Hill v. St. Louis University

• Decision Date: 19 April 1996
• Docket Number: No. 4:95CV517.,4:95CV517.
• Court: U.S. District Court — Eastern District of Missouri
• Parties: Janet Marie HILL, Plaintiff, v. ST. LOUIS UNIVERSITY, Defendant.

923 F. Supp. 1199

Janet Marie HILL, Plaintiff, v. ST. LOUIS UNIVERSITY, Defendant.

No. 4:95CV517.

United States District Court, E.D. Missouri, Eastern Division.

April 19, 1996.

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Kevin A. Nelson, Nelson and Wolff, L.L.C., St. Louis, MO, for Janet Marie Hill, plaintiff.

Teri B. Goldman, Associate, Robert J. Tomaso, Peter H. Ruger, Peter G. Yelkovac, Peper and Martin, St. Louis, MO, for St. Louis University, a Missouri Corporation, defendant.

Peter H. Ruger, Peper and Martin, St. Louis, MO, for Patrick N. Freesh, defendant, John W. Anderson, defendant.

MEMORANDUM

LIMBAUGH, District Judge.

Plaintiff has filed a first amended complaint alleging that she was discriminated against and constructively discharged from her employment on the basis of sex and age. Her claims are as follows: Count I — Title VII (sex discrimination — disparate impact); Count II — Missouri Human Rights Act (MHRA) (sex discrimination — disparate impact); Count III — Title VII (sex discrimination — disparate treatment); Count IV — MHRA (sex discrimination — disparate treatment); Count V — Age Discrimination in Employment Act claim; Count VI — MHRA (age discrimination); and Count VII — tortious interference with a noncontractual employment relationship or expectancy.¹ This matter is before the Court on the parties' cross-motions for summary judgment: defendant SLU's motion for summary judgment (#51), filed December 29, 1995 and plaintiff's motion for summary judgment (# 55), filed January 24, 1996.² Extensive responsive pleadings to both motions have been filed. This cause of action is set for trial on the Court's trial docket of June 10, 1996.

Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). Summary judgment motions, however, "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir.1988).

Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir.1976).

Count I — Title VII Sex Discrimination — Disparate Impact

The first issue that must be addressed is whether plaintiff's Count I — Title VII disparate impact claim of sex discrimination regarding reclassification of positions is timebarred for failure to timely file a charge of discrimination with the EEOC. Defendant SLU contends that plaintiff has failed to file, within 300 days of the occurrence of the reclassification, a proper charge with the EEOC; thus, she is precluded from pursuing this claim in federal court.³ Plaintiff contends that she is entitled to pursue this claim in court because her "constructive discharge" (the discriminatory act upon which she did file a timely charge with the EEOC for purposes of Title VII and the ADEA) was the last discriminatory act of a "continuing violation" that began with the reclassification.

After careful review of the matter, the Court determines that the plaintiff's Count I claim is time-barred, or in the alternative, plaintiff has failed to establish a prima facie case for a disparate impact claim under Title VII.

There is no dispute that on June 9, 1994 plaintiff filed a formal charge with the EEOC alleging that she had been wrongfully terminated. She alleged that date of discrimination as only December 1, 1993 (the date she was alleged asked either to resign or be fired). She did not indicate on the charge, as provided for, that the alleged discriminatory act was a "continuing violation".

Usually the "continuing violations" theory is advanced in cases wherein the plaintiff failed to seek administrative review of allegedly discriminatory acts that preceded the acts for which administrative review was sought. It allows a court to consider alleged discriminatory conduct prior to the applicable statute of limitations period, if the plaintiff can show that the acts outside the limitations period were part of a "continuing pattern" of discrimination, and at least one of these acts of the pattern occurred within the limitations period and is the subject of a timely administrative charge.

Missouri courts have recognized the concept of continuing violations in employment discrimination cases. Roberts v. Panhandle Eastern Pipeline Co., 763 F.Supp. 1043, at 1049 (W.D.Mo.1991), citing, Missouri Pacific Railroad Co. v. Missouri Commission on Human Rights, 606 S.W.2d. 496 (Mo.App.1980). In Missouri Pacific Railroad Co., the Court held that in order to establish discrimination in the context of continuing violations, a plaintiff must show that a continual employment relationship existed during the time of the alleged discriminatory acts. Id., at 501-502. Once the employment relationship is severed, the discrimination ceases. Id., at 501. The United States Supreme Court had earlier defined the doctrine when it stated:

A discriminatory act which is not made the basis for a timely charge is ... merely an unfortunate event in history which has no legal consequences.

Respondent emphasized the fact that she has alleged a continuing violation. United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists.

United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1888, 52 L.Ed.2d 571 (1977). It is then a distinction must be made between a continuing violation which the courts find actionable, and a continuing impact, which the courts have determined is not actionable. Roberts v. Panhandle Eastern Pipeline, at 1049, citing, Missouri Pacific, at 501 and United Air Lines v. Evans, 431 U.S. at 558, 97 S.Ct. at 1888.

The Eighth Circuit has provided some guidance in the application of the "continuing violations" theory, especially with regards to a statute of limitations issue. In Satz v. I.T.T. Financial Corp., 619 F.2d 738, 744 (8th Cir.1980), the Court stated:

Where ... discrimination is not limited to isolated incidents but pervades a series or pattern of events which continue to within 180 days of the filing of the charge ..., the filing is timely ... regardless of when the first discriminatory incident occurred.

Neither the Eighth Circuit nor the district courts in the circuit have elaborated as to what constitutes a "continuing pattern" of discrimination except to note that an initial job assignment does not constitute a continuing violation even if some of the effects of that assignment do not occur until later. Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d 164, 167 (8th Cir.1995); Heymann v. Tetra Plastics Corp., 640 F.2d 115, 120 (8th Cir.1981). Recently, a district court in Iowa thoroughly analyzed the concept of "continuing violation". Jenkins v. Wal-Mart Stores, Inc., 910 F.Supp. 1399 (D.Iowa 1995). It found that the federal courts have consistently viewed the continuing violation doctrine in one of two ways: 1) a series of acts with one independent act occurring within the charge-filing period; or 2) the maintenance of a system or policy which discriminates. Jenkins, at 1414-15 (citations omitted).

In cases involving the "series of acts" type of continuing violation, most courts have followed the lead of the Fifth Circuit in Berry v. Board of Supervisors, 715 F.2d 971 (5th Cir. 1983) which sets forth factors to consider: 1) subject matter — relationship of the acts to each other; 2) permanence — whether the nature of the alleged violations should have "triggered an employee's awareness of the need to assert his rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate"; and 3) frequency — whether the alleged acts are reoccurring or "more in the nature of an isolated employment decision". Jenkins, at 1415 citing Berry, at 981 (other citations omitted). The second type of continuing violation focuses on a "systematic policy of discrimination" as opposed to its application to the employee personally. Jenkins, at 1416-17.

It is not clear as to which type of continuing violation Ms. Hill advances in her attempt to defeat the issue of untimeliness. She speaks of a ...