Early v. Bankers Life and Cas. Co., 91-1842

Citation959 F.2d 75
Decision Date25 March 1992
Docket NumberNo. 91-1842,91-1842
Parties63 Fair Empl.Prac.Cas. (BNA) 363, 58 Empl. Prac. Dec. P 41,367 Donald E. EARLY, Plaintiff-Appellant, v. BANKERS LIFE AND CASUALTY COMPANY, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Alfred E. Aspengren, Aspengren & Associates, Chicago, Ill. (argued), for plaintiff-appellant.

Harry Sangerman, Kearney W. Kilens (argued), McDermott, Will & Emery, Chicago, Ill., for defendant-appellee.

Before POSNER, RIPPLE, and MANION, Circuit Judges.

POSNER, Circuit Judge.

Bankers Life and Casualty Company discharged Donald Early on October 31, 1988. To sue Bankers Life under the Age Discrimination in Employment Act, Early had to file a "charge" with the EEOC within 300 days, 29 U.S.C. § 626(d)(2), and the suit itself within 2 years, § 626(e)(1). He made the 2-year deadline all right, but did he make the 300-day administrative deadline? The first complaint he filed in this suit states equivocally in its first paragraph that the plaintiff "has attempted to and believes that he has filed timely charges of discrimination" with the EEOC, while subsequent paragraphs explain that "on or about June 8, 1989, Plaintiff went to EEOC to file a charge of age discrimination under the Age Discrimination in Employment Act against Bankers," and that "on or about May 10, 1990, Plaintiff again went to EEOC to file a formal charge under the Age Discrimination in Employment Act having been informed that his earlier visit had not resulting [sic ] in the filing of a formal charge." While June 8, 1989, was within 300 days of Early's discharge, May 10, 1990, was not--which may be why Early joined the EEOC as a defendant and alleged against it that "as a direct and proximate result of several negligent, erroneous and/or incomplete actions of Defendant EEOC, Plaintiff's filing of charges as against Defendant Bankers ... may or may not have been timely."

Bankers Life pounced, interpreting the complaint (which it moved under Fed.R.Civ.P. 12(b)(6) to dismiss) as admitting that Early's visit to the EEOC on June 8, 1989, had not resulted in the filing of a charge; hence he had missed the 300-day deadline; Early had been Late. In his reply to the motion to dismiss, Early explained that on his first visit to the EEOC, not yet represented by counsel, he had completed an Intake Questionnaire alleging age discrimination against Bankers Life, had given Bankers Life's address, and had consented to the disclosure of the allegation to Bankers Life. He had made the return visit to the EEOC, almost a year later, on the advice of his lawyer, whom he had retained in the interim and who had been rightly concerned about the absence of a formal charge. So far as appears, the EEOC never notified Bankers Life of Early's allegations.

The district judge first decided not to convert the motion to dismiss to a motion for summary judgment, and in this he was right because none of the facts alleged in Early's reply was presented by affidavit or otherwise in evidentiary form, as required by Fed.R.Civ.P. 56(e). The judge interpreted the complaint, as had Bankers Life, as admitting that the visit to the EEOC on June 8, 1989, had not resulted in the filing of a charge. As for Early's argument (not evidence) concerning the Intake Questionnaire, the judge observed that "nowhere in the complaint does plaintiff mention the filing of the intake questionnaire or any facts to support his tolling arguments. The complaint, on its face, does not allege facts sufficient to support either the timely filing of a charge or tolling of the time to file." So the judge granted the motion to dismiss.

Early filed an amended complaint, properly dropping the EEOC as a defendant (the government has not waived its sovereign immunity to a damages suit against the EEOC, McCartin v. Norton, 674 F.2d 1317, 1322 (9th Cir.1982); Golyar v. McCausland, 738 F.Supp. 1090, 1096 (W.D.Mich.1990)), changing the wishy-washy first paragraph to a definite allegation that "Plaintiff has filed timely charges of discrimination," and amplifying the circumstances of the June 8 visit to the EEOC:

[O]n or about June 8, 1989, Plaintiff filed a charge of age discrimination against the Defendant Bankers, which charges are more specifically detailed in a document entitled "Intake Interview", a copy of which is attached hereto.... As a ... result of several negligent, erroneous and/or incomplete actions of the EEOC, plaintiff's filing of charges ... were [sic ] not executed, perfected and communicated to Defendant Bankers ... with dispatch, resulting in Bankers ... alleging that the charges were untimely filed. However, on June 8, 1989, plaintiff was assured by the EEOC that he had two years from the date of the alleged act of age discrimination to enter a suit against Defendant Bankers. Plaintiff asked for and received [on June 8] a copy of his Intake Interview to evidence and substantiate that he had taken the necessary steps to preserve his right to file suit.

No go. The judge refused leave to file the amended complaint, remarking that "assertions that a charge of discrimination was timely filed do not transmute the filing of an intake interview into a charge of discrimination. The well pleaded facts of the amended complaint fail to support a conclusion that a timely charge of discrimination was filed in this case."

If the original complaint had simply alleged that Early had filed a timely charge, we would have been spared this premature appeal. Bankers Life would have pleaded the statute of limitations and filed a motion for summary judgment supported by affidavits disclosing Early's successive visits to the EEOC, Early would have responded with affidavits of his own, and the judge would have either granted or denied the motion. If he denied it, the issue would be fully developed at trial (unless it became moot along the way); if he granted it, the appeal would come up to us with a full, or least a fuller, factual picture.

Early complicated life for everyone by alleging in his first complaint circumstances that suggested that his filing with the EEOC may not have been timely. He did this because he (or rather his attorney) was at the time laboring under the profound misconception that if the EEOC had caused his filing to be untimely he could obtain from it the damages that he would be barred from seeking from his employer. But Bankers Life jumped the gun by asking the district judge to interpret an ambiguous complaint, rather than, as it should have done, submitting evidentiary material to show that the filing had indeed been untimely. Even if we, at the risk of impertinence, disregard as hyperbole the famous statement in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957), that a complaint can be dismissed for failure to state a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," ambiguities in complaints in federal court should be interpreted in favor of plaintiffs, not defendants. Leahy v. Board of Trustees, 912 F.2d 917, 921 (7th Cir.1990). The district judge forgot this when he accepted the defendant's interpretation. He also forgot that while the allegations in Early's reply to the motion to dismiss were indeed not evidentiary, a plaintiff is free, in defending against a motion to dismiss, to allege without evidentiary support any facts he pleases that are consistent with the complaint, in order to show that there is a state of facts within the scope of the complaint that if proved (a matter for trial) would entitle him to judgment. Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 915 (7th Cir.1985). He doesn't, as both Bankers Life and the district judge suggested, have to plead those facts. The federal rules, with the partial exception of Rule 9(b), do not require fact pleading. The plaintiff can plead a conclusion--that the charge of discrimination was timely--and then if the conclusion is questioned in a motion or a brief hypothesized facts that if proved would establish it. A defendant who wants to pin the plaintiff down has to present evidence, at which point Rule 56(e) comes into play and the plaintiff can't rest on his pleadings, let alone on hypothesized facts intended to show that his complaint can be construed as stating a claim.

Of course a plaintiff can plead himself out of court. Id. at 915; Pearman v. Norfolk & Western Ry., 939 F.2d 521, 523 (7th Cir.1991); Stewart v. RCA Corp., 790 F.2d 624, 632 (7th Cir.1986); American Nurses' Ass'n v. Illinois, 783 F.2d 716, 724 (7th Cir.1986). If he alleges facts that show he isn't entitled to a judgment, he's out of luck. Early came close to doing this in his original complaint, when he said that on June 8, 1989, he had gone to the EEOC to file a charge but that he had later been informed that he had not succeeded in filing one. The first paragraph of the...

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