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United States District Court, N.D. Illinois, Eastern Division

January 3, 2005.


The opinion of the court was delivered by: MARK FILIP, District Judge


Plaintiff Lorelei Knowles ("Plaintiff" or "Knowles") is suing her former employer, Defendant Trans Union LLC ("Trans Union"), alleging that Trans Union, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), subjected her to a race-based hostile work environment (Count I), and terminated her employment because of her race (Count II).*fn1 This case is before the Court on Defendant's Motion for Partial Summary Judgment on Count I (D.E. 28), and the facts set forth in this opinion are limited to those that are relevant to this count. For the following reasons, Defendant's motion for partial summary judgment is granted.


  The parties to this suit are as follows.*fn2 Defendant Trans Union is a corporation with offices in Chicago, Illinois. (Def.'s St. ¶ 10.) Plaintiff Lorelei Knowles is an African-American woman, who worked for Trans Union at these offices until Trans Union terminated her employment, effective December 31, 2002. (Id. ¶ 9.)

  Knowles contends that Trans Union encouraged or tacitly approved of specific acts of violent behavior that were directed against her in the course of her employment at Trans Union. (Id. ¶ 11.) Knowles alleges three specific acts. (Id. ¶ 12.) First, in or about August 1999, a co-worker, Beverly Gehrt ("Gehrt"), "physically and verbally assaulted" Knowles by "pushing and cursing [Knowles] while [Knowles] was sitting at [her] desk." (Id.) Second, in or about January 2000, Knowles reported to Trans Union that a supervisor, Timothy Shanovich ("Shanovich"), "verbally and physically assaulted [her] by cursing and shoving her while she was sitting in a chair." (Id.) Third, in or about March 2001, Knowles informed Trans Union that Shanovich again "physically assaulted [her]," after which Plaintiff filed an incident report alleging battery with the Chicago Police Department. (Id.)

  Knowles contacted the Equal Employment Opportunity Commission ("EEOC") after her termination. (Id. ¶ 13.) Knowles completed an EEOC Form 283 (the "Intake Questionnaire") on January 30, 2003. (Id.) Knowles alleged on the Intake Questionnaire that (1) Trans Union terminated her employment because of her race and age and (2) that Gehrt and Shanovich harassed her because of her race and age, and that Trans Union "did nothing to help [her] when [she] reported the . . . incidents." (Id. ¶ 14.)

  At some point in or around January 2003, Knowles also contacted Attorney Valda D. Staton ("Staton") for the purpose of obtaining legal services. (Id. ¶ 15.) (Staton is one of the attorneys who has filed an appearance on behalf of Plaintiff in this suit. (D.E. 6.)) In this regard, Knowles wanted information about "[her] options and how [she] would have to proceed, if [she] was seeking redress from Trans Union." (Pl.'s Resp. ¶ 15.) Knowles "asked [Staton] to seek some sort of positive resolution to this action, short of full scale litigation, since [Knowles] had limited assets, and [she] had no luck to date getting Trans Union to address [her] concerns with their actions and inactions with regard to [her] employment." (Id.)

  After reviewing Knowles's "preliminary filings" with the EEOC, in addition to other documents that Knowles provided to Staton relating to her employment and termination, Staton agreed to represent Knowles for the purposes of contesting Trans Union's termination of her employment. (Def.'s St. ¶¶ 16, 17) Staton similarly agreed to assist Knowles "in coordinating efforts with the EEOC Representative assigned to her so that she might complete her [EEOC] filing." (Id. ¶ 16.)

  Staton sent a letter to Trans Union, on behalf of Knowles, dated February 13, 2003, that stated that Knowles had "engaged" Staton. (Id. ¶ 17.) The letter also stated that Knowles would not consent to a severance agreement until she and the EEOC had completed an evaluation of Trans Union's conduct. (Id.) In the letter, Staton asked Trans Union to contact her to discuss its willingness to engage in settlement negotiations to avoid an extensive EEOC investigation. (Id. ¶ 19.) Staton also forwarded a copy of this letter to the EEOC Investigator assigned to Knowles's case, and Staton suggested that the parties set a mutually agreeable deadline for discussions and a final settlement. (Id. ¶ 18.)

  Approximately two weeks later, on February 26, 2003, the EEOC investigator assigned to Knowles's case sent Knowles a draft of Knowles's formal Charge of Discrimination ("EEOC Charge") against Trans Union. (Id. ¶ 20.) The EEOC Charge indicated the following types of misconduct: race discrimination, age discrimination, and retaliation (D.E. 29, Ex. 8 (Charge of Discrimination)), and designated December 31, 2002 (the date of Plaintiff's termination), as both the "earliest" date such discrimination took place and the "latest" date it occurred (Def.'s St. ¶ 22). The text of the EEOC Charge containing the "particulars" of the alleged discrimination states in its entirety:

I was hired by Respondent on or about October 6, 1997. My most recent position was Programmer Analyst. On or about December 31, 2002, I was terminated. Respondent stated that my termination was due to the end of a specific project in which I was not the lead person for this project.
I believe I have been discriminated and retaliated against because of my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as amended[,] and because of my age 44 (DOB: 02/14/1958), in violation of the Age Discrimination in Employment Act of 1967.
(Id. ¶ 23.) The EEOC Charge contains no mention of racial harassment or of a hostile work environment. (Id. ¶ 24.) (In contrast, the Intake Questionnaire stated that one of the bases for the EEOC complaint was the "ongoing" harassment Knowles alleges that she suffered at the hands of her co-workers. (Pl.'s Resp. ¶ 24.)) The letter from the EEOC investigator accompanying the charge included the following instructions for Knowles: "Review all the information on the enclosed charge form. If you feel a correction should be made, please call to discuss it with me." (Def.'s St. ¶ 20.) Knowles signed the EEOC Charge on April 7, 2003, some five weeks after it was sent. (Id. ¶ 21.)

  On or about April 21, 2003, the EEOC issued a Dismissal and Notice of Rights ("right-to-sue letter") to Knowles. (Id. ¶ 25.) Knowles filed suit against Trans Union on July 17, 2003. (Id. ¶ 1.) On December 16, 2003, Knowles filed a two-count Amended Complaint. (D.E. 10.) It is undisputed that each of the three allegations contained in Count I of the Amended Complaint occurred more than 300 days before Knowles filed her EEOC Charge. (Id. ¶ 26.)


  I. Summary Judgment Standard

  Summary judgment is appropriate "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a summary judgment motion, it is not a court's "function to scour the record in search of evidence to defeat . . . summary judgment; [a court relies] on the nonmoving party to identify with reasonable particularity the evidence upon which [the nonmoving party] relies." Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996); see also, e.g., Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995). Federal Rule of Civil Procedure 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; accord, e.g., Richards, 55 F.3d at 251.

  Defendant argues that it is entitled to summary judgment on Count I for two independent reasons. In this regard, Defendant argues that Count I is ill-founded because the race-based hostile work environment claim that Knowles purports to assert is outside the scope of her EEOC Charge. (D.E. 28 at 5.) Defendant also argues that the Count I is time-barred because it is based on alleged conduct that occurred over 300 days prior to Knowles filing her Charge with the EEOC, making it untimely. (Id.) Plaintiff responds that Defendant's motion for summary judgment should be denied because issues exist not only as to what is material in this matter, but also as to what standard should be applied in deciding whether Count I of Plaintiff's Amended Complaint is like or reasonably related to the allegations in Knowles's EEOC Charge. (D.E. 34 at 1.)

  As explained below, the Court finds that partial summary judgment is appropriate for two independent reasons: (1) the claim in Count I is outside the scope of Ms. Knowles's EEOC Charge; and (2) Count I is untimely.

  II. Knowles's Allegations Are Outside the Scope of Her EEOC Charge

  Knowles does not contend that the allegations in Count I of her Amended Complaint are within the scope of, or are like or reasonably related to, the allegations set forth in her EEOC Charge.*fn3 (See generally Def.'s St. ¶ 24.) Rather, she argues that the operative document for purposes of such an analysis is her Intake Questionnaire. (D.E. 34 at 4.) The Intake Questionnaire, unlike her EEOC Charge, contains allegations that Plaintiff's co-workers, Gehrt and Shanovich, harassed her because of her race and age, and that Trans Union "did nothing to help [her] when [she] reported the . . . incidents." (Def.'s St. ¶ 14.) A threshold issue, then, is whether this Court should consider the allegations contained in Plaintiff's Intake Questionnaire, as opposed solely to the allegations in her EEOC Charge, in determining the scope of the claims permitted in this suit. Defendant argues that it is inappropriate to consider the Intake Questionnaire, citing the Seventh Circuit's opinion in Novitsky v. American Consulting Engineers, LLC, 196 F.3d 699 (7th Cir. 1999).

  In Novitsky, the plaintiff filed an EEOC charge containing allegations that the defendant violated Title VII by "discharging her on the basis of her . . . religion, and [by] allowing [her co-workers] to make anti-Semitic remarks in the workplace." Novitsky, 196 F.3d at 701. The plaintiff subsequently brought suit in federal district court, alleging, inter alia, that, by denying the plaintiff's request for time off of work, the defendant violated Title VII by failing to accommodate her observance of the Jewish religious holiday of Yom Kippur. Id. at 700. The plaintiff's EEOC charge, however, did not "mention Yom Kippur" or "failure to accommodate [the plaintiff's] religious practices." Id. at 701. The Seventh Circuit held that the claims that the plaintiff could bring in federal court were limited by the allegations contained in her EEOC charge. Id. at 702. The plaintiff in Novitsky tried to avoid the limitations of her EEOC charge by, as the Seventh Circuit put it, blaming the EEOC. Id. In this regard, the plaintiff's intake questionnaire mentioned the Yom Kippur episode, but the EEOC charge, which was drafted by an EEOC staffer who read the questionnaire, did not. The Seventh Circuit rejected the plaintiff's attempt to draw on the intake questionnaire, holding that "it is the [EEOC] charge rather than the [intake] questionnaire that matters." Id. at 702 (citing 42 U.S.C. § 2000e-5(b) and Perkins v. Silverstein, 939 F.2d 463, 470 (7th Cir. 1991)); accord Flaherty v. Marchand, No. 00-0565, 2001 WL 1242884, at *3 (N.D. Ill. Oct. 17, 2001) (Nordberg, J.). The Seventh Circuit reasoned that only the EEOC charge is sent to the employer, and therefore only the EEOC charge can affect the process of conciliation. Novitsky, 196 F.3d at 702.

  The Seventh Circuit held that there were no equitable considerations that would warrant consideration of the Novitsky plaintiff's intake questionnaire. With respect to any argument that error on the part of the EEOC staffer (and not the plaintiff) was responsible for frustrating the conciliation process, the Seventh Circuit stated:

[T]he [EEOC] charge is not the work of a faceless bureaucrat, leaving victims of discrimination helpless to protect themselves. Complainants are free to draft and file charges on their own, or hire attorneys to do so, and a charge drafted by the EEOC's staff is not filed unless the complainant signs it — as Novitsky did. If she had been dissatisfied with the staff's understanding of her answers, all she had to do was point this out and ask for an addition.
Id. The Seventh Circuit noted that Novitsky did not present a scenario where the EEOC refused to accept a charge, or told the plaintiff that an intake questionnaire and an EEOC charge are the same thing, or deceived the plaintiff such that the 300-day period to file a proper EEOC charge would be equitably tolled. Id. Rather, the Seventh Circuit reasoned, the plaintiff in Novitsky "had an opportunity to read the [EEOC] charge and, if she wanted, to obtain professional advice on the subject." Id. Indeed, the plaintiff in Novitsky was accompanied by a lawyer when she signed her EEOC charge, although the Seventh Circuit specifically noted that "the record does not reveal what role the lawyer played." Id. Put differently, the decision regarding the scope of the EEOC charge was in the hands of a plaintiff who had not been misled, misinformed, or otherwise misdirected by the EEOC — and the plaintiff had counsel available to her in at least some capacity prior to her signing the EEOC charge. (It is unclear whether access to an attorney was even material because, as the Seventh Circuit noted, people sign legal documents like insurance applications and fine-print contracts — in what are typically not counseled transactions, at least for ordinary citizens — and those documents are binding on the signers whether they received legal counsel or even read the documents. See id. at 702.) The Seventh Circuit also specifically rejected the plaintiff's argument that she could not be limited to the language of the EEOC charge because she did not "pay much attention to what she was signing and shouldn't be held to its terms." Id. at 702.

  The majority opinion in Novitsky drew a concurrence from Judge Rovner, who wrote separately "to clarify what [was] before the court." Id. at 703. Specifically, Judge Rovner took issue with the following language in the majority opinion:

[W]hether or not the complainant had a lawyer, whether or not she sought or listened to counsel, indeed, whether or not she read or understood the charge, it was her charge, and it did not put her former employer on notice of any claim related to Yom Kippur.
Id. at 702-703 (emphasis omitted). In Judge Rovner's view, "contrary to the opinion's implications," the Seventh Circuit did not "decide whether an illiterate person or pro se person who signs a charge prepared by the EEOC, which leaves out critical information provided by the claimant to the EEOC in the intake questionnaire, would be similarly bound by the charge." Id. at 703. Rather, Judge Rovner reiterated a point recognized in the majority opinion, that "equitable considerations" may warrant a court looking beyond the formal EEOC charge. Id.

  Sometimes (but not here, at least for present purposes, as explained further below), lower courts are required to apply precedent in which majority opinions and concurring opinions are in conflict. When such a conflict exists and is implicated by the facts of a case, the lower court is required, of course, to treat the majority opinion as the applicable precedent. See, e.g., Noble v. United States, 231 F.3d 352, 356 (7th Cir. 2000).

  Whatever arguable tension might exist between the two opinions in Novitsky, given the facts of this case, this Court can take a middle path and, in doing so, it is still clear that summary judgment in favor of Trans Union is appropriate under Novitsky. (Were the facts of this case different, then it might be necessary to resolve any potential conflict between the Novitsky opinions. However, given the facts of this case, such an effort is unnecessary.) When applying Novitsky, it is clear that the case stands for at least this much: absent equitable considerations that require otherwise, a Title VII plaintiff who has access to counsel in connection with the receipt of an EEOC charge prepared by an EEOC staffer, and who adopts the draft as her formal charge by signing it, must live with the charge that she chose to sign and cannot blame the so-called "omission" of allegations in that signed charge on the EEOC.*fn4 It is undisputed that Plaintiff had counsel assist her "in coordinating efforts with the EEOC [r]epresentative assigned to [Plaintiff] so that [Plaintiff] might complete her [EEOC] filing." (Def.'s St. ¶ 16; Staton Aff. ¶ 5.) There is no indication that the EEOC misled or misdirected Plaintiff. Moreover, the charge, which did not contain any allegations of a race-based hostile work environment, was sent to Plaintiff for her review on February 26, 2003, and Plaintiff did not sign it until April 7, 2003. (Def.'s St. ¶¶ 20, 21.) This is not the case of a litigant who was not afforded the opportunity to have counsel review the charge that she ultimately signed. The potential equitable considerations that Judge Rovner alluded to are simply not present in this case. And although Plaintiff argues that "[t]here is no evidence that [counsel] either read and/or helped [her] with the drafting and/or reviewing of her [EEOC Charge]" (D.E. 34 at 2), Novitsky does not support imposition of such a requirement. See Novitsky, 196 F.3d at 702 (noting that "the record does not reveal what role the lawyer played").*fn5 Under the Seventh Circuit's teaching in Novitsky, summary judgment is appropriate in favor of Defendant on Count I, and it is not necessary to resolve any potential tension between the opinions in Novitsky to reach that result.*fn6 III. Knowles's Allegations Are Time-Barred

  Without regard to the scope of the EEOC charge, Plaintiff's hostile work environment claim nonetheless fails because none of the incidents that would properly form a continuing violation occurred within the 300-day statute of limitations. Thus, Count I is time-barred. Summary judgment is therefore granted on Count I for this alternative, independent reason.

  Defendant argues that Plaintiff's attempt to cast Count I as a continuing violation must fail. (D.E. 28 at 10.) In this regard, Defendant argues that each of the three incidents of verbal and physical abuse that Plaintiff identifies in Count I constitutes "a discrete act of discrimination, independently identifiable and separately actionable under Title VII." (Id.) As such, Defendant contends, these three incidents cannot be used to form the basis of a continuing violation claim. (Id.) Defendant further argues that, even if the incidents of physical and verbal abuse are not discrete acts, none of the alleged acts of harassment occurred within the 300-day limitations period and, therefore, a continuing violation claim based on those incidents is untimely. (Id.)

  Plaintiff does not meaningfully respond to these arguments. In this regard, Plaintiff merely advances the generic argument that "it is well established that it is proper to describe discriminatory acts as continuing violations thus allowing Plaintiff to defer filing suit until the end of the statutory period applicable to the last act." (D.E. 34 at 6.) This may be so, at least under the appropriate circumstances, but Plaintiff makes no attempt to explain how or why the continuing violation doctrine is applicable here.*fn7 Despite Plaintiff's failure to make any meaningful argument on this front, the Court, in an abundance of caution, nonetheless considers whether Plaintiff's invocation of the continuing violation doctrine is sufficient to forestall summary judgment on Count I. As explained below, it is not.

  A. The Court Need Not Decide Whether the Alleged Assaults Are Discrete Acts, as Defendant Contends, to Find That Summary Judgment Is Appropriate

  Defendant argues that each of the three alleged incidents of verbal and physical abuse are discrete acts, all of which were "independently identifiable and separately actionable under Title VII." (D.E. 28 at 10.) Defendant contends that, because they are discrete acts, the three alleged incidents of physical and verbal abuse cannot be the basis of a continuing violation claim because the incidents are time-barred under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). (Id.)

  In Morgan, "the Supreme Court explained when a plaintiff may rely on the continuing violation doctrine to recover for discriminatory acts that fall outside the 300-day limitations period." See Lucas v. Chicago Transit Auth., 367 F.3d 714, 723 (7th Cir. 2004). The Supreme Court held that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Morgan, 536 U.S. at 113; see also Lucas, 367 F.3d at 724 (holding that a discrete act occurring prior to the 300-day statutory period "cannot be rendered timely by application of the continuing violation doctrine"). A discrete act "`occurred' on the day that it `happened.'" Morgan, 536 U.S. at 110. A Title VII plaintiff must, therefore, file a charge with the EEOC within the statutory time period for filing such a charge as set forth in 42 U.S.C. § 2000e-5(e).

  Plaintiff, however, is not seeking to hold Defendant liable for any single stand-alone act(s) of verbal and/or physical abuse. Rather, Count I sets forth a race-based hostile work environment claim. Morgan instructs that "[h]ostile environment claims are different in kind from discrete acts," in that "[t]heir very nature involves repeated conduct." Morgan, 536 U.S. at 115. In this regard, a hostile work environment cannot, unlike a discrete act, "be said to occur on any particular day." Id. Rather, "[s]uch claims are based on the cumulative effect of individual acts." Id. Put differently, "[a] hostile work environment claim is composed of a series of separate acts that collectively constitute one `unlawful employment practice.'" Id. at 117 (citing 42 U.S.C. § 2000e-5(e)(1)).

  In contrast to a claim based on discrete acts, "[i]t does not matter, for purposes of the statute, that some of the component acts of [a] hostile work environment fall outside the statutory time period." Id. at 117. Indeed, "[p]rovided that an act contributing to the [hostile work environment] claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. Stated differently, "[a] charge alleging a hostile work environment claim . . . will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the [300-day statute of limitations]." Id. at 122. With respect to a hostile work environment claim, a court's task, then, "is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the [300 day statute of limitations]." Id. at 120. In light of the Supreme Court's teachings in Morgan, an issue that arises in this case is whether Plaintiff has tried to improperly incorporate time-barred discrete acts of discrimination into her race-based hostile work environment claim. The resolution of this issue would necessarily require the Court to decide whether the alleged acts of verbal and physical assault are discrete acts. The Court notes that the Supreme Court identified some discrete acts in Morgan: termination, failure to promote, denial of transfer, or refusal to hire. Id. at 114. But this list is not exhaustive, leaving open the question of what other acts can be a component part of a continuing violation claim post-Morgan. (The Seventh Circuit has provided guidance on this issue by instructing that a discrete act is one that an employee knows or should know (with the exercise of reasonable diligence) is discriminatory. See Tinner v. United Ins. Co. of Am., 308 F.3d 697, 708 (7th Cir. 2002) (collecting cases).) The Court need not resolve this issue, however, because, as set forth below, even if the alleged acts of verbal and physical assault are not time-barred because they are not discrete acts, none of the acts that comprise the hostile work environment claim falls within the 300 day statute of limitation, and thus any hostile workplace claim would be untimely.

  B. Plaintiff's Termination Is Not Part of the Hostile Work Environment Claim

  Defendant argues that even if the acts of harassment identified in Count I are not discrete acts, but rather are parts of a continuing violation, summary judgment should be granted to Defendant because any such continuing violation in these circumstances is untimely. (D.E. 28 at 12.) Plaintiff does not respond to this argument.

  A review of the record and applicable precedent confirms that Defendant's argument is meritorious. The Supreme Court instructs that a district court should "determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice." Morgan, 536 U.S. at 120. In this regard, the alleged acts of physical and verbal abuse "cannot be considered unless [Plaintiff] can point to an act that is part of the same hostile work environment and that falls within the limitations period." Lucas, 367 F.3d at 725. Plaintiff does not attempt, as she must, to link the alleged verbal and physical assaults to an act that is not time-barred.

  The Court notes that the only potentially timely act is Plaintiff's termination, and the Court proceeds with its analysis as if Plaintiff made such an argument. The issue, then, is whether Plaintiff's termination is part of the same hostile work environment as the alleged acts of physical and verbal abuse.

  Defendant argues that the Plaintiff cannot rely on her termination to make the other acts timely. In this regard, Defendant argues that the assaults are wholly unrelated to her discharge. As Defendant points out, Plaintiff does not allege that Gerht or Shanovich "had any involvement whatsoever in [D]efendant's decision to terminate [P]laintiff." (D.E. 28 at 13.) Defendant also points out that Plaintiff's termination occurred almost two years after the last alleged assault, and argues that "[P]laintiff's continuing violation claim may not encompass both her allegations of harassment and unlawful termination, and the termination cannot, therefore, save her untimely harassment claims." (Id.) The Court addresses each of Defendant's arguments in turn.

  Plaintiff has not advanced any argument, nor does it appear, that the alleged incidents of verbal and physical assault are in any way connected to her termination. As Defendant points out, there is no allegation, let alone evidence, that Gerht and/or Shanovich were involved in the decision to terminate Plaintiff. Plaintiff's failure to present any evidence linking any of the acts of verbal or physical assault to her termination defeats her attempt to invoke the continuing violation doctrine here. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004) (Kearse, J.) ("[Plaintiff] proffered no evidence to show that the termination, even if discriminatory, was in furtherance of the alleged practice of racial harassment. Accordingly, the district court properly dismissed all of [Plaintiff's] Title VII claims of hostile work environment as untimely."); Wallin v. THC-Chicago, Inc., No. 99-3173, 2004 WL 2535283, at *7 (N.D. Ill. Sept. 23, 2004) (Nordberg, J.) (holding that a "plaintiff's termination cannot be used as the hook to draw in the untimely acts" purportedly comprising sex- and religion-based hostile work environments because the plaintiff's termination "was not an act creating a hostile environment but was . . . an example of disparate treatment. . . . [and] therefore [was] not part of the same hostile environment claim"). Indeed, under Morgan, Plaintiff's termination would have to contribute to her race-based hostile work environment claim to make that claim timely, see Morgan, 536 U.S. at 117, and plaintiff does not argue, let alone present evidence, that such is the case here.*fn8 See also Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992) (holding that a claim of race-based harassment is not encompassed by general allegations in an EEOC charge of unlawful termination based on race).

  The almost two-year gap between the last act of assault and Plaintiff's termination also seriously undermines any attempt by Ms. Knowles to invoke the continuing violation doctrine here. See Selan v. Kiley, 969 F.2d 560, 567 (7th Cir. 1992). The Seventh Circuit has stated that "[t]he concept of cumulation suggests a critical limiting principle. Acts . . . so discrete in time or circumstances that they do not reinforce each other cannot reasonably be linked together into a single chain, a single course of conduct, to defeat the statute of limitations." Lucas, 367 F.3d at 727 (quoting Tinner, 308 F.3d at 708) (emphasis omitted). In this vein, the Seventh Circuit has instructed that it is appropriate to look at, among other factors, "the frequency with which [alleged discriminatory] acts occur" to determine whether a continuing violation claim is actionable. Tinner, 308 F.3d at 708. In Selan v. Kiley, 969 F.2d 560, 566-567 (7th Cir. 1992), the Seventh Circuit held "that a two-year gap between alleged discriminatory acts could not support a continuing violation claim." Tinner, 308 F.3d at 708-709 (citing Selan, 969 F.2d at 567). Specifically, the Seventh Circuit in Selan "held that the almost two-year [gap between incidents] was `considerable' and `weigh[ed] heavily against finding a continuing violation.'" Lucas, 367 F.3d at 727 (quoting Selan, 969 F.2d at 567).

  In light of the Seventh Circuit's teaching in Selan, even if this court found that the three incidents alleged by Knowles constituted a continuing violation, her claim would still fail to be actionable because of the approximately two-year gap between the last alleged assault and her termination. The most recent alleged act, the second physical assault by Shanovich, occurred in or around March of 2001, whereas Plaintiff's employment was terminated on December 31, 2002 — approximately 20 months later. Given this approximately two-year gap, the Court is not persuaded that Plaintiff's hostile work environment claim is made timely by the continuing violation doctrine. CONCLUSION

  For the foregoing reasons, Defendant's motion for partial summary judgment is granted.


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