Lawrence Stepney v. Naperville School District 203

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2576
L AWRENCE S TEPNEY ,
Plaintiff-Appellant,
v.
N APERVILLE S CHOOL D ISTRICT 203,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 5525—George W. Lindberg, Judge.
____________
A RGUED O CTOBER 27, 2004—D ECIDED D ECEMBER 2, 2004
____________
Before F LAUM , Chief Judge, and M ANION and W ILLIAMS ,
Circuit Judges.
F LAUM , Chief Judge. Plaintiff-appellant Lawrence
Stepney filed suit against his employer, Naperville School
District 203, alleging discrimination based on race and
disability. Stepney appeals the district court’s grant of
summary judgment in favor of the school district. For the
reasons stated herein, we affirm the order of the district
court.

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2 No. 03-2576
I. Background
In 1989, Naperville School District 203 hired Lawrence
Stepney, an African-American man, to be a full-time school
bus driver. Stepney, like other bus drivers for the school
district, became a union member with the Naperville Unit
Maintenance Association (“NUMA”). In February 1997, af-
ter almost eight years on the job, a work-related injury left
Stepney unable to continue driving a bus. Over the next two
and one-half years, the school district granted Stepney’s
repeated requests for leaves of absence.
In the fall of 1999, Stepney wished to return to work with
the school district but no longer held a valid license for
driving school buses. The school district offered, and Stepney
accepted, a position as a behavioral disorder assistant (“BD
assistant”), which required him to transfer union member-
ship from NUMA to the Naperville Educational Support
Personnel Association (“NESPA”). According to Stepney, he
did not realize that he had been transferred between unions
until a few months later, in early 2000. Stepney contends
that, in accepting the new position, he thought that he
would receive “seniority credit” for the purpose of layoff and
recall priority, as well as for determining his pay rate. In
fact, NESPA transferred his seniority for the former
purpose but not the latter; his base pay as a BD assistant
was that of a new teacher’s assistant and was significantly
less than what he had made as a full-time bus driver.
In January 2000, Stepney once again obtained a bus
driver’s license and immediately began working as a part-
time bus driver while continuing to work as a BD assistant.
Because there had been a “break in service” due to the lapse
in his licensing and different union membership, Stepney
began as a probationary bus driver under the NUMA col-
lective bargaining agreement and did not receive seniority
credit.

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No. 03-2576 3
The parties agree that no later than May 10, 2000,
Stepney was advised, and understood, that his pay rate had
been set pursuant to collective bargaining agreements and
that his seniority had not been transferred for salary
purposes. Stepney asserts that he then attempted “to re-
solve these matters internally and informally via discussions
with the Union, the school district, and its internal legal
counsel,” though he never filed a grievance with either union.
On January 10, 2002, Stepney filed charges with the Illinois
Department of Human Rights and the Equal Employment
Opportunity Commission (“EEOC”), claiming that his loss of
seniority was a discriminatory act based on race and
disability.
Following receipt of his right-to-sue letter, Stepney filed
this action. In his complaint, Stepney alleges that the school
district violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., and the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101, et seq., by transferring him
and causing him to lose his seniority, actions allegedly
taken because of his race and disability. On May 13, 2003,
the district court granted summary judgment in favor of the
school district, finding that Stepney’s claims were time-
barred because his EEOC charge was not filed within the
statutory period. Stepney now appeals the grant of sum-
mary judgment.
II. Discussion
We review de novo a district court’s grant of summary
judgment based on a statute of limitations. Jackson v.
Rockford Hous. Auth., 213 F.3d 389, 394 (7th Cir. 2000). We
must determine, first, the applicable limitations period, and,
second, whether there is any genuine issue of material fact
regarding the time at which the plaintiff’s action accrued.
See id.

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4 No. 03-2576
Stepney’s complaint alleges violations of Title VII and the
ADA. Title VII makes it an unlawful employment practice
for an employer to “discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment” because of the individual’s race.
42 U.S.C. § 2000e-2(a)(1). Under Title VII, a plaintiff in
Illinois must file an employment discrimination charge with
the EEOC within 300 days “after the alleged unlawful em-
ployment practice occurred.” § 2000e-5(e)(1); see also Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 104-05 (2002);
Speer v. Rand McNally & Co., 123 F.3d 658, 662 (7th Cir.
1997). The ADA prohibits a “covered entity” from discrimi-
nating against a qualified individual with a disability “in
regard to job application procedures, the hiring, advance-
ment, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). Because the ADA’s
enforcement provision expressly incorporates § 2000e-5 of
Title VII, claims for discrimination under the ADA also
must be filed within 300 days “after the alleged unlawful
employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1),
incorporated by 42 U.S.C. § 12117(a).
Stepney filed his EEOC charge on January 10, 2002.
Accordingly, his claims are time-barred if they accrued
before March 16, 2001, but we must reverse the district
court’s order if there is a genuine dispute as to whether the
claims accrued before that date. To determine the date of
accrual, we must identify the unlawful employment prac-
tices alleged and the dates on which these practices “oc-
curred.”
Stepney alleged in his EEOC charge that the loss of his
seniority was a discriminatory employment action based on
his race and disability. In the complaint filed in the district
court, Stepney alleges that “transferring” him and “removing
his seniority” constituted race discrimination, (Compl. ¶ 16),
and that “reassigning him, refusing to re-instate him to his

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No. 03-2576 5
previous position, and permanently demoting him” consti-
tuted disability discrimination. (Compl. ¶ 21.) The parties
agree that these allegedly unlawful employment practices
occurred between August 1999 and May 2000, well before
March 16, 2001, the earliest permissible accrual date in this
case. Nevertheless, Stepney argues that he can bring these
occurrences within the limitations period through the
continuing violation doctrine or the notice rule.
Stepney first argues that the school district’s failure to
remedy the allegedly unlawful actions occurred within the
limitations period and that this brings the actions them-
selves within the limitations period via the continuing vio-
lation doctrine. We have made clear, however, that failure
to remedy an unlawful employment action is not a discrete
actionable violation. See Lever v. Northwestern Univ., 979
F.2d 552, 556 (7th Cir. 1992) (“An employer’s refusal to undo
a discriminatory decision is not a fresh act of discrimina-
tion.”), cited in Williams v. Ind. Univ., 345 F.3d 459, 463
(7th Cir. 2003). The continuing violation doctrine does not
provide an avenue for circumventing this rule. The doctrine
applies to claims like sexual harassment, where an indi-
vidual act cannot be made the subject of a lawsuit when it
occurs because “its character as a violation did not become
clear until it was repeated during the limitations period.”
Dasgupta v. Univ. of Wis. Bd. of Regents, 121 F.3d 1138,
1139 (7th Cir. 1997). In those cases, duration and repetition
are necessary to convert merely offensive behavior into an
actionable change in the plaintiff’s working conditions. Id.
(citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986) (“For sexual harassment to be actionable, it must be
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environ-
ment.”) (internal quotations omitted)). Here, by contrast, the
character of Stepney’s transfer and loss of seniority was
apparent immediately and is not alleged to have changed
through duration or repetition. Stepney alleged in his

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6 No. 03-2576
1 Stepney briefly suggests on appeal that the discriminatory acts
“could be said to be the receipt of pay based upon improper pay
scales,” and thus tries to bring his case within the rule stated in
Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007 (7th Cir. 2003).
In Reese, we considered the Supreme Court’s analysis of discrimi-
natory pay systems in Bazemore v. Friday, 478 U.S. 385 (1986),
and later in National Railroad Passenger Corp. v. Morgan, 536
U.S. 101 (2002). In Bazemore, the Supreme Court held that “[e]ach
week’s paycheck that delivers less to a black than to a similarly
situated white is a wrong actionable under Title VII,” even though
the acts committed when the pattern was first instituted are not
actionable. 478 U.S. at 395. Stepney cannot invoke this rule,
however, because neither his EEOC charge nor his complaint allege
a discriminatory pay or seniority system; both identify discrete
acts, his transfer and loss of seniority, as unlawful employment
practices. His EEOC charge contains no mention of unequal pay.
Accordingly, Stepney has not exhausted any claim based on a
discriminatory pay system and, to the extent such a claim is
presented here, we may not consider it. See Dandy v. United
Parcel Serv., Inc., No. 03-2601, slip op. at 6-7 (7th Cir. Oct. 29,
2004) (“We review solely those charges ‘included in [the] EEOC
charge . . . or reasonably related to the allegations of the charge
and growing out of such allegations.’ ”) (quoting Haugerud v.
Amery Sch. Dist., 259 F.3d 678, 689 (7th Cir. 2001)).
EEOC charge, and alleges in his complaint, that the
transfer and loss of seniority were unlawful in themselves.
Accordingly, Stepney’s claims are not made timely by the
continuing violation doctrine. 1
Stepney’s second argument is that he could not have
acted upon the alleged violation “until he was personally
convinced that the District would not take remedial action
to resolve those illegalities,” suggesting that he did not have
sufficient information to file an EEOC charge when the
violation occurred. Under the notice rule, the 300-day
limitations period commences “at the time the [employment
decision] was made and communicated to [the employee].”
Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980). The per-

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No. 03-2576 7
iod begins to run when the employee knows he has been
injured, “not when [he] determines that the injury was un-
lawful.” Sharp v. United Airlines, Inc., 236 F.3d 368, 372
(7th Cir. 2001) (quoting Thelen v. Marc’s Big Boy Corp., 64
F.3d 264, 267 (7th Cir. 1995)). The parties agree that no later
than May 10, 2000, Stepney was advised, and understood,
that his salary was set by collective bargaining agreements
and that his seniority had not been preserved for salary
purposes. Stepney has not alleged that any facts relevant to
his transfer or loss of seniority were concealed from him, or
were otherwise unavailable, after that date. Accordingly, the
limitations period began to run no later than May 10, 2000,
and accrual was not postponed due to a lack of notice.
Stepney has not demonstrated that he filed a timely
EEOC charge or that there is any genuine issue of material
fact regarding accrual. Stepney’s EEOC charge, filed more
than 600 days after the accrual of his claims, was untimely
and that untimeliness bars the present action.
III. Conclusion
The order of the district court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-2-04

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