Bahri Begolli v. Home Depot, U.S.A. , 701 F.3d 1158 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1875
B AHRI B EGOLLI,
Plaintiff-Appellant,
v.
H OME D EPOT U.S.A., INC. and
M ATT S PENCER,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 11-cv-380-bbc—Barbara B. Crabb, Judge.
S UBMITTED N OVEMBER 7, 2012—D ECIDED N OVEMBER 29, 2012
Before P OSNER, FLAUM, and K ANNE, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff sued Home Depot
and one of its personnel managers claiming that the
company had refused to hire him because of his national
origin, which is Albanian, in violation of Title VII. Ac-
cording to the defendants, another of the firm’s personnel
managers had called the plaintiff on August 27, 2007,
and told him he wouldn’t be hired. The plaintiff filed
2 No. 12-1875
discrimination complaints with the EEOC and its Wiscon-
sin counterpart on June 26 of the following year, which
was 304 days after August 27. That was too late if indeed
he was told on August 27 that he would not be hired; the
300-day period within which the employee is required
by Title VII to file an administrative complaint begins to
run as soon as he is informed of the allegedly unlawful
employment practice. Delaware State College v. Ricks, 449
U.S. 250, 259-62 (1980); Stepney v. Naperville School District
203, 392 F.3d 236, 240 (7th Cir. 2004); 42 U.S.C. § 2000e-
5(e)(1). The plaintiff denied that he had received such a
call that day. The district judge, deciding that the plain-
tiff’s denial presented a genuine issue of material fact and
so could not be resolved on summary judgment, conducted
an evidentiary hearing. The evidence presented at the
hearing convinced her that the defendants were right, and
so she dismissed the suit as time barred. The plaintiff
has appealed, claiming that the dispute should have
been resolved by a jury, not by the judge, since the
plaintiff had made a timely demand to have his case
tried by a jury. Compare Stewart v. RCA Corp., 790 F.2d 624,
629-30 (7th Cir. 1986). Statute of limitations is a defense,
and in a case in which a party is entitled to, and demands,
a jury trial, defenses are tried to the jury along with
the case in chief.
In ruling that a dispute over whether the plaintiff
missed the deadline for filing the administrative com-
plaint that is a prerequisite to suing can be resolved by
the judge in advance of trial, even if an evidentiary
hearing is required for that resolution, the district
judge relied on our decision in Pavey v. Conley, 544 F.3d
No. 12-1875 3
739 (7th Cir. 2008). That was a prisoner’s civil rights case,
and the Prison Litigation Reform Act provides that “no
action shall be brought [under federal law] with respect
to prison conditions . . . by a prisoner . . . until such
administrative remedies as are available are exhausted,”
42 U.S.C. § 1997e(a), see, e.g., Hurst v. Hantke, 634 F.3d
409 (7th Cir. 2011). Pavey holds that the judge can resolve
contested factual issues germane to whether the prisoner
had exhausted his remedies under the Act even if the
prisoner demanded a jury trial in his civil rights suit. See
also Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir.
2010), and Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th
Cir. 2003), though Wyatt, while reaching the same con-
clusion that we later reached in Pavey, did so on a
ground that we had questioned in Pavey. 544 F.3d at 741.
The judge in the present case saw no difference
between the defense in a prisoner’s civil rights suit of
failure to exhaust administrative remedies and the
defense in a Title VII case of having failed to file a
timely administrative complaint. We see a difference.
The requirement of exhaustion of administrative
remedies is a requirement to submit one’s grievance to
an administrative tribunal for decision before one can
bring a suit. It would be odd and wasteful to allow a
plaintiff who was required to exhaust his administrative
remedies to bypass the administrative tribunal and sue
in an ordinary court. For a jury would then be deciding
whether he had been required to exhaust yet had failed
to do so; and if it decided that he had failed, the trial
would be aborted and the plaintiff told to pursue his
4 No. 12-1875
administrative remedies (if still open; if not, he would
be out of luck). See Pavey v. Conley, supra, 544 F.3d at 741.
Title VII, in contrast, does not require exhaustion. It
states that “a charge . . . shall be filed . . . within three
hundred days after the alleged unlawful employment
practice occurred,” 42 U.S.C. § 2000e-5(e)(1), but not that
an administrative proceeding shall have been con-
ducted before the employee can file suit. Woodford v.
Ngo, 548 U.S. 81, 98 (2006); Doe v. Oberweis Dairy, 456
F.3d 704, 710 (7th Cir. 2006). The fixing of a filing dead-
line is what a statute of limitations does; requiring ex-
haustion of administrative remedies requires more.
The filing deadline is just a defense in a Title VII suit,
and there is no reason to distinguish it from other
defenses and therefore exclude it from the jury trial. The
legislative history of the deadline, reviewed in Zipes v
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982),
supports our characterization of the deadline as effec-
tively a statute of limitations defense.
Noting in Pavey that often the judge resolves threshold
issues in a case triable to a jury even if their resolution
requires an evidentiary hearing—examples are subject-
matter jurisdiction, personal jurisdiction, and supple-
mental jurisdiction—we offered a generalization equally
applicable to the present case: “juries do not decide
what forum a dispute is to be resolved in. Juries decide
cases, not issues of judicial traffic control. Until the
issue of exhaustion is resolved, the court cannot know
whether it is to decide the case or the prison authorities
are to. In this case, should the defendants’ contention
No. 12-1875 5
that the prisoner inexcusably failed to file a timely griev-
ance be sustained, he would no longer have any adminis-
trative remedies. But in many cases the only con-
sequence of a failure to exhaust is that the prisoner must
go back to the bottom rung of the administrative
ladder; and in such a case one could envision a series
of jury trials before there was a trial on the merits: a jury
trial to decide exhaustion, a verdict finding that the
prisoner had failed to exhaust, an administrative pro-
ceeding, the resumption of the litigation, and another
jury trial on failure to exhaust. That distinguishes the
issue of exhaustion from deadline issues that juries
decide. A statute of limitations defense if successfully
interposed ends the litigation rather than shunting it to
another forum. If the defense is rejected, the case
proceeds in the court in which it is filed.” 544 F.3d at 741.
The distinction is not a technical one. It reflects the
different goals of the Prison Litigation Reform Act and
Title VII. The former is designed to keep prisoner griev-
ances in prisons and out of courts, on the theory that
the primary responsibility for prison regulation should
lie with prison officials rather than with federal judges.
Title VII, in contrast, is designed to provide a federal
judicial forum, complete with jury if desired, for persons
complaining about employment discrimination. In Porter
v. Nussle, 534 U.S. 516, 524-25 (2002), the Supreme Court
said that “beyond doubt, Congress enacted § 1997e(a)
[the exhaustion provision of the Prison Litigation
Reform Act] to reduce the quantity and improve the
quality of prisoner suits; to this purpose, Congress af-
forded corrections officials the time and opportunity to
6 No. 12-1875
address complaints internally before allowing the initia-
tion of a federal case.” Title VII, in contrast, is designed
to expand the opportunities for bringing employment-
discrimination suits in federal court. Alexander v. Gardner-
Denver Co., 415 U.S. 36, 47-49 (1974).
The judgment in favor of the defendants is reversed
and the case remanded for further proceedings consistent
with this opinion.
R EVERSED AND R EMANDED.
11-29-12