Ortiz v. Chicago Transit Authority

• Decision Date: 09 June 1986
• Docket Number: No. 84 C 4885.,84 C 4885.
• Citation: 639 F. Supp. 310
• Parties: Louis F. ORTIZ, Plaintiff, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

639 F. Supp. 310

Louis F. ORTIZ, Plaintiff, v. CHICAGO TRANSIT AUTHORITY, a municipal corporation, Defendant.

No. 84 C 4885.

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

June 9, 1986.

Yolanda Haces, Flader and Haces, Chicago, Ill., for plaintiff.

Ronald F. Bartkowicz, Chicago Transit Authority, Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiff Louis F. Ortiz ("Ortiz") filed this suit in June 1984, alleging that defendant Chicago Transit Authority ("CTA") discriminated against him based on his national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., when it refused to allow him to return to his former position after a medical leave. CTA now moves to dismiss the complaint or in the alternative for summary judgment against Ortiz, claiming that Ortiz's EEOC charge was not timely filed and that Ortiz has in any case failed to make out a prima facie case of discrimination. We deny defendant's motions.

FACTS

Ortiz was hired by the CTA as a bus driver on November 30, 1978. He was diagnosed as having heart trouble on October 18, 1981, and thereafter took a medical leave and underwent bypass surgery. The operation was successful and on February 16, 1982, Ortiz's personal physician told him that he would be able to return to work as of March 1, 1982. Ortiz went to the CTA's medical department on February 24, 1982, where he was told that due to his heart condition and diabetic condition (which was at that time treated with insulin), he no longer qualified for the position of bus driver. CTA applied the guidelines promulgated by the U.S. Department of Transportation to reach this conclusion. The medical department found Ortiz fit for non-operating work, however, and his case was sent to the CTA's disability review committee. That committee confirmed the medical department's findings on February 26, 1982. Ortiz was told that someone would contact him within ten days regarding a new work assignment.

Ortiz was not given a new work assignment or allowed to return to work as a bus driver, however, although he contacted CTA on many occasions during the course of the next few months. On August 4, 1982, Ortiz produced a medical report from a second physician which also indicated that he was fit to return to work as a bus driver. That report further indicated that Ortiz was no longer taking insulin and that his diabetic condition was under control. The CTA decided to seek a third medical opinion and referred Ortiz to Dr. William Troyer of the University of Illinois Hospital. On November 1, 1982, Ortiz was offered a new position in "car service." Ortiz declined the position, which he considered a demotion, and on November 9, 1982, Dr. Troyer submitted a written opinion which indicated that he did not believe that Ortiz was ready to return to work as a bus driver.

As of February 1983 Ortiz had still not been allowed to return to work as a bus driver, although a fourth physician, Dr. Gustavo Bermudez, the chief of cardiology of Augustana Hospital, had also told the CTA that Ortiz was capable of returning to work. Ortiz knew that a white bus driver who had undergone bypass surgery in August 1982 had been allowed to return to work in October of 1982, and therefore suspected that his medical condition was not the only reason he was being kept from returning to his job. On February 8, 1983, Ortiz filed a claim of discrimination based on national origin with the EEOC. He received a right-to-sue letter from the EEOC on March 12, 1984 and filed this action on June 8, 1984.

At the suggestion of the court the parties agreed to have yet another doctor give an opinion, and the court named a doctor for that purpose. The instant motions were, in the interim, deferred. That doctor also concluded that Ortiz could return to work as a bus driver. However, Ortiz has still not been returned to his former position, apparently due to this lawsuit.

This court is somewhat uncertain about plaintiff's employment status. Plaintiff claims, and defendant does not deny, that he continues to be an employee, albeit on an inactive status. The parties have not discussed defendant's medical leave policies or the applicable collective bargaining contract provisions, and this court is unaware whether or not an inactive status continues indefinitely or results, after a period of time, in a termination. If Ortiz continues to have a right to return to work if his health permits, then presumably he has (or had) a valid grievance he could have filed with his union to obtain relief. In addition, a failure to honor a request for a return to work could result in a retaliation claim against the employer if its refusal was due to this lawsuit. On the other hand, if an employee with a medical disability loses his right to return after a period of time, his right to return may depend on the outcome of a lawsuit such as this, which challenges his employer's refusal to permit him to return to active duty.

DISCUSSION

Defendant first moves for dismissal of the complaint, alleging that Ortiz's charge of discrimination was not timely filed with the EEOC and that this court is therefore without jurisdiction of Ortiz's action. By statute, EEOC charges must be filed within 240 days of the discriminatory action, CTA argues,¹ and Ortiz was told that he could not return to his former position on February 24 and 26, 1982. Since Ortiz did not file his EEOC charge until nearly a year later, the CTA reasons, his cause of action is time-barred.

It is by now settled law, however, that the 240-day limitation applicable to filing Title VII claims with the EEOC is not a jurisdictional prerequisite, but rather akin to a statute of limitations. It is therefore subject to waiver, estoppel and equitable tolling. Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Thus, for example, a defendant who has concealed the existence of a cause of action from a plaintiff may not rely on the plaintiff's inaction, since it has in part caused that inaction. Rather, such a defendant is estopped from asserting the existence of the statute of limitations, if to assert the statute would be to defeat a plaintiff's claim. Likewise, the statute is said to be "tolled" — temporarily arrested — during a period in which a plaintiff remains unaware through no fault of his own that his rights have been infringed. The statute begins to run only when the plaintiff knows or should know of the existence of the cause of action. Thus in a Title VII case, the limitations period is activated when an employee either knows or should know that an unlawful employment practice has been committed. See Stewart v. CPC International, Inc., 679 F.2d 117 (7th Cir.1982), Aronsen v. Crown Zellerbach, 662 F.2d 584, 593 (9th Cir.1981), cert. denied, 459 U.S. 1200, 103 S.Ct. 1183, 75 L.Ed.2d 431 (1983) (in Title VII cases "inquiry for purposes of determining when the limitations period begins to run must center on the date when the employee has notice of the unlawful act"); Reeb v. Economic Opportunity Atlanta, 516 F.2d 924 (5th Cir.1975) (time for filing employment discrimination charges with the EEOC does not begin to run until facts that would support a charge of discrimination were apparent or should have been apparent to a person with reasonably prudent regard to his rights who is similarly situated to the plaintiff).

Defendant claims that the limitation period began to run in February 1982, when the CTA told Ortiz that he was not ready to return to work driving a bus. Ortiz does not allege that he suspected the CTA's motives at that point, however, and this court does not find that Ortiz would have had any reason for suspicion — or indeed any cause of action — in February 1982. The...