thempt to dislLinguish the EEOC’s case law is similarly

unavailing. For instance, Custom argues that the EEOC’s cases
adaress only “discrete acts,” which no longer constitute a continuing

violation following the recent Morgan decision. This argument,

misses the key analytic issue presented in Lhese

whether the rine itself can somehow revive

ontinuing violation

stale claims of any sort. That Morgen limited the tegory of

fhat can be subjected to a continuing violation analys

qacs ¢
jpso Facte undermine the reasoning contained in these opinions, as

applied to non-discrete acts.

At the end of the read, the Court finds that Custom’s authority
is stronger and more-consistent with the policy underlyi: Title
VII's procedural reguiremenis. Custom al least cites some

controlling authority from the Seventh Circuit that supports its

argument. See Mover 622 1235; In re Airlir ,
1142. ‘The bEOQC does not cit any controlling authority for i

position. In addition, the district court cases cited by Custom are

analytically more and in greater harmony with the pelicies
underlying Title ViII, as shown below.

b. Policy considerations favor Custom’s position

Custom’s argument is also more-consistent with Tille VIT policy

{as well as Lhis Court's prior ruling). The relatively short filing

period in Title VI1l is net by accident: Congress inlended a short.

Jimitations period to encourage prompt processing and resolution of

employment discrimination claims. See Morgan, 636 U.S. at 108,

- 19 -


Ted In essence, the EEOC argues that this statement shows that the

Seventh Circuit held that as long one Lime charge exists, the

viability of other time-barred claims is irrelevant under a

continuing violation theory. The ERO? has this dicta pas SForm

ge t

ath Cireuit “noted above

too much work. Al] Lhat the
general rule that a single viable charge is all that is normally

required to support a class complaint containing continuing

vielalions allegaLions, It is true that the fact pattern in Wainer

included time-barred claims, but the Seventh Circuil was focused her

on solely whether Lhere was any basis to support the EROC’s slanding.

Tt did not engage in any substantive review of whether the continuing

violation doctrine could revive the time-barred clai of other
polential plaintitfs nor could it, as the EEOC had abandoned its
continuing violation argument on appeal. See jd. at 969. AS a

language into a holding that a class

result, stre ing this dic

revive Lima-

action conlaining &@ continuing violation theory

barred claims is untenable.

on Danie where plaintiffs sought te br

Custom aiso rel

8 cless action employment discrimination case that would include all

ed employees since 1964. The defendant argued thal only those

could have [iled a Limely suit should be included in

employees w

the class. n¢ Daniels, 194 FYR.D. at 617, Plaintiffs, in turn,

conkended that the conmlinuing violation doctrine applied, such that

ali claims from 1964 Lo th

present” were properly belore Lhe court.

id. Relying on Movement and Wainer f, the court held that



Sea Uipp, 252 F.3d at L217. To hold ctherwise would purportedly
frustrate the requirements ol notice to the employer (

Sea id. at 1?25. The KEOG, fin turn, a that there

Circuit authority supporti Custom’s position. Indee

notes that Seventh Circuit authority shows that it is now limited to
Lhe allegations in the filed charge, but rather may bring an acLlion
based on any claims that arise in Lhe course of a reasonable
investigation. See, e.g., EEOC v. Vemple Steel Co,, 723 F. Supp.

1250,

(N.D. TLL. 1989); Weiner IT, 91 F.3d at 968. By analogy,

the ERMOC argues that Lb may therefore include any additional claims

of sex harassment from additional parties that it uncevers during ils

investige

EROC’s position can be

Tronically, le strongest support. for tr

traced b, to the principal opinion Lhat ¢ upon, Hipp,

cheg than Lhe case law cited by the EBOC. In Hipp, the Kleventh

Circuit Limiled the torward scope of an opt-in class to the date the

entalive charge was filed. See Hipp, 252 F.3d al 1225. The

of the char

Lhat the tiling requirement

court not primary purp

the ERKOC) on notice of claims. See td.

was to put the employer (an

ln holding that the oresentative charge at issue did not put the

amployer on notice claims, the EF

quent

noted Lhat the charge “did not. explicitly allege that the violation

was Continuing.” See i aL 1225, n.20. Thus, Hipp can ke

distinguished on the basis that Lhe governing ¢ did not

id. More

jones.

tinuir violation al

TS ES



Specifically, the Court found that the retaliaLion class aclion was

bound by the 300-day time frame preceding Miller’s June 26, 2000 EEOC

charge. Therefore, any claims preceding August 31, inciuding
Kennedy's claims, were time-barred. The Court also held that Kennedy

could not avail herself to the “single-filing” doctrine to piggyback

onto Miller’s claim because this decalrine is available only to those

who could have filed a claim with the EROC based on the same

parti

» See id.

unlawLlul duet within the required staLlutory perlo

II. DISCUSSION
A. Limits on the Class in the Sexual Harassment Action
1. Rearward time limits on the class

in Tllinois, 4 plaintiff alleging Title VI1 violations musl file

charges with the EE within three hundred ol the
discriminatory employment practice (the “filing period”). 42
l § 2000e-5 (1); Koelsch v. Beltone Elecs. , 46 F.3d 706,

{O07 (7th Cir. 1995), One of the issues raised in these Motions is

ronment claim that includes continuing

whether a hostile werk env

»s who did not.

violaLion allegatior nm include claims of employe

ng perlod (i , more than 300 days

om during the tL

work at 1

h 20, 1998). In other

ere Copello filed her EEOC charge or Ma

words, the class of plaintif here inclu employees who were

2riod

nok @xp to any discriminatory acts during the filing fz

Court recognizes that

bea e Custom no Longer employed them. (Th

enforcement actio brougnt on behalf of a class of individuals



co Corp. v. Silver, 447 U, 807, 826 (1980). Lower

ceiling Moh

vaLute” and should not alter

courte “are compelled by the texl of s

Lhe timely filing requirements of ‘Ville VIZ. Id. When taken

clusion, the BROC’ argument would eviscerate

logical

limilations in ‘lille VIi cases, so long as the plaintitt

alleges a Gontinuing violation. Any employer accused of a continuing

violation or pattern or practice hostile environment

é@ Lo unlimited claims from long-departed

faces expos

url cannot nullify the stakutory provisions of 42 i,

§ 200 S(e) (1) in this manner.

The acknowledges that the very nature of hostile

environment claims encompass acts that are sulficiently subtle Lo go

436 U.S, at T1lb-16.

undetected for Jong periods of time. See M

urt noted:

As the Morgan

The unlawfol employr
cannot be said to ur on any particular day.
It oceurs over a series of days oc perhaps years
and, in divect contrasl to diserete acts, a
single act of harassmenl may not be actionable
» its own. . . . Such claims are based on the
cumulative eflect of individual acts.

id. 115. As a result, there may be employces who experian

of the effects of a hostile work environment, but yet have no Legal

Lhe conduct has not reached sufiicient “cumulative

recourse be

effteern” to be actionable until afler the employee departs. led.

Ultimately, however, this reflects nothing more than a variation on

Lhe inherent tension behind any statute of limitation


also applies to defeat Lhe EEOC’s argument). Specifically, Mo

forbids the application of the continuing violation doctrine to

536 U.S. at 114-16, The

discrete acts of retaliation. See Morgan,
EROC “concedes thal it the Court were to Lind its retaliation

allegations constitute %¢

ele acls’ under Morgan there could be no

continuing violation.” KEOC Res Br. ut 5, n.3. However, the KROC

that the Court canne @ any limitalic until alter

impo

covery. See id. Specifically, the KEOC “expects that discovery

in the instant case will reveal a pelicy of retaliation constituting
a continuing violation.” Sec id. (emphasis in original).

Assuming argquendo thal such a cy” could render otherwis

acls subject lo a continuing violation analysis after

Morgan, Lhe retaliati complaint do not conlain any allegations of

@ particular retaliatory policy. The EROC had opportunity to
investigate these claims prior to filing the complaint and dia now

include such allegations. Instead, the complaint unmistakably

th as alteration al

alleges solely discrete retaliatory practices

job duties, reduction in compensation, discipline, and discharge.

Jee Compl. 7 8. These are precisely the sort of discrete acts that

fall squarely under Morgan purview. Sec Morgan, 536 U.S. at Lts.

As a result, the Do ocannot rely on the continuing violation
declring to extend the Limitations period in the retaliation action.

(And, 48 indicated above, the continuing violation theory does not

revive stale claims in any event.) Accordingly, the rearward

are appropriate here.

- 26 -


*4; ct. SEOC vy. Newspapers, Ine., 1985 Wh

Wis. 1985). And the Court finds no controlling authority

for the proposition that the EEOC’s laudable public mandate allows it
to alter substantLive individual rights. On the contrary, the BEOC'’s

public enforcement actions have only ai minimal focus on such

individual right

Y EROC’s primary role is that of a law
enforcemenl agency and it is merely a detail
that it pays any monetary relief rained
to the victims of the defendant’s violation.

, 279 F.3d al 421. Thus, barring the claims of those

leyed outst ot the tiling period here

do

@ the vrimary public purpose of the EC

enforcement action because it would not impede the EoC’s abilily Lo

end Custom’s purported hostil environment through injunctive

reme

EEOC v. North Gibson School Corp., 266 F.3d 607%, 616

(/th Cir, 2001) (contrasting the “high level of public interest served

the EROC seeks an injunction with the minima] public interest

ryad by an individual monetary award”).
2. Forward time limits on the class

Cuslom also seeks to Limit cl

s membership in the forwa

Jooking direction. According to Custom, the appropriate cut-off dale

here is the date Lhe representative charge was filed.

calculates to be June 26, 2000.) Custom argues thet the

“plogyhack” doctrine only allow

the joinder of other clajms iL tr

ati oul similar discrimina

ory treatment in the same time frame.



ae.

employer argued Lhat Lhe EEOO complaint was unlLimely with respect to

those jndividuais who did not suffer an adverse employment a

within the governing 180-day tiling period, even in the face of 4

ilinuing violalLion allegation. Sea id. at 45. ‘The court first.

tion 706 claims

considered whether the 180-day period governing

applied Lo Section 70/7 pattern or practice claims. Seo id. at b46-

47. Relying on the plain language of the statute, the cour sid

V6 and

that the same Jimitations period yoverns both

707 claims. id. The court

, withovh

reaching a final decision, thal a continuing violation could not

revive stale claims and to hold oLherwise would allow “the court
conlinuing violation doctrine” to nullify the statutory period of
limitations. See id. at 549.

This Court is persuaded by Lhe reasoning in Opticai Cable. he

atute dictat that Section /06's

plain language of Lhe Title VII

ection 70) actions: “lal l such

tions shali be conducted jin accordance with the

eclion 707) ac

et forth in section 2000e-5 [Section /06] of this taille.”

§ 20008-6(e); see Optical Cable, 169 FT. Supp. 2a at 547.

Mitsubishi can be distingui among other reasons, Lts

dependency on a Commissioner’s charge. See Mitsubishi, 990 F. Supp.

al 1083. This predicate fact caused great concern to the Mitsubisal

iness would be arbitrary. See

court that any consideration ol time

id. In contrast, Copello’s individual charge h clearly

establi s Lhe parameters of the 300-day filing peric Dial is

- 1?



the basis that the lawsuit there sought to vindicate solely privat

rather than public, rights.)

Custom also relies on In re Consolidated Pretrial Proceedings in

62 F.2d 1142 (ith Cir. 1978) (hercina

Airlines”); rev'd in pa on other grounds, sub nom by Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 399 (1982). In Airlines,

a female tlight cabin attendant brought a class action alleging

Ville Vil di imination because of an airline policy to ground

ali pregnant Llemale employees. Siding with a defendant airline, the

ined to extend the continuing violation cheery

Seventh Circuit dec

and excluded from the class al] employees who were terminated more

than 90 days prior to the date that the BROC charge w Elled (90
days was the governing filing period at the time of Lhis case). See

id. at 1147. The art noted: “it is the continuity ol the

employment relationship that sustains the violation, and when that
yelationship is severed, the violation ceases.” Td. at 1149.
EEOC seeks to distinguish Airlines on the basis that (J) the

Supreme Court purportedly overturned the Seventh Circuit's

ing,

hostile environment claims prought

ad (2) Atelines did not acdr

by the EROC, but raLlher involved solely private litigants. The

BEOC’s claim that the Supreme Court overturned the Seventh Circuit's

raining to the application of the continuing violation

ruling per
doctrine is incorrect. In Zipes, the Supreme Court overturned only
the Seventh Clireuit’s determination that the timely filing

requirement was jurisdictional, and hence not subject to a waiver



outulde of the filing period. Accordingly, the prior ruling inlorms

ut does no rontrol the outcome here.

nion,

the pre

a, The case law supports Custom’s position

Turning now to the case law, the Court must beqin with a

ates Supreme Court de

discussion ot the fairly-reeent United

in National Railroad

suger Corp. v. Morgan, 536 U.S. 101

which the FEOC contends is controlling authority here. The EOS

relies heavily on Morgan to support its proposition that a hostile

work environment claim Lhat contains continuing violatio

allows a court to “look beyond the 300~-day charge [iling period and

impose liability based on the claims of class members employed

outside 300 days.” Pls. Resp. Br. at 4. Custom argues vigorously

thet Morgan simply “claritied the continuing violalion doctrine

as it applies Lo an individua]’s hostile work environment

claim’ and es not permit a plaintiff, simply by alleging a

freck the time-barred claims ol former

continuing violation, to re
employees.” Defs. Reply Br. at 6,

Custom has the belter view of Morgan. In Morgan, the plaintitl

filed an aindividual complaint, alleging racial discrimina

myistent harassment, and retalialion from his forn amployer.

Morgan, 636 U.S. at 105-06. Plaintiff did not raise

See id. The iss

allegations, and the OC did jein in the suit.
in Morgan was whether the employer could be liable tor acts Lhat

urred more Lhan 300 days before pisaintiff filed the PROC ch

s could be consid

ding which ac Supreme Court

-6-


phone

are not “Lrue” Federal Rule 23 class actions, see General Te

v. FROC, 446 U.S. 318 (1980), but for purpose of clarity, it will

such terms as “class action” and “class membership.”)

Custom argues that a continuing violation claim cannot revive

@ slale claims, and, accordingly, class membership must be

otherwi
limited Lo those individuals who were amployed at some polnt ducing
the filing period. Under Custom’s view, employees wha Llelt Custom
before March 20, 1998 “could not have been subjected to any allegedly
hostile work environment during Lhe 300-day limitations period, and

therefore could not have timely filed an EROC charge on January 14,

”

1999 [Lhe date that Copello Filed her charge). Rr. at 6. The
BREOC, in Lurn, contends that under a continuing violation Lheory

Custom ¢ be Liable for acts that predate the 300-day filing period,

and therefore class membership cannot be so limited. See Pls. Resp.

As a preliminary matler, Custom relies heavily on Lhis Court’s
Ochober 27, 2003 raling (“prior ruling”) to support its argument. At

issue in the prior ruling was whether a plaintiff-intervenor could

cely on the “single filing” doctrine to revive her stale claim. The

Court held than it could not, based, in part, on the problems of

notice to employers and “lo slanding notions of Linalily and prompt.

asOlulLion of claims.”

m Companies, inc,, 2003 WL
*4. At that point, however, Lhe Court did not have the opportunity
to consider the crucial issue here: whether the continuing violation

ass members that

doctrine could allow claims of curred entirely



7

npersuasive because it wholesale adopls Mitsubishi’s Yreasoning

without considering that the Mitsubishi court relied heavily on the

presence of a Commissioner's charge - a fact that did not exist in

was based on an individual charge. See Dial, 156 F.

Supp. 2d at 966,
Thus, the Court is presented with semewhat contradiclory
district court opinions. Neither party convincingly distinguishes

on sound analytic grounds, (And the Court far

these cas

betler.) for instance, Lhe LEOC k: to distinguish Custom’ s

that none of Custam’s es addres

authority on the

art nas Limited the clas when there is 4

Situation “where a Co
continuing violation, or a patleérn or practice, of hostile
environment sexual harassment.” Dels. Surreply Br. at 6. (Wainer T

did, in fact, addres

such a Situation, but the EEOC contends

incerrectly, that Welner [I the pertinent reasoning.)

Setting aside the EROC’s erroneous view regarding Wallner I, this

distinction has liltle significance. The BROC certainly provic

vironment

authority for the proposition that hostile
harassment sllegations per se are alforded a wnigue application oL
the continuing violation doctrine, as opposed lo oLlher Lypes otf

hostile environment or other discriminatory conduct. ‘That is, the

LOL

eruclal oi is the ability of the continuing viola

doctrine Lo revive stale claims involving any sert of ntinuing

ory conduct.

-~ 18 -



not alt Lhe “single tiling” doctrine, which, under Lhis Cour

re

7

oning in the GcLlober 27, 2003 ruling, would bar the inclusion «

class members wh employment ended outside of the filing period

Having dispensed with the sole Supreme Court authority ciled by

e parties’ Seventh Circuit

dares

the parties, fhe Courl now

authority. Unfortunately, as shown below, there is commeling Seventh

il authority on this iss which provides ammunition for beth

stom initially points to Movement for Opportunity and
Fquatity v. General Motors Corp., 622 F.2d 1235, 1248, 1256 (/th Cir.

1 urt. relied upon in its

fred

80} (hereinafter "“Movement”), which this

prior ruling. In Mevement, the Seventh Circuit held that the

determination of ¢ s aclion claims depended on “which individs

rges apply to which class claims jin or

iarge tiled relalive to each class.

See id. at 1248, The

earliest

Movement. irt noted that “it is not necessary that each class member

have filed a charge with Lhe BRKOC for support; however, only those

was Liled

who could have tiled a charge at or afler the time a char

by Lhe class representative can be included in the charge.” See id

(citations omitted). Thus, Movement provides controlling authority

» the proposition that class membership must be Lethered ta Lhe

earliest underlying EXOC charge. Here, the only charge in the sexual

harassment class action is Copello’s January 14, 15999 charge, and
E ¥ g

ership should be limited Lo only

therefore, under Movement, class mem

ow, the HEOC



significantly, the Hipp plaintiffs argued that Lhe after-the-

arge
claims they sought to include in the class “related to or grew out of
the allegations” in the governing charge - an argument very similar

to the one offered by the BKEOG here. See id, at 1225-26, The

court acknowledged that the was authorily supporting this

position - and specifically cited Seventh Circuit ca law tor Lhis

proposition - but declined to follow s authority. See id. at

1226, citing McDonald v. United Aig Lines, Inc., 987 F.2d 357, 361

(7th Cir. 1979); Nevine v. Bryant, 700 F. Supp. 949, 957 (N.M. TLli.
1988).

cites to this Seventh Clrevit

Curiously, neither p
authority, but it nonetheless quides the decision here. in McDonald,
plaintiffs brought a class action challenging an airline’s no-

marriage rule for Flight attendants. In determining the period of

yecovery for the class, t Seventh Circuit meld that the temporal

yond the dale of the fited

LLs of the class extended |

tharges and

MeDona Ted,

te that the no-marriage policy ended.

587 F.2d at 361. The court reasoned that the “ruling is not unfair

to UnilLed, for it was put on notice by learlier plaintitts’] tilings

no-marriage rule

that agarieved were challenging i

policy.” sa id, milarly, in Levine, the district court allowed
a plaintiff lo opt-in the class after the governing charge was filed

because the initial plaintifi’s “EEOC charge put [defendant] on

notice that someone was challenging its alleged age discrimination.”

See hevine, (00 F. Supp. at 957,


Minute Order For (04047)

United States District Court, Northern District of Illinois

Cc
‘Name of Assigned Jud i A Sitting Judge if Oth
i Magistrate Jue Harry D. Leinenweber tian Assigned Judge
CASE NUMBER 2 C 3768 fons. for all DATE 4/7/2004
purposes w/Q3 C 2293
CASE Equal Employment Opportunity Commission vs, Custom Companies, Inc., et al
TITLE

[In the following box (a) indicate the parly filing the motion, e.g... plaintiff, defendant, 3rd party plaintiff, and (h) slate briefly the nawure
oC the motion being, presented.

MOTION:

DOCKET ENTRY:

(I) oO Filed motion of [ use listing in “Motion” box above.

(2) oO Brief in support of motion duc

(3) o Answer brief to motion due. Reply to answer briefdue___.

(4) Qa Ruling/Hearing on set for at.

(5) o Status hearing[held/continued to| [set for/re-set for] on __sset for __ _at

(6) a Pretrial conference{held/continucd to] [set for/re-set for]on___— set for at _.
(7) im) ‘Trialfset for/re-set for]on at

(8) oO [Bench/Jury trial] [Hearing] held/continued to, _at

(9) Oo This case is dismissed [with/without] prejudice and without costs|by/agreement/pursuant to]

OFRCP4(m) OC local Rule 41.) OFRCP41(ay(1) OO FRCP41(a)(2).

(lo) «xf [Other docket entry) ENTER MEMORANDUM OPTNION AND ORDER: Custom’s Motions to
Limit the Class in Cases Nos. 02 C 3768 and 03 C 2293 are GRANTED with regard to rearward time but
DENIED with regard to forward time limits.

dl) of [For further detail see order attached to the original minute order.]

No notices required, advised in open court Dociiinent
Nuriber.

No notices requited
uber of tees

Notices mailed by judge’s statf. PR 0 8 2004

Notified connsel by (elephone, date ducketed

a | Docketing to mail notices : :

Mail AO 450 form: J ee

w fhodly titi

Cony to judge/magistrate judge.

sie mailed optiee
courtroom

war leputy’s
initials

Dateftime received in
central (erk’s Olfiee. iwiling deputy iis



authority Lo pring class claims arising out of an investigation of an
J 9g

individual EROC charge, it cannot “resurrect untimely claims” because

such “a result would improperly expand the substantive rights of the

individuals which the EOC represents and would render the 300-da

filing period « stively meaningless.” See id, ak *4. The court

ed the “anomaly” that would resuin if the procedural device of

38 actions could expand substantive rights by reviving otherwi

time-barred claims:

Courks which have considered the question
directly have uniformly held that only those
employees who could have led charges with the
Commission individually wh the class tiling
Was made are properly mem of the litigating

clas

fd., quoting fhaftey v. Northwest Airlines, Inc., 567 P.2d 429, 472
(C.A.D.C. 1976). Vhe Walmer I court also noted that “the rule

permitting a Title VII class action based on only a single EBOC

Tiling Lo proceed inapplicable to the claims of tormer employ

se Lhe primary justification Lor such 4a rule - that the employer

has sutficient notice from a arge - does not apply in the

ol long-deserted employees. See jd.

Finaliy, the Walner I court held thal the centinuing violation
theory did not permit time-barred claims From former employees:

Vhe EROC is atlempting to t strap [the former
employees’) stele claims onto [plaintiltf’
timely charge by allegir these individua
claims are merel park a continusus and
ongoing course of discriminatory conduct which
extends, through [plaintiff's] allegations, well
into the appilaab 300-day Limitations period.



analysis. 99, The Supreme Court did not.

review the

aventh Circuit’s reasoning pertaining to the continuing
violation doctrine, and, as a resuil, it remains viable Seventh

Circuit law. (The

ourt will address below the EBOC'’s

relating to the facr that Airiines involved only private litic

Custom also relies on several district court cases

circuit (and other circuits) Lo support its argument that

membership is limited te only those employees who could have tiled an

KEOC charge during the Liling pe

darvey b.

Wainer & As , 1995 WL 470233 (N.D. T11. 19953 (horeinatler

“Watner I"), aff'd on ether grounds, EEOC v. Harvey L. Walner, 91

F.3d 963 (7th Cir. 1996) (hereinafter “Weiner if”); Daniels v.

Federal Reserve Bank of Chicag 194 F.LR.D, 609 (N.D. Il]. 2000).

Wainer J is perhaps Custom’s strongest case because of the

Lo the ssenl case. In Wainer I, the EEOC filed a

complaint alleging that “a class of female employees had heen

ted to a hostile

ivironment based on sexual harassment by an

amployer law firm. See Wealner, 1999 WL 470233 at *1; Wainer, 91 F.3d

at 965. The EEOC a

included allegations of a continuing

violation. Walner, 91 F.3d at 969-70. Defendants sought to

axclude certain former employees trom the class because they Llailed

2 300

Lo file discrimination charges with Lhe EEOC within the requis

days, and were ter ated well belore the filling period. See id.

at #1. The court agreed, holding that the while the FROC has the

- 10 -



ished betwe $, such as Lermination,

distingy en discrete retaliatory ac

failure to promote, or denial of transfer, and the continuous acts of
harassment that constitute a hostile work environment. See id. at

114-16. 8

jfically, hostile envi

ross time, and a single act ot harassment. often L

individual ac

not actionable on its own. at llb. Tn ott words, “a hoslile

work environment claim is composed of a serics of separate acts that

wn

llectively constitute one ‘unlawful employment practice. al

116. Relying upon the uniquc natura of hostile environment claims,

the Morgan CourlL held thal an employer may be liable for

occurring outside of the 30 ay filing period, provided that

least one act contributing to the claim occurs wi

hin the tiling

period and (2) the acts Lalling outside of the 300-day filing period

it

are pact of the same actionable hostile environm
at 117, 120-21. Discrete acts outside the tiling period, however,
are nol actionable under a continuing violation theory, aithough they

nt

envire

may be used as evidence of a hostl

Thus, Morgen stands solely for th position thet under an

p

individual hostile work environment theory, an employer may be liable

for acts of harassment against the same individual plaintifi that

oceurred bolore the Liling period, provided that such acts are part

ol the same continuing pattern of harassment. Morgan is silent on
whether a class can include class members who did not experience any

of harassment during the filing period. (Purther, Morgan dia

- 7



atutes of Jimi ons . . ,. répresent a
pervasive legislative judgment that it is unjust
Co fail to put the adversary on notice to defend
within & specified period of time and that ‘the
right to be free of stale claims in time comes
to prevail over the right to  prosec
them, . . . [TJhey protech defendants and 1e
courts from having lo with cases in which
the search for truth may be seriously impaired
by the le enoae, whether by death or
i os, fading memorics,
cunents, or otherwise.

States v. Kubrick, 144 U.S. 1j1i, 117 (19

J

United 9), quoting Railroad
Telegraphers v. RSailwey Express Agency, 321 U.S. 342, 349 (1944)

(internal citation omitted). Accerdingly, the Court must uphold the

ved in Title VIL,

limitations provisions outli

The BROC raises one Final argument, essentially couched in

policy terms, in which it arques that cases where “the HKEOC is

seeking enforcement of Title VII on behalf of the public good” are

“differenl because Lhe plaintiff is not merely a private litigant.

aul thet EBOC

Beief at 10. Ter instance, Lhe EEOC points

enforcement actions containing class allega are nol subject to

General

al Rules of Civil Pr dure.

Ruig 23 of the

Velepnone Co. v. FEOC, 446 U.S. 318 (1980); In re Bemis Ca,, Jfne.,

th Cir. 2002}. Relying primarily on

279 T.3d 419, 421

ate public

Telephone, the BEOC claims that its ability to vindi

rignis entille it to avoid procedural Limilations that may olherwise

cumber private litigants. To a ae in degree, this is true, bit

the EEOC dees not provide any conlrolling authority permitting il te

expand substantive rights, such as reviving stale claims.


Por the reasons noted ehove, however, the Lorward limit prope

by stom is no in the relaliation actio
III. CONCLUSION
For the foregoing reasons, Cuslom’s Moti Lo himit the Cla
in Ca 3768 and O3- 293 are GRANTED with regard to

rearward time limits but DENIED with regard to forward Lime Limits.

IT IS SO ORDERED.

Habety . Leingnweber, Juc
Uniled States Distriel Court

Date:


B. The Retaliation Class Action (Case No. 03-C-2293)

Corrine Miller (“Miller”) be om in

no her employment at Cust

1996, in early 199 and again in mid-1999, she testified in support

of a complainant in an internal sexnal harassmenl investigalion at.

sLom. On December 27, 1999, Custom discharged Miller. On June 26,

2000, Miller filed a charge ot discrimination with the BEOO alleging

that Custom had disc

Minated againgt her and terminated her in
retaliation tor her participation in the internal sexual harassment

ation of Miller’s charge, and

clon. Following an inv

investiga

failed conciliation orts, the EROC filed the present action

against Custom on April 2, 2003. The BEOC alleges “retaliatory

ices” on behalf of a class of Lemale employe elaiming Lhat

'
since at ‘least 1998, Custom has altered job duties, reduced
compensation, disclplined, and discharged class members in

retaliation for employees “opposing sex harassment.” See Compl. 7 8.

GC. The Court's October 27, 2003 Ruling

Court denied Plaintiff-Intery

On October 27, 2003, this

: Federal Rule

Allison Kennedy's (“Kennedy”) motion to inLlervene u

ol Civil Procedure 24(a) (1). Custom Companies, Ine. v. BEOU,

a

2003 WL 22455510 (N.p. I]1. 2603). Custom employed Kernedy as

nlative between August 17 and October 20, 1998

sales repre
Claimed that she faced a sexually hostile environment during these

fwo months ol emplo t. Custom terminated Kennedy in October or

November 1998. This Court held that Kennedy could nol intervene in

the retaliation class action becuuse her claims were time-barred,


continuing violation doctrine permits only the inclusion of
additional, but otherwise time-barred claims - nol the inclusion of

otherwise time-barred parties. ee id. at GLY-18,

The RMEOC, in turn, points out thal there are s

ugt cases within this circuit that hold that class membership can

include employees employesd outside the 300-day filing period. See,

@.q., hEOC v. Chicago Minialure Lamp Works, 640 F. Supp. 1291 (N.D.

fll. 1988) (hereinafter “Lamp Wor ); EEOC v. Mitsubishi Motor Manf.

of Amerjoa, Inc., 990 F. JLl. 1998) (hereinafter

Mitsubishi); EEOC v. Dial Corp., 156

In Lamp Wo an employee and the B - class allegatio of
employment discrimination covering an e@leven-year period. The

defendant argued that only Lhose employees who were discriminated

ome members of the cla

against during the filing period could bec

See id. at 1293-94, The EEOC argued in response that the defendant

had engaged in a “continuing violation” and therefore every victim

throughout the e@leven-year period could be a class member. id.
The court noted thet “[clourts applying the ‘continuing violation’

noljon to the longstanding-discriminatory-practice siluation may

effectively Lreat the FOC filing as relating ba to the onset of

of discrimination within the

4

that period, bringing ¢arlie

limitations period.” Td. al 1294, Relying on a Second Circuit

decision, the court hela that “[b] use [detendant] engaged in a

continuing course of scrimination against black ¢£ ons, ever

persons who suffered discrimination during the earlier part of that


Thugs, according to the court, a Seclion 707 paLltern or

is “nol amenable to a timeliness determinaLlion.” Jad.

ons

defendant claimed that the 300-day Jimi

period barred class members from obtaining individual relieL for

di te the EROC's

iminalLion oceurring betere tt period, des

Supp. 2d at

of a continuing violation. See Dial, 156 F

ely on the Mitsubishi court’s reasoning (even

though the case before it was based on an individual charge and not.

a Commissioner’s charge), the Dial court held that “in paltern-or-

practice lltig ay requirement is arbitrary as Lo these

individual claims si ‘the purpose of the limitations period is te

quoting

prevent the filing oL stale claims. See id. at

Mitsubishi, 990 F. Supp. Under the Dial court’s reasoning,

because of the continuous nature of the discriminatory policy, “an

employer that maintains &@ continuing violation neither deserves nor

obtaing repose,” See ie

v. City of Chicago,

No, 85 (291, 1989 Wo 134788 at * G9 (N.D. T1L. 1989).

Custom devotes a significant portion its opening brieLl

co show thal Mitsubishi, and its progeny, Pial, are

aLltemptling

inapposite and, in any event, wrongly decid Custom relies

primarily on a Virginia district court case Lhat disagreed with the

BROC ve Optical

analysis in Mitsubishi.

Supp. 2d 539 (w.D. Va. 2001). In Optical Cable, the KEOC brought ¢

The

pattern or practice case under Section 707 again an employer.


discrimination, sexual harassment, and retaliation. In November

Copello {filed an amended charge of discrimination with the

EROC, alleging that Custom retaliated ac

inst her tor filing the

initial FEOC charge. In April CO, Copello tiled a second amended

imination.

charge with the REOC alleging retaliation and sexual a

The EEOC investigated Copello’s charge of discriminati and

iss

o

ucd a Determination lelLter on September 6, 2001, finding t

evidence gathered in the investigation established reasonable cause
to believe that Custom had discriminated against a class of female

employees “by subjecting them to a sexually hostile, offensive work

wLon

environment, in violation of Yitje VI1.” The EE oncilia

rls failed, and it thereafter filed a civil action against Custom

Dinle VII of the Civil Rights Act of 1964 (“Litle VII"), 42

§ 20006 et seq., and Title I of the Civil Righ Act of 1991,
42 0.8.0. § 1981a. The amended complaint contains
allegations of both discriminatory treatment under 42 U.S.C.

§ 2000e-5 (“Section 706") and pattern and practice allegaLlions under

- § 2000e-6 (“Sec

tion 707"). The KEOC alleg

st 1994,” Custom “engaged in a pattern or pracLice of unlawful

2“ Bm.

employment practic mpl.d 7. These purported practices

include pressures to “entertain” customers at “strip clubs,” company

cual touching,

outings attended by strippers, groping and

materials on display on work computers, and lewd sexual

pornographi

language. @ id.


Custom cites no Seventh Circuit authority for its forward limit

argument, and this

Bon to contravenes

fourk sees no the aulhorily

MeDonatd and

provided in thi reuit. Adoptir oning

consistent with the policy underlying charge-filing requirements,
which provide an employer and the BROC with notice about claims and

Horton

nmoiliation opportuniti Jacksen Count

Ity in ola

Com’ 897, 899 (7th Cir. 2003). Espec

ions, one charge typically suffices to alert the employer that
other charges might follow. See id. Here, Custom cannol seriously

arque thal it lacks noLice of pe tial subsequent claims a

from the REOC’s investigation. Nor can Custom argue that.
deprived of conciliation opportunilies, given the twe prior failed

the

conciliation efforts. Moreover, the concerns about prejudice Le

endants that arise from slale claims, such as loss ol evidence,

mozry, and wilnes , are nol present here because of the relatively

Ss

ent (and orl) torward-looking time frame. Accordingly, the

quirement that itienal claims go through the charge-filing

procedure would not serve the purpose of this requirement and wou

to an increased burden tor both the EEOC and the

employer.
B. Limits on the Class in the Retaliation Action

and forward Limits on the

Custom ¢ rearwa

the relaliation action. This requires little extended discussion as

the Morgan decision elfeclively nullifies the EEOC’s position here

ion doctrine

(ana the abo nhinuing viol



IN THE UNITED STATES DISTRICT COURT - | L. E D
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

Plaintiff,
and

CATHERINE COPELLO and ALLISON
KENNEDY ,

Plaintiffs-Intervenors,
v.
CUSTOM COMPANIES, INC., and
CUSTOM DISTRIBUTOR NETWORK,
INC.

Defendants.

APR 7 2004

JUDGE HARRY D. LEINENWEBER
US, DISTRICT COURT JUDGE .

Case No. (2

Consolidated for all
Purposes with
Case No. 03 C 2293

——...

© 3768"

Hon. Harry D. Leinenweber

DOCKETER

APR O 8 2004

MEMORANDUM OPINION AND ORDER

Before the Court are Defendants’

Case Nos, Q2-C-3768 and 03-C-2293.

Motions to Limit the Class in

@ cases were consolidated on

July 7, 2003.) For the tollewing reasons, the MoLions are granted in

parl and deniad jin part.

I. BACKGROUND

A. The Sexual Harassment Class Action (Case No. 02-C-3768)

Custom Companies, Inc. (“Custom’)

employed Catherine Copello

(“Copello”) as a sale representative from 1994 until her discharge jn

November 1999. On January 14, 1999, Copello filed a timely charge of

discrimination with the United States Equal Employment OpportuniLly

Commission (the “EHOC”’), alleging that throughout her employment she

and other female employees at

Custom were subjected to sexual

i


Id, at *6, The cour sal to entertain the continuing vielaLlion

doctrine was based on its conclusion thal the EEOC’s pattern and

pracLlice allegations were merely “a conglomeration” of “recognizable

occurrenc

and independently actionable s" and “nol the type of

continuing violalion which would permit this Court to consider the

aims of parties who elect nol to file charges with the BROC

see also id, at *8, n.2.

within the requisite 300-day pe

Thus, Wainer I conlusingly appears to leave the door open, albeit in

dicta, for the argument that. e types of continuing violations may

resurrect stale claims. (Lhe BROG de not rely on this Language,

and, in any event, its suasive value is extremely limited, given

Lhe discussion below.)

it Wainer I, the EEOC argues that “the Seventh Circuit

Vo

oxplicllly rejected” the district court’s approach in Walner |. See

The Seventh Cleouit

ura

Wainer, 91. F.3d at 970. This is net ac

t court’s decision, but did so on the grounds

atiirmed the distri
that the EEOC lacked standing to bring the complaint because there

able charge to ba its claims upon. See id. The ELoc

was no v

icla te support its contention:

rt cmxamined the viability ef t
d by these five women

s for Lhe KHOC’s complaint. As
have not above, this was not required under a
continuin ation theory of discrimination
under Title VII had Lhe GEOC satisfied the
administrative prerequisites with respecl to

[plaintiff's] charge.

potential b



conlinuous period (and not just wilhin the 300 days) can become class

members entitled to relief.” fd. at 1296.

The BEOC alse points Lo Milsubighi and Dial tor support. These

cases provide the EEOC with an allernate t jude otherwise

time-barred claims. Specifically, the KEOC argues Lhat

ablish that the 300-day Liling period in Section 706

cases does not apply to Section 707 “pattern or practice” ca

arge initlated a Se

jon 707 “pattern

C

Mitsubishi, a Commissioner's
or practice” discrimination action. The defendant argued, among
other Lhings, that employees who Left the company more than 300 days
before the Commissioner filed his charge should be time-barred. Seo

at 10

Mitsubishi, 990 fF. Su The court held that the 300-day

limitations period did not apply to pattern or practice cases, and

thus claims before the 300-day filing period were nol time-barred.

id. al 1085. The Miftsub court placed qreat emphasis on the

facet that the ca it was initiated by a Commissioner's

charge, rether than an individual charge:

By ils nature, the Comaissioner’s charge
alleging a patlLern or practice of sexual
harassment jis not Liled within 300 days of
particular incident of cual haras
because it is not be don an individual char
but rather on the idence gathered
course of time showing a pattern of ha
against many indivic soe ee Without
e inet iminati , from whict

the 300-day clock running, @ court cannot
determine when a Commissioner's charge is timely
filed.”