“UPS argues yues that McArthur’s claims fall under an exception to the single filing rule that

ho has filed an EEOC complaint and received a right-to-sue letter from

piggy-backing onto the timely filed claims of similarly situated claimants. Gitlitz, 129 F.3d at

tiitodsedes

558; see also, Moon

y Corp., 47 F.3d 302, 308-09 (8th Cir. 1995). The Seventh Circuit has not

addressed this exception to the single filing rule. See Brewton v. City of Harvey, 285 F, Supp. 2d

; 1121, 1127 ‘(N. D. i. 2 2003) (“There is little discussion in the Seventh Circuit of the single-filing

tule, while other. circuits have explored the issue more fully.”), Zuckerstein y. Argonne National

Laboratory, 663 F. Supp. 569, 573 (N.D. Ill. 1987). It has stated, however, that the single filing

rule applies to plaintiffs who have neither filed a timely charge with the EEOC nor received a

He cannot now rely on.other claimants who diligently followed the statutory time limits. Counts
4 and 7 are therefore dismissed.

‘ough 7: the 300 day limit

quires that a charge of discrimination be filed within 300 days of the alleged

“discriminatory act. 42 U.S.C. § 2000c-5. UPS argues that Counts 1 through 7 are based on acts -



well settled that the possible existence of an affirmative defense does not mean that a complaint
* fails to state a claim. Id., citing Gomez v. Toledo, 446 U.S. 635, 100 (1980). Thus the Court may

dismiss a claim at this stage based on the statute of limitations only if, on the face of the

itiff pleads too much and admits definitively that the applicable limitations

petiod has expired.”

Barry Aviation Incorporated v. Land O'Lakes Municipal Airport Comm’n,

377 F.3d 682, 688 (7th Cir. 2004). The plaintiffs in this case have not done so. Plaintiffs allege

105 astantly misled them by indicating that it was in fact taking action on their

grievances and would éventually render a resolution, and that they believed their grievances were

being processed until January 2004, when finally Local 705 admitted to Flemming that it had no

nof pursuing them. Am. Compl. {] 163-64, 173-74. Accepting the plaintiffs’ allegations

as true, as the Court must at this juncture, there is no basis to dismiss their section 301 claim.

Conclusion

. 7 For the foregoing reasons, the Court grants UPS’ motion to dismiss [docket no. 14] in

part and denies it in part. Counts 4 through 7 are dismissed; the motion is otherwise denied.

“UBS is directed to answer the remaining claims within fourteen days of this order.

WUE LWA)

MATTHEW F. KENNELLY,
United States District Judge

Date: October 12, 2004



of the

ded complaint persuades the Court that its allegations support the application of the
continuing violation doctrine.
3. ... Counts 5 and 6: hostile work environment claims

“CBS next argues that Flemming and Carter’s hostile work environment claims in Counts
“sand 6 should be dismissed because they are beyond the scope of their EEOC charges. Even
though the charges are not attached to the amended complaint, the Court may consider their
contents ‘on a motion to dismiss because they are referenced in the amended complaint.

TM “Carter’s EEOC charge states that:

Jn. or about March 2002, I was displaced from my position whereas less senior, non-
Black drivers continued to work.

have been discriminated against on the basis of my race, Black, in
ation of Title VII of the Civil Rights Act of 1964, as amended.

Dismiss, Ex. C. Flemming provides slightly more information in his EEOC charge:

In.or aro! 1 d. February 2002, I was laid off from my position, whereas similarly-situated,
less senior. non-Black employees continued to work. These employees have continued to
““réceive more favorable treatment with regard to Respondent’s layoff and displacement
_Tules.

believe.that [have been discriminated against on the basis of my race, Black, in
jolation of Title VII of the Civil Rights Act of 1964, as amended.

Id., Ex..A.

. Generally, a plaintiff in a Title VII case cannot assert claims that were not included in his
BEOC charge. Cheek v. Western and Southern Insurance Co., 31 F.3d 497, 500 (7th Cir. 1994).
“This does not mean, ‘however, that a plaintiff must include in his EEOC charge every fact

necessary to support a hostile work environment claim. If there exists a “reasonable relationship

the allegations in the charge and the claims in the complaint, and the claim in the



oe

should be dismissed. The plaintiffs filed discrimination charges with the EEOC

in July and August 2003.. Flemming and Vasquez were laid off in February 2002, and Carter was

laid. off in March.of that same year.

aintiffs admit that the layoffs and some of the other allegedly discriminatory acts listed

2c

int complaint occurred outside the 300 day period, but they argue that they have alleged a

cours of conduct constituting a continuing violation of Title VIL, including acts within the 300

eethingdatnineevin 2

day period, and 1

may rely on acts outside that period as part of their claim.

~ Under the. continuing violation doctrine, a claim that otherwise would be time-barred may

g0 foi ard because it is linked with an act or acts that occurred within the 300 day period. Miller

y. American Family Mutual Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). In the present context,

W a continuing violation in one of three ways: (1) by showing that the

s decisio) -making process occurred over time; (2) by showing that the employer has in
placé ai €xpress, openly espoused policy that is alleged to be discriminatory, or (3) by showing
that an employer covertly follows a practice of discrimination over a period of time. Croft v.

* Inflight Risk Management, No. 01 C 1766, 2002 WL 226859, *2 (N.D. Ill. Feb. 14, 2002); see

“Tinner. ¥. Uni ‘ed Ins. Co. of America, 308 F.3d 697, 707 (7th Cir. 2002). In this case, it appears
¢ third method. They allege that UPS has committed many discrete acts
iiging from layoffs, to prohibiting them from bidding for permanent

placeme t, to adopting a discriminatory policy, and that each of these acts were part of a long

pattern. of discrimination. See Pl. Resp. at 13. Because we are addressing a motion to dismiss,

“the Court must ‘accept as true the allegations in plaintiffs’ amended complaint. A liberal reading



that disproportionately impacted women and minorities in general.” See also Taylor v. Western

7 '0., 966 F.2d 1188, 1195 (7th Cir. 1992) (“A single [EEOC] charge may

ch.a full scale ifiquiry into racial discrimination”) (internal citations omitted).
5... Count 8: section 301 claim
Count 8.of the amended complaint charges UPS with violating the collective bargaining

n301” breach) during the period in which the alleged discriminatory acts

took place. UPS argues that the section 301 claim must be dismissed because it was not filed

in the applicable statute of limitations. In deciding whether or not the section 301 claim was

timely made, the Court must look to Count 9, which claims that Local 705 breached its duty of
fair representation in working under the collective bargaining agreements, because the running of

the tatute of limitations on section 301 claims is actually based on the timing of the union

. See Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 301-02 (7th Cir.

fae

1983) (“A suit by.an employee against a union for breach of the duty of fair representation and an

proces:

loyer under § 301 ... are inextricably interdependent” and therefore must be

considered togethe: as hybrid actions.).

‘UPS points out that the statute of limitations on a section 301/fair representation claim is

months, and it begins to run at such time as the union, after being notified of the

only s

employee’s grievance, fails or refuses to process the grievance. Metz, 715 F.2d at 301-02. In

“this case, plaintiffs began submitting grievances to Local 705 in 2002 but did not bring the

section 301/fair representation claims until May 2004.

f limitations is an affirmative defense in a section 301/fair representation

cas , as it is in other cases. U.S. v. Northern Trust Co., 372 F.3d 886, 888 (7th Cir. 2004). It is



Name of Assigned Judge |“ “Matthew F, Kennelly Sitting Judge if Other
trate Judge _ than Assigned Judge

03 C 9391 DATE 10/12/2004

Flemming vs. United Parcel Service

In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
in the f e. e
ion being presented.)

of [ use listing in “Motion” box above.]

(2) ..Brief in support of motion due
(3) Answer brief. ‘to motion due. . Reply to answer brief due
(4) Ruling/Hearing on _setfor at
(5) Status hearing{held/continued to] [set for/re-set for] on set for at
(6) - Pretrial conference{held/continued to] [set for/re-set for] on set for at :
(7) Trial{set for/re-set for] on at
(8) ; at
() eee eis missed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m).. O Local Rule 41.1. OO) FRCP41(a)(1) OO FRCP41(a)(2).
(10) _. (Other,docket entry] _ For the reasons set forth on the attached Memorandum Opinion and Order,
- Court S’s motion to dismiss (14-10 in part and denies it in part. Count 4 through 7 are
dismissed; on is otherwise denied. UPS is directed to answer the remaining claims within

fourteen days of this order.

(11) __ML.._|For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document

Number

No notices required, number of notices

Notices mailed by judge’s staff,

OCT 13 2004

dare dockeled

snl inivials

date mailed notice

Notified counsel by telephone.

wv | Docketing to mail notices.

Mail AO 450 form,

agistrate judge. 1

LESH Sg

Copy to ju

courtroom
OR deputy’s
initials

Date/time received in, 7
cenital Clerk's Office rating deputy nals



complaint can reasonably be expected to grow out of an EEOC investigation of the allegations in

the charge,” then the claim in the lawsuit should be allowed to go forward even if it was not

by lay persons. See, e.g., Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985) (the

Jenkins standard is a liberal one “in order to effectuate the remedial purposes of Title VII, which

Even when read broadly, however, there is not a reasonable relationship between the

allegations contained in Flemming and Carter’s EEOC complaints and their claims that UPS

created a hostile work environment. See Cheek, 31 F.3d at 500 (hostile work environment claims

ordinarily are outside the scope of an administrative charge which alleges only other types of

discrimination). In fact, their EEOC charges contain no language remotely suggesting that they

endured a hostile environment, and these claims fail to meet the Cheek/Jenkins standard.

"Counts 1 and 3: disparate impact claims
“UPS argues that the disparate impact claims made in Counts 1 and 3 by Flemming and

Carter should also, be dismissed for failing to meet the Cheek/Jenkins reasonable relation

siggieeeeehapti

sta

ated in the relate:

; Nov. 10, 2003), “i | is reasonable to expect that an EEOC investigation would investigate not just

the particulars of how. the plaintiffs were treated, but also whether UPS was following policies


ral Illinois. Plaintiffs contend the new UPS policy allowed less senior,
white feeder drivers to maintain their jobs while more senior, minority drivers were laid off.

riper Discussion

appear: 0 concede that his claims were untimely but argues that he should be allowed

aintiff who faced similar discriminatory treatment during a similar time

ff, but missed the EEOC filing deadline, is allowed to piggy-back on the

852 F.2d 1008, 1014 (7th Cir. 1988); see also, Gitlitz v. Compagnie Nationale Air France, 129

F.3d 554,557 (11th Cir. 1997).



denied in part.
acrpentenieny ee nae pa Facts
7 “According to plaintiffs’ amended complaint, the collective bargaining agreement between
UPS and Local. 705 that was in effect until October 1, 2002 gave laid off “feeder drivers” like the
plaintiffs the option of bumping (replacing) feeder drivers working in other UPS districts. The

ssbeaicneetines

bumping policy. sed entirely on seniority. Ifa laid off driver exercised the bumping

option, after thirty ays in the new district he could bid for permanent placement in that district.

‘ican-American, and Vasquez, who is Hispanic, tried to take advantage of

tain new positions in either the Central or Northern Illinois districts.

inet

August 02, UPS and Local 705 adopted a new collective bargaining agreement.

duty of fair representation by, among other things, failing to timely pursue their grievances before

the new displacement policy took effect. Vasquez, Carter, Flemming, and McArthur also allege



srenatige

IN THE UNITED STATES DISTRICT COURT

EASTERN DIVISION

. LENNANG, WILLFREDO )
au PETER D. CARTER, DARRYL D. )

_ eee oe ae Ay nSTE _
THOMAS BALLUFY, JOHN BAPTISTE,

__ RICARDO BEATON, LARRY BORTKO,
“DALE, CHOBAK, ROBERT DISTENFIELD,
THOMAS PSIHOGIOS, and RICKY WHITE,

Plaintiffs,

DOCKETS
CCT 1 3 2604

Case No. 03 C 9391

*ARCEL SERVICE and
, BROTHERHOOD
TEAMSTERS LOCAL 705,

we eververnverwerverwerverrerwyeewee we

\wrssee Defendants.

“MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:
a" Plaintiffs were truck drivers for United Parcel Service in the company’s Metro Chicago
district, and ‘were represented by the International Brotherhood of Teamsters Union, Local 705.

Ee cesium eee

Be een Ji anuary y and March 2002, each plaintiff was laid off by UPS. Plaintiffs Reginald

a ns as ~-
Flemming, Peter Ca arter, Willfredo Vasquez, and Darryl McArthur have asserted claims of race

discrimination, ‘disparate impact, and hostile work environment against UPS. All of the plaintiffs

have also sued E for breach of the company’s collective bargaining agreement with Local 705
arid have. sued the Union for breach of its duty of fair representation. UPS has moved to dismiss

all of the claims against it. For the reasons stated below, UPS’ motion is granted in part and

H