Luevano v. Wal-Mart Stores, Inc.
| Decision Date | 16 July 2013 |
| Docket Number | No. 11–1917.,11–1917. |
| Parties | Tara V. LUEVANO, Plaintiff–Appellant, v. WAL–MART STORES, INC., Defendant–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Sarah O'Rourke Schrup (argued), Sarah Newman (argued), Marjorie Filice (argued), Chicago, IL, for Plaintiff–Appellant.
Norma W. Zeitler (argued), Attorney, Barnes & Thornburg LLP, Chicago, IL, for Defendant–Appellee.
Before BAUER, SYKES, and HAMILTON, Circuit Judges.
Tara Luevano appeals the dismissal of her sex discrimination and retaliation claims against her employer, Wal–Mart Stores, Inc. Although the appeal presents a thicket of procedural issues, its ultimate resolution on the merits is straightforward. Luevano's original, timely, pro se complaint sufficiently stated claims for sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. The district court erred in dismissing that original complaint but correctly did not dismiss the entire action. Accordingly, Luevano's claims in the later amended complaints all relate back to the timely filing of the original complaint. We therefore reverse and remand for further proceedings on the merits of Luevano's claims. Along the way, we also address some procedural snarls that district courts can and should avoid in handling complaints filed by plaintiffs seeking to proceed in forma pauperis (IFP).
Because the case was dismissed under Federal Rule of Civil Procedure 12(b)(6), we must assume that Luevano's factual allegations are true. Luevano works at Wal–Mart as a greeter. In 2010, she complained to her supervisor that a co-worker was repeatedly harassing her in a hostile and disruptive way. The supervisor refused to act and the harassment continued. Luevano escalated her complaints to Wal–Mart's district manager of human resources but found no relief. Instead, her working hours were cut. Luevano next filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that her male co-worker harassed her, that her supervisor refused to intervene, and that she was discriminated against based on her gender. The EEOC issued a right to sue letter telling Luevano that she had ninety days to sue in a federal district court.
On June 28, 2010, two days before the ninety-day deadline expired, Luevano filed in the district court a pro se complaint, along with a request to proceed IFP and a request for appointed counsel (technically, recruited counsel, but we'll ignore that nuance here). Luevano used the four-page form complaint provided by the Northern District of Illinois for employment discrimination claims. She checked the boxes for sex discrimination, failure to stop harassment, and retaliation based on a protected activity. She included two handwritten pages alleging three basic things: (1) her co-worker harassed her because she was a woman; (2) her supervisor refused to correct her co-worker's behavior because the supervisor and the co-worker were both men; and (3) her supervisor retaliated against her by reducing her hours and “subject[ing her] to intimidation” because she escalated her complaints to the district manager of human resources.
Pursuant to 28 U.S.C. § 1915(e)(2), which directs district courts to screen all complaints accompanied by an IFP request for failure to state a claim, among other things, the district court dismissed Luevano's complaint without prejudice. In an order dated July 9, 2010, the court found that Luevano had failed to allege properly that the harassment or retaliation had occurred because of her sex. That finding apparently overlooked both the alleged sex discrimination by Luevano's supervisor and the fact that a retaliation claim does not require proof that the retaliation itself was motivated by sex. Retaliation for protected activity aimed at asserting or protecting legal rights is unlawful. The district court acted properly, however, in giving Luevano an opportunity to amend her complaint to cure these perceived problems. The order told Luevano that the court would reconsider her request for appointed counsel “if she provides the Court with an amended Complaint providing a sufficient basis for the Court to find that the harassment of which she complains occurred due to her sex.”
Luevano filed an amended pro se complaint on August 4, 2010. The amended complaint added: “I believe I have been discriminated [sic] because of my sex female and retaliated against, in violation of Title VII of the Civil Rights Act of 1964, as amended, for engaging in protected activity.” The amended complaint also explained that the supervisor refused to investigate Luevano's complaints and that he too participated in “making sexist comments with approval and excuses for the male harasser's offensive, hostile verbal abuse....” The amended complaint added that her supervisor “confirmed male favoritism and protection” by choosing not to discipline her male co-worker. Luevano also attached to her amended complaint sections of Wal–Mart's discrimination and harassment policies, underlining the portions she felt had been violated.
On August 9, 2010, the district court granted Luevano's motion to amend her complaint. Ten days later, on August 19, 2010, the district court granted Luevano leave to proceed IFP and appointed counsel for her. The district court also gave Luevano until September 30, 2010 to file a second amended complaint with the assistance of counsel, explaining that Luevano “appears to have timely claims under Title VII and the assistance of counsel appears reasonably necessary to enable her to present those claims to the Court.”
In the meantime, on June 7, 2010, Luevano had filed a second EEOC charge alleging that Wal–Mart retaliated against her for filing the first EEOC charge. On June 30, 2010, Luevano received a second right to sue letter from the EEOC.
With the aid of appointed counsel, on September 29, 2010, Luevano filed her second amended complaint, which included all allegations in the first two complaints but did not mention the retaliation that was the subject of the second EEOC charge. The second amended complaint and summons were served on Wal–Mart on October 1, 2010.
On October 21, 2010, Wal–Mart moved to dismiss the second amended complaint as untimely because Luevano had failed to file it within ninety days of receipt of her first EEOC right to sue letter. Luevano's appointed counsel then moved to amend the second amended complaint to include acknowledgment of the second EEOC right to sue letter since the second amended complaint was filed within ninety days of receipt of the second right to sue letter. The district court granted Luevano's motion to amend her second amended complaint, resulting in a third amended complaint filed on November 24, 2010. The third amended complaint alleged, for the first time, retaliation for having filed the first EEOC charge. Wal–Mart renewed its motion to dismiss the third amended complaint as untimely.
The district court granted Wal–Mart's motion to dismiss and entered a final judgment of dismissal with prejudice pursuant to Federal Rule of Civil Procedure 58. Luevano v. Wal–Mart Stores, Inc., 2011 WL 1113401 (N.D.Ill. March 24, 2011). The district court held that all of Luevano's complaints were untimely except for her original complaint, which the court had dismissed for failure to state a claim. The district court found that “upon denial of her IFP claim and dismissal of her complaint without prejudice on July 9, 2010, the limitations period restarted, and Luevano had just two days to refile her complaint.” Luevano had waited more than two days, so her first, second, and third amended complaints were filed too late. The district court also held that Luevano's third amended complaint was untimely with respect to her second EEOC charge, first mentioned in the third amended complaint, because that complaint was filed more than ninety days after Luevano received the second right to sue letter. Luevano has appealed.
The district court's final judgment dismissing Luevano's action is appealable under 28 U.S.C. § 1291. Wal-Mart contends, however, that we do not have jurisdiction to consider the district court's July 9, 2010 dismissal of Luevano's original complaint as part of this appeal. The question is important because it affects the timeliness of Luevano's amended complaints.
The general rule is that an appeal from a final judgment allows the appellant to challenge any interlocutory actions by the district court along the way toward that final judgment. Habitat Educ. Ctr. v. U.S. Forest Serv., 607 F.3d 453, 456 (7th Cir.2010); Shah v. Inter–Continental Hotel Chicago Operating Corp., 314 F.3d 278, 281 (7th Cir.2002). Kurowski v. Krajewski, 848 F.2d 767, 772–73 (7th Cir.1988) (internal citations omitted). The July 9, 2010 order is thus properly characterized as an interlocutory order that we may review as part of this appeal from the final judgment.
According to Wal–Mart, however, the July 9, 2010 dismissal of the complaint without prejudice restarted the ninety-day clock when Luevano received it on July 12. With just two more days remaining of the original ninety, Wal–Mart argues, the dismissal of the complaint without prejudice ripened into a final judgment dismissing the entire action with prejudice on July 14, leaving Luevano thirty days to file a notice of appeal. Wal–Mart concludes that Luevano's failure to file an appeal within those thirty days means that the July 9, 2010 order became a final judgment not subject to a collateral attack in this appeal.
We reject this argument for reasons we detail below. In summary, the district court did not...
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