Smith v. EMB, Inc.

576 F. App'x 618
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 29, 2014
DocketNo. 14-2148
StatusPublished
Cited by2 cases

This text of 576 F. App'x 618 (Smith v. EMB, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. EMB, Inc., 576 F. App'x 618 (7th Cir. 2014).

Opinion

ORDER

Renee Smith appeals from the dismissal with prejudice of her employment discrimination suit against her former employer, EMB, Inc. (a medical supply company). Smith’s lawsuit was untimely and her complaint also fails to state a claim for relief. Thus, we affirm the judgment.

Smith, who is black and now 52 years old, worked various jobs during her 7-year tenure at EMB, including sales, billing, and training. She says that she was fired on August 15, 2011, four days after accusing the company of engaging in discrimination. (The operative complaint says that Smith was discharged in 2012, but all of her other submissions say 2011, as does her brief in this court. We assume that the reference to 2012 is a typo.) Smith, though, was denied unemployment benefits because the Illinois Department of Employment Security concluded that she had left the company voluntarily. Then on June 8, 2012 (298 days after her employment had ended) Smith filed a charge of discrimination with the Equal Employment Opportunity Commission and the Illinois Department of Human Rights. She asserted that EMB fired her because of her age, sex, and race, and because she had complained about discrimination.

Smith received a right-to-sue letter on June 21, 2012. Ninety-one days later, on Thursday, September 20, 2012, she filed a complaint in federal district court claiming discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, e-S, and the Age Discrimination in Employment Act, 29 U.S.C. § 623. The next day Smith filed an amended complaint that incorporates about 25 pages of attached correspondence purportedly showing discrimination. The district court screened the amended complaint, see Rowe v. Shake, 196 F.3d 778, 783 (7th Cir.1999), and dismissed it without prejudice for failure to comply with Rule 8(a) of the Federal Rules of Civil Procedure, see Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 820-21 (7th Cir.2009).

Smith also had asked the district court to recruit counsel. The court denied this request because in her motion Smith conceded that, with time, she would be able to obtain a lawyer without the court’s assistance.

[619]*619EMB was served after Smith filed a second amended complaint, this time alleging only sex discrimination and retaliation. Although Smith used a form complaint for lawsuits brought under 42 U.S.C. § 1983, the company understood her complaint to be premised on Title VII and moved to dismiss the suit on the ground that it is untimely. EMB asserted that Smith had filed suit more than 90 days after receiving her right-to-sue letter, and also that the unlawful conduct alleged in her complaint occurred more than 300 days before she filed her administrative charge of discrimination. See 42 U.S.C. § 2000e-5(e)(1), (f)(1); Groesch v. City of Springfield, Ill., 635 F.3d 1020, 1024 n. 2 (7th Cir.2011). In response Smith did not dispute that she was suing under Title VII. She also conceded that she had missed the 90-day window; Smith apologized for being late but did not offer an explanation or excuse for her tardiness. On the other hand, Smith asserted that her charge of discrimination had been timely because, she insisted, EMB’s discriminatory and retaliatory conduct had continued after her discharge.

The district court dismissed the lawsuit with prejudice. The court first concluded that the suit was untimely because Smith had filed it more than 90 days after receiving her right-to-sue letter, and that Smith had not asserted any “extraordinary circumstance” warranting the application of equitable tolling. The court alternatively concluded that, although not all of the allegedly unlawful conduct asserted by Smith had occurred more than 300 days before she filed her administrative charge of discrimination, her second amended complaint nevertheless fails to state a claim for relief.

On appeal Smith concedes, again, that her lawsuit was not filed within 90 days from when she received her right-to-sue letter, but she argues that the district court should have equitably tolled the filing deadline. Her brief is unclear, but we think she is saying that her complaint was untimely because a clerk’s office employee misinformed her about the deadline. The defendant ignores the explanation that Smith gives in her brief, which might well have supported a claim of equitable tolling had it been raised in the district court. But it wasn’t, and it’s too late now. See Fednav Int’l Ltd. v. Continental Ins. Co., 624 F.3d 834 (7th Cir.2010); County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 819-20 (7th Cir.2006).

A Title VII plaintiff must file her lawsuit within 90 days of the date she receives a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1); Averhart v. Sheriff of Cook County, Ill., 752 F.3d 1104, 1106 (7th Cir.2014). Equitable tolling is available to a plaintiff who has pursued her rights diligently and points to an extraordinary circumstance that prevented timely filing. Lee v. Cook County, Ill., 635 F.3d 969, 972 (7th Cir.2011); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850-51 (7th Cir.2001). That includes a plaintiff who was misled by the court about the necessary steps to preserve her claim. Prince v. Stewart, 580 F.3d 571, 574-75 (7th Cir.2009). But in her response opposing the motion to dismiss, Smith acknowledged that she filed her complaint late and apologized for her lack of diligence; she cannot change her story now to shift the blame. See Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 555 (7th Cir.2012) (recognizing that plaintiff appealing dismissal of complaint may elaborate on factual allegations but new facts must be consistent with assertions in district court); Belom v. Nat’l Futures Ass’n, 284 F.3d 795, 799 (7th Cir.2002) (noting that arguments not presented to district court cannot be made on appeal).

But even if Smith’s complaint was timely, we would still affirm on the ground that [620]

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576 F. App'x 618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-emb-inc-ca7-2014.