Smith v. Union Pacific Railroad

Filing 69

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 6/20/2013: For the reasons stated below, Defendant's petition for fees and costs 63 is denied. Mailed notice(tbk, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Robert M. Dow, Jr.

CASE NUMBER

11 C 986

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

6/20/2013

Smith vs. Union Pacific Railroad

DOCKET ENTRY TEXT

For the reasons stated below, Defendant’s petition for fees and costs [63] is denied.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
In 2011 Plaintiff sued Defendant for violations of the ADA. Defendant moved to dismiss Plaintiff’s case as
untimely because it was based on alleged misconduct that occurred in 2006 and Plaintiff waited until 2009 to
file his EEOC charge — more than 300 days after the alleged unlawful employment practice occurred. See
Stepney v. Naperville Sch. Dist. 203, 392 F.3d 236, 239 (7th Cir. 2004). Plaintiff responded that his claim
was saved by the discovery rule and “fraudulent concealment and equitable estoppel.” The Court disagreed
and dismissed Plaintiff’s complaint with prejudice [19].
On appeal, the Seventh Circuit agreed that dismissal was proper but concluded that it should have been
without prejudice: where dismissal under Rule 12(b)(6) is based on untimliness, “the plaintiff is ordinarily
entitled to at least one opportunity to cure the problem thorough amendment and pleadings.” 474 Fed. Appx.
478, 481 (7th Cir. 2012). The court of appeals then observed that “[i]n his response brief to the district court
and in his briefing before us, [Plaintiff] has advanced a chronology that, if marshaled in an amended
complaint, may render his charge of discrimination timely.” Id.
Once remanded, Plaintiff filed an amended complaint attempting to do just what the Seventh Circuit
suggested might make his claim timely. Defendant again moved to dismiss Plaintiff’s complaint as untimely,
this time because Plaintiff failed to bring his claim within 90 days of receiving a right-to-sue letter from the
EEOC or within the period during which the filing of his initial complaint tolled the running of the limitations
clock. See Houston v. Sidley & Austin, 184 F.3d 837, 838-39 (7th Cir. 1999) (“Under the ADA, ADEA, and
Title VII, a plaintiff must file her suit within 90 days from the date the EEOC gives notice of the right to
sue.”). The Court ultimately agreed with Defendant that Plaintiff’s claim was untimely and granted its
motion to dismiss [55]. Plaintiff’s appeal is pending in the Seventh Circuit.
Defendant has now moved for $60,941.98 in fees and costs [63]. The ADA gives the Court discretion to
award fees to a “prevailing party.” See Adkins v. Briggs & Stratton Corp., 159 F.3d 306, 307 (7th Cir. 1998)
(citing 42 U.S.C. § 12205). And “both employers and employees may ‘prevail’ and therefore recover fees
under the Act.” Id. Importantly, however, “the standard for awarding fees to employers is higher: an award
of fees to an employer is appropriate only when the suit is brought in bad faith or when it is frivolous,
unreasonable, or without foundation.” Id. (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 42111C986 Smith vs. Union Pacific Railroad

Page 1 of 2

STATEMENT
22 (1978)). If the Court finds that Plaintiff’s suit was frivolous it may award fees to Defendant; a finding that
the suit was frivolous does not make an award of fees mandatory. Id.
Defendant believes that it is entitled to fees and costs because Plaintiff’s original complaint and his amended
complaint both were untimely. Plaintiff objects.
The Court concluded that Plaintiff’s original complaint was untimely based on the allegations in the
complaint and Plaintiff’s representations to the Court consistent with his complaint. On appeal, the Seventh
Circuit concluded that the Court made the correct determination about Plaintiff’s complaint, but, as
mentioned, it also said that if Plaintiff told the Court the story he was telling the Seventh Circuit, he may be
able to state a claim. So, according to the Seventh Circuit, Plaintiff’s suit had at least arguable merit, even if
Plaintiff failed to show the district court how that was so.
According to Defendant, it was frivolous for Plaintiff to file an amended complaint once the case was
remanded because his claim was obviously barred by the 90-day statute of limitations. The Court respectfully
disagrees for several reasons. First, if it were so obvious that Plaintiff’s amended complaint would be
untimely, one would have expected Defendant to argue the point to the Seventh Circuit as an alternative
ground for affirmance of this Court’s original decision which, if accepted by the court of appeals, would have
obviated the need for the entire second round of proceedings in the district court. Second, if the limitations
problem were obvious, the Seventh Circuit likely would have mentioned it even without Defendant’s help.
Third, although the Court believes that it reached the correct conclusion in granting Defendant’s motion to
dismiss Plaintiff’s amended complaint, it took considerable time and effort for the Court to satisfy itself that
this was the correct outcome.
Thus, to agree with Defendant’s argument that it is entitled to costs and fees, the Court would have to believe
that the Seventh Circuit suggested to Plaintiff that he (1) file a frivolous amended complaint or (2) should
have understood that if he did follow its hint and attempt to marshal a chronology that could overcome his
problem with the 300-day limitations period, he would run straight into a problem with the 90-day limitations
period, and so he should have disregarded the court of appeals’ guidance in order to cut his losses. Neither is
plausible. It was not unreasonable for Plaintiff to try again on remand.
Alternatively, assuming for the sake of argument that Plaintiff’s decision to file an amended complaint was
frivolous, this would be an appropriate occasion for the Court to exercise its discretion not to award fees and
costs to a prevailing employer. In this instance, the Seventh Circuit’s opinion operates as the functional
equivalent of a safe harbor for Plaintiff and would make an award of fees and costs to Defendant
extraordinarily unfair.
For all of these reasons, Defendant’s motion for fees and costs [63] is denied.

11C986 Smith vs. Union Pacific Railroad

Page 2 of 2