing onto the timely filed claims of similarly situated claimants. Gitlitz, 129 F.3d at 558; see also, Mooney v. Aramco Services Co., 54 F.3d 1207, 1223-24 (5th Cir. 1995); Anderson v. Unisys Corp., 47 F.3d 302, 308-09 (8th Cir. 1995). The Seventh Circuit has not addressed this exception to the single filing rule. See Brewton v. City of Harvey, 285 F. Supp. 2d 1121,1127 (N.D. Ill. 2003) ("There is little discussion in the Seventh Circuit of the single-filing rule, while other circuits have explored the issue more fully."); Zuckerstein v. Argonne National Laboratory, 663 F. Supp. 569, 573 (N.D. Ill. 1987). It has stated, however, that the single filing rule applies to plaintiffs who have neither filed a timely charge with the EEOC nor received a right-to-sue letter, which arguably implies that a plaintiff who does receive a right-to-sue letter may not enjoy the benefit of piggy-backing. See Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1245 (7th Cir. 1983).

  The Court believes that if faced with the issue, the Seventh Circuit would recognize the exception to the single filing rule recognized by the Fifth, Eighth, and Eleventh Circuits. McArthur received a right-to-sue letter which clearly advised him that if he wanted to file suit, he had to do so within ninety days. As a result, McArthur was on notice that the clock was ticking. He cannot now rely on other claimants who diligently followed the statutory time limits. Counts 4 and 7 are therefore dismissed.

  2. Counts 1 through 7: the 300 day limit

  Title VII requires that a charge of discrimination be filed within 300 days of the alleged discriminatory act. 42 U.S.C. § 2000e-5. UPS argues that Counts 1 through 7 are based on acts — specifically, the layoffs — that occurred outside the 300 day period before the EEOC charges, and that those claims should be dismissed. The plaintiffs filed discrimination charges with the EEOC in July and August 2003. Flemming and Vasquez were laid off in February 2002, and Carter was laid off in March of that same year.

  Plaintiffs admit that the layoffs and some of the other allegedly discriminatory acts listed in their complaint occurred outside the 300 day period, but they argue that they have alleged a course of conduct constituting a continuing violation of Title VII, including acts within the 300 day period, and thus may rely on acts outside that period as part of their claim.

  Under the continuing violation doctrine, a claim that otherwise would be time-barred may go forward because it is linked with an act or acts that occurred within the 300 day period. Miller v. American Family Mutual Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). In the present context, a plaintiff can show a continuing violation in one of three ways: (1) by showing that the employer's decision-making process occurred over time; (2) by showing that the employer has in place an express, openly espoused policy that is alleged to be discriminatory; or (3) by showing that an employer covertly follows a practice of discrimination over a period of time. Croft v. Inflight Risk Management, No. 01 C 1766, 2002 WL 226859, *2 (N.D. Ill. Feb. 14, 2002); see Tinner v. United Ins. Co. of America, 308 F.3d 697, 707 (7th Cir. 2002). In this case, it appears that plaintiffs rely on the third method. They allege that UPS has committed many discrete acts of discrimination, ranging from layoffs, to prohibiting them from bidding for permanent placement, to adopting a discriminatory policy, and that each of these acts were part of a long pattern of discrimination. ...


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