Lohrasbi v. University of Illinois et al
Filing
52
OPINION entered by Judge Sue E. Myerscough on 11/28/2015. SEE WRITTEN OPINION. The Court GRANTS Defendant's Renewed and Revised Motion for Summary Judgment (d/e 37 ). (DM, ilcd)
E-FILED
Sunday, 29 November, 2015 09:48:21 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ARDESHIR LOHRASBI,
Plaintiff
v.
BOARD OF TRUSTEES OF THE
UNIVERSITY OF ILLINOIS
Defendant.
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No. 13-3105
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court is Defendant Board of Trustees of the
University of Illinois’s Renewed and Revised Motion for Summary
Judgment (d/e 37), pursuant to Federal Rules of Civil Procedure
Rule 56. The MOTION is GRANTED because Plaintiff Ardeshir
Lohrasbi’s claim is time-barred and the doctrine of equitable tolling
does not apply.
I. BACKGROUND
On June 24, 2013, Plaintiff filed a Complaint in this Court
against the Board of Trustees of the University of Illinois
(“Defendant”). Plaintiff claims he suffered adverse employment
actions based on Defendant’s decisions to serve him with a notice of
trespass, to place him on administrative leave pending an
evaluation of his fitness to work, and to deny him the status and
benefits of Professor Emiritus. These decisions, Plaintiff alleges,
were discriminatory actions motivated by Plaintiff’s race and
national origin.
Plaintiff is a citizen of the United States who was born in Iran.
Plaintiff suffers from essential tremors, a medical condition causing
him to shake. In 1980, he began working at the University of
Illinois at Springfield and, in 1986, he was made a tenured
professor. Plaintiff’s last position at the University of Illinois at
Springfield was Associate Professor of Business Administration in
the College of Business. The Springfield campus is part of the
University of Illinois system, 110 ILCS 327/40-5, which is governed
by Defendant, the Board of Trustees of the University of Illinois, 110
ILCS 327/40-5.
In June of 2011, Plaintiff decided to retire and entered into a
Resignation Agreement with Defendant, to be effective December
30, 2011. Plaintiff voluntarily signed the agreement on June 16,
2011. Defendant, through the Dean of the College of Business and
Page 2 of 27
Management, Ron McNeil, signed the agreement on June 17, 2011.
In consideration of Plaintiff’s retirement, Defendant agreed to pay
Plaintiff a one-time payment of $21,345, as well as compensation
for other research and teaching commitments previously made by
Plaintiff. The Resignation Agreement contained an integration
clause stating that “No amendment, modification or alteration of
this Agreement shall be binding unless in writing, dated subsequent
to the date hereof, and duly executed by both parties hereto.” Def.
Renewed and Revised Mot. Summ. J. (d/e 37-23) at 11-12.
On June 27, 2011, Dean McNeil wrote a letter to Plaintiff
advising him that McNeil would inform the Chair of the Department
of Business Administration that McNeil was recommending Plaintiff
for emeritus status and that McNeil would endorse a
recommendation from the Department for such status. Def.
Renewed and Revised Mot. Summ. J. Exh. (d/e 37-23) at 16.
Additionally, the letter advised Plaintiff that “[i]t is the College’s plan
and commitment” for Plaintiff to continue to teach three sections
per year, an option for Professors Emeriti. Id. The letter was signed
by both Dean McNeil and Plaintiff.
Page 3 of 27
In August of 2011, Plaintiff communicated to Dean McNeil on
at least two occasions that Plaintiff would like to delay his
retirement or otherwise continue to teach in the spring because of
impending financial issues concerning a potential recurrence of his
wife’s cancer. Dean McNeil notified Interim Provost Lynn Pardie of
Plaintiff’s wishes to delay retirement via memorandum on two
occasions. Provost Pardie later informed Dean McNeil that the
University could not grant Plaintiff’s request because the University
would not alter the resignation agreement and faculty members
cannot be rehired within 60 days of retirement. It is unclear when
Plaintiff was notified of the University’s decision.
On November 14, 2011, Plaintiff was discussing the pending
decision regarding his retirement with Dean McNeil’s assistant,
Patty Sanchez. At one point during the conversation, Ms. Sanchez
heard Plaintiff use the phrase “maybe a machine gun,” though she
was unaware of the context of the comment. Plaintiff maintains he
was referring to people using guns to commit suicide, as, earlier
that day, he had attended a celebration of life for his friend and
mentor Dennis Camp who had shot himself. Ms. Sanchez did not
feel threatened or concerned by the comment or the conversation at
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the time. Over the following weekend, Ms. Sanchez determined she
should report Plaintiff’s comments. Ms. Sanchez reported the
comment to the University’s Attorney Mark Henss.
As a result of Ms. Sanchez’s reporting the comment, Chief of
the University Police, Donald Mitchell initiated a report and
assigned Officers Jerry Kuchar and Amanda Baughman to follow
up. During an interview with Plaintiff regarding the incident, Chief
Mitchell asked Plaintiff three questions regarding the “machine gun”
statement. Chief Mitchell asked Plaintiff if Plaintiff made the
utterance “maybe a machine gun?” and Plaintiff responded that he
did not recall or that he did not know what the Chief was talking
about. It is not clear whether Chief Mitchell provided any context
for the question, such as when or to whom Plaintiff allegedly made
the utterance. Chief Mitchell asked Plaintiff if he owned a gun, and
Plaintiff responded that he did not and that his culture did not
allow for the possession of a gun except in war. Chief Mitchell
asked Plaintiff if he felt like he wanted to hurt someone or himself,
and Plaintiff responded that he did not and he would not kill
himself because his wife had cancer and his family would be left
with nothing. According to Chief Mitchell, his officers asked several
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other questions, and Plaintiff told officers about the situation
surrounding his retirement. Def. Renewed and Revised Mot.
Summ. J. Exh. (d/e 37-16) at 6-8. Chief Mitchell stated that,
during the interview, Plaintiff appeared to be nervous, trembling,
and sweaty, that his voice went up and down, and Plaintiff could
not stay focused on the conversation. Id. at 5-7.
Based upon the statement reported by Ms. Sanchez, his
interview with Plaintiff, and the recent history of school shootings
nationally, Chief Mitchell decided to issue Plaintiff a “Notice of
Trespass” because Chief Mitchell believed that Plaintiff was
potentially a danger to the University community. On November
28, 2015, after discussing the “machine gun” comment, the
University Administration also decided to investigate. Dean McNeil
was asked to evaluate Plaintiff’s behavior. Dean McNeil ran into
Plaintiff in the hallway later that day. The details of the encounter
are disputed, but Dean McNeil stated that he found Plaintiff’s
behavior concerning and reported as much to Provost Pardie.
Dean McNeil also asked Plaintiff to see Interim Human Resources
Director Robert Lael. It is unclear what was stated to Plaintiff about
the purpose of the meeting with Director Lael.
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At the meeting with Director Lael, Plaintiff was asked whether
he needed any help. Plaintiff responded that he did not. The
context of the conversation is unclear. Defendant suggests it was
about Plaintiff’s behavior and Defendant’s concerns. Plaintiff
suggests it was about his retirement situation. Based upon the
meeting with Director Lael and Dean McNeil’s stated concerns, a
meeting was scheduled for December 1, 2011 to address the
situation with Plaintiff. Before the meeting, the attending members
of the administration, including Dean McNeil and Provost Pardie,
decided to commence an “Evaluation of Ability to Work” process in
regard to Plaintiff’s mental state. As a part of this process, Plaintiff
was to be placed on Administrative Leave with pay and benefits,
and the University was to conduct an evaluation about whether
Plaintiff was still fit to perform his duties as Associate Professor.
At the December 1st meeting, the Administration informed
Plaintiff of its decision to commence the evaluation and place him
on administrative leave, and Chief Mitchell issued Plaintiff a Notice
of Trespass and escorted Plaintiff from campus. The specific details
of what information the Administration provided Plaintiff at the
meeting are disputed. While on Administrative Leave, Plaintiff was
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prohibited from teaching his classes or contacting his students for
the remaining weeks of the term. Further, the Notice of Trespass
prohibited Plaintiff from entering University property, without
permission and a police escort for one year. Plaintiff was escorted
to his office to collect his belongings by Chief Mitchell and Director
Lael. Plaintiff returned to campus a few times between December 1,
2011 and December 30, 2011 to collect belongings and fill out
retirement paperwork. Each time, he called Chief Mitchell prior to
arriving at campus and was escorted by Mitchell while on campus.
Neither the University nor the University Police reported Plaintiff’s
situation to other law enforcement.
On December 30, 2011, Plaintiff’s retirement became effective.
The “Evaluation of Ability to Work” process was never conducted.
In March of 2012, Plaintiff received an email from the University
inviting him to a Retirement and Recognition Ceremony on April 27,
2012. The active Notice of Trespass prevented Plaintiff from
attending the ceremony. Proceedings to bestow emeritus status
upon Plaintiff were never initiated. Emeritus status would have
entitled Plaintiff to campus parking, a campus mail address, a
campus email account, as well as the potential opportunity to teach
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up to three classes per semester and maintain office space on
campus.
Plaintiff claims that the actions of the Administration and the
University police were discriminatory acts based on his Iranian
heritage. He claims that he was labeled a terrorist because of the
machine gun comment and that a white professor who had made
the same comment would not have been subject to the same
response. Between December 30, 2011 and January 2, 2012,
Plaintiff claims to have consulted at least one attorney regarding the
aforementioned events. See Plaintiff’s Response to Def. Renewed
and Revised Mot. Summ. J. (d/e 40) at 28-29.
On January 2, 2013, Plaintiff signed a charge of
discrimination, which the U.S. Equal Employment Opportunity
Commission (“EEOC”) received on January 8, 2013. The charge
requests that it be filed with both the EEOC and the Illinois
Department of Human Rights, the applicable state agency. The
EEOC issued a Right to Sue letter on January 28, 2013, and
Plaintiff subsequently filed a three-count Complaint in this Court
(d/e 1). In Count One of the Complaint, Plaintiff alleges Defendant
violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
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et seq., by discriminating against him because of his race and
national origin, when Defendant issued Plaintiff a Notice of
Trespass banning him from campus, placed him on administrative
leave pending an evaluation of his mental fitness, and declined to
grant him the title of Professor Emeritus.
On June 24, 2013, Defendant filed a Motion to Dismiss
Plaintiff’s Complaint (d/e 7). On February 6, 2014, this Court
issued an Opinion dismissing Counts 2 and 3 of the Complaint and
identifying the University of Illinois Board of Trustees as the sole
defendant. On February 16, 2015, Defendant filed a Motion for
Summary Judgment (d/e 25). On February 19, 2015, Plaintiff filed
a Motion to Defer Consideration of Defendant’s Motion for Summary
Judgment (d/e 27). In a text order on February 27, 2015, United
States Magistrate Judge Tom Schanzle-Haskins granted
Defendant’s motion to defer consideration to allow time for
discovery. On August 17, 2015, Defendant filed a Renewed and
Revised Motion for Summary Judgment (d/e 37). The Defendant’s
Renewed and Revised Motion for Summary Judgment is GRANTED.
Plaintiff’s Title VII claim is time-barred because he did not file a
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charge with the EEOC within 300 days of an alleged adverse
employment act, as required by the statute.
II. LEGAL STANDARD
“The Court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P
56(a). “[T]he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make showing sufficient to
establish the existence of [an] element essential to that party’s case,
and on which that party will bear the burden of proof at trial.”
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 884 (1990). At the time
of summary judgment, a party is no longer permitted to rely only on
its pleadings, but must make a showing that “if reduced to
admissible evidence, would be sufficient to carry respondent’s
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
325-28 (1986) (“The last two sentences of Rule 56(e) were added…to
disapprove a line of cases allowing a party opposing summary
judgment to resist a properly made motion by reference only to its
pleadings.”). When weighing summary judgment, the Court “view[s]
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the record and draw[s] all reasonable inferences” in favor of the
non-moving party. Warsco v. Preferred Techincal Group, 258 F.3d
557, 563 (7th Cir. 2001).
In order to bring a Title VII claim in federal court, a plaintiff
must first file a charge with the EEOC “within the appropriate time
period…set forth in 42 U.S.C. § 2000e-5(e).” Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 122 (2002). If the plaintiff files the
charge with an appropriate state or local agency, the time period is
extended from 180 to 300 days. Volovsek v. Wis. Dep’t of Agric.,
Trade, & Consumer Prot., 344 F.3d 680, 686-687 (7th Cir. 2003).
“Equitable tolling ‘permits a plaintiff to avoid the bar of the statute
of limitations if despite all due diligence he is unable to obtain vital
information bearing on the existence of his claim.’” Hentosh v.
Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1174 (7th
Cir. 1999) (citation omitted). However, equitable tolling is “reserved
for situations in which the claimant ‘has made a good faith error
(e.g. brought suit in the wrong court) or has been prevented in some
extraordinary way from filing his complaint in time.’” Threadgill v.
Moore U.S.A., Inc., 269 F.3d 848, 850 (7th Cir. 2001) (citation
omitted). “A litigant is entitled to equitable tolling if he shows (1)
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that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” Lee v. Cook Cnty., Ill., 635 F.3d 969, 972 (7th Cir. 2011)
(internal quotation omitted).
ANALYSIS
In Defendant’s Renewed and Revised Motion for Summary
Judgment, Defendant argues that it is entitled to summary
judgment on two grounds: (1) Plaintiff’s claim is time-barred
because Plaintiff did not file a charge with the EEOC within 300days of alleged discrimination; and (2) Plaintiff has not met his
burden to produce admissible evidence that Defendant
discriminated against Plaintiff. The Court finds that Plaintiff’s claim
is time-barred.
A. Plaintiff’s Title VII Claim is Time-barred.
In this Court’s Opinion on Defendant’s Motion to Dismiss, the
Court did not dismiss Plaintiff’s claim because the complaint did
not “unambiguously show” that Plaintiff failed to file his EEOC
charge within the proper time period. Opinion (d/e 10) at III.3.B.
The Court came to this conclusion because Title VII’s EEOC
reporting requirement is an affirmative defense, and “a plaintiff is
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not expected to anticipate and address affirmative defenses in the
complaint.” Id. at 16. Further, a timeline was not clear from the
complaint. See id. At summary judgment, however, Plaintiff is no
longer permitted to rest on an ambiguity in his pleading. Plaintiff
must now provide evidence sufficient to carry his burden of proof,
and therefore must show that there is still a genuine dispute as to
whether he suffered an adverse employment action within 300 days
of filing a charge with the EEOC. See Celotex Corp., 477 U.S. at
325-28 (1986) (holding that at summary judgment a party must rely
on more than references to its pleadings), see also Lujan, 497 U.S.
at 884 (1990) (Party must “establish the existence of [an] element
essential to that party’s case, and on which that party will bear the
burden of proof at trial.”).
Because Plaintiff filed with the Illinois Department of Human
Rights, he had 300 days after the “unlawful employment practice
occurred” to file his charge with the EEOC. Opinion (d/e 10) at
III.3.A. The statute of limitations begins to run once the plaintiff
learns of the allegedly discriminatory practice or decision. See
Begolli v. Home Depot U.S.A., 701 F.3d 1158, 1159 (7th Cir. 2012)
(“[T]he 300-day period within which the employee is required by
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Title VII to file an administrative complaint begins to run as soon he
is informed of the allegedly unlawful employment practice.”).
Plaintiff filed his charge with the EEOC on January 2, 2013, which
means that Plaintiff may only bring a claim for discriminatory acts
or practices that he was made aware of on or after March 8, 2012.
The only event relevant to Plaintiff’s claim that took place after
March 8, 2012 was the retirement ceremony that occurred on April
27, 2012. However, the alleged discriminatory decision preventing
Plaintiff from attending the ceremony was the Notice of Trespass
issued on December 1, 2011.
Plaintiff argues that the continuing violation doctrine brings
his charge within the 300-day reporting period. Plaintiff relies on
the 1992 case, Selan v. Kiley, in which the Seventh Circuit provided
three theories under which the continuing violation doctrine could
extend the 300-day filing window. 969 F.2d 560 (7th Cir. 1992).
Plaintiff argues that his claim fits the first and third theories
articulated in Selan. The first theory applies to decision-making
processes that take place over a period of time, making it difficult to
identify the exact date that the violation occurred. Id. at 565. The
second theory applies to an employer’s policy, which a plaintiff
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alleges is discriminatory. See id. The third theory applies to a
series of acts that are so closely related that they cannot be
considered “discrete” or “isolated,” but rather they constitute one
continuous violation. Id.
Plaintiff first argues that his case is similar to a case involving
hiring or promotion practices. He argues that the process of
denying his emeritus status is similar to the process of hiring or
promotion where it is difficult to identify exactly when the violation
occurred. Plaintiff suggests that the denial of his emeritus status is
a daily violation that continues even to this day. See Plaintiff’s
Response to Def. Renewed and Revised Mot. Summ. J. (d/e 40) at
26 (“As each day goes by, Plaintiff continues to be denied the
Emeritus and the benefits associated therewith.”). Although this
theory is applicable to the decision-making process ultimately
denying Plaintiff Professor Emeritus status in this case, even
applying the theory does not save Plaintiff’s claim from being timebarred.
The first theory accounts for situations where an employer
considers its options for a length of time before making a decision,
such as the decision to hire or not hire an individual. See Selan
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969 F.2d at 565. Although it is difficult to identify at what point in
the decision-making process a discriminatory act may have taken
place, the Court can still find a workable date by using the date of
the end of the decision-making process. See id. (In applying this
theory, the Selan Court tolled the statute of limitations to when the
transfer decision was communicated to the plaintiff). Therefore,
the first theory only places the 300 days at the end of the decisionmaking process. But Plaintiff argues that the denial of emiritus
benefits was a predictable act that had not yet occurred on
December 1, 2015. The Court agrees that the act had not yet
occurred on December 1, 2015. However, although it is difficult to
identify precisely when the Administration made the decision not to
grant emeritus status to Plaintiff, the process was clearly complete
when Plaintiff retired on December 30, 2011 and he was not given
the status or benefits of a Professor Emiritus. Moreover, when
using a date of December 30, 2011, the effective date of the
decision’s enforcement, for the occurrence of the alleged
discriminatory act still leaves Plaintiff’s claim outside the 300-day
window.
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Plaintiff argues that every day without benefits is a new
violation. This argument suggests that employers who decide not to
hire, promote, or grant a retirement status to an individual are
forever subject to suit because the individual continues to be
deprived of the position or title every day thereafter. If this Court
were to make such a finding, the EEOC’s inclusion of a 300-day
filing window would be useless, as the time-limit could never begin
to run.
Plaintiff also argues that his case fits the third theory in Selan
because closely related acts can constitute a continuous violation.
However, in 2002, the Supreme Court addressed this continuous
violation theory in National R.R. Passenger Corp. v. Morgan, 536
U.S. 101 (2002) (reviewing a Ninth Circuit case where the court
applied a continuous violation theory). The Supreme Court held
that a separate act that occurs outside of the 300-day EEOC
reporting window is “not actionable,” even if it is related to a later
act that occurred within the 300-day window. Id. at 113 (“[D]iscrete
acts are not actionable if time-barred, even when they are related to
acts alleged in timely filed charges.”). Each individual act has its
own time clock, and cannot be tied to acts that occur later on. Id.
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(“Each discrete act starts a new clock for filing charges alleging that
act.”). Since 2002, based on the Supreme Court’s ruling in Morgan,
the Seventh Circuit has held similarly. See, e.g., Adams v. City of
Indianapolis, 742 F.3d 720 (7th Cir. 2014) (holding that, under
Morgan, each failure of a city to promote a firefighter based on an
allegedly discriminatory process was a discrete discriminatory
action starting a new clock for filing a Title VII charge).
Plaintiff alleges that three discriminatory acts were committed
by Defendant: (1) placing Plaintiff on administrative leave, (2)
issuing Plaintiff a Notice of Trespass, and (3) denying Plaintiff
Professor Emeritus status. However, these three discrete acts
cannot be tied together through the continuous violation theory.
See Adams, 742 F.3d at 729-30 (holding that because separate
instances of failing to promote a firefighter were identifiable,
discrete acts, each “discrete discriminatory act start[ed] a new clock
for filing charges alleging that act”) (internal quotations omitted).
Plaintiff can, in fact, bring claims alleging acts that are outside
of the 300-day window if the claims are the result of an allegedly
hostile work environment. Id. at 730. A hostile work environment
is present when a workplace is “permeated with discriminatory
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intimidation, ridicule and insult,” resulting in an abusive
environment. Morgan, 536 U.S. at 116 (internal quotations
omitted). Hostile work environment claims are different in nature
than discrete acts because hostile work environment claims involve
repeated acts, which alone may not be actionable. Id. at 115.
Therefore, a hostile work environment claim is timely as long as
“any act falls within the statutory time period.” Id. However,
Plaintiff does not show, nor even allege, a hostile work environment.
Therefore, to bring a timely claim in this Court, the Plaintiff must
prove that an individual adverse employment act occurred on or
after March 8, 2012. Plaintiff does not do so.
Even if Selan were controlling on the third theory and related
discrete acts could be linked, Plaintiff’s claim is still time-barred
because he has not proven that any act occurred after March 8,
2012. Plaintiff uses the same argument in regard to the third
theory that he did for theory one: that each day he is deprived of
emeritus status, Defendant violates anew. Again, such an
interpretation would improperly render an employer perpetually
liable under Title VII to any individual who is denied an
employment position or title by that employer. One of the intended
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benefits of a statute of limitations is ensure a potential defendant
has notice of when it may be liable for its actions. See Jimenez v.
Weinberger, 523 F.2d 689, 697 (7th Cir. 1975) (“[O]ne of the
purposes of a statute of limitations is to afford a defendant fair
notice of potential liability.”).
Plaintiff makes an additional argument that his case is like
Bazemore v. Friday, 478 U.S. 385 (1986 In Bazemore, the Supreme
Court held that, in a case of compensation discrimination, each
individual paycheck constitutes a new potential violation of Title
VII. 478 U.S. 385, 395 (1986). Therefore, under Morgan, a plaintiff
can make a claim on any paycheck that was issued in the 300 days
prior to the plaintiff’s EEOC filing. See U.S. at 112 (holding that
each new potential violation starts a separate reporting window). In
2009, Congress passed the Lilly Ledbetter Act, in response to the
Supreme Court’s holdings related to discriminatory pay claims
under Title VII. See 42 U.S.C. § 2000e–5(e)(3)(A). Under the
Ledbetter Act, each subsequent paycheck now is no longer its own
separate claim, but rather each subsequent paycheck “resets” the
statute of limitations on the original discriminatory decision.
Groesch v. City of Springfield, Ill., 635 F.3d 1020, 1024-25 (7th Cir.
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2011) (“The Act amends [Title VII] by providing that the statute of
limitations for filing an EEOC charge alleging pay discrimination
resets with each paycheck affected by the discriminatory decision.”)
Plaintiff analogizes his claim to a compensation claim by
arguing once again that he is deprived daily of the benefits
bestowed upon Professors Emeriti. If that were the case, then, like
a subsequent paycheck, each day of deprivation would be a new
violation and so would reset the 300-day clock. However, again,
this would defeat the purpose of a statute of limitations. Further,
all of the circuits that have ruled on this issue have held that the
Ledbetter Act does not apply to situations like the present case.
See, e.g., Almond v. Unified Sch. Dist. No. 501, 665 F. 3d 1174, 1181
(10th Cir. 2011) (holding that “hiring, firing, promotion, demotion,
and transfer decisions, though often touching on pay, should and
do accrue” as soon as the employee is aware of the decision),
Niwayama v. Texas Tech Univ., 590 Fed.Appx 351, 355-56 (5th Cir.
2014) (holding that the Ledbetter Act does not apply to the denial of
tenure), Davis v. Bombardier, 794 F.3d 266, 269 (2d. Cir. 2015)
(holding that the Ledbetter Act does not apply to a demotion).
Unlike the further issuance of paychecks based on a discriminatory
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compensation system, which are subsequent affirmative
discriminatory acts taken by the employer, the denial of emeritus
status, though related to compensation, is a singular, discrete
action. Therefore, the 300-day time-limit does not restart each day
that Plaintiff is deprived of Professor Emiritus status.
Defendant’s denial of Plaintiff’s emeritus status was a single
adverse act that occurred when Plaintiff retired on December 30,
2011 without being given the privileges of a Professor Emeritus.
Further, Defendant’s issuance of a Notice of Trespass was a single
adverse act that occurred on December 1, 2011. Even further,
Defendant’s placement of Plaintiff on Administrative leave, denying
Plaintiff the ability to continue performing his professorial
responsibilities was a single act that occurred on December 1,
2011. None of these acts occurred within 300 days prior of
Plaintiff’s filing his charge with the EEOC. Therefore, Plaintiff’s
claim in this Court is time-barred.
B. Equitable Tolling Does Not Apply.
Plaintiff argues that even if his claim is time-barred, this Court
should use its equitable power to toll the 300-day reporting period.
In Morgan, the Supreme Court explicitly stated that “this time
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period for filing a charge is subject to equitable doctrines such as
tolling or estoppel.” 536 U.S. at 113. However, equitable tolling
only applies when a plaintiff, despite “all due diligence” is prevented
from obtaining “vital” information and therefore is unable to file a
claim within the statute of limitations. Hentosh, 167 F.3d at 1174.
To prove entitlement to equitable tolling, a plaintiff must show “(1)
that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Lawrence v. Florida,
549 U.S. 327, 336 (2007). Plaintiff does not provide evidence
sufficient to meet that burden.
Plaintiff rests his case for equitable tolling on a single excerpt
from his deposition. At the end of Plaintiff’s deposition, defense
counsel asked Plaintiff if he filed his claim more than 300 days after
his final day of employment. Def. Renewed and Revised Mot.
Summ. J. (d/e 40-10) at 22. In response to that question, Plaintiff
stated, “Sir, we have to back a little bit. When this incident
happened, I went to the Counselor, a gentleman by the name of
Howard Feldman, a lawyer. I went to him...” Id. After Plaintiff’s
counsel admonished him about attorney-client privilege in regard to
Mr. Feldman, Plaintiff continued, “That 300 days I went to him said
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as long as this, we are investigating, we are working your case that
doesn’t matter. I was advised that way.” Id. at 22-23. Plaintiff
additionally stated that he “was not aware of that one, the time
lapse…” Id.
Beyond this brief, ambiguous discussion, Plaintiff provides no
evidence of his reasonable diligence or the extraordinary
circumstances that could provide justification for the Court to use
its equitable power. Plaintiff’s deposition concluded shortly after
the above exchange, yet Plaintiff’s counsel asked no follow-up
questions about Plaintiff’s actions in pursuing his Title VII claim.
Additionally, Plaintiff has provided no documents, declarations, or
affidavits concerning his efforts to pursue this claim.
The evidence provided by Plaintiff does not meet the burden
necessary to entitle him to equitable tolling. Plaintiff’s lack of
knowledge about the 300-day time period does not constitute an
extraordinary circumstance. See, Taylor v. Michael, 724 F.3d 806,
811 (7th Cir. 2013) (“Lack of familiarity with the law…is not a
circumstance that justifies equitable tolling.”) Further, the
circumstances with Mr. Feldman, partially described by Plaintiff,
whether erroneous advice or Plaintiff’s misunderstanding, do not
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constitute extraordinary circumstances. Even though Plaintiff did
not discover the existence of the 300-day deadline, Plaintiff clearly
could have discovered the deadline through due diligence. Plaintiff
admits he was pursuing an employment discrimination claim.
Therefore, there were no extraordinary circumstances preventing
him from making his claim. Either individually or through an
attorney, Plaintiff is required to perform due diligence to identify
filing deadlines. See id. (“Taylor either misunderstood his attorney’s
advice, or his attorney gave him bad advice. Under either
scenario…[the party] did not confirm the date…. That lack of action
does not show reasonable diligence and it does not show that
extraordinary circumstances actually prevented [the party] from
filing.” Even “negligence” on the part of a previous attorney is “not
extraordinary by any means”. Id. (internal quotation omitted).
Because Plaintiff has not provided evidence that, despite due
diligence, extraordinary circumstances prevented him from filing his
charge on time, this Court will not use its equitable power to toll the
filing period and allow Plaintiff’s claim.
CONCLUSION
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For the foregoing reasons, the Court GRANTS Defendant’s
Renewed and Revised Motion for Summary Judgment (d/e 37).
This case is CLOSED.
IT IS SO ORDERED.
ENTER: November 28, 2015
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
United States District Judge
Page 27 of 27
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