Malozienc v. Pacific Rail Services, No. 05 C 7001.

• Decision Date: 19 August 2008
• Docket Number: No. 05 C 7001.
• Citation: 572 F.Supp.2d 939
• Parties: John MALOZIENC, Plaintiff, v. PACIFIC RAIL SERVICES, Defendant.
• Court: U.S. District Court — Northern District of Illinois

572 F.Supp.2d 939

John MALOZIENC, Plaintiff, v. PACIFIC RAIL SERVICES, Defendant.

No. 05 C 7001.

United States District Court, N.D. Illinois, Eastern Division.

August 19, 2008.

Alisa B. Arnoff, Sclalmbrino & Arnoff, LLP, Chicago, IL, for Plaintiff.

Clifford R. Perry III, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

MORTON DENLOW, United States Magistrate Judge.

Plaintiff John Malozienc ("Plaintiff') filed a racial discrimination suit under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 against his employer, Defendant Pacific Rail Services ("Defendant"). Defendant filed a motion for summary judgment contending Plaintiff's claim is untimely. The Court conducted oral argument on August 12, 2008 and announced the ruling from the bench. This opinion goes into greater detail regarding the basis for the Court's decision. For the following reasons, Defendant's motion for summary judgment on the issue of untimeliness is denied.

I. BACKGROUND FACTS

As required when considering a motion for summary judgment, the following facts regarding the timeliness of Plaintiff's complaint are undisputed or presented in the light most favorable to the Plaintiff when contested. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Plaintiff Files Initial Discrimination Charge with IDHR.

Plaintiff filed a Charge of Discrimination with the Illinois Department of Human Rights ("IDHR") on April 15, 2004, alleging Defendant discriminated against him on the basis of race. PRDSOF ¶ 67.¹ The IDHR assigned an investigator, Mark Lamb ("IDHR Investigator"), to investigate Plaintiff's allegations. DRPSOF ¶ 3. Plaintiff told the IDHR Investigator of his intention to bring the claim on behalf of other similarly situated employees.² PL Ex. 1. The IDHR Investigator advised Plaintiff to file with the Equal Employment Opportunity Commission ("EEOC") because the IDHR could not handle class action claims. Pl.Ex. 1. On October 24, 2004, the Investigator told Plaintiff he would send Plaintiff the necessary paperwork to transfer the claim to the EEOC. PSOF ¶ 8.

B. First Right-to-Sue Letter Issued on March 22, 2005.

Plaintiff received withdrawal documents from the IDHR Investigator, which he signed and returned. PSOF ¶ 9. Unbeknownst to Plaintiff, there were two ways in which to "withdraw" a charge of discrimination from the IDHR: (1) withdrawal of a charge in such a manner that would cause the EEOC to issue a right-to-sue notice, or (2) withdrawal of a charge so `that the IDHR would stop actively investigating the charge and transfer it to the EEOC for investigation. Pl.Ex. 1. Though Plaintiff intended the latter, the IDHR Investigator erroneously prepared Plaintiff's paperwork. Id. The documents Plaintiff signed indicated a request to withdraw his claim in order to pursue a suit in federal court. See Pl.Ex. 1. Upon receipt of these documents, the EEOC issued a right-to-sue notice to Plaintiff on March 22, 2005, ("First Right-to-Sue Notice"). DRPSOF ¶ 16. The notice stated "Issued on Request" and notified Plaintiff he had a ninety-day time limit within which to file a complaint in federal court or the right to sue would be lost. Def. Art. ¶ 23.

C. EEOC Rescinds First Right-to-Sue Letter on May 16, 2005.

On May 4, 2005, Plaintiff wrote a letter to John Rowe, District Director of the EEOC, explaining he had not intended for the charge to be dismissed nor for a right-to-sue notice to be issued. See Pl.Ex. 1; Pl.Ex. 1A. Mr. Rowe sent a response dated May 16, 2005, which stated the following:

We issued a Notice of Right to Sue on your charge on March 22, 2005. According to your correspondence, it was not your intent for a Notice to be issued. It was your intent for the EEOC to complete the investigation of your charge. Based on your correspondence and our follow-up with staff at IDHR, we are rescinding our Notice dated March 22, 2005 and reopening your charge and transferring it to one of our Enforcement Units for the completion of the investigation.

Pl.Ex. 1B.

Rowe's rescission letter shows he sent a courtesy copy to Defendant's representative, Mike List. Pl.Ex. 1B. The letter also indicates, however, that it was incorrectly mailed to "8025 South 178th St.", rather than the correct address for Mike List, which is "802 South 178th St." DA ¶ 1. The EEOC subsequently interviewed Plaintiff concerning his charge. Pl.Ex.1; Pl.Ex.1C. Meanwhile, based on the EEOC's May 16, 2005 rescission letter, Plaintiff did not file suit against Defendant within ninety (90) days of his receipt of the March 22, 2005 Right-to-Sue Notice. Pl.Ex. 1.

D. EEOC Issues Plaintiff a Second Right-to-Sue Letter on September 13, 2005, and Plaintiff Files Suit on December 13, 2005.

The EEOC sent Plaintiff a second right-to-sue notice on September 13, 2005 ("Second Right-to-Sue Notice") stating, "if you decide to sue, you must sue within 90 days from your receipt of this Notice; otherwise your right to sue is lost." Pl.Ex. D. Plaintiff received it within five mailing days. DRPSOF ¶ 21. Plaintiff filed his pro se complaint on December 13, 2005, which was within ninety days of his receipt of the Second Right-to-Sue Notice. DRPSOF ¶ 22. Plaintiff attached a copy of the September 13, 2005 Right-to-Sue Notice as an exhibit to his complaint.

II. LEGAL STANDARD

A. Summary Judgment

A court may grant summary judgment when the "pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The movant bears the burden of establishing that there exists no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir.1995). The party bearing the burden of proof on any issue at trial may not rest on the pleadings, however, but must "designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The evidence is viewed in the light most favorable to the non-movant and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

III. DISCUSSION

Defendant contends that the evidence Plaintiff relies on to prevent dismissal on, summary judgment must be stricken under Rule 37(C)(1) of the Federal Rules of Civil Procedure because this evidence was neither produced nor identified in Plaintiff's initial disclosures as required by Federal Rule of Civil Procedure 26(A)(1). Even if the disputed evidence is considered, Defendant contends summary judgment is appropriate because Plaintiff was required to submit his complaint within ninety days of the First Right-to-Sue Letter. The Court rejects both arguments. First, the Court finds Federal Rule of Civil Procedure 37 sanctions do not bar the evidence because Plaintiff complied with Federal Rule of Civil Procedure 26(e). Second, the Court finds the ninety-day time period expired on December 18, 2005 in connection with Plaintiff's receipt of the Second Right-to-Sue Notice dated September 13, 2005.³ Thus, Plaintiff timely filed his complaint on December 13, 2005.

A. Evidence Supporting Plaintiff's Response to Defendant's Motion Is Not Barred by Rule 37 of the Federal Rules of Civil Procedure

Defendant objects to all facts in Plaintiff's response relating to the evidence of letters sent to and from Mr. Rowe ("Rowe Letters").⁴ Defendant is understandably frustrated by Plaintiff's late disclosure of the Rowe Letters. Plaintiff did not disclose them until May 14, 2008, more than seven months after the close of discovery, and two weeks after Defendant filed this motion for summary judgment.

Defendant asks the Court in its discretion to sanction Plaintiff pursuant to Federal Rule of Civil Procedure 37, the purpose of which is to ensure compliance with discovery requirements. Rule 37(c)(1) states that "if a party fails to provide information . . . as required by Rule 26(a) or 26(e), the party is not allowed to use that information ... to supply evidence on a motion ... unless the failure was substantially justified or is harmless." Fed. R.Civ.P. 37(c)(1).

The Court finds Plaintiff complied with Rule 26(e), and therefore avoided triggering Rule 37. Defendant's brief does not address whether Plaintiff complied with Rule 26(e), but focuses instead on Plaintiff's failure to supply the Rowe Letters at the Rule 26(a) stage of the litigation. Rule 26(a)(1), entitled "Duty to Disclose," requires initial disclosures of "the name, and if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses . . ." Fed.R.Civ.P. 26(a)(1)(A)(I). Also, "a party must make its initial disclosures based on information then reasonably available to it." Fed.R.Civ.P. 26(a)(1)(E). According to Defendant, Plaintiff was obligated but failed to produce the Rowe Letters in response to Defendant's initial discovery request for any and all documents that Plaintiff sent to or received from the EEOC.

Defendant ignores, however, the related Rule 26(e), which allows for supplemental disclosure at a later date, so long as the material is produced in a timely manner:

a party who has made a disclosure under Rule 26(a) . . . must supplement or correct its disclosure ... in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not...