Timms v. Frank

• Decision Date: 28 January 1992
• Docket Number: No. 91-1442,91-1442
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 1208, 57 Empl. Prac. Dec. P 41,208, 21 Fed.R.Serv.3d 1305 Estella TIMMS, Plaintiff-Appellant, v. Anthony M. FRANK, * Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 281

953 F.2d 281

57 Fair Empl.Prac.Cas. (BNA) 1208,

57 Empl. Prac. Dec. P 41,208, 21 Fed.R.Serv.3d 1305

Estella TIMMS, Plaintiff-Appellant, v. Anthony M. FRANK, ^* Defendant-Appellee.

No. 91-1442.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 12, 1991.

Decided Jan. 6, 1992.

Rehearing Denied Jan. 28, 1992.

Howard B. Levy, Chicago, Ill. (argued), for plaintiff-appellant.

Michele M. Fox, Asst. U.S. Atty. Criminal Div., Chicago, Ill. (argued), Lori J. Dym, U.S. Postal Service, Office of Labor Law, Washington, D.C., for defendant-appellee.

Before CUMMINGS, WOOD, Jr., and CUDAHY, Circuit Judges.

CUMMINGS, Circuit Judge.

Estella Timms, a former employee of the United States Postal Service, sued Anthony Frank, the Postmaster General, under Title VII, 42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a. Proceeding pro se, Timms alleged that the Postal Service had discriminated against her on the basis of her age and race. ¹ The district court granted summary judgment to the defendant, finding that the Postal Service had given a legitimate, non-discriminatory reason for refusing to reinstate Timms and that Timms's claim that a younger white male co-worker with a similar work record received preferential treatment was unconvincing. We now consider the propriety of the grant of summary judgment.

I. BACKGROUND

Timms worked for the Postal Service during two different periods. First, she worked as a distribution clerk from 1966 until 1972, when she resigned for medical reasons. She was reinstated as a part-time distribution clerk in 1973. Timms continued to work until 1979, when, for health reasons, ² she stopped reporting to work and was placed on leave without pay (LWOP) status. Over a year later Timms was still on LWOP status, and the Postal Service notified her that she could not remain on LWOP unless she gave some indication that she would be able to return to work within a reasonable time. As the medical statements Timms had already submitted did not indicate that she would return to work within a reasonable time, the Postal Service told her that she would be separated from her position unless she provided medical certification regarding her likely return to work. She failed to provide such information, and her employment was terminated on March 25, 1981.

Timms requested reinstatement in 1982, but was denied. ³ She requested reinstatement again in 1987, but was again denied, because of her previous work record. After pursuing administrative remedies, she filed this suit.

II. ANALYSIS

Timms challenges the grant of summary judgment on two grounds. First, she argues that summary judgment was improper because she was proceeding pro se and never received adequate notice as to the effect of a failure to support a response to a summary judgment motion with affidavits or other documents. Under Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), she argues, all pro se litigants are entitled to such notice. Second, Timms asserts that the defendant was not entitled to summary judgment because genuine issues of material fact remained. Specifically, she claims that issues remained as to whether she was qualified for the position and as to the intent of the defendant in refusing to reinstate her.

In considering these issues we review the record de novo, drawing all reasonable inferences in favor of the non-movant. Rizzo v. Caterpillar, Inc., 914 F.2d 1003 (7th Cir.1990). Summary judgment is proper only if there are no genuine issues of material fact remaining, such that the movant is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c).

A. Notice to Pro Se Litigants

Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), involved a prisoner, suing pro se, who failed to respond to the defendants' summary judgment motion. The court inferred that the Federal Rules of Civil Procedure forbade a district court to act on a summary judgment motion without giving the non-movant a reasonable opportunity to present counter-affidavits. Id. at 100-01. Further, the court found that "[a] reasonable opportunity presupposes notice." Id. at 101-02. The court believed that the need to respond to such a motion with affidavits is not obvious to a layman, holding:

Since few prisoners have a legal background, we think it appropriate to lay down a general rule that a prisoner who is a plaintiff in a civil case and is not represented by counsel is entitled to receive notice of the consequences of failing to respond with affidavits to a motion for summary judgment.

Id. at 102. The court went on to state that defense counsel could provide this notice by including a short and plain statement of the need to respond with their summary judgment motion, giving both the text of Rule 56(e) and an explanation of the rule in ordinary English. Id. However, if defense counsel failed to provide this notice, the court required the district judge to do so. Id. at 103.

Timms argues that the Lewis notice requirement applies to all pro se litigants, not just prisoners. Two cases directly support this argument. Signer v. Indiana University Foundation, 741 F.Supp. 165 (S.D.Ind.1990), held that non-prisoner pro se litigants also have a right to the notice required by Lewis. The court found that a litigant's right to a "reasonable opportunity" to submit affidavits opposing a summary judgment motion should not depend on whether the litigant is a prisoner. In fact, the court observed, prisoners often have a more effective legal support system than non-prisoners, given their access to law libraries and jailhouse lawyers, not to mention the amount of time prisoners have to research their cases. Id. at 166; see also Procup v. Strickland, 792 F.2d 1069, 1071 (11th Cir.1986) (also noting other advantages of prisoners, such as the greater likelihood of being allowed to proceed in forma pauperis and access to free materials, paper, and postage). Similarly, the Second Circuit in Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir.1988), reversed a grant of summary judgment because the pro se plaintiff, a non-prisoner, had not been advised of the consequences of failing to respond to a summary judgment motion. Some courts have extended the rule to non-prisoner litigants on their own, as a matter of general practice. See Hights v. International Harvester Co., 675 F.Supp. 418, 419 n. 2 (N.D.Ill.1987) ("in accordance with its uniform practice whenever Rule 56 motions are asserted against unrepresented litigants ... this court mailed Hights [a pro se non-prisoner] notice as to the procedural requirements she had to observe in response") (citing Lewis).

In applying their own Lewis-type rules, other circuits have used language that would seem to apply to all pro se litigants, even though the specific case involved a prisoner. For example, in United States v. One Colt Python .357 Cal. Revolver, 845 F.2d 287 (11th Cir.1988), the plaintiff was an involuntary resident at a Mental Hospital. In discussing his case, however, the court did not focus on the restrictions his confinement placed on his legal representation, but rather stated generally:

We have repeatedly emphasized that care must be exercised to insure proper notice to a litigant not represented by counsel. Litigants without counsel lack formal legal training and "occupy a position significantly different from that occupied by litigants represented by counsel." A motion for summary judgment should only be granted against a litigant without counsel if the court gives clear notice of the need to file affidavits or other responsive materials and of the consequences of default.

Id. at 289 (citations omitted). In Ham v. Smith, 653 F.2d 628, 630 (D.C.Cir.1981), the District of Columbia Circuit remanded a case because a pro se litigant recently released from prison had not been given proper notice as to how to respond to a summary judgment motion. Following Hudson v. Hardy, 412 F.2d 1091 (D.C.Cir.1968), the court reasoned that a pro se plaintiff released in the middle of a case faced many of the same handicaps as a prisoner. Ham, 653 F.2d at 630. Yet the court did not specify what these handicaps were or how they differed from those faced by all pro se plaintiffs. More, the court began its discussion of the issue by stating, "This court has recognized that district judges should accord special attention to pro se litigants faced with summary judgment motions." Id. at 629-30. The Fourth Circuit has also used language indicating that non-prisoners, too, deserve notice of the requirements of Rule 56(e), though the specific case before it involved a prisoner. In Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975) (per curiam) the district court granted summary judgment for the defendant prison warden. Remanding, the court wrote:

[I]f this were an ordinary civil action the failure of Roseboro to file any counter-affidavit would warrant the entry of summary judgment. We agree with the plaintiff, however, that there is another side to the coin which requires that the plaintiff be advised of his right to file counter-affidavits or other responsive material ... Assuredly, a pro se plaintiff is entitled to such a reasonable safeguard.

Id. at 310.

This circuit, too, has spoken in terms of the rights of all pro se litigants, not just prisoners. Lewis itself, although limiting its holding to prisoner litigants, ⁴ spoke in terms of what would be reasonable to a layman, not merely to a prisoner. 689 F.2d at 102. A later opinion observed that Lewis solved "the problem of pro se litigants who trip over the provision of Fed.R.Civ.P. 56(e)," not mentioning whether that rule was still limited to prisoners. Averhart v. Arrendondo, 773 F.2d 919, 920 (7th Cir.1985). Averhart involved a pro se prisoner whose Rule 59(e) motion had been denied, and who failed to realize that this denial required him to file another notice of appeal under Fed.R.App.P. 4(a)(1) in order to preserve his...