ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JOHN DANIEL TINDER, U.S. District Judge

Defendants move for summary judgment on the remaining claims alleging age and sex discrimination and retaliation under the Age Discrimination in Employment Act ("ADEA") and Title VII of the Civil Rights Act of 1964 ("Title VII"). At the time the Defendants' motion was filed Ms. Cohen was proceeding pro se. She has since retained counsel who has filed a response to the summary judgment motion on her behalf.

Summary Judgment Standard

Summary judgment is proper only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of informing the court of the basis for its motion and demonstrating the "absence of evidence on an essential element of the non-moving party's case," Celotex Corp., 477 U.S. at 323, 325. To withstand a motion for summary judgment, the non-moving party may not simply rest on the pleadings, but rather must "make a showing sufficient to establish the existence of [the] element[s] essential to that party's case, and on which that party will bear the burden of proof at trial. . . ." Id. at 322. If the non-moving party fails to make this showing, then the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323.

In determining whether a genuine issue of material fact exists, the court must view the record and all reasonable inferences in the light most favorable to the non-moving party. See Nat'l Soffit Escutcheons, Inc. v. Superior Sys., Inc., 98 F.3d 262, 264 (7th Cir. 1996). No genuine issue exists if the record viewed as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Ritchie v. Glidden Co., No. 00-1253, ___ F.3d ___, 2001 WL 201835, at *5 (7th Cir. Feb. 27, 2001). When ruling on a motion for summary judgment, the court cannot make credibility determinations, weigh the evidence or draw inferences from the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 379 (7th Cir. 2000).

Statement of Facts and Local Rule 56.1

Alice Cohen was employed as a Chemist III at the Indiana State Department of Health ("ISDH") since December 1989. In June 1993 she was transferred to the Consumer Health Lab to test for lead in blood samples.

Tom Cronau was the Technical Supervisor over the blood testing area, and John Feld was the area's General Supervisor. Mr. Feld was a Chemist II, which meant he had somewhat different job duties than Ms. Cohen. On about September 30, 1993, he became her supervisor. He left the blood lead program in November 1994.

Ms. Cohen did not apply for any open positions with the State between October 1994 and November 1995. She claims, however, that on November 15, 1995, she applied for the position of Director of Administrative Services to the Assistant Commissioner of ISDH. ISDH does not have a record of such a position at that time. The most analogous vacant position was a Deputy Assistant Commissioner position, classified as an executive position. Thus, the court considers the Deputy Assistant Commissioner position to be the position for which Ms. Cohen applied. At the time Ms.

Cohen was classified as a Chemist II, a professional/technical position. A qualified applicant for the position was expected to have experience in grant writing and management, operations and multi-site management staffing trends and future projections, institutional experience and construction design planning and implementation. With the exception of grant writing, Ms. Cohen lacked experience in these areas. She thus was not qualified for the position. The person given the Deputy Assistant Commissioner position had previous experience in all of the identified areas, was qualified for the position and was more qualified than Ms. Cohen.

On December 20, 1995, Ms. Cohen applied for a position as an epidemiologist with ISDH. She did not complete the application process for the position because she was required to sit for exams to qualify for the position, but failed to do so. She did not apply for any other position with ISDH, and stopped working at ISDH on January 23, 1996. She was on short-term disability and long-term disability leave until April 29, 2000, at which time she returned to her employment with ISDH.

On January 31, 1996, Ms. Cohen filed an Equal Employment Opportunity Commission ("EEOC") charge 240960790 alleging disability, sex and age discrimination. She alleged a continuing violation with the earliest act of discrimination occurring on October 1, 1994, and the latest on January 23, 1996. She further alleged that she was denied a promotion and was being harassed by her supervisor, Terry McBride.

In addition to responding to Defendants' SMF Ms. Cohen offers what she titles "Plaintiff's Undisputed Material Facts" (see Resp. Defs.' Mot. Summ. J. at 8), which the court understands to be her separate Statement of Additional Material Facts ("SAMF"), see S.D. IND. L.R. 56.1(b)(1). The court will refer to Plaintiff's Undisputed Material Facts as the SAMF. The SAMF fails to comply with Local Rule 56.1 in several respects and, therefore, does not suffice to create genuine issues of material fact. First, none of the factual assertions in the SAMF are substantiated by any citation to record evidence as Local Rule 56.1 requires. See S.D. IND. L.R. 56.1(f)(2). Second, SAMF Nos. 33, 34 and 37 (first clause) are immaterial because they relate to Ms. Cohen's claims under the ADA, and the Defendants have been granted summary judgment on those claims. There is nothing to suggest that these SAMFs or portion thereof relate in any way to Ms. Cohen's sex or age claims.

To the extent Ms. Cohen attempts to supplement her SAMF with the discussion of those assertions at pages 9 through 17 in her response brief, her attempt is unavailing. The discussion of the SAMF does not conform to Local Rule 56.1's requirement that the SAMF consist of concise, numbered sentences, see S.D. IND. L.R. 56.1(f)(2), and for this reason may be disregarded by the court. Furthermore, though Ms. Cohen cites to exhibits throughout her discussion of the SAMF, none of the exhibits are supported by affidavit or otherwise authenticated. The exhibits are thus inadmissible and may not be considered on summary judgment. See Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th Cir. 1985); FED. R. EVID. 901(a). In addition, many of these exhibits contain hearsay which is inadmissible on summary judgment, see FED. R. EVID. 801; FED. R. CIV. P. 56(e).

To the extent Plaintiff's discussion purports to be or supplement her SAMF, she has inserted argument into her SAMF. (See, e.g., Pl.'s Resp. Defs.' Mot. Summ. J. at 10 ("It is not clear why Hinshaw changed the one entry in the file while he continued to be quite negative to Mrs. Cohen."), 11 ("the three comments by her co-worker and supervisors show a conspiring against the plaintiff, thereby creating a hostile environment." "Cohen's supervisors wrote fact files in retaliation against her actions."), 13 ("It is not reasonable that she did not qualify for any jobs in the state government.")). Arguments do not belong in a statement of fact. See Pike v. Caldera, 188 F.R.D. 519, 525 (S.D.Ind. 1999). It also appears that Ms. Cohen is attempting to inject her own testimony into the SAMF absent an affidavit or deposition testimony. (See Pl.'s Resp. Defs.' Mot. Summ. J. at 9 ("[Plaintiff] worked in a hostile and unfriendly environment (sic) in which discrimination and later retaliation occurred. . . . Mark Starzynski was placed in a job for which (sic) Cohen was qualified, but she was not asked."), 13 "Her resume was available to Ms. Wilder had she looked.") And, finally, much of her argument and assertions in the discussion of the SAMF are speculative, conclusory, or lacking support in any factual assertions or record evidence or specific citation thereto. (See id. at 9 ("[Plaintiff] worked in a hostile and unfriendly environment (sic) in which discrimination and later retaliation occurred."), 11 (stating that the fact files written by her supervisors "were written in anger"), 12 ("The fact files were a discriminatory practice aimed only at Cohen by angry men. . . ."), 13 ("the fact files . . . were used against her as she tried to move from the lab work . . . an obvious discrimination against her.")). For all these reasons, Plaintiff's SAMF and discussion of SAMF fail to raise a genuine issue of material fact.

Analysis

Defendants correctly contend that Ms. Cohen's age discrimination claim is barred by the Eleventh Amendment. In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the Supreme Court held that the ADEA did not validly abrogate states' Eleventh Amendment immunity from suit by private individuals. Id. at 82-83. Eleventh Amendment immunity extends to state agencies, see, e.g., Puerto Rico Aqueduct Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 144 (1993); MCI Telecomm. Corp. v. Illinois Bell Tel. Co., 222 F.3d 323, 336-37 (7th Cir. 2000), cert. denied, Public Serv. Comm'n of Wis. v. Wis. Bell, Inc., 121 S.Ct. 896 (2001). Therefore, Ms. Cohen cannot sue a state or state agency under the ADEA and Defendants are entitled to summary judgment on the ADEA claims against them.

Defendants also contend that Ms. Cohen's claims based on conduct preceding April 5, 1995, are time-barred and cannot be saved by the continuing violation theory. "In a deferral state, such as Indiana, a charge must be filed within 300 days of the occurrence of the act that is the basis of the complaint." Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 445 (7th Cir. 1994); 42 U.S.C. § 2000e-5(e)(1); cf. Foster v. Arthur Andersen, L.L.P., 168 F.3d 1029, 1035 n. 9 (7th Cir. 1999). Under the continuing violation theory, however, a plaintiff may "`get relief for a time-barred act by linking it with an act that is within the limitations period.'" Miller v. Am. Fam. Mut. Ins. Co., 203 F.3d 997, 1003-04 (7th Cir. 2000) (quoting Speer v. Rand McNally, 123 F.3d 658, 663 (7th Cir. 1997)). Ms. Cohen argues that the continuing violation theory saves her claims based on acts which occurred before April 5, 1995.

The Seventh Circuit has recognized three types of continuing violations. See Jones v. Merchants Nat'l Bank Trust Co. of Indianapolis, 42 F.3d 1054, 1058 (7th Cir. 1994). The first involves decisions, usually hiring and promotions, "where the employer's decision-making process takes place over a period of time, making it difficult to determine the actual date of the allegedly discriminatory act." Stewart v. CPC Int'l, Inc., 679 F.2d 117, 121 n. 2 (7th Cir. 1982). In such cases, the limitations period begins to run when the plaintiff learns, or should have learned, that the employer has made a decision. See Jones, 42 F.3d at 1058. The second type of continuing violation involves an employer's express, openly espoused policy that the plaintiff alleges is discriminatory. Id. This type is inapplicable here because Ms. Cohen does not allege that the Defendants had a policy of discriminating based on age or sex.

The third type of continuing violation involves a covert practice of discrimination by the employer over time. Id. This type of continuing violation "is evidenced only by a series of discrete, allegedly discriminatory, acts." Selan v. Kiley, 969 F.2d 560, 565 (7th Cir. 1992). Under this theory, a plaintiff must present evidence that the defendant's acts were "related closely enough to constitute a continuing violation" and not "merely discrete, isolated, and completed acts which must be regarded as individual violations." Id. (quotation omitted); see also Filipovic v. K R Exp. Sys., Inc., 176 F.3d 390, 396 (7th Cir. 1999). "[T]he plaintiff can only realize that she is a victim of discrimination after a series of discrete acts has occurred. The limitations period begins to run when the plaintiff gains such insight." Jones, 42 F.3d at 1058. However, if the plaintiff knew, or "with the exercise of reasonable diligence would have known after each act that it was discriminatory and had harmed" her, then she must sue within the relevant statute of limitations. Id.

Ms. Cohen filed her first EEOC charge alleging sex discrimination on January 31, 1996. Thus, for purposes of the sex discrimination claim the 300-day period encompasses acts occurring between April 5, 1995 and January 31, 1996. In that charge Ms. Cohen alleges a continuing violation from October 1, 1994 through January 23, 1996. She specifically alleges that she was denied a promotion and was harassed by her supervisor. As for the failure to promote, the second type of continuing violation theory would be the most appropriate. The evidence establishes that Ms. Cohen did not apply for any open positions with the State between October 1994 and November 14, 1995 and, further, that she applied for two positions with ISDH between November 15, 1995 and December 20, 1995: the position of "Director of Administrative Services to the Assistant Commissioner" or Deputy Assistant position and an epidemiologist position. Because Ms. Cohen applied for these positions within the 300-day period, ISDH's decisions not to place her in either of these positions could not have reached back into the pre-limitations period. Thus, the continuing violation theory is inapplicable. Moreover, Ms. Cohen has not presented any evidence to link these decisions with any pre-limitations period conduct by ISDH.

As for Ms. Cohen's allegation of harassment by her supervisor, the third type of continuing violation theory would be most appropriate. To avail herself of this theory, Ms. Cohen must offer evidence that the acts about which she complains were "related closely enough to constitute a continuing violation" and not "merely discrete, isolated, and completed acts which must be regarded as individual violations." She has not produced any such evidence. Therefore, she cannot avail herself of the continuing violation theory with regard to her allegation of harassment.

Ms. Cohen attempts to bring a claim in this action based on the transfer of Mark Starzynski around July 1992, which is well beyond the limitations period. She argues that Mr. Starzynski's transfer was within 300 days of the filing of her first EEOC charge, which was filed on May 26, 1993. But a Title VII plaintiff generally "may not bring claims . . . that were not originally brought among the charges made to the EEOC." Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995). The 1993 charge alleges disability discrimination only; it does not mention age or sex discrimination. "To include a discrimination claim in a federal district court complaint not brought before the EEOC, the claim must be like or reasonably related to the EEOC charges and one that reasonably could develop from the EEOC investigation into the original charges." Id. at 148. "To be like or reasonably related requires that the complaint at minimum, describe the same conduct and implicate the same individuals." Id. (quoting Cheek v. W. So. Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994) (emphasis in Cheek)). The 1993 charge and 1996 charge do not describe the same conduct or implicate the same individuals. These two charges, therefore, do not allege like or reasonably related claims. Nor could an allegation of age or sex discrimination reasonably be expected to grow out of the EEOC investigation into the disability discrimination charge. As a result, Ms. Cohen cannot now bring age or sex discrimination claims based on Mr. Starzynski's transfer.

Ms. Cohen argues she did not consider Mr. Starzynski's transfer "to be a problem until other events happened." (Pl.'s Resp. Defs.' Mot. Summ. J. at 17.) But with the exercise of reasonable diligence she surely would have known outside the limitations period that ISDH had made the decision to transfer Mr. Starzynski. Consequently, the continuing violation theory does not save her sex discrimination claims based on Mr. Starzynski's transfer. See Miller, 203 F.3d at 1004 (holding plaintiff could not invoke continuing violation theory because she "was alerted to a possible problem at the time of the encounter and yet did nothing"); Jones, 42 F.3d at 1058 (stating that limitations begins to run "when the plaintiff learns, or should have learned, that the employer has made a decision").

The continuing violation theory is similarly unavailable to Ms. Cohen with respect to claims based on Mr. McBride's transfer into a position for which she applied. The court presumes Ms. Cohen refers to the fall 1994 selection of Mr. McBride to fill the Technical Supervisor position in the blood lead program. (See Entry Regarding Defs.' Mot. Reconsideration Mot. Extension Time, Defs.' Mot. Summ. J. Defs.' Suppl. Mot. Summ. J. at 4.) Like the transfer of Mr. Starzynski, with the exercise of reasonable diligence Ms. Cohen should have known around the time of the transfer that ISDH had made the decision to transfer Mr. McBride instead of her. She therefore cannot avail herself of the continuing violation theory to save a claim based on Mr. McBride's transfer. See Miller, 203 F.3d at 1004; Jones, 42 F.3d at 1058.

Similarly, with regard to the positions that Ms. Cohen applied for with the Family and Social Services Administration ("FSSA") and the Office of Medicaid Policy and Planning ("OMPP"), she applied for these positions within the limitations period. Therefore, the decision not to hire her for these positions did not extend back outside the limitations period. Moreover, any claims based on the failure to hire Ms. Cohen for these positions as well as any retaliation claims are barred by the scope of the charge doctrine. See Harper, 45 F.3d at 147-48. These other positions were with agencies separate from ISDH who were not named in the charge upon which this action is based. There is no indication the ISDH had any involvement in the decision making with respect to these other positions. Furthermore, claims based on the decision not to offer Ms. Cohen these other positions is in no way like or reasonably related to the allegations alleged in the charge upon which this action is based. In addition, the charge fails to mention retaliation in any way and a retaliation is neither like or reasonably related to sex and age discrimination claims nor reasonably expected to develop from the EEOC investigation into those claims. See Harper, 45 F.3d at 148.

To the extent Ms. Cohen seeks to use the continuing violation theory to save claims based on her application for transfers to unspecified jobs, negative fact files and reviews, including a performance review of December 4, 1992, and the resulting failure to honor her work restrictions, as well as overly personal e-mails, and it is not clear that she does, her efforts are to no avail. The theory does not save claims based on the rejection of her application for transfers for the same reasons why it does not save claims based on Mr. Starzynski's transfer or Mr. McBride's transfer. Nor does the continuing violation theory save claims based on these other alleged acts. With respect to these, the third type of continuing violation theory is most appropriate and requires evidence that the acts were "related closely enough to constitute a continuing violation" rather than "merely discrete, isolated, and completed acts which must be regarded as individual violations." Ms. Cohen has offered no evidence to raise a reasonable inference that the other alleged acts were anything other than discrete, isolated and completed acts.

Lastly, the court concludes Ms. Cohen's sex discrimination claim cannot withstand summary judgment. She has no direct evidence of discrimination; she therefore must rely on the indirect, burden-shifting method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove her claim at the summary judgment stage. Under this method, a plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802; see Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir. 2000). To establish a prima facie case of failure to promote, a plaintiff must prove that: "(1) she is a member of a protected class; (2) she applied for, and was qualified for an open position; (3) she was rejected; and (4) the employer filled the position with a person not in her protected class, or the position remained open." Howard v. Lear Corp. EEDS Interiors, 234 F.3d 1002, 1005-06 (7th Cir. 2000); Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999). If the plaintiff establishes a prima facie case of discrimination, then the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. See McDonnell Douglas, 411 U.S. at 804; Mills, 171 F.3d at 454. If the defendant discharges this burden, then the plaintiff must demonstrate that defendant's proffered reason is a pretext for unlawful discrimination. See McDonnell Douglas, 411 U.S. at 804; Ghosh v. Ind. Dep't of Envtl. Mgmt., 192 F.3d 1087, 1091 (7th Cir. 1999). The burden of persuasion remains with plaintiff at all times. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).

To show pretext, a plaintiff must demonstrate that the defendant's proffered reasons are lies or lack a factual basis. See Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000); Ghosh, 192 F.3d at 1091. Mistaken, ill considered or foolish reasons do not establish pretext as long as the employer honestly belief such reasons. See Jordan, 205 F.3d at 343; Ghosh, 192 F.3d at 1092. Rather, the plaintiff must show not that the employer was mistaken but that it was lying to cover up its true reason for its employment action. See Jordan, 205 F.3d at 343.

Ms. Cohen applied for two positions with ISDH within the limitations period: Deputy Assistant Commissioner and epidemiologist. As for the former position, the uncontradicted admissible evidence establishes that Ms. Cohen was not qualified for that position. Even assuming Ms. Cohen could establish a prima facie case of sex discrimination with respect to the Deputy Assistant position, she has not offered any evidence to suggest that Defendants' proffered reason is a pretext. In other words, she has not rebutted Defendants' evidence that the person selected for the position was more qualified than she. Thus, her sex discrimination claim based on the failure to promote her to this position cannot withstand Defendants' motion for summary judgment. As for the epidemiologist position, the uncontradicted record evidence establishes that Ms. Cohen was not qualified for the position as she did not sit for the required exams. So the sex discrimination claim based on the failure to promote Ms. Cohen to this position fails to survive summary judgment.

Conclusion

Defendants' motion for summary judgment will be GRANTED. Final judgment will be duly entered.

ALL OF WHICH IS ORDERED.