the matter." 29 C.F.R. § 1614.105(a); McSwain v. Runyan, 990 F. Supp. 1001, 1003 (N.D. IIL. 1998).
Furthermore, a federal employee must contact an EEO counselor within 45 days of the allegedly
discriminatory action, or lose the right to later file suit. 29 C.F.R. § 1614.105(a)(1); 29 C_E.R. §
1614.107. The regulation makes a narrow exception where the employee did not know orreasonably
could not have known that the discriminatory act had occurred. 29 C.F.R. § 1614.105(a)(2). In
addition, the forty-five day deadline for contacting a counselor operates like statute of limitations,
rather than a jurisdictional bar to bringing suit, and thus it is subject to equitable doctrines such as
tolling and estoppel. Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir.1995); Rennie v. Garrett, 896
F.2d 1057, 1062-63 (7th Cir.1990).

Thompson failed to contact an EEO counselor within 45 days of the allegedly discriminatory
and retaliatory acts that he complains about, and thus his complaint is time-barred. According to
Thompson’s deposition testimony, he suspected that he was being blackballed by the Army
throughout the 1991 to early 1995 period. Thompson also testified at his deposition that at the time
he wrote to the Railroad Retirement Board in early 1995, he believed he was being discriminated
against. Thompson, however, did not contact an EEO counselor to discuss his suspicions until many
years later on January 13, 1997.

Thompson argues in response to the Army’s motion for summary judgment that he did not
discover his blackballing claim until he was denied his retirement benefits on December 13, 1996,
thus bringing his claim within the exception outlined in 29 C.F.R. § 1614.105(a)(2). Thompson
bases his argument solely upon an affidavit submitted after the defendant moved for summary
judgment, which directly contradicts his prior deposition testimony. A party may not create a

genuine issue of fact by submitting an affidavit that contradicts his prior deposition testimony and


After losing his job with the Army, Thompson repeatedly sought employment with various
federal agencies from 1991 to 1995. During this period, Thompson suspected the Army was
blackballing him by supplying negative reports about him to the federal agencies to which he had
applied. Thompson discussed his suspicion with various members of his family. He also wrote a
letter to the Railroad Retirement Board in March 1995, asking questions regarding the race, age, and
sex of the individual chosen over him for a staff assistant position. Thompson admitted during his
deposition that he wrote this letter because he believed he was being discriminated against and
blackballed by the Army.

On December 13, 1996, the Office of Personnel Management (OPM) informed Thompson
that his application for retirement benefits had been denied because he had not been continuously
employed by the federal government. Thompson never appealed the OPM’s decision to the MSPB.
On January 13, 1997, Thompson contacted an EEO counselor to discuss his suspicions that the Army
was blackballing him. On February 28, 1997, Thompson submitted an administrative complaint to
the Army, alleging that he had been blackballed from federal employment since his removal from
the Army in 1991. The Army denied Thompson’s claim that he was blackballed because the jobs
that he allegedly applied for during the 1991 to 1994 period failed to demonstrate a discriminatory
act within 45 days of his contact with the EEO counselor. The EEOC upheld the Army’s final
decision and Thompson then filed this complaint.

IV. ANALYSIS

EEO regulations require that all federal employees "who believe they have been

discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must

consult a Counselor prior to filing [an administrative] complaint in order to try to informally resolve


interrogatory responses, and Thompson’s affidavit is therefore insufficient to create a genuine issue
of material fact. Richardson v. Bonds, 860 F.2d 1427, 1433 (7th Cir. 1988).

Thompson also argues that his claim is saved by the continuing violation doctrine. The
continuing violation doctrine allows a plaintiff to seek relief for a time-barred act by linking it with
an act that is within the limitations period. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.1992). "A
continuing violation is one that could not reasonably have been expected to be made the subject of
a lawsuit when it first occurred because its character as a violation did not become clear until it was
repeated during the limitations period." Dasgupta v. University of Wisconsin Bd. of Regents, 121
F.3d 1138, 1139 (7th Cir.1997); Sweeney v. West, 149 F.3d 530, 556 (7th Cir.1998). The continuing
violation doctrine is unavailable if the plaintiff "knows or with the exercise of reasonable diligence
would have known after each act that it was discriminatory and had harmed him." Moskowitz v.
Trustees of Purdue Univ., 5 F.3d 279, 282 (7th Cir.1993); accord Galloway v. Gen. Motors Serv.
Parts Operations, 78 F.3d 1164, 1167 (7th Cir.1996). Instead, the doctrine applies "when, after an
initial incident of discrimination, a plaintiff does not feel 'sufficient distress to ... mak{e] a federal
case." Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir.1999) (citation omitted).

The Plaintiff's continuing violation argument fails because Thompson suspected he was
being blackballed from federal employment throughout the 1991 to early 1995 period. Since
Thompson suspected blackballing for more than five years before he contacted an EEO counselor,
he cannot invoke the continuing violation doctrine. Miller vy. American Family Mut. Ins. Co., 203
F.3d.997, 1004 (7th Cir. 2000). Thompson also cannot assert a continuing violation theory because
the alleged denial of his retirement benefits by the Army was not a fresh act of alleged

discrimination. Thomson claims that he was denied his retirement benefits not because the Army


© Mince Order Form (0/97)

United States District Court, Northern District of Illinois

‘Name of Assigned Judge ‘Ili i Sitting Judge if Oth
a Magia Judes William J. Hibbler than Assigned Judge
CASE NUMBER 01075 DATE October 7, 2002
CASE Graham Thompson v. Thomas White, Secretary of the Army
TITLE

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

nature of the motion being presented.]

MOTION:
Defendants’ Motion for Summary Judgment (Doc. # 10)
DOCKET ENTRY:
(1) oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
@) oO Answer brief to motion due__. Reply to answer briefdue__.
4 oO Ruling/Hearingon___ssetfor at
(6) oO Status hearing [held/continued to] [set for/re-set for]on___—sset fort
© a Pretrial conference [held/continued to] [set for/re-set for]on___setfor at.
” Oo Trial [set for/re-set for]on_ at
@) Oo [Bench/Jury trial] [Hearing] held/continued toa
(9) Oo This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to}
COFRCP4(m) General Rule21 OFRCP41(a)(1) O FRCP41(a)(2).
(10) @ [Other docket entry]
For the attached reasons, the defendant’s motion for summary judgment is GRANTED. All other pending motions are denied
as moot.
(1) oO [For further detail see order on the reverse side of the original minute order.] . S five t

r\yS

No notices required, advised in open court.
No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone,

Docketing to mail notices.

Mail AO 450 form. noma docketing deputy initials

Copy to judge/magistrate judge, i

courtroom
JHC deputy’s

initials

Date/time received in
central Clerk's Office mailing deputy initials



was discriminating against him, but because he was not an active employee due to the Army’s prior
act of blackballing him. The later consequence of an earlier act is not itself a discriminatory act that
can be used to satisfy a time limitation. Huels v. Exxon Coal USA, Inc., 121 F.3d 1047, 1049-51 (7th
Cir. 1997).
V. CONCLUSION

For the reasons set forth above, this action is dismissed with prejudice since all of
Thompson's allegations are time-barred. Defendant’s motion for summary judgment is
GRANTED.

IT IS SO ORDERED.

Date: le f/7/ orn

William J. bier, Judge
United States District Court



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
Graham E. Thompson, )
)
Plaintiff, )
) No. 01 C 75
v. )
) Judge William J. Hibbler
Thomas E. White, Secretary ofthe Army,’ )
)
Defendant. ) OCT $

MEMORANDUM OPINION AND ORDER
I, INTRODUCTION
Plaintiff Graham E. Thompson, a former employee of the United States Army Corps of
Engineers, brings this action under 42 U.S.C. § 2000e, et seg. against Thomas E. White in his
capacity as Secretary of the Army. Thompson alleges that the defendant discriminated against him
because of his race and also retaliated against him for filing a previous employment discrimination
suit. In response, the defendant argues that the plaintiff's claims are time-barred and therefore
requests summary judgment. The parties have fully briefed the issues and this case is now ripe for
ruling. For the reasons stated herein, the defendant's motion for summary judgment is GRANTED.
I STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary
judgment shall be granted "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson

' Thomas F. White is now Secretary of the Army and has been substituted as the

defendant pursuant to Fed.R.Civ.P. 25(d). a


v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Bragg v. Navistar Int'l Transp. Corp., 164 F.3d
373, 376 (7th Cir.1998). The initial burden is on the moving party to demonstrate the absence of a
genuine issue of material fact such that judgment as a mater of law should be granted in the movant's
favor. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Larimer v. Dayton Hudson Corp., 137
F.3d 497, 500 (7th Cir.1998). Once the moving party has met the initial burden, the opposing party
must "set forth specific facts showing that there is a genuine [material] issue for trial." Jd. In so
doing, the nonmoying party not rest on its pleadings, Weicherding v. Riegel, 160 F.3d 1139, 1142
(7th Cir.1998), and must proffer more than bare, conclusory allegations in its affidavits, DeLoach
y. Infinity Broad., 164 F.3d 398, 402 (7th Cir.1999); Drake v. Minn. Min. & Mfg. Co., 134 F.3d 878,
887 (7th Cir.1998). When deciding a motion for summary judgment, the Court considers the
evidence in the light most favorable to the nonmoving party and resolves all inferences in the
nonmoving party's favor. Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 511 (7th Cir.1996).
Il. BACKGROUND

Graham Thompson served as an Equal Employment Opportunity specialist in the United
States Army Corps of Engineers. The United States Army removed Graham Thompson from his
position as a manager in the Army’s Equal Employment Opportunity Office in June 1991 (after
approximately thirty years of federal service) because of allegations that he fraudulently reported his
travel expenses. Thomson challenged the Army’s decision, but it was upheld by the Merit Systems
Protection Board (MSPB). Thompson then filed a federal lawsuit, alleging that his removal was
based on discrimination and retaliation. The Army settled the suit in November 1994, and the
settlement agreement provided, among other things, that Thompson’s employment records would

be amended to reflect a voluntary resignation as opposed to a removal for travel fraud.