Opinion
02-C-5881
February 24, 2003
In this action plaintiff Bruce Wochholz has filed suit, pro se, alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621et seq., in connection with his termination of employment from defendant AARP. Defendant moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted.
AARP alleges that because Wochholz did not file his age discrimination claim with the EEOC within 300 days, the complaint is time barred by the statute of limitations. The administrative statute of limitations for ADEA claims in Illinois is 300 days. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 449 (7th Cir. 1990). Wochholz filed charge with the EEOC on November 5, 2001 (although the complaint states that he filed charge on October 5, 2001). On both September 6, 2000 and September 20, 2000, AARP informed Wochholz of his termination. His September 20, 2000 notice stated, "[Y]our position in Field Operations will come to an end on December 5, 2000, which will result in your displacement from AARP." Although Wochholz argues that the statute of limitations began on the date he was terminated, the Seventh Circuit has held that the statute of limitations for charges filed with the EEOC commences when a plaintiff discovers he is injured. Bishop v. Gainer, 272 F.3d 1009, 1014 (7th Cir. 2001). Specifically, accrual starts at the time a discriminatory employment practice occurred, not upon the time in which the total consequences of the acts are felt. Delaware State College v. Ricks, 449 U.S. 250, 258 (1980). (Holding, that the date on which a college professor was granted a one-year "terminal" contract ending his employment ignited the running of the statute of limitations, not the professor's last day on the job). Here, because Wochholz was notified of his termination, at the latest, on September 20, 2000, he filed his charge too late. Even if we follow the facts as alleged in Wochholz's complaint, the filing of his claim on October 5, 2001 lies outside the statute of limitations.
Wochholz also argues that he waited to file his claim until his severance package ended in May, 2001, for fear of retribution. However, the complaint does not allege any affirmative act by the AARP. Although the filing of a discrimination complaint might deter efforts at conciliation, this result should not delay the commencement of the charge-filing period. Lever v. Northwestern University, 979 F.2d 552, 555 (7th Cir. 1992). Even if Wochholz waited until May to file his claim, he had almost a third of his statute of limitations left to file charge. Additionally, tolling the statute of limitations on these grounds would prove the statute itself meaningless, since the plaintiff could delay filing indefinitely out of fear that the act might provoke retaliation. This could especially be the case if severance pay extends for years beyond the termination date.
Finally, Wochholz argues that the doctrines of equitable estoppel and equitable tolling should be applied to allow a filing of the complaint after the expiration of the statute of limitations. However, these doctrines "are to be applied sparingly." National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2072 (2002). For a plaintiff to claim equitable estoppel, also known as fraudulent concealment, the defendant must take "active steps to prevent the plaintiff from suing in time." Cada, 920 F.2d at 450-51. Wochholz, though, has not alleged any affirmative steps taken by AARP to prevent him from filing a timely charge or deliberately dissuade him from doing so. Additionally, equitable tolling permits a plaintiff to "avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim." Cada, 920 F.2d at 451. Here, it is clear that Wochholz knew the information vital to the existence of his claim in September 2000: that AARP had decided to eliminate his job position and that he would be discharged on December 5, 2000, unless he secured another position in the organization before then. This was clearly enough information to preclude the invocation of equitable tolling.
For the reasons stated above, AARP's Motion to Dismiss is GRANTED.