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Combs v. East Peoria Community High School District 309


February 17, 2010


The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge


Before the Court is the Motion for Summary Judgment filed by Defendant, East Peoria Community High School District 309, on August 12, 2009 [Doc. 4]. For the reasons set forth below, the Motion is GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART.


Plaintiff, William C. Combs, filed a Complaint on June 12, 2009 alleging that he was discriminated against by his employer in violation of the Age Discrimination in Employment Act (ADEA). 29 U.S.C. §§ 621, et seq. Defendant has filed a Motion for Summary Judgment stating that Plaintiff's claims are time-barred. In light of the nature of Defendant's arguments, the following facts are drawn from the Complaint.

Combs, who was a social science teacher, began teaching in 1998. He was subject to a Collective Bargaining Agreement between Defendant and the East Peoria Community High School Education Association. On September 5, 2006, the Association and Defendant entered into a "Memorandum of Understanding" (hereinafter referred to as "Retirement Incentive Plan") that spelled out the terms of a retirement incentive applicable during the 2006 to 2012 school years. Plaintiff alleges that he had a conversation with Cliff Cobert, the Superintendent, regarding the Retirement Incentive Plan, in which Cobert made certain representations that compelled Plaintiff to retire.

Plaintiff tendered three letters of resignation dated April 11, 2006, August 1, 2006, and October 1, 2006 and which are identical except for a recitation of benefits Plaintiff expected to receive upon his retirement. Each of the letters indicated that the resignation would be effective December, 2007. The School Board only accepted the third letter of resignation. On November 6, 2007, however, Plaintiff authored a letter rescinding his resignation. Plaintiff apparently drafted the rescission letter because he believed that Superintendent Cobert made material misrepresentations as to the benefits he would receive during retirement. Plaintiff also apparently believed that the Retirement Incentive Plan, as negotiated by his Union and Defendant discriminated against him on account of his age.*fn1 Plaintiff's attempt to rescind his resignation was rejected, Superintendent Cobert drafted a letter on November 20, 2007 indicating that the School Board had already approved his resignation, that Plaintiff had already received the benefits provided under the Retirement Incentive Plan, and that the Board had already hired a replacement.

The adverse job action that Plaintiff complains of is the failure of the School Board to accept the withdrawal of his resignation letter.

Plaintiff filed a Charge of Discrimination on September 3, 2008 alleging that the latest discriminatory act was November 20, 2007. A Right to Sue letter was dated May 29, 2009 and Plaintiff filed his Complaint in this Court on June 12, 2009.


Summary judgment should be granted where "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the responsibility of informing the Court as to portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by demonstrating "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

Once the movant has met its burden, to survive summary judgment the "non-movant must show through specific evidence that a triable issue of fact remains on issues on which [s]he bears the burden of proof at trial." Warsco v. Preferred Tech. Group, 258 F.3d 557, 563 (7th Cir. 2001); See also Celotex Corp., 477 U.S. at 322-24. "The non-movant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence." Chemsource, Inc. v. Hub Group, Inc., 106 F.3d 1358, 1361 (7th Cir. 1997).

This Court must nonetheless "view the record and all inferences drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). In doing so, this Court is not "required to draw every conceivable inference from the record -- only those inferences that are reasonable." Bank Leumi Le-Isreal, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). Therefore, if the record before the court "could not lead a rational trier of fact to find for the non-moving party," then no genuine issue of material fact exists and, the moving party is entitled to judgment as a matter of law. McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). However, in ruling on a motion for summary judgment, the court may not weigh the evidence or resolve issues of fact; disputed facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

Defendant's only argument is that Plaintiff's claims are time-barred. "An individual must have filed timely charges of discrimination with the EEOC [Equal Employment Opportunity Commission] in order to file a claim of discrimination" in federal court. See Equal Employment Opportunity Commission v. North Gibson School Corp., 266 F.3d 607, 616 (7th Cir. 2001). Because Illinois is a deferral state for purposes of establishing the statutory period within which an employee must file an administrative charge of age discrimination, Plaintiff's charge had to be filed with the EEOC within 300 days of the "alleged" unlawful practice. See 29 U.S.C. § 626(d)(1)(B); Flannery v. Recording Industry Ass'n of America, 354 F.3d 632, 637 (7th Cir. 2004). Since Plaintiff's charge was filed with the EEOC on September 3, 2008, the 300 day period began on November 8, 2007; and a federal suit would be precluded unless Plaintiff could demonstrate that a discriminatory act under the ADEA occurred subsequent to that date. All such acts of unlawful discrimination that occurred prior to November 8, 2007, are therefore time-barred. Defendant argues that the critical date is October 11, 2006,*fn2 when Plaintiff tendered his resignation for the third and last time. Plaintiff argues that the critical date is November 20, 2007, when the School Board refused to accept the withdrawal of his resignation letter. For purposes of this motion, it is necessary to determine what would constitute the alleged unlawful practice violative of the ADEA, when it occurred, and when Plaintiff became aware of his injury.

In relevant part, the ADEA provides that it is unlawful for an employer to refuse to hire, to discharge, or to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Thus, recognizable employment actions include hiring, firing, failing to promote, or other actions that cause significant changes in responsibilities or benefits. Chaudhry v. Nucor Steel-Indiana, 546 F.3d 832, 838 (7th Cir. 2008). The limitations period begins to run "when the defendant has taken the action that injures the plaintiff and when the plaintiff knows she has been injured, not when she determines that the injury was unlawful." Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001). In this case, the Complaint (and the attached documents) makes clear that the discriminatory act that Plaintiff is really complaining of is the application of the September, 2006 Retirement Incentive Plan and its retirement benefits provisions which Plaintiff believes discriminates against elderly employees such as himself. Plaintiff further is complaining that statements made by Superintendent Cobert compelled him to retire and accept the benefits which he now believes discriminated against him on account of his age. Thus, Plaintiff seems to be making out a form of constructive discharge claim that occurred on October 1, 2006, when he tendered his resignation letter to the School Board. As discussed infra, these allegations are superfluous to the ADEA claim and do not make out a cognizable claim based on a theory analogous to constructive discharge.

Plaintiff does go to great lengths in his response to the Motion for Summary Judgment to argue that the November 20, 2007 rejection of his rescission letter is the discriminatory act. His statement to the EEOC, however, belies this argument. Plaintiff stated:

That at all times herein material respondent treated other certified teachers of younger age in a manner more beneficial compared with its treatment of complainant Combs depriving Combs of bonus retirement benefits, accrued vacation benefits to be tied to retirement benefits and other benefits enjoyed by teachers who are younger but eligible for retirement under the collective bargaining agreement above described. [Doc. 1, p. 8, ¶ 8]

Plaintiff's claims of age discrimination before the EEOC were tied to the Retirement Incentive Plan, not the failure to accept the withdrawal of his resignation letter. The scope of Plaintiff's claim before this Court, then, is limited to this claim made before the EEOC: that he was discriminated against on account of his age with respect to retirement benefits and that the discrimination resulted in his a decrease in benefits and his constructive discharge. Miller v. American Airlines, Inc., 525 F.3d 520, 52 (7th Cir. 2008) ("A plaintiff generally cannot bring a claim in an ADEA lawsuit that was not alleged in the EEOC charge . . . .").

Beyond that discrepancy, Seventh Circuit precedent "establishes that, with respect to retirement plans, the discriminatory act occurs on the date on which it becomes clear that the employee will retire pursuant to the terms of the [allegedly] discriminatory plan" See North Gibson School Corp., 266 F.3d at 618. Plaintiff made it clear that he intended to retire effective in December 2007 in all three of his letters of resignation, the last one dated October 1, 2006.

While Plaintiff has presented a plausible claim that the Retirement Incentive Plan discriminated against him in terms of benefits, Plaintiff's theory of recovery also includes an argument that somehow he was "constructively discharged" in the sense that statements made by Superintendent Cobert relating to retirement benefits compelled him to retire and accept the benefits which he now believes discriminated against him on account of his age. Plaintiff proffers no legal precedent for this fanciful position. In a cognizable constructive discharge situation, "constructive discharge of an employee occurs when an employer rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit voluntarily." See Flaherty v. Metromail Corp., 235 F.3d 133, 138 (7th Cir. 2000). "A court must find a constructive discharge where the employee resigns because an employer causes to exist conditions of such an unpleasant or difficult nature that any reasonable person in the employee's place would do the same." Id. at 138. The Court fails to see any useful analogy between the constructive discharge doctrine and the Plaintiff's choosing to retire because he was enticed by his perception of advantages and attractive retirement benefits. Therefore, summary judgment is awarded to Defendant and against Plaintiff on the theory that he was compelled to retire under the rubric of constructive discharge.

Determination of the date on which Plaintiff first became aware of his injury is less clear. While Defendant argues, correctly in the Court's view, that the discriminatory act occurred as early as April 11, 2006, and as late as October 1, 2006, when Plaintiff clearly evidenced his intent to retire under the terms of the Retirement Incentive Plan, it does not proffer any argument of when Plaintiff's cause of action accrued -- that is, when he became aware of his injury: that the Retirement Incentive Plan was allegedly discriminatory. The only indication in the record that Plaintiff was aware that he may be injured is a reference in Superintendent Cobert's letter that Plaintiff attempted to withdraw his resignation letter in a letter from Plaintiff dated November 6, 2007 [Doc. 1, p. 17]. That November 6, 2007 letter has not been provided as part of the record of this summary judgment motion. Plaintiff's belief that he had been injured, and specifically discriminated against on account of his age, is spelled out in his November 29, 2007 letter to Kim McCormick (which has been provided) [Doc. 1, pp. 14-15]. If the first date is used (November 6, 2006), then Plaintiff's claims are time-barred; he knew that he was injured and failed to file a charge with the EEOC within 300 days of that knowledge. If the second date is used, then Plaintiff may well have filed with the EEOC within the limitation period. While the Court suspects it probable that Plaintiff became aware that he was injured on or prior to November 6, 2006, out of an abundance of caution, the Court cannot conclude that summary judgment should be granted in favor of Defendant without evidence in the record to that effect.


Therefore, summary judgment on Plaintiff's entire ADEA claim will not be granted in favor of Defendant at this point in the proceedings. However, summary judgment is granted to the extent that Plaintiff is alleging that he was constructively discharged.

Pursuant to Federal Rule of Civil Procedure 56(d)(1), this Court finds that the adverse employment action occurred no later than October 1, 2006 when Plaintiff tendered his last letter of resignation. The claim accrued when Plaintiff became aware, or should have become aware, that he was injured by the Retirement Incentive Plan and Superintendent Cobert's representations. In light of this conclusion, the Court directs the parties to conduct discovery first on when Plaintiff became aware that he was injured by the Retirement Incentive Plan. A prompt resolution of the timeliness issue will prevent the waste of valuable resources in the prosecution and resolution of this matter.

For the foregoing reasons, the Motion for Summary Judgment filed by Defendant on August 12, 2009 [Doc. 4] is GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE. This matter is REFERRED to Magistrate Judge Cudmore for a Rule 16 Conference and discovery plan consistent with this Order.

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