In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1643

LONZIA CASTEEL,

Plaintiff-Appellant,

v.

EXECUTIVE BOARD OF LOCAL 703 OF THE 

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

THOMAS W. STIEDE, KEITH LLOYD, BOB POORE,

JOHN COBB, CHUCK MURDOCK, BILL SHOEMAKER,

and DAN SCHNUR,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 8264--Charles R. Norgle, Judge.

Argued September 25, 2001--Decided November 15, 2001

 

 Before ROVNER, DIANE P. WOOD, and EVANS,

Circuit Judges.

 EVANS, Circuit Judge. This case involves

a challenge to the overtime provisions of

a labor contract under the Age

Discrimination in Employment Act. Lonzia

Casteel is a truck driver who, prior to

1998, was employed by Mavo Leasing, Inc.

and made deliveries for Dominick’s Finer

Foods, Inc. Since that time, Dominick’s

has became his actual employer. Casteel

works out of Dominick’s Northlake,

Illinois, facility where he is first on

the seniority list for Northlake drivers,

who are represented by Local 703 of the

International Brotherhood of Teamsters.

During all time periods relevant to this

suit, Mavo and the Union operated under a

collective bargaining agreement, which

Dominick’s has adopted.

 Dominick’s drivers work one of two main

shifts. There is a Monday to Friday shift

and a Tuesday to Saturday shift, each

with various starting times. Accordingly,

there are two shifts working on Tuesday

through Friday, but only one shift

working on Monday and Saturday. There are

a few possibilities for overtime. First,

drivers can work a sixth day. For those
drivers on the Monday to Friday shift,

such as Casteel, the sixth day is

Saturday. Second, drivers might get

"early starts." Early starts occur when

drivers are asked to report before their

usual starting time. Third, a driver

might be assigned a "drop," or drop load.

Drops refer to special loads in which a

driver drops off a trailer that he does

not unload. A drop is automatically worth

one hour of overtime pay (no matter when

it is completed) and is, therefore,

considered a choice assignment. Fourth,

there may be work on Sundays or holidays.

Drivers are paid time-and-a-half for

their overtime on the sixth day, early

starts, or drops. Drivers needed on

Sunday or holidays are paid double time.

 The present case concerns sixth-day

overtime opportunities, such as early

starts and drops./1 Overtime

opportunities on the sixth day are

currently governed by "shift seniority."

Under shift seniority, overtime

opportunities are first allotted by

seniority to those drivers on the Tuesday

to Saturday shift, the idea being that

these drivers should have the first

option on overtime opportunities attached

to their normal Saturday workday. Casteel

believes that "master seniority" should

extend to sixth-day overtime

opportunities. Master seniority, which

governs the distribution of overtime

assignments on Tuesday through Friday

(when both shifts are working), Sundays

and holidays, allots overtime

opportunities by seniority on the

combined shift list. Casteel would have a

greater opportunity for Saturday overtime

opportunities under master seniority, in

which he ranks first, than under shift

seniority, in which he has to wait behind

all of the Tuesday to Saturday drivers.

 Shift seniority with regard to sixth-day

overtime opportunities was not always the

rule. When Casteel was a union steward

during part of 1992 and 1993, he

instituted master seniority for sixth-day

overtime opportunities. The policy was

changed in June of 1993, after new local

union leadership was elected. Tim Welch,

one of the new union stewards, informed

Casteel both before and after the change

took place that the Union was switching

back to shift seniority. In April 1994,

Casteel challenged the policy in a

grievance. He lost.
 After stewing for a good while, Casteel

filed a charge with the EEOC on November

21, 1996. He alleged that the shift

seniority policy constituted age

discrimination (Casteel is over 40), race

discrimination (he is an AfricanAmerican), and that the Union violated

its duty of fair representation under

sec. 301(a) of the Labor Management

Relations Act. 29 U.S.C. sec. 185(a). The

EEOC issued a right to sue letter.

Casteel and four other drivers filed the

present complaint against the Union and

the board members on November 26,

1997./2 The complaint stated a claim

only under the Age Discrimination in

Employment Act./3 29 U.S.C. sec. 621 et

seq. It alleged that the change from

master to shift seniority with regard to

sixth-day overtime opportunities was

adopted to discriminate against older

workers and/or had a disparate impact on

them. The district judge granted summary

judgment to the Union, finding that

Casteel’s EEOC charge and complaint were

both untimely. Casteel appeals that

ruling.

 Although things so far are fairly clean,

we must comment briefly on another point.

Apparently during discovery Casteel lit

on a few other theories of harm and, by

the time summary judgment time rolled

around, he added claims that the Union

disregarded and misapplied master

seniority on Sundays and holidays (in

particular Thanksgiving), that it

misapplied shift seniority on Mondays,

that it waived Department of

Transportation restrictions for younger

drivers, thus allowing them to work on

Sundays, and that it manipulated the

distribution of drops on weekdays, Satur

days, and early starts to advantage

younger drivers.

 But our use of "added" may be too

generous. Casteel never amended his

complaint to include these claims. The

district judge appears not to have

addressed them in his opinion. On appeal,

Casteel claims that the district judge

improperly ignored them; the Union claims

that they were subsumed in the district

judge’s ruling that Casteel’s case was

untimely.

 In the interest of avoiding

institutional exasperation (perhaps it’s
too late), we consider Casteel’s claims

in two classes: first, his clearly

presented claim that the Union

intentionally discriminated against him

because of his age in June of 1993 by

readopting shift seniority for sixth-day

overtimes opportunities; and second,

Casteel’s other purported claims.

 The district judge properly found the

first claim time-barred. Under the ADEA,

a plaintiff must file an administrative

charge within 180 days after the alleged

unlawful discriminatory practice

occurred, unless the plaintiff first

files with a state agency in a deferral

jurisdiction, in which case the plaintiff

has 300 days to file the charge. 29

U.S.C. sec. 626(d); 29 U.S.C. sec.

633(b). A failure to file a timely charge

will bar a later suit. Chakonas v. City

of Chicago, 42 F.3d 1132, 1135 (7th Cir.

1994). Illinois is a deferral

jurisdiction. The parties and the

district judge assumed that Casteel is

entitled to the 300-day period (because

the longer time period helps him not at

all), so we will do the same.

 The first issue is what event triggered

the running of the statute of

limitations. The Union claims that the

statute began to run in June of 1993,

when the Union switched back from master

to shift seniority with regard to sixthday overtime opportunities. Casteel

claims the overtime policy is a

continuing violation that starts the

clock anew whenever it is applied to his

disadvantage. If it was 1990, we would

likely have a clear answer. In Lorance v.

AT&T Technologies, Inc., 490 U.S. 900

(1989), the Supreme Court considered a

Title VII gender discrimination challenge

to a facially nondiscriminatory seniority

system that was allegedly adopted with

discriminatory intent. The Court held

that in such a case the statute of

limitations begins to run at the time of

the system’s adoption, not when the

policy is applied. Id. at 911. A facially

discriminatory policy, on the other hand,

discriminates anew every time it is

applied and thus begins the running of a

new clock. Id. at 912 n.5.

 In the present case, Casteel cannot show

that the overtime policy facially

discriminates against older workers. Cf.

id. (noting that a facially
discriminatory seniority system would,

for example, give "men twice the

seniority that women receive for the same

amount of time served"). His claim rests

on showing that the Union’s facially

neutral overtime policy was adopted with

a discriminatory motive./4 Accordingly,

if Lorance’s reasoning applies, it bars

Casteel’s suit because he filed his EEOC

charge on November 21, 1996, 3 years and

5 months after the Union readopted shift

seniority for sixth-day overtime

opportunities.

 The only mystery to this case is

provided by the fact that Lorance was

abrogated when Congress passed the Civil

Rights Act of 1991. Congress provided

that "with respect to a seniority system

that has been adopted for an

intentionally discriminatory purpose in

violation of this title [42 USCS sec.sec.

2000e et seq.]," the unlawful employment

practice occurs when the seniority system

is adopted, when an individual becomes

subject to the system, or when an

individual is injured by its application.

42 U.S.C. sec. 2000e-5(e)(2). The

question is whether this language

undermines the reasoning of Lorance in

the ADEA context. We have previously

stated that Lorance’s reasoning remains

persuasive in the context of other

discrimination statutes. See Huels v.

Exxon Coal USA, Inc., 121 F.3d 1047, 1050

n.1 (7th Cir. 1997) (ADA); Kennedy v.

Chemical Waste Mgmt., Inc., 79 F.3d 49,

51-52 (7th Cir. 1996) (ADA). Casteel has

made no attempt to divert us from our

course. Indeed, busy finding new claims,

he has not even briefed the issue. Partly

for that reason but most importantly

because it makes good sense, we apply

Lorance’s reasoning to Casteel’s ADEA

challenge to the Union’s overtime policy.

The statutory period in which Casteel

could challenge the policy began to run

in June of 1993. Because he did not file

his charge until 1996, it is untimely.

 Because the requirement for filing a

charge in the ADEA context is not

jurisdictional, however, the period may

be tolled by equity. Cada v. Baxter

Healthcare Corp., 920 F.2d 446, 451-52

(7th Cir. 1990). Two doctrines might

apply: equitable estoppel or equitable

tolling. Equitable estoppel applies "if

the defendant takes active steps to

prevent the plaintiff from suing in
time." Id. at 450. To invoke equitable

tolling, a plaintiff must show that "he

could not by the exercise of reasonable

diligence have discovered essential

information bearing on his claim." Id. at

452. Casteel makes no claim that the

Union prevented or hindered him from

bringing suit, so equitable estoppel does

not apply. Moreover, Casteel cannot

assert equitable tolling. He learned of

the switch to shift seniority before and

after the switch was made; union steward

Welch discussed it with him. Indeed,

Casteel grieved the policy in April 1994.

For some reason, he did not initiate the

present proceedings challenging the shift

seniority system as age discriminatory

until 1996. His charge is untimely and

summary judgment on his claim was

properly granted.

 Now back to the "added" claims. In his

opposition to summary judgment, Casteel

(we repeat) alluded to claims that the

Union disregarded and misapplied master

seniority on Sundays and holidays (in

particular Thanksgiving), that it

misapplied shift seniority on Mondays,

that it waived Department of

Transportation restrictions for younger

drivers, and that in some cases it

manipulated the distribution of drops on

weekdays, Saturdays, and early starts to

advantage younger drivers. The Union

argues that these claims were subsumed in

the untimeliness ruling made by the

district judge. We agree.

 Although Judge Norgle’s opinion does not

specifically address these "claims," they

are all part and parcel of the overriding

contention that the shift seniority

system runs afoul of the Age

Discrimination in Employment Act which

was, as we have said, the only claim to

appear in the complaint. Accordingly, we

will affirm the grant of summary judgment

to the Union.

FOOTNOTES

/1 "Sixth-day overtime opportunities" do not refer

to the availability of sixth-day (overtime) work

generally but rather to opportunities, such as

early starts and drops, that come available on a

driver’s sixth day.

/2 None of the other four drivers had filed an EEOC

charge and their claims were dismissed.
/3 The complaint alluded to the fact that the

Union’s policy shift also may have been motivated by

a desire to retaliate against Casteel for opposing the Union leadership in earlier elections.

The Union carried Casteel a few rounds by noting

that this language possibly stated a claim for

violation of the Union’s duty of fair representation. (The district judge also alluded to this in

his opinion.) Casteel seems to have let it pass.

He does not mention a sec. 301(a) claim in his

brief, so if one is lurking here, it is waived.

/4 Casteel’s complaint also alleges a disparate

impact claim under the ADEA. Such a theory is not

available in this circuit. Rummery v. Illinois

Bell Tel. Co., 250 F.3d 553, 559 n.5 (7th Cir.

2001); Adams v. Ameritech Servs., Inc., 231 F.3d

414, 422 (7th Cir. 2000).