Sager v. Hunter Corp.

Decision Date24 April 1987
Docket NumberNo. 86 C 5923.,86 C 5923.
Citation665 F. Supp. 575
PartiesDaniel SAGER, Plaintiff, v. HUNTER CORPORATION, et al., Defendants.
CourtU.S. District Court — Northern District of Illinois

Mahendra R. Mehta, Chicago, Ill., for plaintiff.

Robert E. Cronin, Isham, Lincoln & Beale, Howard R. Barron, Jenner & Block, and Joel J. Sprayragen, Shefsky, Saitlin & Forelich, Ltd., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

Plaintiff Daniel Sager brings this action under Title VII of the Civil Rights Act of 1964 against defendants Hunter Corporation, Malcolm Somsag, Russel Irish, and Commonwealth Edison. Before the court are motions of the defendants to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons stated herein, the motions are all granted.

The facts of plaintiff's complaint, which the court takes as true on this motion, are that the defendants demoted and then eventually discharged plaintiff because he failed to comply with defendants' demands that he pressure his girlfriend to drop sexual harassment charges she had brought against Irish. These events occurred in December, 1984. Plaintiff filed his own charge of discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission on February 24, 1985. The EEOC issued its "Right to Sue" letter on July 30, 1985 which plaintiff received "sometime in September 1985." Complaint at ¶ 2. Plaintiff then filed a complaint in the Circuit Court of Cook County, case No. 85 L 24951, on October 28, 1985, which was within ninety days from the date he received his right to sue notice. Id. at ¶ 3. The defendants named in that action are identical to the defendants named here. (Edison argues it was not a proper defendant in the state court action but this court will assume, without deciding, that it was.) Pursuant to an agreed order entered August 1, 1986, this action was "dismissed for want of prosecution, without prejudice to plaintiff's right to file an action in federal court under Title VII, U.S.C." Id. at Ex. B. Plaintiff filed this instant action for relief under Title VII on August 11, 1986, over ten months since his receipt of the right to sue letter.

The sole question presented by the pending motions is whether this action is barred by Title VII's statute of limitations.1 Under Title VII, a plaintiff has ninety days from receipt of the "Notice of Right to Sue" issued by the EEOC to file suit. Jones v. Madison Service Corp., 744 F.2d 1309, 1312 (7th Cir.1984); Archie v. Chicago Truck Drivers, Helpers and Warehouse Workers Union, 585 F.2d 210 (7th Cir. 1978); see also 42 U.S.C. § 2000e-5(f)(1). Plainly, this pending lawsuit was filed substantially after the ninety-day period. However, plaintiff argues that the ninety-day period should be equitably tolled during the pendency of the interim state action.

Plaintiff cites Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), to support his statement that the ninety-day period for filing a Title VII action may be equitably tolled. Zipes actually only held that the time for filing a discrimination charge with the EEOC is subject to equitable tolling. Nevertheless, more recent Supreme Court cases have made clear that the same principles of equitable tolling apply to the ninety-day period for filing a Title VII court action. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984); Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). Under Baldwin County, for equitable tolling to apply plaintiff must show either (1) excusable ignorance of or noncompliance with, the limitations period, evidently with no prejudice to defendant, see, e.g., Gates v. Georgia-Pacific Corp., 492 F.2d 292 (9th Cir. 1974) (inadequate notice from EEOC of limitations period); Harris v. Walgreen's Distribution Center, 456 F.2d 588 (6th Cir. 1972) (pending motion for appointment of counsel triggers tolling); Carlile v. South Routt School District RE 3-J, 652 F.2d 981 (10th Cir.1981) (court had led plaintiff to believe she had complied with filing rules); or (2) affirmative misconduct of defendant that lulled the plaintiff into inaction, see, e.g., Villasenor v. Lockheed Aircraft Corp., 640 F.2d 207 (9th Cir.1981); Wilkerson v. Siegfried Insurance Agency, Inc., 621 F.2d 1042 (10th Cir.1980); Leake v. University of Cincinnati, 605 F.2d 255 (6th Cir.1979). See generally Baldwin County, 104 S.Ct. at 1725-26.

Plaintiff argues that tolling is appropriate here for two reasons. First, plaintiff contends that he filed his state court action in the "good faith" but erroneous belief that the state court had jurisdiction over plaintiff's claim. Because of this good faith state of mind and because the state filing put defendants on notice of plaintiff's Title VII claim, plaintiff concludes that his noncompliance with the ninety-day period should be excused. The court must reject this argument.

First, assuming that a good faith but improper filing of a Title VII action in Illinois state court is the sort of error which justifiably tolls the statute of limitations, under plaintiff's own argument plaintiff must show that his state action was based on Title VII. The fact of the matter is that plaintiff did not file a Title VII claim in state court. As the state court record shows, the state court complaint, unlike the instant federal complaint, never mentioned Title VII. The only body of law therein alleged to have been violated is Illinois law. "Such retaliatory actions to induce plaintiff and his girl friend to remain silent ... are in violation of the public policy of the state of Illinois and hence such actions are themselves illegal under Illinois law." State Complaint at ¶ 1. Title VII is not identified in the jurisdictional statement either. Only Illinois law is. "This court has jurisdiction over this matter under Art. 6 Sec. 9 of the Constitution of the State of Illinois...." Id. at Count 1, ¶ 1. On its face, then, the state court action was not a Title VII suit.

This conclusion is reinforced by the history of the state court proceedings. Plaintiff was represented by current counsel in the state court. The absence of a mention of Title VII in that complaint therefore cannot be explained away as the error of an inexperienced pro se litigant. (It is not clear whether counsel represented plaintiff at the time the complaint was drafted, but it is clear counsel was involved in the state court proceedings at the time the motions to dismiss were filed; counsel, however, made no attempt to amend the complaint.) Moreover, the defendants all moved to dismiss the complaint on the grounds that plaintiff had failed to exhaust his administrative remedies under the Illinois Human Rights Act (IHRA), Ill.Rev.Stat. ch. 68, § 6-101 et seq. These motions all indicate that the defendants understood plaintiff's complaint to be brought only under state law. The motions never mention Title VII. Plaintiff never responded to these motions nor even objected to their assumption that his action purported to arise only under Illinois law, though he had ample opportunity to do so (from the filing of the motions on February 28, 1986 to the dismissal of the action on August 1, 1986).

Finally, when plaintiff moved to withdraw the state lawsuit on August 1, at which time the evidence unambiguously shows plaintiff was represented by counsel, plaintiff stated explicitly that he "withdraws this Law suit to enable plaintiff to file the same in federal court under Title VII USCA. etc." Plaintiff's Motion to Withdraw at ¶ 1. By indicating that the "same" suit would be filed in federal court "under Title VII," the implication is that the state suit had not been brought under Title VII. Were it otherwise plaintiff could simply have said he was going to bring the same suit in federal court. He would not have had to append the qualification "under Title VII."

Plaintiff himself offers this court no reason to suppose that the state court complaint was brought under Title VII. The court has on its own scrutinized the complaint and concludes that it provides no fair indication that it was brought under Title VII. The only possibility for viewing the complaint as based on Title VII, in addition to Illinois law, is that it is an employment discrimination complaint (based on retaliatory action) and in the opening paragraph plaintiff states he received a right to sue letter from the EEOC and has filed his complaint within ninety days of such receipt. However, this is insufficient notice of a Title VII lawsuit. First, mere allegations of employment discrimination acts do not apprise the defendants that those acts are alleged to violate Title VII, as opposed to Illinois statutory law on discrimination, or common law on retaliatory discharges. Second, as a matter of law, a right to sue letter, standing alone, does not suffice for a Title VII complaint. Baldwin County, 104 S.Ct. at 1723 n. 4; see also Brown v. J.I. Case Co., 756 F.2d 48, 50 (7th Cir.1985) ("the filing of a right to sue letter itself does not commence a Title VII action nor toll the running of the ninety-day period"). A narrow exception exists if the timely filing of the right to sue letter is accompanied by a timely motion for appointment of counsel. Here, however, plaintiff was represented by counsel in the state proceedings. Moreover, no right to sue letter was even attached to the complaint; only a passing reference was made to one. Thus, the state court complaint did not suffice for a Title VII action.

This conclusion cannot be altered by the fact that the state complaint not only adverted to a right to sue letter but also alleged facts pertaining to employment discrimination. This combination still fails to provide defendants with any notice of which, if any, allegations of...

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