Carlson v. Christian Brothers Services

Filing 46

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 11/25/2015. Mailed notice(gel, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JACQUELYN M. CARLSON,
Plaintiff,
v.
CHRISTIAN BROTHERS SERVICES,
Defendant.

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Case No. 15 C 1154

Honorable John Robert Blakey

MEMORANDUM OPINION AND ORDER
In this employment discrimination case, the defendant employer has moved
for summary judgment, arguing that the plaintiff’s Americans with Disabilities Act
claim is time-barred because she filed her Charge of Discrimination beyond the
required 300-day window. For the reasons explained below, the Court agrees and
grants the motion.
Background & Procedural History
Plaintiff Jacquelyn Carlson has sued her former employer, Christian
Brothers Services (“CBS”), alleging discrimination based upon a perceived
disability, in violation of the Americans with Disabilities Act (“ADA”). Carlson was
in a car accident in 2011 and, as a result, used a cane for some time. She alleges
that CBS fired her for what it perceived to be decreased mobility on her part.
Plaintiff filed her complaint February 5, 2015, alleging that her firing on February
1, 2012 constituted discrimination in violation of the ADA. Her initial complaint

attached a Charge of Discrimination filed with the EEOC on March 5, 2013 [1-1],
398 days after the firing. Because of this, CBS moved to dismiss the complaint for
failure to state a claim [8] pursuant to Federal Rule of Civil Procedure 12(b)(6), and
the Court granted the motion [12], [13].
Plaintiff moved for reconsideration, arguing that her untimely charge was
saved by a Complainant Information Sheet (“CIS”) she submitted to the Illinois
Department of Human Rights on August 1, 2012 (which falls within the 300-day
window). Although the Court declined at that time to consider whether the CIS
actually satisfied the timing requirement, it determined that, in light of the issues
raised, a Rule 12(b)(6) dismissal was no longer appropriate [20].
Plaintiff amended her complaint on May 13, 2015 [23], again alleging that
CBS fired her on February 1, 2012 because of a perceived disability in violation of
the ADA.

The amended complaint alleges that plaintiff filed an “unperfected”

charge on July 31, 2012 and later filed a “perfected” charge on March 5, 2013.
Amended Complaint [23], ¶7.

The “unperfected” charge is the CIS signed by

Carlson’s attorney on July 31, 2012 and received by the IDHR on August 1, 2012.
The “perfected” charge is the Charge of Discrimination signed by Carlson on
February 27, 2013 and filed with the EEOC on March 5, 2013.

Both the

“unperfected” charge and the “perfected” charge are attached to the amended
complaint [23-1].
The “unperfected” charge is the CIS completed by Carlson’s attorney on July
31, 2012 and submitted to the Illinois Department of Human Rights on August 1,

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2012. Defendant’s Rule 56.1 Statement of Facts (“DSOF”) [26], ¶5; Exhibit A [26-1];
Plaintiff’s Rule 56.1 Response and Statement of Additional Facts (“PSOF”) [37], ¶5.
Plaintiff did not sign the CIS; nor was the CIS notarized. DSOF, ¶¶7-8; PSOF, ¶¶68. The CIS form, on its face, explains the process and specifically states that the
CIS is not a charge:
[t]his form must be postmarked or received by the IDHR within 180
days of the date of the alleged discrimination. The IDHR must
establish if it has the right under the law to investigate your
employment claim. If the IDHR accepts your claim of employment
discrimination, information will be typed on an official charge form.
The charge form must be signed, notarized and returned to the IDHR
in a timely manner. The form should be signed and dated below. Use
additional sheets if necessary. THIS IS NOT A CHARGE. If IDHR
accepts your claim, we will send you a charge form for signature.
DSOF, ¶10 and Exhibit A [26-1]. Plaintiff admits that the face of the CIS states
“THIS IS NOT A CHARGE.” PSOF, ¶10.
In the CIS, plaintiff indicated that she was fired for “taking time from work
and for using my health insurance to pay for the severe car accident I was in in
March 2011.” DSOF, Exhibit A [26-1]; PSOF, Exhibit A [38-1].
On October 9, 2013, the IDHR issued a notice of dismissal for lack of
jurisdiction; that notice includes both an IDHR charge number and an EEOC
charge number. DSOF, ¶12 and Exhibit C [26-3]; PSOF, ¶12.

The EEOC charge

then followed on March 5, 2013, with the EEOC issuing a Right-to-Sue letter on
November 4, 2014. PSOF, ¶10 and Exhibit E.
CBS has moved for summary judgment on the amended complaint, again
raising the issue of timeliness.

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Discussion
Summary judgment is appropriate 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. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014). A genuine dispute as to any material fact exists if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The party seeking summary

judgment has the burden of establishing that there is no genuine dispute as to any
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining
whether a genuine issue of material fact exists, this Court must construe all facts
and reasonable inferences in the light most favorable to the nonmoving party, here,
plaintiff. See CTL ex rel. Trebatoski v. Ashland School District, 743 F.3d 524, 528
(7th Cir. 2014).
CBS argues that it is entitled to summary judgment because plaintiff’s claim
is, as a matter of law, time-barred. A plaintiff seeking to sue under the ADA must
first file an EEOC charge and receive a right-to-sue letter.

See 42 U .S.C. §

12117(a); 42 U.S.C. § 2000e–5(b), (e), and (f); Lozano v. Kay Mfg. Co., No. 04 C 2784,
2004 WL 1574247, at *1 (N.D. Ill. July 12, 2004). An EEOC charge must be filed
within 300 days of the allegedly unlawful employment practice, or the plaintiff’s
claim is barred. 42 U.S.C. § 2000e–5(e)(1); Ford v. Chicago Mercantile Exch. Inc.,
No. 12 C 9917, 2015 WL 6501234, at *6 (N.D. Ill. Oct. 27, 2015). Here, plaintiff
alleges a single unlawful employment practice: her firing on February 1, 2012.

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Amended Complaint [23], ¶16; EEOC Charge [23-1] (identifying the “basis” of her
charge as her “discharge, February 1, 2012, due to perceived disability (mobility
impairment)”). She signed her charge on February 27, 2013, 392 days after the
firing, and she filed it on March 5, 2013, 398 days after the firing. Although there
is a possible exception to the 300-day rule for continuing violations, e.g., Filipovic v.
K&R Express Systems, Inc., 176 F.3d 390, 396 (7th Cir. 1999), Carlson’s case does
not involve a continuing violation – her discrimination charge was based on a single
discrete act, her firing on February 1, 2012.
Carlson alleges that the CIS she submitted to the IDHR was a “charge”
within the meaning of the EEOC’s regulations.

If she is right, her claim may

proceed. If the CIS does not count as a charge, then she may not, because there is
no dispute that the charge filed with the EEOC on March 5, 2013 is not timely. The
question of whether the CIS is a “charge” for purposes of the ADA’s statute of
limitations is a question of law, appropriately resolved on summary judgment based
upon the factual record before the Court.
In Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), the Supreme
Court considered the question of what constitutes a charge within the meaning of
the ADEA and held that “if a filing is to be deemed a charge” it must, in addition to
including the information required by the regulations, “be reasonably construed as
a request for the agency to take remedial action to protect the employee’s rights or
otherwise settle a dispute between the employer and the employee.” 552 U.S. at
402. Applying this test, the Court weighed the factors on both sides of the equation:

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on the one hand, the form was not labeled as a charge; on the other hand, the form
contained all of the information outlined in the regulations, including the
employee’s name, address and telephone number, the employer’s name, address and
telephone number, an allegation of age discrimination and a statement disavowing
any request for assistance from any other government agency.

Id. at 404-405.

Additionally, it was accompanied by a detailed, six-page affidavit, which included
an express request to please “force Federal Express to end their age discrimination
plan so we can finish out our careers absent the unfairness and hostile work
environment created within their application of Best Practices/High Velocity
Culture Change.” Id. at 405. This latter statement, the Court held was “properly
construed as a request for the agency to act.” Id.
Applying Holowecki, the court in Palmer v. Southwest Airlines Co., No. 08 C
6158, 2009 WL 3462043 (N.D. Ill. Oct. 23, 2009), similarly determined that an
intake questionnaire constituted a charge. There, the Title VII plaintiff completed
an intake questionnaire, which included all of the information required under the
EEOC’s regulations, and also submitted a four-page statement, detailing the alleged
discrimination. Id., 2009 WL 3462043 at *1-2. The month after plaintiff in Palmer
filed her intake questionnaire, the EEOC issued a Notice of Charge of
Discrimination to plaintiff’s employer. Id., at *2. Plaintiff then – 388 days after her
discharge – filed a verified charge of discrimination with the EEOC.

Id.

The

defendant moved to dismiss, arguing that plaintiff’s claim was barred because she
filed her charge too late. Id. at *3. The court disagreed, finding that the intake

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questionnaire, together with the 4-page affidavit, constituted a charge for statute of
limitations purposes. Id., at *6-7. Of particular significance, the form language in
the completed intake questionnaire expressly stated that if the form “constitutes
the only timely written statement of allegations of employment discrimination, the
Commission will, consistent with 29 CFR 1601.12(b) and 29 CFR 1626.8(b), consider
it to be a sufficient charge of discrimination under the relevant statute(s).” Id., at
*7.

This language, the court determined, “constituted a request by the filer to

activate the EEOC’s remedial processes.” Id. (citations omitted).
The

same

result

ensued

in

McClendon

v.

Illinois

Department

of

Transportation, No. 12 C 2021, 2015 WL 4638095, at *9 (N.D. Ill. July 31, 2015),
where the plaintiff, like the plaintiff in Holowecki, submitted an intake
questionnaire along with a detailed affidavit that included an explicit request for
action.
Here, the relevant regulation concerning the content required for a “charge”
is 29 C.F.R. §1601.12. It provides that each charge should contain the following:
(1) The full name, address and telephone number of the person
making the charge except as provided in § 1601.7;
(2) The full name and address of the person against whom the
charge is made, if known (hereinafter referred to as the respondent);
(3) A clear and concise statement of the facts, including
pertinent dates, constituting the alleged unlawful employment
practices: See § 1601.15(b);
(4) If known, the approximate number of employees of the
respondent employer or the approximate number of members of the
respondent labor organization, as the case may be; and

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(5) A statement disclosing whether proceedings involving the
alleged unlawful employment practice have been commenced before a
State or local agency charged with the enforcement of fair employment
practice laws and, if so, the date of such commencement and the name
of the agency.
29 C.F.R. § 1601.12. The CIS submitted on Carlson’s behalf on August 1, 2012 does
not include all of the required information. In particular, it does not include items
(4) or (5), and the “statement of facts” (such as it is) fails to convey the
circumstances of the discrimination: “Fired. In March of 2011 I was in a severe car
accident in which I broke both my femurs and my pelvis. I now walk with a limp. I
used a cane at work.” DSOF, Exhibit A; PSOF, Exhibit A.
Additionally, the CIS is not labeled as a charge – indeed, it expressly states
that it is “NOT A CHARGE” and indicates that more is required before a charge is
considered to be filed.
Likewise the CIS that Carlson submitted failed include a request for action,
explicit or implicit (as the submitted documents did in Holowecki and Palmer). The
CIS does not include the form language that was present in the intake
questionnaire in Palmer, indicating that the document could be considered a charge
if it were the only timely filed document and was, therefore, necessary to save
plaintiff’s claim. Nor did Carlson include any kind of statement in her CIS that can
be interpreted as a request for action. This finding is bolstered by the fact that
neither the IDHR nor the EEOC notified CBS of any “charge” as a result of the CIS.
In that respect, this case differs from Palmer, where the EEOC sent a Notice of

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Charge to the employer shortly after the intake questionnaire was filed (and long
before any official charge was filed).
In opposition to CBS’ motion for summary judgment, Carlson submitted an
email from Raquel Guerra stating that the CIS was considered “an unperfected
charge” and the March 2013 charge is the “perfected charge.” PSOF, Exhibit B.
Guerra’s email references Holowecki. But Holowecki does not speak in terms of
perfected and unperfected charges.

The EEOC’s regulations do allow for

subsequent verification of charges that in some minor respect fall technically short
of compliance.

Instead, 29 C.F.R. § 1601.12(b) provides that a charge “may be

amended to cure technical defects or omissions, including failure to verify the
charge, or to clarify and amplify allegations made therein.” In such circumstances,
the verified charge relates back to the date the charge was first received. Id. But
this is not a case here, especially where the initial submission simply lacked a
signature.

Indeed, the CIS not only lacked all of the formalities of a charge

(signature, verification, details), it failed to include any hint that Carlson was
requesting action on the part of the EEOC, and the form expressly stated that it
was not a charge. Accordingly, the Court finds that the relation back provision of §
1601.12(b) does not apply.
Based upon these facts, the Court finds that the CIS submitted to the IDHR
on August 1, 2012 is not a charge for statute of limitations purposes. That leaves
only the charge filed with the EEOC on March 5, 2013 (398 days after plaintiff was
fired). Under the circumstances, plaintiff’s claim may not proceed. E.g. Burmistrz

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v. City of Chicago, 186 F. Supp. 2d 863, 871 (N.D. Ill. 2002) (“Under Title VII and
the ADA, an Illinois claimant must file a complaint before the EEOC within 300
days of the occurrence of the alleged discriminatory action”; “[f]ailure to file within
the 300 days renders the charge untimely and the claimant is precluded from
bringing the claim in court.”)(citing 42 U.S.C. § 2000e–5(e) and § 12117(a); Koelsch
v. Beltone Electronics Corp., 46 F.3d 705, 707 (7th Cir. 1995)).
CONCLUSION
As explained above, the record before the Court demonstrates that Carlson
filed only one charge of discrimination with the EEOC and that she filed the charge
398 days after she was fired. Accordingly, CBS’s motion for summary judgment [27]
is granted. Judgment is entered in favor of CBS and against plaintiff.
Dated: November 25, 2015
Entered:

_______________________________
John Robert Blakey
United States District Judge

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