Reschny, Y. Sandra v. Elk Grove Plating Co ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1979
Y. SANDRA RESCHNY, formerly
known as Y. SANDRA CURRAN,
Plaintiff-Appellant,
v.
ELK GROVE PLATING COMPANY,
an Illinois corporation,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 99 C 7398—James B. Zagel, Judge.
____________
ARGUED NOVEMBER 30, 2004—DECIDED JULY 15, 2005
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Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-Appellant Sandra
Curran, now Sandra Reschny, sued defendant-appellee
Elk Grove Plating (“Elk Grove”), alleging sexual harass-
ment in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §§ 2000e et seq., and the Civil Rights
Act of 1991. The district court found that Reschny’s claim
was time-barred and granted summary judgment in favor
of Elk Grove. We affirm.
2 No. 04-1979
I. Background
Elk Grove hired Reschny as a receptionist on August 18,
1994. She claims that her supervisors sexually harassed her
until she felt compelled to resign on September 11, 1995.
On September 13, 1995, Reschny filed a discrimination
charge with the Equal Employment Opportunity Commis-
sion (“EEOC”) against Elk Grove. During the EEOC’s
investigation, she retained an attorney, Samuel Greenberg,
to represent her. On or about December 29, 1995,
Greenberg wrote to inform the EEOC that he would be
representing Reschny in her lawsuit and to provide his
contact information. The letter further advised that at-
torney Arnold Landis also represented Reschny, but no
address for Landis was given.
In April of 1997, Reschny moved to 2115 South Tonnie
Road in Arlington Heights, Illinois. Sometime prior to April
30, 1998, Reschny moved again, but she did not contact the
EEOC to update her address until October of 1999.
On April 30, 1998, the EEOC sent a Notice of Right to Sue
letter to Greenberg; a copy was not sent to Reschny, al-
though the notice sent to Greenberg indicated that the most
current address the EEOC had for Reschny was on South
Tonnie Road. The post office returned the notice to the
EEOC because Greenberg’s firm had closed for business. A
year and-a-half later, Reschny called the EEOC to inquire
about her claim. Pursuant to her call, on November 1, 1999,
she received a copy of the notice that previously was sent to
her attorney. Reschny filed suit on November 12, 1999.
After discovery, Elk Grove moved for summary judgment,
arguing that Reschny’s complaint was filed beyond the 90-
day limit set in 42 U.S.C. § 2000e-5(f)(1). The district court
granted the motion.
No. 04-1979 3
II. Discussion
Reschny contends that the district court erred as a matter
of law in holding that the 90-day period to file suit com-
menced on April 30, 1998, because neither she nor her
attorneys actually received the EEOC’s notice until Novem-
ber 1, 1999. She also argues that she could not have been in
constructive receipt of the notice on April 30, 1998, because
it was delivered to Greenberg alone, who by that point had
stopped representing her. We review the district court’s
grant of summary judgment de novo. Castellano v. Wal-
Mart Stores, Inc., 373 F.3d 817, 819 (7th Cir. 2004). In so
doing, we construe all facts in Reschny’s favor. McDonald
v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004).
Title VII provides that the EEOC shall notify the person
aggrieved of her right to sue, “and [that] within ninety days
after the giving of such notice, a civil action may be
brought.” 42 U.S.C. § 2000e-5(f)(1). This court held in
Archie v. Chicago Truck Drivers, 585 F.2d 210, 216 (7th Cir.
1978), that actual receipt of the notice is required to start
running the 90-day clock. We clarified that rule in Jones v.
Madison Serv. Corp., 744 F.2d 1309 (7th Cir. 1984), and St.
Louis v. Alverno Coll., 744 F.2d 1314 (7th Cir. 1984). In
Jones, we held that two types of receipt of a notice can start
running the 90-day limitation period, and each does so
equally well: actual receipt by the plaintiff, and actual
receipt by the plaintiff’s attorney, which constitutes
constructive receipt by the plaintiff. Id., 744 F.2d at 1312;
see also Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850
(7th Cir. 2001) (citing Jones, 744 F.2d at 1312). In Alverno
Coll., we held that when the notice is delayed by fault of the
plaintiff, the constructive receipt doctrine applies and the
90-day clock starts running once delivery is attempted at
the last address provided. Id., 744 F.2d at 350. Under
Jones, Greenberg stood in Reschny’s shoes for purposes of
receiving the EEOC’s notice. Greenberg’s negligence in
failing to apprise the EEOC of his change of address does
4 No. 04-1979
not toll the period of limitations. That he might not have
acquired a new address, as Reschny argues, is irrelevant
because he was still responsible for notifying the EEOC of
changes to his contact information. His neglect puts this
case squarely within the holding of Alverno Coll.
Reschny argues that she could not have been in construc-
tive receipt of the notice when delivery was attempted to
Greenberg because he had abandoned her representation
when his firm filed for bankruptcy and closed its doors. She
relies on an unpublished district court order, Davis v.
Panasonic Co., U.S.A., No. 02 C 1431, 2002 WL 31415726(N.D.Ill. Oct. 28, 2002), for this proposition. In Davis, the
EEOC sent notices to the attorney only, who by that point
had stopped representing the plaintiff. Those notices were
returned, despite the fact that the attorney still resided at
the address that had been provided. Meanwhile, the
plaintiff contacted the EEOC within approximately 90 days
of when delivery of the initial notice was attempted. The
district court recognized the rule that an attorney must take
reasonable steps to ensure notice is received and that an
attorney’s negligence in this regard generally does not toll
the limitations period. Id., 2002 WL 31415726, at *2 (citing
Newson v. Am. Nat’l Can Co., 2001 WL 1555200, at *5
(N.D.Ill. 2001)). However, because there was no evidence of
neglect and the plaintiff tried to file suit in a timely man-
ner, the district court held that the plaintiff was not in
constructive receipt of the notice. Id., 2002 WL 31415726,
at *2-3.
We, of course, are not bound by the decisions of the
district court. Even if we were persuaded by the district
court’s decision in Davis, it is of no assistance to Reschny
because there was no evidence that Davis or her attorney
was responsible for the delay. Rather, Davis actively pur-
sued litigation during the 90 days following the initial,
attempted delivery of the notice, despite the confusion sur-
rounding her attorney. Davis, 2002 WL 31415726, at *2-3.
No. 04-1979 5
Here, by contrast, Reschny and her attorneys failed to
update their addresses, and she waited a year and-a-half
before inquiring of the EEOC about the status of her claim.
This negligence brought the constructive receipt doctrine
into play and started running the 90-day limitation period
in April of 1998.
Reschny contends that she should not be penalized for the
delay because the EEOC violated its regulations by not
sending her a copy of the notice on April 30, 1998. She re-
lies upon 29 C.F.R. § 1614.605(d) (1999), which states in rel-
evant part, “When the complainant designates an attorney
as representative, service of all official correspondence shall
be made on the attorney and the complainant . . . .” But
that language was not in effect in April 1998; at that time,
the regulation read: “When the complainant designates an
attorney as representative, service of all documents and
decisions on the complainant shall be made on the attorney
and not on the complainant, and time frames for receipt of
materials by the complainant shall be computed from the
time of receipt by the attorney.” 29 C.F.R. § 1614.605(d)
(1998) (emphasis added); see also Rules and Regulations:
Equal Employment Opportunity Commission, 64 Fed. Reg.
37644, 37661 (July 12, 1999) (to be codified at 29 C.F.R. pt.
1614). Because Greenberg was designated as Reschny’s
attorney, the EEOC was not obligated to send her a copy.
Therefore, the EEOC did not violate its rules when on April
30, 1998, it sent the notice to Greenberg only.
The language of the regulation aside, it is somewhat dis-
ingenuous of Reschny to contend that sending her a copy of
the notice on April 30, 1998, would have averted delay. At
that time, the only address the EEOC had for her was the
one on South Tonnie Road. She no longer lived at that
address and never apprised the EEOC of the change,
though it was her duty to do so. 29 C.F.R. § 1601.7(b). She
argues that, had the notice been sent, it might have been
6 No. 04-1979
forwarded to her new address. But she failed to take mea-
sures to ensure that would happen; at her deposition, she
could not recall whether she filed a change of address form
with the post office to forward her mail to the new address.
Reschny Deposition at 169-70. Even if the EEOC had
mailed Reschny a copy of its notice on April 30, 1998, she
has produced no evidence that she made arrangements to
receive it.
III. Conclusion
For the reasons stated above, we AFFIRM the district
court’s grant of summary judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-15-05