Disclaimer:
The case on which this summary is based may no longer be current law.
Also, if the case was decided on summary judgment, the court recited the
"facts" in the light most favorable to the non-movant, which may not be
the true facts.
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Title VII claim properly before the
court even though plaintiff only sued for an ADEA violation.
Torry v. Northrop Grumman Corp., 399 F.3d
876 (7th Cir. March 4, 2005) - Even though her EEOC charge alleged age
and race discrimination, Nancy Torry only filed an ADEA action against
her employer. However, the parties litigated her Title VII race
discrimination claim as well even though she never amended her complaint.
The district court granted summary judgment for Northrop on both claims. On
appeal, Northrop argues that the district court should not have considered
the Title VII claim. The Seventh Circuit disagrees. Federal Rule of Civil
Procedure 15(b) provides that "when issues not raised by the pleadings are
tried by express or implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings." Based on the
facts of this case, the Court finds the race discrimination claim was tried
(or at least "pre-tried" on summary judgment) by implied consent. With
respect to the merits, Torry was laid off during a reduction in force. She
claims a younger white worker was given a discriminatory preference over
her by being offered another job when he was bumped. But the younger white
employee applied for the position and she did not apply for any position.
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