Opinion
02 C 2734
January 28, 2003
OPINION
This is an action for discriminatory discharge and retaliation under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Plaintiff, Thomas Flannery, alleges that he was terminated after 22 years of employment because of his age, 63, in violation of the ADEA, and because of his disabilities, an irregular heart beat and sleep apnea, in violation of the ADA. Mr. Flannery also alleges that defendant, Recording Industry Association of America ("RIAA"), retaliated against him for filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") in violation of the ADEA and ADA.
With respect to Counts I and III, which are Mr. Flannery's discriminatory discharge claims, RIAA argues that these are time-barred. In Illinois, an employee may sue under the ADEA and ADA only if he files a charge with the EEOC within 300 days of the alleged discrimination. See Kennedy v. Chemical Waste Mgmt., Inc., 79 F.3d 49, 50 (7th Cir. 1996); Hamilton v. Komatsu Dresser Indust., Inc., 964 F.2d 600, 603 (7th Cir. 1992). At issue is the date at which the tolling of this 300-day limitations period began . According to his complaint, M r. Flannery was told in March 2000 "that he would have to leave his employment because his health was bad and because he was getting older." When M r. Flannery indicated that he did not wan t to leave, he was told that his supervisors "would keep him on and see how things went." On or about June 14, 2001, Mr. Flannery was informed by his supervisor that he would be terminated effective October 1, 2001, and "this would serve as official notice of his termination." Sometime prior to his discharge on October 1, 2001, Mr. Flannery was told by RIAA that he would be given free-lance work after his departure, which he alleges was never given to him. On October 22, 2001, Mr. Flannery filed his age and disability discrimination complaint with the EEOC. RIAA asserts that the statute of limitations began to toll in March 2000, whereas Mr. Flannery asserts that the tolling began on October 1, 2001. In his original complaint (and in his EEOC complaint), Mr. Flannery designated March 2000 as his termination date. He later amended his complaint to denote October 1, 2001, as the "official notice of his termination," and added the allegation that when he was first notified of his termination in March 2000, he was told that RIAA "would keep him on and see how things went," in an effort to cure temporal defects in his claim.
In response to the amended complaint, RIAA cites Delaware State College v. Ricks, 499 U.S. 250, 261 (1980), for the proposition that when an employer simultaneously communicates a termination decision and a willingness to change its position, that willingness to change position does not prevent the running of the limitations period from starting on that date. However, in Ricks, the University expressed a willingness to change its position if Ricks' grievance complaining of the decision was found to be meritorious, which is a far cry from an employer expressing a general willingness to change its mind about terminating an employee, which is what Mr. Flannery's amended complaint attempts to allege. I find more compelling RIAA's reliance on Lever v. Northwestern Uinversity, 979 F.2d 552, 557 (7th Cir. 1992), which held that "[a]n employer's refusal to undo a discriminatory decision is not a fresh act of discrimination." In Lever, it was noted that the limitations period commences with the date of the alleged unlawful employment practice. Id. at 556. Thus, if RIAA was holding Mr. Flannery's disabilities and age against him at the time it decided to terminate him, then the date of that decision is the unlawful employment practice, at which time the statute of limitations began to toll. Mr. Flannery's amended complaint states that "[i]n March 2000, plaintiff's supervisors told him that he would have to leave his employment because his health was bad and because he was getting older," which clearly alleges that RIAA was holding Mr. Flannery's age and disabilities against him at that time. I find that the 300-day statute of limitations began to run in March 2000, and hence, Counts I and III are time-barred.
Counts II and IV are Mr. Flannery's retaliation claims, which both allege that after he filed his EEOC complaint on October 22, 2001, RIAA "retaliated against him by instructing its employees not to have any dealings with plaintiff and by failing to contact plaintiff in connection with the possibility of consulting work which had been promised him at the time of his termination." Mr. Flannery does not allege that he complained of discrimination prior to his termination on October 1, 2001. Rather, the protected activity that is the subject of these claims is his EEOC filing on October 22, 2001, subsequent to his termination date. The Seventh Circuit has held that "former employees, in so far as they are complaining of retaliation that impinges on their future employment prospects or otherwise has a nexus to employment, do have the right to sue their former employers under [Title VII]." Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 (7th Cir. 1996). This case, while arising under Title VII and not the ADEA or ADA, does provide some support for Mr. Flannery's argument that "retaliation claims can be based on a protected activity, i.e. filing an EEOC charge, occurring after the employment relationship has ended." The issue here is whether the alleged retaliation, namely RIAA's failure to use Mr. Flannery as an independent contractor after his employment ended with RIAA, affected Mr. Flannery's future employment prospects or otherwise has a nexus to employment. Generally, the ADEA and ADA do not protect independent contractors. See Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 805 (7th Cir. 1999); Aberman v. J. Abouchar Sons, Inc., 160 F.3d 1148, 1149 (7th Cir. 1998). Mr. Flannery does not appear to dispute that had RIAA given him the free-lance work that it had allegedly promised him, he would have been an independent contractor. Rather, he argues that because the agreement to give him consulting work post-termination was made while he was still employed by RIAA, there is a clear nexus to his employment. However, agreeing to use a former employee as a potential independent contractor prior to effective termination is distinguishable from the examples cited by Mr. Flannery, such as opposing unemployment compensation claims, withdrawing a worker's compensation settlement offer, providing confidential information about a former employee to former co-workers, and failing to rehire. These acts are connected to employment because they are directly connected to the employer-employee relationship, whereas RIAA's alleged retaliation is directly connected to a potential independent contractor relationship. Simply because the promise of that future relationship was made prior to termination is not sufficient to establish the required nexus, and Mr. Flannery does not allege that RIAA's actions affected any other future prospects of work. Therefore, Counts II and IV are also dismissed.
RIAA's motion to dismiss is granted. Because Count IV is dismissed in its entirety, RIAA's alternate motion to dismiss and strike Mr. Flannery's request for compensatory and punitive damages and jury trial on Count IV is also dismissed as moot.