Pelnarsh v. R.R. Donnelley & Sons Co.

348 F. App'x 178
Court of Appeals for the Seventh Circuit·Decided October 21, 2009·No. No. 09-2305·Published·Cited by 1 cases

Opinion

ORDER

Jeanie Pelnarsh sued her former employer, R.R. Donnelley & Sons, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, alleging that several supervisors and coworkers subjected her to a sexually hostile work environment and that Donnelley retaliated against her for complaining about it. The district court granted summary judgment for Don-nelley on the grounds that Pelnarsh did not have sufficient evidence to establish a retaliation claim, and that she did not timely file an administrative charge of discrimination as to her sexual-harassment claim. Pelnarsh appeals only the dismissal of the sexual-harassment claim. We affirm the judgment.

We construe the following facts in the light most favorable to Pelnarsh. See Winsley v. Cook County, 563 F.3d 598, 602 (7th Cir.2009). Pelnarsh began working at Donnelley’s facility in Pontiac, Illinois, in 1999 and remained with the company until she was fired in January 2006. On October 1, 2005, Pelnarsh transferred to Don-nelley’s facility in Mendota, Illinois. Pel-narsh contends that, during her tenure with the company, male supervisors and coworkers subjected her to constant sexual harassment including physical touching, propositions for sex, and lewd comments about her appearance. After she transferred to Mendota, however, the only unwelcome conduct Pelnarsh endured was a series of haranguing phone calls from Joe Carlberg, her former supervisor in Pontiac. In the calls Carlberg insisted that she continue to work remotely on assignments for him and threatened to make her life miserable if she refused.

When Pelnarsh was terminated in January 2006, Donnelley gave “gross misconduct” as the reason. The company discovered that Pelnarsh had used a company credit card to pay for thousands of dollars of personal expenses. Pelnarsh pleaded guilty to theft in state court and served a 90-day sentence for making these unauthorized purchases. On September 21, 2006, she filed a charge of discrimination with the Equal Employment Opportunity Commission and the Illinois Department of Human Rights; the EEOC issued a right-to-sue letter after the case had been pending for more than 180 days.

Pelnarsh then filed a complaint in district court, and Donnelley moved for summary judgment, asserting as a defense that Pelnarsh had filed her charge of discrimination with the EEOC too late. Pel-narsh opposed the motion, and gave two reasons why she believed that her administrative charge was timely. First, she asserted that she submitted other administrative charges to the EEOC between December 2005 and August 2006, which were well within 300 days of the alleged discriminatory conduct. But Pelnarsh did not offer any evidence that there had been previous charges of discrimination, and the district court concluded that the undisputed evidence established that her only administrative charge was filed with the EEOC on September 21, 2006. Pel-narsh does not contest this conclusion on appeal.

Second, Pelnarsh asserted in response to Donnelley’s motion for summary judgment that Carlberg’s calls constituted sexual harassment, and that she filed her administrative charge within 300 days of [180]*180those calls. To support this assertion, Pel-narsh pointed to her deposition testimony where she verified the accuracy of a letter she had written to the administrative investigator. In the letter Pelnarsh explained: “I didn’t endure any sexual harassment while I was at the Mendota plant. The only harassment that transpired was by Joe Carlberg who constantly called every day.” Pelnarsh described the content of these calls in an unsworn statement accompanying her opposition to summary judgment. The district court refused to credit this statement and noted that her deposition testimony contradicted her position that the sexual harassment continued after she transferred to Mendo-ta.

On appeal Pelnarsh argues that she identified a material question of fact as to when the alleged sexual harassment ceased, and that the district court erred by refusing to allow a jury to decide if her case was timely. We review a grant of summary judgment de novo. Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 665 (7th Cir.2007).

Administrative exhaustion is a prerequisite to filing a lawsuit under Title VII, but the requirement is not jurisdictional. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Volovsek v. Wis. Dep’t of Agric., Trade, & Consumer Prot., 344 F.3d 680, 687 (7th Cir.2003). Instead, lack of exhaustion, which is Donnelley^ theory in this case, is an affirmative defense on which the company bears the burden of proof. See Salas v. Wis. Dep’t of Corr., 493 F.3d 913, 922 (7th Cir.2007). Thus, summary judgment was appropriate only if Donnelley established through undisputed evidence that Pelnarsh failed to timely file her charge of discrimination with the EEOC. See Laouini v. CLM Freight Lines, Inc., 586 F.3d 473, 475-76 (7th Cir.2009).

Illinois is a deferral state, so Pelnarsh was required to file a charge of discrimination with the EEOC within 300 days of some offending conduct. See 42 U.S.C. § 2000e-5(e)(l); Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 396 (7th Cir.1999). Since Pelnarsh complains of a hostile work environment, the 300-day period is measured from the date of the last hostile act even if that act would not, standing alone, give rise to a claim of sexual harassment. See Nat’l R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 115-18, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Pruitt v. City of Chicago, 472 F.3d 925, 927 (7th Cir.2006). Thus, Pelnarsh’s claim must be based on conduct occurring on or after November 26, 2005. If there is no evidence of hostile conduct after that date, Pelnarsh’s claim was untimely. See Lucas v. Chi. Transit Auth., 367 F.3d 714, 724 (7th Cir.2004). The hostile conduct that Pelnarsh allegedly endured occurred in the Pontiac facility, before her transfer to Mendota on October 1, 2005. To overcome this problem of timing, Pelnarsh insists that the calls she received from Carl-berg after her transfer were hostile acts. Her contention rests on three premises. First, she argues, the calls were constant and their frequency alone constitutes sexual harassment regardless of content. Second, she continues, her former supervisor’s work-related demands were inappropriate because she no longer worked for him.

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Pelnarsh v. R.R. Donnelley & Sons Co., 348 F. App'x 178 (7th Cir. 2009).

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