Earnest Johnson, Jr. v. Federal Marine Terminal of Mil , 626 F. App'x 190 ( 2015 )


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  •                         NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted December 22, 2015 *
    Decided December 22, 2015
    Before
    DIANE P. WOOD, Chief Judge
    JOEL M. FLAUM, Circuit Judge
    DANIEL A. MANION, Circuit Judge
    No. 15-1535
    EARNEST L. JOHNSON, JR.,                         Appeal from the United States District
    Plaintiff-Appellant,                         Court for the Eastern District of Wisconsin.
    v.                                        No. 13-CV-490-JPS
    FEDERAL MARINE TERMINALS, INC.,                  J.P. Stadtmueller,
    Defendant-Appellee.                         Judge.
    ORDER
    Earnest Johnson sued his former employer, Federal Marine Terminals, Inc.,
    claiming under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17,
    that the company had discriminated against him because he is African American. The
    district court granted summary judgment to FMT on the ground that Johnson had not
    filed a timely administrative charge against the company and thus could not bring a
    lawsuit under Title VII. We affirm the judgment.
    *After examining the briefs and record, we have concluded that oral argument is
    unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
    34(a)(2)(C).
    No. 15-1535                                                                          Page 2
    The following facts are undisputed, except as noted, and are presented in the light
    most favorable to Johnson, the party opposing summary judgment. See Kvapil v.
    Chippewa Cnty., 
    752 F.3d 708
    , 712 (7th Cir. 2014). FMT employed Johnson as a
    longshoreman from 2002 to 2007. Johnson, a member of the International
    Longshoremen’s Association, Local 815, filed an administrative charge of race
    discrimination against the union with the Equal Rights Division of the Wisconsin
    Department of Workforce Development and the EEOC. That charge, which named only
    the union, alleged that, because of his race, the union had refused to refer him for job
    assignments at FMT’s facility in Milwaukee and that coworkers had subjected him to
    racist slurs. (Johnson also submitted administrative charges to the National Labor
    Relations Board.) The state agency dismissed Johnson’s charge in July 2009, and the
    EEOC issued a right-to-sue letter on August 21, 2009. Johnson then sued the union under
    Title VII three months later. The district court granted summary judgment for the union,
    and in March 2013 we upheld that ruling on appeal. Johnson v. Int’l Longshoreman’s Ass’n,
    Local 815, No. 09-CV-1094 (E.D. Wis. June 4, 2012), aff’d, 520 F. App’x 452 (7th Cir. 2013).
    A month after our decision in Johnson’s suit against the union, he turned his
    attention to FMT and commenced this action. (At the time he commenced this suit,
    Johnson was incarcerated, having been sentenced by a Wisconsin court in 2010 to seven
    years’ imprisonment. His conviction is unrelated to the events alleged in his complaint.)
    Johnson alleged that FMT likewise had discriminated against him and asserted that the
    company’s discriminatory treatment had occurred as late as August 21, 2007.
    FMT moved for summary judgment, arguing that Johnson’s lawsuit was
    untimely because he had not filed an administrative charge of discrimination naming the
    company within 300 days of the alleged misconduct, as required by 42 U.S.C.
    § 2000e-5(e)(1). Moreover, FMT argued, even if the EEOC charge that Johnson had filed
    against his union could be read to encompass FMT, the plaintiff’s lawsuit still was
    untimely because he did not sue FMT within 90 days of receiving the EEOC’s
    right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1). Johnson countered that he never received
    that August 2009 letter because he had changed addresses. Later, after briefing on FMT’s
    motion was concluded, Johnson submitted evidence that he had filed an administrative
    charge against FMT with the Department of Workforce Development and the EEOC in
    December 2014, and had received a right-to-sue letter from the EEOC in January 2015.
    In granting FMT’s motion for summary judgment, the district court reasoned that
    Johnson had not filed an administrative charge against FMT within 300 days of any
    alleged discrimination, nor had he sued FMT within 90 days of receiving the
    No. 15-1535                                                                          Page 3
    August 2009 right-to-sue letter. The court disregarded Johnson’s assertion that he had
    never received that letter, noting that Johnson had sued the union within 90 days of the
    issuance of the letter, which suggested that in fact he had received it. The court did not
    discuss Johnson’s recently filed administrative charge, which had not even been
    submitted to the Department of Workforce Development and the EEOC until 19 months
    after this lawsuit was filed in the district court.
    On appeal, Johnson contends that the order granting summary judgment for FMT
    is erroneous for many reasons, but we need not discuss any question other than the
    timeliness of his federal complaint. Johnson continues to assert that he did not receive
    the August 2009 right-to-sue letter, but now explains that this is because he never
    updated his address on file with the EEOC. He also emphasizes that he did receive in
    January 2015 a right-to-sue letter naming FMT.
    Johnson’s contentions are without merit. A plaintiff is not entitled to sue under
    Title VII unless he filed a timely administrative charge (within 180 days of the alleged
    discriminatory conduct or within 300 days if the administrative charge is submitted first
    to a state agency). 42 U.S.C. § 2000e-5(e)(1); Lewis v. City of Chicago, 
    560 U.S. 205
    , 210
    (2010); Volovsek v. Wis. Dep’t of Agric., Trade and Consumer Prot., 
    344 F.3d 680
    , 686–87
    (7th Cir. 2003). “Failure to file a timely charge with the EEOC precludes a subsequent
    lawsuit under Title VII.” Salas v. Wis. Dep’t of Corr., 
    493 F.3d 913
    , 921 (7th Cir. 2007).
    Moreover, “a party not named as the respondent in the charge may not ordinarily be
    sued in a private civil action under Title VII.” Alam v. Miller Brewing Co., 
    709 F.3d 662
    ,
    666 (7th Cir. 2013). Johnson offered no evidence suggesting that he had filed an
    administrative charge naming FMT within 300 days of FMT’s allegedly discriminatory
    conduct, all of which occurred by August 2007. Johnson’s administrative charge naming
    his union, which resulted in the August 2009 right-to-sue letter, was not effective against
    FMT. And even if it had been effective, Johnson admits that he did not update his
    address with the EEOC, which means that he cannot argue that not receiving the letter
    kept him from having “actual notice” of his right to sue. See Reschny v. Elk Grove Plating
    Co., 
    414 F.3d 821
    , 823 (7th Cir. 2005); Bobbitt v. Freeman Cos., 
    268 F.3d 535
    , 538 (7th Cir.
    2001). Finally, the charge that does name FMT was not filed until December 2014, six
    years too late.
    We have considered Johnson’s other arguments, but none has merit.
    AFFIRMED.