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.
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
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. ...