In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1643

LONZIA CASTEEL,

Plaintiff-Appellant,

v.

EXECUTIVE BOARD OF LOCAL 703 OF THE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
THOMAS W. STIEDE, KEITH LLOYD, BOB POORE,
JOHN COBB, CHUCK MURDOCK, BILL SHOEMAKER,
and DAN SCHNUR,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 8264--Charles R. Norgle, Judge.

Argued September 25, 2001--Decided November 15, 2001



  Before ROVNER, DIANE P. WOOD, and EVANS,
Circuit Judges.

  EVANS, Circuit Judge. This case involves
a challenge to the overtime provisions of
a labor contract under the Age
Discrimination in Employment Act. Lonzia
Casteel is a truck driver who, prior to
1998, was employed by Mavo Leasing, Inc.
and made deliveries for Dominick’s Finer
Foods, Inc. Since that time, Dominick’s
has became his actual employer. Casteel
works out of Dominick’s Northlake,
Illinois, facility where he is first on
the seniority list for Northlake drivers,
who are represented by Local 703 of the
International Brotherhood of Teamsters.
During all time periods relevant to this
suit, Mavo and the Union operated under a
collective bargaining agreement, which
Dominick’s has adopted.

  Dominick’s drivers work one of two main
shifts. There is a Monday to Friday shift
and a Tuesday to Saturday shift, each
with various starting times. Accordingly,
there are two shifts working on Tuesday
through Friday, but only one shift
working on Monday and Saturday. There are
a few possibilities for overtime. First,
drivers can work a sixth day. For those
drivers on the Monday to Friday shift,
such as Casteel, the sixth day is
Saturday. Second, drivers might get
"early starts." Early starts occur when
drivers are asked to report before their
usual starting time. Third, a driver
might be assigned a "drop," or drop load.
Drops refer to special loads in which a
driver drops off a trailer that he does
not unload. A drop is automatically worth
one hour of overtime pay (no matter when
it is completed) and is, therefore,
considered a choice assignment. Fourth,
there may be work on Sundays or holidays.
Drivers are paid time-and-a-half for
their overtime on the sixth day, early
starts, or drops. Drivers needed on
Sunday or holidays are paid double time.

  The present case concerns sixth-day
overtime opportunities, such as early
starts and drops./1 Overtime
opportunities on the sixth day are
currently governed by "shift seniority."
Under shift seniority, overtime
opportunities are first allotted by
seniority to those drivers on the Tuesday
to Saturday shift, the idea being that
these drivers should have the first
option on overtime opportunities attached
to their normal Saturday workday. Casteel
believes that "master seniority" should
extend to sixth-day overtime
opportunities. Master seniority, which
governs the distribution of overtime
assignments on Tuesday through Friday
(when both shifts are working), Sundays
and holidays, allots overtime
opportunities by seniority on the
combined shift list. Casteel would have a
greater opportunity for Saturday overtime
opportunities under master seniority, in
which he ranks first, than under shift
seniority, in which he has to wait behind
all of the Tuesday to Saturday drivers.

  Shift seniority with regard to sixth-day
overtime opportunities was not always the
rule. When Casteel was a union steward
during part of 1992 and 1993, he
instituted master seniority for sixth-day
overtime opportunities. The policy was
changed in June of 1993, after new local
union leadership was elected. Tim Welch,
one of the new union stewards, informed
Casteel both before and after the change
took place that the Union was switching
back to shift seniority. In April 1994,
Casteel challenged the policy in a
grievance. He lost.
  After stewing for a good while, Casteel
filed a charge with the EEOC on November
21, 1996. He alleged that the shift
seniority policy constituted age
discrimination (Casteel is over 40), race
discrimination (he is an African-
American), and that the Union violated
its duty of fair representation under
sec. 301(a) of the Labor Management
Relations Act. 29 U.S.C. sec. 185(a). The
EEOC issued a right to sue letter.
Casteel and four other drivers filed the
present complaint against the Union and
the board members on November 26,
1997./2 The complaint stated a claim
only under the Age Discrimination in
Employment Act./3 29 U.S.C. sec. 621 et
seq. It alleged that the change from
master to shift seniority with regard to
sixth-day overtime opportunities was
adopted to discriminate against older
workers and/or had a disparate impact on
them. The district judge granted summary
judgment to the Union, finding that
Casteel’s EEOC charge and complaint were
both untimely. Casteel appeals that
ruling.

  Although things so far are fairly clean,
we must comment briefly on another point.
Apparently during discovery Casteel lit
on a few other theories of harm and, by
the time summary judgment time rolled
around, he added claims that the Union
disregarded and misapplied master
seniority on Sundays and holidays (in
particular Thanksgiving), that it
misapplied shift seniority on Mondays,
that it waived Department of
Transportation restrictions for younger
drivers, thus allowing them to work on
Sundays, and that it manipulated the
distribution of drops on weekdays, Satur
days, and early starts to advantage
younger drivers.

  But our use of "added" may be too
generous. Casteel never amended his
complaint to include these claims. The
district judge appears not to have
addressed them in his opinion. On appeal,
Casteel claims that the district judge
improperly ignored them; the Union claims
that they were subsumed in the district
judge’s ruling that Casteel’s case was
untimely.

  In the interest of avoiding
institutional exasperation (perhaps it’s
too late), we consider Casteel’s claims
in two classes: first, his clearly
presented claim that the Union
intentionally discriminated against him
because of his age in June of 1993 by
readopting shift seniority for sixth-day
overtimes opportunities; and second,
Casteel’s other purported claims.

  The district judge properly found the
first claim time-barred. Under the ADEA,
a plaintiff must file an administrative
charge within 180 days after the alleged
unlawful discriminatory practice
occurred, unless the plaintiff first
files with a state agency in a deferral
jurisdiction, in which case the plaintiff
has 300 days to file the charge. 29
U.S.C. sec. 626(d); 29 U.S.C. sec.
633(b). A failure to file a timely charge
will bar a later suit. Chakonas v. City
of Chicago, 

, 1135 (7th Cir.
1994). Illinois is a deferral
jurisdiction. The parties and the
district judge assumed that Casteel is
entitled to the 300-day period (because
the longer time period helps him not at
all), so we will do the same.

  The first issue is what event triggered
the running of the statute of
limitations. 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., 

(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. 

A facially
discriminatory policy, on the other hand,
discriminates anew every time it is
applied and thus begins the running of a
new clock. 

n.5.

  In the present case, Casteel cannot show
that the overtime policy facially
discriminates against older workers. Cf.

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./4 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., 

, 1050
n.1 (7th Cir. 1997) (ADA); Kennedy v.
Chemical Waste Mgmt., Inc., 

,
51-52 (7th Cir. 1996) (ADA). Casteel has
made no attempt to divert us from our
course. Indeed, busy finding new claims,
he has not even briefed the issue. Partly
for that reason but most importantly
because 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.

  Because the requirement for filing a
charge in the ADEA context is not
jurisdictional, however, the period may
be tolled by equity. Cada v. Baxter
Healthcare Corp., 

, 451-52
(7th Cir. 1990). Two doctrines might
apply: equitable estoppel or equitable
tolling. Equitable estoppel applies "if
the defendant takes active steps to
prevent the plaintiff from suing in
time." 

To invoke equitable
tolling, a plaintiff must show that "he
could not by the exercise of reasonable
diligence have discovered essential
information bearing on his claim." 

Casteel makes no claim that the
Union prevented or hindered him from
bringing suit, so equitable estoppel does
not apply. Moreover, Casteel cannot
assert equitable tolling. He learned of
the switch to shift seniority before and
after the switch was made; union steward
Welch discussed it with him. Indeed,
Casteel grieved the policy in April 1994.
For some reason, he did not initiate the
present proceedings challenging the shift
seniority system as age discriminatory
until 1996. His charge is untimely and
summary judgment on his claim was
properly granted.

  Now back to the "added" claims. In his
opposition to summary judgment, Casteel
(we repeat) alluded to claims that the
Union disregarded and misapplied master
seniority on Sundays and holidays (in
particular Thanksgiving), that it
misapplied shift seniority on Mondays,
that it waived Department of
Transportation restrictions for younger
drivers, and that in some cases it
manipulated the distribution of drops on
weekdays, Saturdays, and early starts to
advantage younger drivers. The Union
argues that these claims were subsumed in
the untimeliness ruling made by the
district judge. We agree.

  Although Judge Norgle’s opinion does not
specifically address these "claims," they
are all part and parcel of the overriding
contention that the shift seniority
system runs afoul of the Age
Discrimination in Employment Act which
was, as we have said, the only claim to
appear in the complaint. Accordingly, we
will affirm the grant of summary judgment
to the Union.

FOOTNOTES

/1 "Sixth-day overtime opportunities" do not refer
to the availability of sixth-day (overtime) work
generally but rather to opportunities, such as
early starts and drops, that come available on a
driver’s sixth day.

/2 None of the other four drivers had filed an EEOC
charge and their claims were dismissed.
/3 The complaint alluded to the fact that the
Union’s policy shift also may have been motivated by
a desire to retaliate against Casteel for oppos-
ing the Union leadership in earlier elections.
The Union carried Casteel a few rounds by noting
that this language possibly stated a claim for
violation of the Union’s duty of fair representa-
tion. (The district judge also alluded to this in
his opinion.) Casteel seems to have let it pass.
He does not mention a sec. 301(a) claim in his
brief, so if one is lurking here, it is waived.

/4 Casteel’s complaint also alleges a disparate
impact claim under the ADEA. Such a theory is not
available in this circuit. Rummery v. Illinois
Bell Tel. Co., 

, 559 n.5 (7th Cir.
2001); Adams v. Ameritech Servs., Inc., 

, 422 (7th Cir. 2000).