01-1643 Casteel v. Executive Board of Local 703 of the International Brotherhood of Teamsters, et al.

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“The Union claims that the statute began to run in June of 1993, when the Union switched back from master to shift seniority with regard to sixth-day overtime opportunities. Casteel claims the overtime policy is a continuing violation that starts the clock anew whenever it is applied to his disadvantage. If it was 1990, we would likely have a clear answer. In Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989), the Supreme Court considered a Title VII gender discrimination challenge to a facially nondiscriminatory seniority system that was allegedly adopted with discriminatory intent. The Court held that in such a case the statute of limitations begins to run at the time of the system’s adoption, not when the policy is applied. Id. at 911. A facially discriminatory policy, on the other hand, discriminates anew every time it is applied and thus begins the running of a new clock. Id. at 912 n.5.

“In the present case, Casteel cannot show that the overtime policy facially discriminates against older workers. Cf. id. (noting that a facially discriminatory seniority system would, for example, give ‘men twice the seniority that women receive for the same amount of time served’). His claim rests on showing that the Union’s facially neutral overtime policy was adopted with a discriminatory motive. Accordingly, if Lorance’s reasoning applies, it bars Casteel’s suit because he filed his EEOC charge on November 21, 1996, 3 years and 5 months after the Union readopted shift seniority for sixth-day overtime opportunities.

“The only mystery to this case is provided by the fact that Lorance was abrogated when Congress passed the Civil Rights Act of 1991. Congress provided that ‘with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this title [42 USCS sec.sec. 2000e et seq.],’ the unlawful employment practice occurs when the seniority system is adopted, when an individual becomes subject to the system, or when an individual is injured by its application. 42 U.S.C. sec. 2000e-5(e)(2). The question is whether this language undermines the reasoning of Lorance in the ADEA context. We have previously stated that Lorance’s reasoning remains persuasive in the context of other discrimination statutes. See Huels v. Exxon Coal USA, Inc., 121 F.3d 1047, 1050 n.1 (7th Cir. 1997) (ADA); Kennedy v. Chemical Waste Mgmt., Inc., 79 F.3d 49, 51-52 (7th Cir. 1996) (ADA). Casteel has made no attempt to divert us from our course… [B]ecause it makes good sense, we apply Lorance’s reasoning to Casteel’s ADEA challenge to the Union’s overtime policy. The statutory period in which Casteel could challenge the policy began to run in June of 1993. Because he did not file his charge until 1996, it is untimely.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Norgle, J., Evans, J.