Opinion
Civil No. 4:01cv0016AS
March 4, 2002
MEMORANDUM AND ORDER
This matter is before the court on Defendant Ice Cream Specialties ("ICS") motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons the Defendant's motion is now GRANTED.
I. FACTUAL BACKGROUND
Charlie Reese, Jr. is an African American male and has been employed at ICS since August of 1996. Reese is still currently employed with ICS. Reese alleges in his complaint that he was treated differently than similarly situated white employees with respect to certain pay raises given by ICS. Specifically, he alleges that he did not receive a six (6) month wage increase of Forty-Five Cents per hour because of his race in February 1997. (See Defendant's Exhibit A, B, C).
Reese contends that the promised wage increase did not occur at that end of his first six months of employment with ICS. (D's Statement of Material Facts at ¶¶ 10-11). Nevertheless, Reese did not pursue this issue until August of 2000 by requesting a copy of his payroll records from ICS. (Id. at ¶ pparently, it was not until that time that Reese determined that he had not received the increase he was allegedly promised. (Id. at ¶ 14).
Thereafter, Reese filed a complaint of discrimination with the Department of Labor, Employment Standards Administration, Office of Federal Contract Compliance Programs on or about October 23, 2000. (D's Exhibit E). On or about November 16, 2000, his complaint was filed with the Equal Employment Opportunity Commission ("EEOC"). That complaint focused solely on the activity surrounding the alleged February 1997 raise increase. The EEOC notified Reese that his file could not be investigated because it was not filed within the time limit required by law. (D's Exhibit F). However, the EEOC issued a notice of suit rights to Reese on November 28, 2000 (D's Exhibit F).
After several attempts to file an adequate complaint that comported with the Federal Rules of Civil Procedure Reese, who is representing himself pro se, was allowed to file an amended complaint on July 16, 2001. Unfortunately, ICS did not immediately seek legal counsel in this matter and was required to do so after a pre-trial conference was held on October 15, 2001. Thereafter, legal counsel was employed by ICS and an extension of time was sought and granted in order for ICS to properly answer the claims made in the amended complaint. On December 27, 2001, ICS filed its answer to the amended complaint and raised an affirmative defense that Reese's claim surrounding the disparate treatment that occurred in February 1997 was time barred.
On January 2, 2002, ICS filed its motion for summary judgment claiming principally that Reese's charge of discrimination filed with the EEOC was untimely and therefore the instant suit is time barred. As directed by the court, ICS has fully complied with the notice requirements of such a motion that are to be given to a pro se litigant pursuant to Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982) and Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992). Thereafter, on January 25, 2002, Reese filed his response to the motion for summary judgment. A reply was then filed by ICS on February 11, 2002.
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c) Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251-252 (1986). Reese must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Electric Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Reese must present "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e) and only if a reasonable jury could render a verdict" for Reese does he defeat summary judgment. Jordan v. Summers 205 F.3d 337, 342 (7th Cir. 2000). See Also Vanasco v. National Louis Univ., 137 F.3d 962, 965 (7th Cir. 1998).
In determining whether summary judgment is appropriate, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Liberty Lobby Inc., supra, at 254. On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in his favor. Schneiker v. Fortis Insurance Co., 200 F.3d 1055 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322 Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997).
III. DISCUSSION
In Indiana, a Title VII plaintiff must file a charge with the EEOC within 300 days of the alleged discrimination. See 42 U.S.C. § 2000e-5(e)(1); Minor v. Ivy Tech State College, 174 F.3d 855 (7th Cir. 1999); See also Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 445 (7th Cir. 1994). The failure of a plaintiff to file within 300 days from the alleged discriminatory act renders his claim untimely. Here Reese contends that the sole discriminatory act transpired on February 1997. His claim filed with the EEOC in the fall of 2000 was well beyond the 300 day period.
The fact that Reese did not receive a raise in 1997 does not render that singular discrete act a continuing violation and does not therefore extend the statutory period of limitations. In Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 659 (11th Cir. 1993), the Eleventh Circuit determined that the denial of promotions [and raises] are not continuing violations "notwithstanding the obvious fact that the failure to promote [or give a raise] had continuing consequences for employee pay."citing Gonzalez v. Firestone Tire Rubber Co., 610 F.2d 241, 249 (5th Cir. 1980).
While no Seventh Circuit opinion addresses this specific point in the context of a Title VII claim. The court of appeals, in Christiansen v. APV Crepaco, Inc., 178 F.3d 910, 914-15 (7th Cir. 1999), did address whether the failure to increase a plaintiff's pay on one occasion constituted a continuing violation in the context of claim under the Labor Management Relations Act. In Christiansen, the court determined that "the company's failure to pay [the plaintiff] a higher amount each pay period is not a new violation, but the result of the fact she did not receive credit for her training when she did not receive credit for her training when [the plaintiff] claims to have earned it in 1991." Id. at 915. This analysis is in line with the Eleventh Circuit's decision in Ross. Here the discrete act occurred in 1997. Reese has not alleged in his complaint that ICS undertook any other alleged discriminatory acts after 1997. Therefore, a continuing violation theory is inapplicable based upon the facts in this case.
Failure to file within the 300 day period is not an absolute jurisdictional bar and may be subject to waiver, equitable estoppel or equitable tolling. Zipes v.Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Under certain situations the failure to timely raise the statutory limitations defense can result in a waiver by the defendant. See See Jackson v. Rockford Housing Authority, 213 F.3d 389, 392-93 (7th Cir. 2000). As determined by the Seventh Circuit, the district court has the discretion to allow an answer to be amended to assert an affirmative defense not raised initially in accordance with FED. R. CIV.P. 15(a). See Jackson at 392. "As a rule, [the Seventh Circuit] has allowed defendants to amend when the plaintiff had adequate notice that a statute of limitations defense was available, and had an adequate opportunity to respond to it despite the defendant's tardy assertion." Id. at 393.
Here ICS, after retaining counsel, sought to extend the time to properly respond to Reese's amended complaint. In that answer an affirmative defense was raised that his claim was time barred. Although the initial answer was not timely filed in accordance with the time periods allotted by the Federal Rules of Civil Procedure, ICS was not represented by counsel until sometime after the October 2001 pretrial conference were it was informed that it must retain counsel. Thereafter, the court allowed ICS to file an answer to the amended complaint once it was represented by legal counsel.
Reese had adequate notice that a statute of limitations defense existed given the notice he received by the EEOC. (See D's Exhibit F). Moreover, Reese was given an adequate opportunity to address the defense in his response to ICS's motion for summary judgment and yet failed to come forward with any arguments on this issue. Given that the court has the discretion to allow ICS to amend its answer to assert a statute of limitations defense, ICS was not represented by counsel until after October 2001 and Reese was given ample opportunity to answer why his claim was made beyond the statute of limitations period, the court finds that no waiver of the statutory limitation defense occurred. See Jackson v. Rockford Housing Authority, 213 F.3d 389, 392-93 (7th Cir. 2000).
The doctrine of equitable estoppel provides that "if the defendant takes active steps to prevent the plaintiff from suing in time" the statutory period may be tolled. Casteel v. Executive Bd.of Local 703, 272 F.3d 463, 467 (7th Cir. 2001) citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-452 (7th Cir. 1990). Equitable tolling requires that a plaintiff demonstrate that "he could not by the exercise of reasonable diligence have discovered essential information bearing on his claim." Id. at 467 citing Cada at 452.
Reese has not asserted that his claim should proceed in light of either of these theories. Reese makes no claim and proffers no facts that ICS has prevented or hindered him from bringing his suit. See Casteel at 467. Reese has not asserted that ICS withheld or prevented access to the information necessary for him to evaluate his earnings statement. Therefore, the principle of equitable estoppel does not apply.
Furthermore, Reese has failed to come forward with any facts that would provide a basis for applying the principles of equitable tolling. Here Reese waited almost three years before bringing this claim, well beyond the statutory period. Reese could have easily discovered shortly after receiving his February 1997 earnings statement whether he had or had not received the alleged raise he claims to have been entitled to at that time. Therefore, equitable tolling is also inapplicable under these circumstances.
IV. CONCLUSION
For the foregoing reasons the Defendant's motion for summary judgment is GRANTED. Each party to bear its own costs. IT IS SO ORDERED.