Hentosh v. Herman M. Finch University of Health Sciences/The Chicago Medical School

• Decision Date: 09 February 1999
• Docket Number: No. 98-2511,98-2511
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 132, 75 Empl. Prac. Dec. P 45,751, 132 Ed. Law Rep. 649 Patricia HENTOSH, Ph.D., Plaintiff-Appellant, v. HERMAN M. FINCH UNIVERSITY OF HEALTH SCIENCES/THE CHICAGO MEDICAL SCHOOL and Samson T. Jacob, Ph.D., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1170

167 F.3d 1170

79 Fair Empl.Prac.Cas. (BNA) 132,

75 Empl. Prac. Dec. P 45,751, 132 Ed. Law Rep. 649

Patricia HENTOSH, Ph.D., Plaintiff-Appellant, v. HERMAN M. FINCH UNIVERSITY OF HEALTH SCIENCES/THE CHICAGO

MEDICAL SCHOOL and Samson T. Jacob, Ph.D.,

Defendants-Appellees.

No. 98-2511.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 12, 1998.

Decided Feb. 9, 1999.

Ronald B. Schwartz (argued), Hedberg, Tobin, Flaherty & Whalen, Chicago, IL, for Patricia Hentosh.

Michael R. Booden (argued), Chicago Medical School-University of Health Sciences, North Chicago, IL, for Herman M. Finch University of Health Sciences/The Chicago Medical School.

Fay Clayton, Robinson, Curley & Clayton, Chicago, IL, for Samson T. Jacob.

Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Patricia Hentosh sued her employer Herman M. Finch University of Health Sciences/The Chicago Medical School ("University") for sexual harassment under Title VII of the Civil Rights Act of 1964 and the University and Dr. Samson Jacob, former chairman of the University's Department of Pharmacology & Molecular Biology ("Department"), for common law fraud.

From 1990 until the present, Patricia Hentosh has been employed by the University, first as an Assistant Professor and currently as an Associate Professor in the Department. According to her complaint, Jacob served as chairman of the Department at the time Hentosh was hired and supervised her until his resignation on December 25, 1995. Hentosh alleged that during his tenure as chairman of the Department, Jacob engaged in a pattern and practice of sexual favoritism in the workplace. To this end, Jacob made unwanted and unwelcome sexual demands on at least four women (not including Hentosh) who worked in the Department with Hentosh. Jacob also allegedly conducted a sexual relationship with one of the female assistant professors, and Hentosh claimed that this professor received more favorable terms and conditions of employment than other faculty members of the Department as a result of her alleged relationship with Jacob.

Hentosh filed an administrative charge with the EEOC against the University on March 27, 1997, and subsequently filed suit in federal district court. She submitted that Jacob's conduct created a hostile work environment and that the University failed to take steps to combat his conduct despite the University's knowledge of it. The University moved to dismiss Hentosh's complaint pursuant to Fed.R.Civ.P. 12(b)(6) and (c), and the district court granted this motion.

The district court's decision to grant the University's motion to dismiss rested on two separate grounds. First, the court concluded that Hentosh's allegations, as a matter of law, did not rise to the level of an abusive, hostile work environment. The court reasoned that the complaint did not contain any allegations that Hentosh was personally subjected to sexual harassment in the form of unwarranted sexual advances or that she personally witnessed any of the incidents of sexual harassment by Jacob. Moreover, Hentosh did not allege that the sexual harassment was so pervasive as to affect her ability to perform her job. This conclusion was bolstered by the fact that, in opposing the University's motion to dismiss, Hentosh stated that "she was not aware of the specific accusations of sexual harassment until after Dr. Jacob resigned as department Chairman" on December 25, 1995. In the view of the district court, this statement established that Hentosh did not subjectively perceive Jacob's conduct to alter the terms and conditions of her employment, and it was only in retrospect that Hentosh felt harmed. The court also reasoned that Hentosh's allegations of favoritism by Jacob based on a consensual relationship with another professor in the Department failed to establish a hostile work environment because it evidenced discrimination based on something other than gender.

Alternatively, the district court concluded that even if Hentosh had successfully alleged a hostile work environment, her claim would be time barred. This conclusion was based on the fact that under the applicable statute, Hentosh was required to file her administrative charge with the EEOC within 300 days of the alleged discriminatory conduct forming the basis of her complaint. Hentosh filed her administrative charge with the EEOC more than fifteen months after Jacob resigned as Department chairman--well outside the statutorily required time limit within which to file. In addition to determining that she failed to file her administrative charge with the EEOC in a timely manner, the district court concluded that the complaint Hentosh filed in federal court did not provide any reason to toll the filing requirement. ¹

Hentosh now appeals this decision. Because we agree that Hentosh's complaint was time barred, we affirm.

Analysis

The University moved to dismiss Hentosh's complaint pursuant to Fed.R.Civ.P. 12(b)(6) and (c). ² We review de novo a district court's decision to grant a motion to dismiss under either Rule 12(b)(6) or Rule 12(c), accepting the well-pleaded allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. See Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 493 (7th Cir.1998); Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir.1993). "Accordingly, [such motions] should not be granted unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief." Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir.1989) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). We view the facts in the complaint in the light most favorable to the non-moving party. See Craigs, 12 F.3d at 688; Thomason, 888 F.2d at 1204. ³

The district court rested its decision to grant the University's motion to dismiss on two grounds: Hentosh's complaint did not allege facts sufficient to support a claim for sexual harassment and her complaint was time barred because she failed to file a timely charge with the EEOC. Either conclusion would be a sufficient ground for the district court's decision to grant the University's motion to dismiss. At the outset, we note that our consideration of whether Hentosh's complaint was time barred is dispositive of this appeal. Hentosh has waived her right to challenge the district court's conclusion on this issue because she failed to address this issue in her opening brief. Arguments not raised in an opening brief are waived. See Wilson v. O'Leary, 895 F.2d 378, 384 (7th Cir.1990). Even if we were to consider the arguments Hentosh raised in her reply brief on this issue, her arguments are without merit.

In order to bring suit in federal court under Title VII for sexual harassment, a plaintiff must have filed a charge with the EEOC detailing the incident(s) forming the basis of the plaintiff's allegations within 300 days of the date of the occurrence of the alleged discriminatory conduct or event. 42 U.S.C. § 2000e-5(e); see also EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 970 (7th Cir.1996) ("Illinois is a 'deferral state,' and so the limitation period runs for 300 days from the date of the alleged discrimination."); Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 707 (7th Cir.1995). When a plaintiff fails to do so, the complaint is untimely.

In the present case, the allegedly discriminatory conduct ceased, at the very latest, on the date of Jacob's resignation, and the 300 day period within which Hentosh could file her charge commenced. See, e.g., Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir.1994) (concluding that under the facts of that case, the 300 day period within which to file a charge of sexual harassment commenced, at the latest, when the supervisor allegedly engaging in the discriminatory conduct against the plaintiff was transferred and ceased having contact with the plaintiff). Hentosh did not file her administrative charge until more than fifteen months after Jacob resigned as her supervisor, clearly outside the 300 day period to file her charge with the EEOC. However, the examination of the timeliness issue does not stop at this point. The timely filing of an EEOC charge is not a jurisdictional prerequisite to filing a federal lawsuit, but rather, is more akin to a statute of limitations and subject to waiver, estoppel, and equitable tolling under appropriate circumstances. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).

Hentosh contends that the doctrines of equitable estoppel and equitable tolling each constitute a separate basis for concluding that her charge of discrimination was timely. Equitable estoppel--sometimes referred to as fraudulent concealment--"comes into play if the defendant takes active steps to prevent the plaintiff from suing in time," Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir.1990), "such as by hiding evidence or promising not to plead the statute of limitations," Speer v. Rand McNally & Co., 123 F.3d 658, 663 (7th Cir.1997) (quoting Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 (7th Cir.1995)). See also Mull v. ARCO Durethene Plastics, Inc., 784 F.2d 284, 292 (7th Cir.1986) (stating that equitable estoppel may be available when an employee's untimely filing was a result of "a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge." (citation and quotations omitted)). As we explained in Cada, this doctrine contemplates that "the plaintiff has discovered, or ... should have discovered, that the defendant injured him, and denotes efforts by the defendant--above and beyond the wrongdoing upon which the plaintiff's claim is founded--to prevent the plaintiff from suing in time." 920 F.2d at 451. The "granting of equitable estoppel...