Tinner, Will v. United Insur Co Amer ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1579
WILL TINNER,
Plaintiff-Appellant,
v.
UNITED INSURANCE COMPANY OF AMERICA,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 98 C 12—Richard L. Young, Judge.
____________
ARGUED SEPTEMBER 18, 2002—DECIDED OCTOBER 10, 2002
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Plaintiff Will Tinner (“Tinner”)
brought an action under Title VII of the Civil Rights Act
of 1964, as amended by the Civil Rights Act of 1991, 42
U.S.C. § 2000e et seq., against his employer, United Insur-
ance Company of America (“United”), for race discrimina-
tion, a racially hostile working environment, retaliation,
wrongful termination, and state and federal counts of con-
structive discharge. The district court dismissed several
of Tinner’s claims on summary judgment and a trial pro-
ceeded on Tinner’s claim for unlawful termination. A jury
returned a verdict in favor of United and judgment was
entered on the verdict. Tinner first appeals the district
2 No. 01-1579
court’s denial of his Batson challenge, which arose out of
United’s peremptory strike of the only African-American
member of the venire panel. Tinner also appeals the dis-
trict court’s grant of partial summary judgment on sever-
al of his discrimination claims because they were time-
barred and not subject to a continuing violation theory. We
affirm on both counts.
BACKGROUND
A. Tinner’s Employment History with United
United employed Tinner as a Sales Representative at
its Evansville, Indiana office from March 19, 1990, through
June 10, 1996. United is a home service insurance com-
pany whose coverage is generally provided to low-income
families. As a Sales Representative, Tinner went door-to-
door to service his customers and solicit new business
within his assigned geographical area, known as a “debit
route.” Tinner’s compensation came primarily from com-
missions, and his income fluctuated from month to month
based on his level of sales and/or charge backs to his com-
mission as a result of unpaid premiums. During his six
years of employment with United, Tinner developed a very
successful book of business and twice received the sales-
man of the year award.
According to Tinner, shortly after beginning his employ-
ment, United transferred his debit route from a middle
class area of Evansville to the predominately African-
American area of the city. Tinner, who is African-Ameri-
can, was told by his superiors that they believed he would
be more successful in this area. Tinner, by his own ad-
mission, excelled in his new debit route and “did better
than anyone else ever has or probably ever will.” Tinner
believed, however, that United’s decision to transfer his
debit route in 1990 was discriminatory.
No. 01-1579 3
Three years later, in the spring of 1993, an incident oc-
curred between Tinner and Jane Merchant (“Merchant”),
a white, female office administrator for United. Apparent-
ly, Tinner asked Merchant to complete some paperwork
for him, but Merchant took offense at the way in which
Tinner carried himself when making the request. Mer-
chant complained to management and Tinner voluntarily
apologized to her. The District Manager also admonished
Tinner to be careful with the way he treated Merchant
in the future. Tinner believed that United discriminated
against him in this instance.
In the winter of 1994, following a heavy snowstorm in
Evansville, Tinner arrived at work wearing blue jeans,
sneakers, and a shirt. United’s dress code at the time
required Sales Representatives to wear a tie and dress
slacks. Tinner’s manager told him to return home and
change his clothing before attending a sales meeting in
the office later that day. The following day, the District
Manager presented Tinner with a written warning that
Tinner refused to sign. The Regional Manager for United
subsequently told Tinner that he would not have to sign
the warning. Tinner claims that other employees fre-
quently wore such attire but that management singled
him out in discriminatory fashion.
Nothing further occurred until May 1996 when Tinner’s
District Manager, Angie Petts (“Petts”), asked him to ap-
ply for a new Staff Manager position in the Evansville
office. After interviewing with the Regional Vice-President,
Tinner received a job offer at a salary ten dollars per
week higher than his then-average weekly salary. The offer
was also fifty dollars per week higher than the then-
standard Staff Manager salary. The Regional Vice-Presi-
dent offered Tinner the higher salary because he felt that
Tinner’s past experience and performance justified the
increase. Tinner, however, believed that the offer had the
potential to reduce his income by over $400 per month
4 No. 01-1579
because it was less than his actual salary at that time.
Accordingly, he rejected the promotion offer and remained
a Sales Representative.1 Tinner believed that United’s
actions were also discriminatory at the time.
Finally, shortly after rejecting the promotion offer, Tinner
requested vacation time from June 10, 1996, through June
14, 1996. Petts denied his request because he had taken
a week off in mid-April and because he was not meeting
the expected sales increase for his debit route. On June 3,
1996, Tinner called in sick with back pain, for which he
sought some form of medical treatment.2 Petts unsuccess-
fully attempted to reach Tinner at home on the follow-
ing two days. United introduced evidence at trial estab-
lishing that Tinner sought other employment during this
time. In fact, on May 30, 1996, Tinner filled out a job
application with American General Financial Group. On
June 6, Petts spoke with Tinner and informed him that
1
Neither party adequately explained exactly how Tinner’s com-
pensation as a Staff Manager would have been calculated, nor
did they explain how his compensation could decrease at a man-
agement level position. Tinner argues that because his compensa-
tion would have been lower as a Staff Manager, despite the fact
that United offered him a higher starting salary than normal,
United again treated him in discriminatory fashion.
Subsequent to Tinner’s rejection of the offer, United offered the
job to Dave Brown, a younger, white male who had been with
the company fewer years than Tinner. Brown accepted the job at
United’s standard salary.
2
In his brief, Tinner argues that witnesses corroborate that he
followed company policy by informing Robin Cochran, an office
administrator, of his medical absence when he could not reach
Petts or any other supervisor over the phone on the morning
of June 3. United, however, claims that Tinner failed to follow
company policy by not directly informing a district or staff man-
ager.
No. 01-1579 5
he was to report to work on June 10 or present a doctor’s
note as to why he could not work. Petts also sent a letter
to Tinner’s home reiterating the conversation of June 6.
On June 10, 1996, Tinner arrived at United’s office and
gave an office administrator a letter addressed to Petts
containing his two-week resignation notice effective June
21, 1996, as well as a note signed by his doctor stating
that he could return to work on June 10. Tinner, however,
did not work that day for United, though he did sign
an employment contract with American General on June
10, 1996. On June 11, 1996, Tinner received notice that
United terminated his employment as of June 10, 1996,
because of his failure to return to work that day.
B. Tinner’s Claims and the Procedural History
Following his termination, Tinner filed a discrimina-
tion charge with the Equal Employment Opportunity
Commission (EEOC) on September 3, 1996. The EEOC
issued Tinner a right-to-sue letter, and he timely filed the
instant case on January 20, 1998. Tinner raised claims
for race discrimination, a racially hostile working environ-
ment, retaliation, wrongful termination, and state and
federal counts of constructive discharge.
United filed a motion for summary judgment arguing that
the debit route transfer in 1990, the incident with Merchant
in 1993, and the dress code violation in 1994 were
time-barred because Tinner had failed to file a charge
with the EEOC within 300 days of those events. They
also argued that the 1996 termination was devoid of dis-
criminatory intent.
Tinner responded that the actions, when taken as a
whole under a continuing violation theory, demonstrated
a hostile work environment and racial harassment. The
district court granted partial summary judgment in favor
6 No. 01-1579
of United on the three alleged discriminatory acts in
1990, 1993, and 1994 because they were time-barred. It
further granted summary judgment to United on Tinner’s
claims that the promotion offer at lower pay and the de-
nial of vacation in May 1996 were discriminatory. Final-
ly, the court granted summary judgment for United on
Tinner’s federal constructive discharge, hostile working
environment, and retaliation claims.
The court’s order left Tinner with only his state con-
structive discharge claim, for which the court instructed
him to file a more definite statement. Tinner complied
with that order in December 1999. In March 2000, how-
ever, Tinner filed a motion asking the court to reconsider
the previous ruling regarding his unlawful termination,
claiming new evidence created a genuine issue of mate-
rial fact as to Petts’ racial animus towards Tinner. Specifi-
cally, Tinner pointed to affidavit testimony by Clarence
James (“James”), a United employee, about a conversation
James overheard prior to Tinner’s termination in which
Petts referred to Tinner as a “nigger” and said that Tinner
should “watch his back.” The court reinstated the claim.
The case proceeded to trial in January 2001 on Tinner’s
claim of wrongful termination, which he said occurred
prior to the effective date of his resignation. On January
31, 2001, the jury returned a verdict in United’s favor and
judgment was entered on the verdict.
C. Jury Selection at Trial
Tinner’s appeal centers first around the selection of the
jury and United’s use of a peremptory challenge to elimi-
nate the only African-American member of the venire
panel. During voir dire of the panel, counsel for United
asked each potential juror the following questions: “Do any
of you know anyone who’s filed a suit alleging discrim-
No. 01-1579 7
ination of any kind? If you do, any of you know—anybody
know of or heard of anybody who’s filed a suit alleging
discrimination?” In response to these questions, two po-
tential jurors answered affirmatively.
The first was Mr. Kuester, a white male, whose com-
pany had charges of racial discrimination filed against it.
Upon questioning from Tinner’s counsel, Mr. Kuester stated
that the claims against his company would not prevent
him from listening fairly to Tinner’s case. Mr. Kuester
also stated that he was aware discrimination occurs, that
sometimes he felt it was alleged when not true, but
that when it does occur it is not right.3 Tinner’s coun-
sel, nevertheless, exercised a peremptory challenge to ex-
clude Mr. Kuester from the jury. United did not object
to Mr. Kuester’s exclusion.
The second venire member who responded affirmatively
to counsel for United’s questions was Mrs. Clardy, an
African-American female whose sister filed a discrimina-
tion claim against her employer. Mrs. Clardy stated that
3
In response to voir dire from Tinner’s counsel, Mr. Kuester said:
I think I could be fair. You should probably know that my
corporation has—I have not been personally involved in any
lawsuits, but we have been accused of racial discrimination,
and it was never—it was never—one case, there was a com-
plaint filed with the EEOC, and they came back with a rul-
ing there was no indication of discrimination.
When asked by Tinner’s counsel whether those charges would
prohibit him from listening fairly to Tinner’s case, Mr. Kuester
replied, “I don’t think so.” He went on to state, with respect to
race discrimination:
I know it goes on. There are—I think there are cases where
discrimination is claimed where there possibly was none, but
there’s certainly racial discrimination that’s ongoing in our
country. It’s not right.
8 No. 01-1579
she did not know whether her sister’s experience would
affect her (Mrs. Clardy’s) determination in Tinner’s case
because she did not know all of the facts of her sister’s
“ordeal.”4 In response to questions from the court, Mrs.
Clardy felt she could be “honest and open-minded” and
that she could be objective even if the evidence included
testimony that racial slurs were directed at Tinner.
United’s counsel, however, exercised a peremptory chal-
lenge and struck Mrs. Clardy from the jury panel.
Counsel for Tinner then invoked a Batson challenge and
requested that United give a race-neutral reason for strik-
ing Mrs. Clardy, the only African-American member of
the venire. Counsel for United responded that he struck
Mrs. Clardy because her sister previously filed a discrimi-
nation claim against her employer and because Mrs. Clardy
described her sister’s experience as an “ordeal.” The court
accepted United’s response as race-neutral, finding that
Mrs. Clardy might have a difficult time remaining objective.
The resulting jury contained no minority members.
ANALYSIS
A. United’s Peremptory Challenge of Mrs. Clardy
This Court employs a clearly erroneous standard when
reviewing the district court’s factual findings under a
Batson challenge. Alverio v. Sam’s Warehouse Club, Inc.,
253 F.3d 933, 940 (7th Cir. 2001) (extending same stan-
dard to peremptory challenges on the basis of gender);
4
Mrs. Clardy stated:
It’s hard to say because I didn’t go through the courts with
her. Basically, I know what happened or what she told me
was her ordeal, but as far as the company she was working
with, you know, I don’t know.
No. 01-1579 9
United States v. Jordan, 223 F.3d 676, 686 (7th Cir. 2000)
(applying clearly erroneous standard to race challenge). The
determination to accept a race-neutral reason often turns
on the credibility of the attorney exercising the peremp-
tory challenge. The trial judge is clearly in the best posi-
tion to make that factual determination. Accordingly, “there
is no basis for reversal on appeal unless the reason given
is completely outlandish or there is other evidence
which demonstrates its falsity.” United States v. Stafford,
136 F.3d 1109, 1114 (7th Cir. 1998), modified by, 136 F.3d
1115 (7th Cir. 1998).
Under the test established by the Supreme Court in
Batson v. Kentucky, the Equal Protection Clause prohib-
its the use of a peremptory challenge to strike a potential
juror from the venire panel solely because of the person’s
race. Batson v. Kentucky, 476 U.S. 79, 89 (1986); see also
Hernandez v. New York, 500 U.S. 352, 358 (1991); Jordan,
223 F.3d at 686. The Court subsequently extended the
same rule to civil proceedings. Alverio, 253 F.3d at 939
(citing Edmonson v. Leesville Concrete Co., 500 U.S. 614,
616 (1991)). Under Batson, three well-defined steps deter-
mine the validity of a challenged peremptory strike: 1) the
party objecting to the peremptory strike must first make
a prima facie showing that the strike was made on the
basis of race; 2) the burden then shifts to the party exer-
cising the peremptory challenge to offer a race-neutral
reason for the strike; and finally 3) the trial court must
decide whether the proffered reason is pretextual and
whether the party opposing the strike has proven pur-
poseful discrimination. Hernandez, 500 U.S. at 358-59;
Jordan, 223 F.3d at 686.
The parties here do not contest that Tinner made a prima
facie showing when United’s counsel exercised a peremptory
challenge to strike Mrs. Clardy. United then offered two
reasons for striking Mrs. Clardy, specifically that her
sister filed a discrimination claim against her employer
and that Mrs. Clardy described her sister’s situation as
an “ordeal.”
10 No. 01-1579
Tinner contends that United’s questions were surro-
gates for race, thereby establishing purposeful discrimina-
tion. Although United asked every member of the venire
panel whether they knew or heard of anyone who filed a
discrimination claim, Tinner argues that when posed to
the only African-American venire member the question-
ing amounted to asking her “Are you black?” or “Were any
of your ancestors slaves?” The district judge, however, ac-
cepted United’s reasons as race-neutral and found that
Tinner failed to prove purposeful discrimination. Thus,
the only issues on appeal are whether the trial judge
committed clear error in finding: 1) that United’s prof-
fered reasons for striking Mrs. Clardy were race-neutral;
and 2) that Tinner ultimately failed to demonstrate pur-
poseful discrimination.
1. Whether United’s reasons were race-neutral
We deal first with whether United’s proffered reasons
were race-neutral. At issue is the facial validity of the
reasons offered. “A neutral explanation . . . means an
explanation based on something other than the race of the
juror. . . . Unless a discriminatory intent is inherent in
the [party’s] explanation, the reason offered will be deemed
race-neutral.” Hernandez, 500 U.S. at 360. The persuasive-
ness of United’s reasons is not relevant at this stage of
the inquiry. Purkett v. Elem, 514 U.S. 765, 767 (1995)
(per curiam); see also United States v. Evans, 192 F.3d
698, 701 (7th Cir. 1999) (stating that “[u]nlike a challenge
for cause, a peremptory strike need not be persuasive or
even plausible so long as it is race-neutral”). Clearly, the
party wishing to use a peremptory strike need not defend
the strike as though it were a challenge for cause. Morse v.
Hanks, 172 F.3d 983, 985 (7th Cir. 1999). What matters,
simply, is whether United offered a reason or reasons for
excluding Mrs. Clardy that are not facially related to her
No. 01-1579 11
race. If United did, then the district court did not com-
mit clear error in accepting those reasons as race-neutral.
United’s first reason for striking Mrs. Clardy related
to her sister’s filing of a discrimination lawsuit. On its face,
this reason has nothing to do with Mrs. Clardy’s race.
In addition, this Court previously upheld as race-neutral
reasons relating to a venire member’s involvement in or
relationship to litigation or potential litigation. See Alverio,
253 F.3d at 940 (holding that exclusion of juror was not
racially motivated because, in part, “she was the only
prospective juror who had been a plaintiff in a lawsuit”);
see also United States v. Briscoe, 896 F.2d 1476, 1488-89
(7th Cir. 1990) (upholding peremptory challenges of two
jurors involved in criminal prosecutions and challenge of
juror who had been a victim of crime and was bitter that
no one was ever charged for the crime). While Mrs. Clardy
was neither the plaintiff nor the victim of discrimination
in her sister’s lawsuit, her relationship to and knowledge
of the facts and circumstances of the case cannot be dis-
counted. Mrs. Clardy stated in voir dire that she “did not go
through the courts” with her sister. Being present through-
out the litigation, however, would not be necessary to taint
her view of discrimination litigation.
This line of reasoning is further supported by United’s
second reason for striking Mrs. Clardy, because she catego-
rized her sister’s experience as an “ordeal.” Again, United’s
second reason is facially neutral. The term “ordeal” clearly
carries a negative connotation5 and suggests that Mrs.
Clardy, quite naturally, felt sympathetic towards her sis-
ter’s situation. No one would fault Mrs. Clardy for ex-
pressing such sympathy towards a family member, but it
5
An ordeal is “a difficult or painful experience, esp. one that
severely tests character or endurance.” THE AMERICAN HERITAGE
DICTIONARY 874 (2d coll. ed. 1991).
12 No. 01-1579
is precisely such sympathy that United sought to ex-
clude from the jury. There is nothing facially invalid in
United’s desire to exclude someone whose close relative
went through the “ordeal” of a discrimination lawsuit. The
district court did not commit clear error in finding that
United’s proffered reasons were race-neutral.
2. Whether Tinner demonstrated purposeful dis-
crimination
Because United offered two race-neutral reasons for
exercising its peremptory challenge of Mrs. Clardy, the
final step of the Batson test required the trial court to
determine whether Tinner met his burden of showing
purposeful discrimination. Batson, 476 U.S. at 89. Again,
the trial court’s determination on this issue is a factual
one and can only be reversed by this Court on a finding
of clear error. Evans, 192 F.3d at 700. To prevail at this
stage of the inquiry, Tinner must demonstrate that, de-
spite United’s race-neutral justification for its peremptory
challenge, United’s actions showed discriminatory purpose.
Discriminatory purpose “implies more than intent as
volition or intent as awareness of consequences. It implies
that the decisionmaker . . . selected . . . a particular course
of action at least in part ‘because of,’ not merely ‘in spite of,’
its adverse effects upon an identifiable group.” Hernandez,
500 U.S. at 360. To be sure, disparate impact upon a par-
ticular group is not sufficient to establish discriminatory
intent on United’s part. Id. (stating that “[a] court address-
ing this issue must keep in mind the fundamental prin-
ciple that ‘official action will not be held unconstitutional
solely because it results in a racially disproportionate
impact. . . . Proof of racially discriminatory intent or
purpose is required to show a violation of the Equal Pro-
tection Clause’ ”). At this stage, the district court can con-
sider the persuasiveness of United’s reasons for striking
No. 01-1579 13
Mrs. Clardy, and “implausible or fantastic justifications
may (and probably will) be found to be pretexts for pur-
poseful discrimination.” Purkett, 514 U.S. at 768.
In Alverio v. Sam’s Warehouse Club, Inc., this Court up-
held the peremptory strikes of all three women on the
venire panel, in part, because defense counsel felt the
women lacked business experience and knowledge. Alverio,
253 F.3d at 940. The Alverio Court specifically doubted
that “having business experience” amounted to a proxy
for “male juror” because women today cannot be said to
have less work experience than their male counterparts.
Id. In United States v. Stafford, this Court also upheld
a peremptory challenge of an African-American female
because the prosecution believed that her strong reli-
gious background and involvement would make it difficult
for her “ ‘to sit in judgment on a fellow human being.’ ” Staf-
ford, 136 F.3d at 1113-14. In providing its race-neutral
explanation for the strike, the prosecution responded, in
part, by stating that the potential juror “ ‘watches gospel
programs as well.’ ” Id. The defendant argued that “as well”
amounted to finishing the thought with “as being black.” Id.
at 1114. This Court, however, rejected the argument as
“conjecture” and found no basis to overturn the trial judge’s
ruling. Id.
In the case at bar, Tinner argues that asking Mrs. Clardy
whether she knew of anyone who filed a discrimina-
tion claim amounted to asking her whether she was black
or whether her ancestors were slaves. Tinner’s argument
is misplaced for several reasons. First, United asked the
same question to every member of the venire. It did not
single out Mrs. Clardy as the only potential juror for this
line of questioning. It is far-fetched to assert that United
challenged Mrs. Clardy because of her race when all po-
tential jurors were questioned on the same grounds.
Second, United never asked any potential juror about race
discrimination claims specifically. Instead, United con-
14 No. 01-1579
cerned itself with anyone who had any connection to any
type of discrimination claim—age, gender, race, disability,
national origin, or religion. Tinner, however, argues that
asking an African-American member of the panel such a
question is more likely to result in an affirmative answer.
While members of a racial minority group may be more
likely to face race discrimination at some point, and
therefore, might be more likely to respond affirmatively
to such questioning, we cannot determine that a disparate
impact on African-American venire members amounts to
purposeful discrimination by United. See Hernandez, 500
U.S. at 359-60.
Similar to the comparisons in Alverio and Stafford,
asking an African-American venire member whether they
have any connection to someone who filed a discrimina-
tion lawsuit cannot today be a proxy for asking whether
they are black in an effort to exclude the person from the
jury on the basis of race. Many people of every age, gender,
race, disability, national origin, or religion might answer
affirmatively when asked if they have any connection to
any type of discrimination. The fact that Mrs. Clardy’s
sister filed a discrimination claim amounts to coincidence,
not purposeful discrimination.6
6
Tinner’s argument is interesting in that he relied on United’s
questioning to exercise a peremptory strike of his own. Tinner
challenged Mr. Kuester, whose company had discrimination
charges filed against it in the past. Presumably, Tinner excluded
Mr. Kuester because he fell on the side of “management,” and
Tinner’s counsel wanted to ensure a more plaintiff-friendly
jury panel. United did not object to the strike of Mr. Kuester, who
was white. This type of challenge in jury selection is crucial
to the functioning of our adversarial legal system. Just as
Tinner’s challenge of Mr. Kuester is not indicative of a purpose-
ful effort to exclude whites, United’s challenge of Mrs. Clardy
(continued...)
No. 01-1579 15
Accordingly, we hold that the district court correctly
found that Tinner failed to establish purposeful discrimina-
tion on the part of United in its use of a peremptory chal-
lenge to strike Mrs. Clardy. United offered a facially race-
neutral explanation for its challenge, and the trial judge
did not commit clear error in finding that United’s ac-
tions were not pretextual. The decision of the district court
is affirmed.
3. Tinner urges for a different standard of review
Tinner also argues that this Court should adopt an
alternative standard of review for Batson challenges.
Namely, he argues that we should exercise our supervi-
sory authority within this Circuit and employ a de novo
review of Batson challenges on appeal or establish a trial
burden of clear and convincing proof. Neither argument
persuades us to alter what has long been established law
in this Circuit.
This Court held that a prima facie Batson case can be
established when a party uses a peremptory challenge to
strike the only African-American member of the venire
panel. Morse, 172 F.3d at 985. The Supreme Court noted
that at step two of the Batson inquiry, unless the prof-
fered reason is facially discriminatory, it will be accepted
as race-neutral. Purkett, 514 U.S. at 768. Thus, the per-
suasiveness of the reason is relevant only at the third
step and it is at this point that the trial court determines
if the reason is pretextual. Id. The law in this Circuit
clearly establishes that this final determination is a fac-
tual one left to the trial judge and reversible only upon a
(...continued)
is not indicative of its efforts to systematically exclude African-
Americans.
16 No. 01-1579
finding of clear error. Alverio, 253 F.3d at 940. We decline
to establish a trial burden of clear and convincing proof
upon a party defending against a Batson inquiry. We
continue to hold that the clear error test shall govern the
review of factual determinations made by the trial court
under Batson. The district court held that United’s prof-
fered reasons were race-neutral and the findings were not
clearly erroneous.
B. Tinner’s Continuing Violation Claim
This Court reviews the grant of summary judgment de
novo and draws all reasonable inferences in favor of the
nonmoving party. Filipovic v. K & R Express Sys., Inc., 176
F.3d 390, 395 (7th Cir. 1999). Title VII of the Civil Rights
Act of 1964, as amended by the Civil Rights Act of 1991,
requires that a charge of discrimination be filed with the
EEOC within 180 days “after the alleged unlawful employ-
ment practice occurred.” 42 U.S.C. § 2000e-5(e)(1) (2002).
The statute, however, extends the time period for the fil-
ing of the charge to 300 days when the aggrieved per-
son initially institutes proceedings with a state or local
agency that has the power to grant relief in the situa-
tion.7 Id.
Following the Supreme Court’s recognition of the continu-
ing violation theory in United Air Lines, Inc. v. Evans, 431
7
We note, at this point, that the record does not indicate whether
Tinner filed a charge with any Indiana state or local agency be-
fore filing his EEOC charge on September 3, 1996. The par-
ties assume in their briefs that 300 days is the proper time
period, though 180 days may well be the correct time frame if
Tinner’s only action was to file a charge with the EEOC. Ulti-
mately, Tinner’s continuing violation claim fails under either
time period.
No. 01-1579 17
U.S. 553 (1977), this Court discussed the three theories
under which a plaintiff may establish a continuing vio-
lation. Stewart v. CPC Int’l, Inc., 679 F.2d 117, 120-21 (7th
Cir. 1982). The first situation occurs when an employer
makes employment decisions over time that make it dif-
ficult for the employee to determine the actual date of
discrimination. Jones v. Merch’s Nat’l Bank & Trust Co. of
Indianapolis, 42 F.3d 1054, 1058 (7th Cir. 1994). This
theory is inapplicable in Tinner’s case because he points
to specific dates and instances where he felt discrim-
inated against—the 1990 debit route transfer, the 1993
Jane Merchant incident, and the 1994 dress code viola-
tion. The second theory under which a continuing viola-
tion can survive involves an express discriminatory pol-
icy of the employer. Stewart, 679 F.2d at 121. Likewise,
this theory is inapplicable in the case at bar because
Tinner does not argue that United relied on an express
discriminatory policy in its actions.
So, Tinner’s claim must fall under the third theory of
a continuing violation, where discrete acts of discrimina-
tion are part of an ongoing pattern and at least one of the
discrete acts occurred within the relevant limitations
period. Filipovic, 176 F.3d at 396; Young v. Will County
Dept. of Pub. Aid, 882 F.2d 290, 292 (7th Cir. 1989).
Under this theory, the only issue before this Court is
whether Tinner created a genuine issue of material fact
regarding the reasonableness of his not filing a charge
with the EEOC until September 3, 1996, given the discrim-
ination he felt as a result of the 1990, 1993, and 1994
incidents, which he now argues are part of a continuing
violation. Filipovic, 176 F.3d at 396 (stating that “[t]he
continuing violation doctrine is applicable only if ‘it would
have been unreasonable to expect the plaintiff to sue be-
fore the statute ran on the conduct’ ”); Selan v. Kiley, 969
F.2d 560, 565-66 (7th Cir. 1992) (asking rhetorically “[w]hat
justifies treating a series of separate violations as a con-
18 No. 01-1579
tinuing violation? Only that it would have been unreason-
able to require the plaintiff to sue separately on each one”).
Unfortunately for Tinner, the Supreme Court recently
settled this question. In National Railroad Passenger Corp.
v. Morgan, the Court held that a discrete discriminatory
act occurs on the day it happens. Nat’l R.R. Passenger
Corp. v. Morgan, 122 S. Ct. 2061, 2070 (2002). According to
the Court,
discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in
timely filed charges. Each discrete discriminatory act
starts a new clock for filing charges alleging that act.
The charge, therefore, must be filed within the 180- or
300-day time period after the discrete discriminatory
act occurred.
Id. at 2072 (emphasis added). While the plaintiff in Mor-
gan argued that he suffered from several discriminatory
acts while employed by the defendant, the Court held
that only those acts that fell within the 300-day period
were actionable. Id. at 2073. The Morgan Court noted that
courts may choose to apply equitable doctrines such as
tolling or estoppel, “although they are to be applied spar-
ingly.” Id. at 2072. In the case at bar, Tinner does not urge
this Court to adopt either of those equitable doctrines.
Therefore, we will not consider the application of such
remedies to this case.
Even were we to consider such doctrines, it is unlikely
that Tinner would prevail. This Court previously stated
that,
[t]he concept of cumulation suggests a critical limiting
principle. Acts . . . so discrete in time or circumstances
that they do not reinforce each other cannot reason-
ably be linked together into a single chain, a single
course of conduct, to defeat the statute of limitations.
No. 01-1579 19
Galloway v. Gen. Motors Serv. Parts Operations, 78 F.3d
1164, 1166 (7th Cir. 1996) (emphasis in original), abrogated
on other grounds by, Nat’l R.R. Passenger Corp. v. Morgan,
122 S. Ct. 2061 (2002). In other words, a plaintiff who feels
discriminated against by a discrete act, but fails to timely
file charges on that act, cannot later reach back to those
events when the statute of limitations expires in order to
form a continuing violation claim. So, if the employee
knew, or with the exercise of reasonable diligence should
have known, that each act, once completed, was discrimin-
atory, the employee must sue upon that act within the
relevant statutory period. Jones, 42 F.3d at 1058; see also
Morgan, 122 S. Ct. at 2072.
We now consider three additional factors to determine
whether a continuing violation claim is actionable: 1)
whether the acts involve the same subject matter; 2) the
frequency with which the acts occur; and 3) the degree of
permanence of the alleged acts of discrimination that
should trigger an employee’s awareness and duty to assert
his rights. Filipovic, 176 F.3d at 396. In Filipovic v. K & R
Express Systems, Inc., we held that the name-calling and
ethnic slurs to which co-workers subjected the plaintiff
on a daily basis over a thirteen-year period prior to the
filing of charges could not sustain a continuing violation
claim. Filipovic, 176 F.3d at 396. Furthermore, there
was an eight-year gap in the alleged discriminatory con-
duct, such that the incidents could not be linked together
into a single chain. Id. at 397.
Similarly, in Selan v. Kiley, this Court held that a two-
year gap between allegedly discriminatory acts could not
support a continuing violation claim. Selan, 969 F.2d at
567. While the acts at question in Selan involved the same
type of discrimination (racial), they were not frequent
enough because of the two-year gap between them. Id. Fur-
thermore, the acts once taken were sufficiently perma-
20 No. 01-1579
nent, in that they separately and permanently removed
managerial duties from the plaintiff. Id. Because of their
permanent nature, each discrete act should have trig-
gered the plaintiff’s awareness of the need to assert or
else waive her rights. Id.
In the case at bar, Tinner argues that the 1990 debit
route transfer, the 1993 Jane Merchant incident, and
the 1994 dress code violation all form a continuing viola-
tion on United’s part that is ultimately related to his
alleged wrongful discharge on June 10, 1996. Tinner, how-
ever, did not file his discrimination charge with the
EEOC until September 3, 1996. While he timely filed his
wrongful termination charge, he clearly did not file that
charge with the EEOC within either 180 or 300 days of
the three incidents in 1990, 1993, and 1994. Tinner can-
not now “piggy-back” those earlier events to his timely
filed wrongful termination claim to form a continuing
violation.
Applying the Filipovic factors to the 1990, 1993, and 1994
incidents further demonstrates that each one represented
a discrete act that became actionable according to Mor-
gan when they occurred. First, Tinner admits that he felt
discriminated against on the basis of his race and that
he complained after each incident. Second, as in Selan
and Filipovic, these incidents were not frequent enough
because there was a six-year, three-year and two-year
gap, respectively, between each discrete act and Tinner’s
termination in 1996. Finally, the degree of permanence
surrounding his debit route transfer in 1990 certainly
should have made Tinner aware of the need to protect
his rights. While the Merchant incident in 1993 and the
dress code violation in 1994 appear more sporadic than
permanent in nature, Tinner chose not to file charges
after either of these events even though he felt discrimi-
nated against at the time. Tinner argues that not filing
charges after these incidents is a testament to his charac-
No. 01-1579 21
ter to deal with the discrimination and still maintain his
productivity as a Sales Representative. Despite this be-
lief, Tinner’s failure to file charges sooner kills his late-
filed claims.
In short, United’s actions cannot be said to form a
single chain that supports Tinner’s continuing violation
claim for racial discrimination. Tinner was not reason-
able in waiting until 1996 to file his charge alleging ra-
cial discrimination for acts that occurred in 1990, 1993,
and 1994, and any claims for those earlier acts were
time-barred. For that reason, no genuine issue of mate-
rial fact existed to preclude summary judgment in favor
of United, and the decision of the district court is affirmed.
CONCLUSION
The district court correctly held that United offered
facially race-neutral reasons for using a peremptory chal-
lenge with Mrs. Clardy, specifically that her sister pre-
viously filed a discrimination claim and that Mrs. Clardy
described her sister’s situation as an “ordeal.” The dis-
trict court also did not commit clear error in holding
that Tinner failed to show purposeful discrimination in
United’s challenge of Mrs. Clardy. Thus, Tinner’s Batson
challenge cannot succeed. Likewise, Tinner failed to show
any genuine issue of material fact sufficient to survive
summary judgment on his continuing violation claim
because the three earlier acts he complained of did not
constitute a single chain of discrimination and were
therefore time-barred. Accordingly, the judgment of the
district court on both counts is AFFIRMED.
22 No. 01-1579
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-10-02