Clay v. Quartet Mfg. Co.

• Decision Date: 30 June 1986
• Docket Number: No. 85 C 6771.,85 C 6771.
• Parties: Jo-An CLAY, Plaintiff, v. QUARTET MANUFACTURING COMPANY, an Illinois Corporation, David Green and Melvin Lieberman, Defendants.
• Court: U.S. District Court — Northern District of Illinois

644 F. Supp. 56

Jo-An CLAY, Plaintiff, v. QUARTET MANUFACTURING COMPANY, an Illinois Corporation, David Green and Melvin Lieberman, Defendants.

No. 85 C 6771.

United States District Court, N.D. Illinois, E.D.

June 30, 1986.

John L. Gubbins, Margaret Young, Chicago, Ill., for plaintiff.

Thomas A. Foran, Jack J. Carriglio, Carmen D. Caruso, Foran, Wiss & Schultz, Chicago, Ill., for defendants.

ORDER

NORGLE, District Judge.

The Plaintiff, Jo-An Clay (CLAY), began her employment with the Defendants, Quartet Manufacturing Company (QUARTET), David Green (GREEN) and Melvin Lieberman (LIEBERMAN) in 1967. In October, 1984, Clay filed a charge with the Equal Employment Opportunity Commission (EEOC). Clay charged Defendants with violations of Title VII and the Equal Pay Act. On October 2, 1984 Clay was discharged by Defendants. On October 24, Clay filed a second charge with the EEOC. The second charge added a retaliation claim to the existing sex discrimination claims. The second charge was amended on February 15, 1985 to include sexual harassment. Clay received her right to sue letters from EEOC and this lawsuit followed.

The Complaint is in seven Counts. Count I alleges Defendants instituted a wage differential based on Clay's sex in violation of the Equal Pay Act. 29 U.S.C. § 206(d)(1). Count II alleges Defendants discriminated against Clay on the basis of sex in the terms and conditions of her employment in violation of Title VII. 42 U.S.C. § 2000e-2(a). Count III alleges Clay was coerced into various sexual encounters with Green and Lieberman and that both Defendants began harassing her after she terminated the encounters in violation of Title VII. Count III alleges Defendants fired Clay in retaliation for filing a charge with the EEOC, also a violation of Title VII. Counts V, VI and VII are pendent state law claims. Count V alleges the intentional infliction of severe emotional distress. Count VI alleges battery. Count VII alleges wrongful discharge. All three state claims are based on the facts supporting the federal claims. Defendants have moved to dismiss all seven Counts. See Fed.R.Civ.P. 12(b)(6).

As always on a Rule 12(b)(6) motion, the Court takes the allegations contained in the Complaint as true and gives Clay the benefit of all favorable inferences flowing from those allegations. See Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984). Contrary to Defendants' apparent misunderstanding of the standard applicable to a Rule 12(b)(6) motion, the Court may not dismiss a Complaint merely because success at trial appears remote or because the Complaint's allegations appear unlikely of proof. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). One final note is appropriate before addressing the merits of Defendants' various motions. None of the parties on this motion has performed adequately. The two most obvious and common defects in the briefs on this motion are a general lack of clarity of argument and a paucity of citation to relevant case law. Neither of those shortcomings should appear in briefs filed with this or any other court. The Court now turns to Defendants' motion to dismiss.

I.

Count I alleges Defendants applied a discriminatory wage differential based on Clay's sex in violation of the Equal Pay Act. 29 U.S.C. § 206(d)(1). Clay identifies the first and last incidents of discriminatory pay — one in 1974, the other in 1984. Defendants say both claims are barred by the applicable period of limitation. An equal pay claim must be brought within two years of the alleged violation or, if willfulness is alleged, within three years. 29 U.S.C. § 255(a). But, like most things in the law, an exception exists. Where a discriminatory pay scale persists over the course of employment, an equal pay claim may continue as long as the discriminatory pay scale is in force. Jenkins v. Home Insurance Co., 635 F.2d 310, 312 (CA4 1980) (per curiam). In this case, Clay alleges she was paid less than males doing comparable work when she became national sales manager for Quartet (1974) and was paid less than males when she was fired (1984). The inescapable inference is that Clay's pay checks from 1974 through 1984 reflected the discriminatory pay differential she alleges. Count I alleges a continuing violation of the Equal Pay Act and Defendants' motion to dismiss Count I must be denied. Acrouin v. Louis Allis Division, 618 F.Supp. 221, 223 (E.D.Wis. 1985); see also Perex v. Laredo Junior College, 706 F.2d 731, 733-34 & n. 8 (CA 5 1983). For similar reasons Defendants' motion to dismiss Counts II and III must also be denied.

Count II alleges Defendants applied discriminatory terms and conditions of employment to Clay from 1974 through 1984 because of her sex. Count III alleges a continuous course of sexual harassment from 1983 through 1984. Both Counts are premised on a series or pattern of related discriminatory conduct. And Clay alleges the final act of discrimination occurred within the charge filing period (viz. within 180 days of the violation). Those allegations, taken as true for the purposes of this motion to dismiss, state a claim for a continuing violation of Title VII. See Stewart v. CPC Int'l, Inc., 679 F.2d 117, 121-22 (CA 7 1982) (per curiam); Elliott v. Sperry Rand Corp., 79 F.R.D. 580, 585 (D.Minn. 1978) (defining one form of continuing violation as a challenge to "a series of events, all of which are alleged to have been discriminatory, but only one of which is alleged to have occurred within the charge filing period"). See also Berry v. Bd. of Supervisors, 715 F.2d 971, 979-82 (CA5 1983) (proposing three-part test consisting of type, frequency and permanence of discriminatory conduct).

II.

Defendants make three additional attacks on Count III: 1) Clay fails to plead specific instances of sexual harassment for the period of January, 1983 through October, 1984; 2) Clay's amendment to her EEOC charge (February 15, 1985) fails to state facts which support the harassment charge; 3) Clay's amendment to the EEOC charge fails to plead the specific dates of the alleged harassment.

Initially, the Court notes Defendants have not made a motion for a more definite statement. See Fed.R.Civ.P. 12(e). Disregarding the remote possibility that such a motion would be granted in this case, it is incongruous that Defendants ask Clay to plead evidence in support of her Complaint when they simultaneously criticize her pleading of "background" material. See Deft's Motion to Dismiss at 4-5; Deft's Reply at 1-2. In any case, Defendants' motion to dismiss must be denied; Clay need not plead evidence in support of her Complaint. See Fed.R.Civ.P. 8(a).

Defendants' next two arguments attack the validity of the amended charge filed with the EEOC on February 15, 1985. Again, the motion to dismiss must be denied. Defendants do not attack the validity of Clay's amended EEOC charge. They attack the adequacy of the charge's allegations to support a claim in this Court. Consequently, on this motion to dismiss the Court must take the document at face value and treat it as what it purports to be — an amended charge filed within the charge filing period. Defendants are free to discover the background of the filing of the amended charge and attack its validity on summary judgment (for example, did Clay follow the appropriate procedures in amending her original charge?), but at this point the Court takes the amended charge as true.

A charge filed with the EEOC "should contain ... a clear and concise statement of the facts, including the pertinent dates, constituting the alleged unlawful employment practices." 29 C.F.R. § 1601.12(a)(3)(1983). It was, therefore, necessary for Clay's amended charge to identify the parties charged, the kind of discrimination alleged and the period of time she suspected the discrimination took place. Cf. EEOC v. Shell Oil Co., 466 U.S. 54, 104 S.Ct. 1621, 1633, 80 L.Ed.2d 41 (1984) (construing 29 C.F.R. § 1601.12(a)(3) in pattern-and-practice case). Clay's amended charge clearly meets the first two requirements. The amended charge filed with the EEOC charged Greene and Lieberman with sexual harassment. And the third requirement (the time-frame) is met when the amended charge is viewed in the context of the original charge. The original charge identified the appropriate time-frame as the length of Clay's employment with Quartet. The Court does not find it inappropriate to apply the same time-frame to Clay's charge of sexual harassment. It is of little consequence that Clay chose not to base her lawsuit on the earlier harassment (the alleged coerced sexual encounters) rather than the post-1983 harassment by Defendants. The motion to dismiss, based on the theory that Clay's amended charge is defective, is denied. Before addressing Defendant's next contention, however, the Court makes one final observation.

Clay suggests that even if her amended EEOC charge is defective the sexual harassment claim must survive because it is "reasonably related" and "grows out of" her sex discrimination claim. See Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (CA7 1976). Jenkins held that a discrimination claim should not be dismissed if the allegations contained in the complaint are "like or reasonably related" and "grow out of" the allegations stated in the EEOC charge. That rule, in keeping with the remedial purpose of Title VII, must be applied liberally. See Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (CA7 1985). But even with a liberal application, Jenkins does not easily fit here. See Rizzo v. WGN Continental Broadcasting Co., 601 F.Supp. 132, 134 (N.D.Ill.1985). The only commonality between Clay's discrimination and harassment claims is "sex" and these Defendants. Clay alleges both kinds of discrimination were motivated by her sex. But the rather blatant sexual harassment Clay alleges is plainly different from the...