NONPRECEDENTIAL DISPOSITION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 August 20, 2012
Decided August 20, 2012
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐1801
MITCHELL WOJTANEK, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 C 8320
PACTIV LLC, fka PACTIV
CORPORATION, Charles R. Norgle,
Defendant‐Appellee. Judge.
O R D E R
Mitchell Wojtanek has a history of filing lawsuits claiming employment
discrimination. See Wojtanek v. Dist. No. 8, Int’l Ass’n of Machinists and Aerospace Workers,
AFL‐CIO, 435 F. App’x 545 (7th Cir. 2011); Wojtanek v. Consol. Container Co., No. 09 CV 202,
2011 WL 4036126 (N.D. Ill. 2011); Wojtanek v. Dist. Lodge No. 8 of the Int’l Ass’n of Machinists
and Aerospace Workers, AFL‐CIO, No. 08‐CV‐7074,
2011 WL 248495 (N.D. Ill. Jan. 25, 2011).
This time he has filed separate suits, one alleging age discrimination and the other
retaliation, against Pactiv Corporation, where he worked for less than two months. This
appeal concerns only the suit claiming retaliation, which the district court dismissed on the
No. 12‐1801 Page 2
ground that Wojtanek had not submitted a timely administrative charge of retaliation. We
affirm the dismissal.
In September 2006 Wojtanek began working as a maintenance mechanic for Pactiv, a
manufacturer of food‐packaging products. In November 2006, while still on a 90‐day period
of probationary employment, Wojtanek was fired. He says he was told that he worked too
slowly.
In April 2007 Wojtanek complained to the Illinois Department of Human Rights (and
indirectly to the Equal Employment Opportunity Commission) that Pactiv had harassed
and fired him because of his age and in “retaliation” for refusing to complete company
employment forms. According to an intake questionnaire that Wojtanek completed for the
IDHR, Pactiv had lost his initial job application and then, before he could file a new
application, the company revised its hiring procedures to require additional employment
forms (which Wojtanek refused to complete after he was hired). Wojtanek, who was then 65,
also alleged in the questionnaire that his supervisors refused to talk to him or give him
work assignments, ignored his achievements and suggestions, would not give him
performance evaluations, and subjected him to “degrading, humiliating treatment every
day.” The same day that he submitted the completed intake questionnaire, Wojtanek also
signed off on a formal charge of discrimination listing harassment as the basis of the charge.
There is no mention of retaliation in the formal charge. The IDHR eventually concluded
after investigation that Wojtanek’s allegations could not be substantiated, and in August
2009 the EEOC issued a right‐to‐sue letter. After receiving that letter, Wojtanek filed the first
of his lawsuits against Pactiv, which was docketed as case number 1:09‐cv‐06551. In that
suit Wojtanek claims that he was harassed and fired because of his age, in violation of the
Age Discrimination in Employment Act, see
29 U.S.C. § 623(a), (d). Wojtanek’s complaint in
that litigation does not mention retaliation, nor does the complaint allege that Wojtanek
complained about age discrimination or told his supervisors that he was considering
submitting an administrative charge of discrimination.
Meanwhile, in May 2008, Wojtanek had requested that the IDHR amend his April
2007 charge of discrimination to include a claim that Pactiv had fired him in November 2006
to retaliate for complaints of age discrimination he allegedly made during the hiring process
in August 2006. What resulted, however, is a second charge of discrimination dated May 28,
not an amendment of Wojtanek’s April 2007 charge. The IDHR again concluded after
investigation that Wojtanek’s allegations could not be substantiated, and for the second
time, in September 2011, the EEOC issued a right‐to‐sue letter. Wojtanek then filed his
second lawsuit—the one underlying this appeal—claiming that he was fired in November
2006 in retaliation for complaining about age discrimination and threatening to file a charge
of discrimination. Wojtanek explained that he had opposed the “irrational, cruel hiring
No. 12‐1801 Page 3
process hampered by prejudices, hostility directed against me based on my age.” This
second lawsuit was docketed as case number 1:11‐cv‐08320 and consolidated for disposition
with Wojtanek’s earlier complaint.
Pactiv moved to dismiss the second lawsuit, arguing that Wojtanek’s charge of
discrimination accusing the company of unlawful retaliation had been untimely because it
was submitted to IDHR more than 300 days after the allegedly retaliatory act. See
29 U.S.C.
§ 626(d)(1)(B); Nagle v. Vill. of Calumet Park,
554 F.3d 1106, 1121 n.4 (7th Cir. 2009). Pactiv
also argued that any other conceivable claim unrelated to Wojtanek’s termination should be
dismissed because the loss of his job was the sole retaliation alleged in the charge of
discrimination. The district court agreed with Pactiv’s contentions and dismissed the second
lawsuit. What remained is the first suit (which is still pending) claiming only age
discrimination.
Wojtanek appeals the dismissal of his second lawsuit. Reading his appellate brief
liberally, as we must for pro se filings, see Bennett v. Gaetz,
592 F.3d 786, 790 (7th Cir. 2010),
Wojtanek essentially argues that his claim of retaliation was administratively exhausted
because, by his account, he mentioned retaliatory discharge in the intake questionnaire he
submitted to the IDHR in April 2007. As evidence of this, Wojtanek points to language in
the questionnaire saying that he was fired in retaliation for refusing to complete all of the
paperwork Pactiv required for employment.
The district court correctly dismissed Wojtanek’s retaliation suit. In this court,
Wojtanek does not disagree that his second administrative charge was ineffectual to timely
exhaust his claim of retaliation. Instead, then, Wojtanek’s argument must be that his
mention of the word “retaliation” in his April 2007 intake questionnaire was enough to
satisfy the requirement of an administrative charge of retaliation within the 300‐day limit.
Although a plaintiff who signs a formal administrative charge generally is limited to
pursuing allegations included in that submission even if the agency was given additional
information during the intake process, Novitsky v. Am. Consulting Eng’rs,
196 F.3d 699, 702
(7th Cir. 1999), it is an open question in this circuit whether a pro se plaintiff is bound by a
formal charge if critical information supplied to the agency was omitted,
id. at 703 (Rovner,
J., concurring); see also B.K.B. v. Maui Police Dep’t,
276 F.3d 1091, 1101–02 (9th Cir. 2002)
(disagreeing with Novitsky and holding that plaintiff will not be bound by narrower charge
drafted by EEOC or state agency if agency employees “distorted her claims when
transferring allegations from an intake questionnaire onto the charge form”). Although the
Supreme Court has held that in some circumstances even an intake questionnaire can
constitute a charge of discrimination, see Fed. Express Corp. v. Holowecki,
552 U.S. 389,
401–405 (2008) (concluding that intake questionnaire accompanied by detailed six‐page
affidavit explaining basis for claim and requesting agency to take action constituted charge
No. 12‐1801 Page 4
of discrimination in absence of a formal charge); E.E.O.C. v. Watkins Motor Lines, Inc.,
553
F.3d 593, 597–98 (7th Cir. 2009), the Court has not addressed the situation where the
plaintiff has signed a formal charge of discrimination that narrows the allegations presented
to agency officials.
In the end, however, Wojtanek’s appellate argument fails because there is no
practical difference between the content of his April 2007 charge of discrimination and the
supposedly broader allegations in his intake questionnaire: That questionnaire does not
allege that Wojtanek was retaliated against for engaging in protected activity. Wojtanek’s
intake questionnaire does identify “retaliation/age” as a basis for his claim, but what he
describes is discrimination and harassment because of his age. Nowhere does he allege that
he complained to Pactiv management about age discrimination, or threatened to file a
charge of discrimination, or otherwise engaged in protected activity. Rather, his contention
in April 2007 was that Pactiv “retaliated” by firing him after he had refused to complete all
of the paperwork required for continued employment. This outcome is not actionable
retaliation prohibited by the ADEA. See Smith v. Lafayette Bank & Trust Co.,
674 F.3d 655, 658
(7th Cir. 2012); Kodl v. Bd. of Educ. Sch. Dist. 45, Villa Park,
490 F.3d 558, 562–63 (7th Cir.
2007).
Nothing about Wojtanek’s submission to the IDHR in April 2007 suggests that he
was asking the agency to investigate allegations of retaliation for engaging in protected
activity. Indeed, the IDHR’s action in conducting a new investigation in response to
Wojtanek’s second charge in May 2008 shows that the agency did not regard retaliation to
be a part of the initial charge. It follows that, because Wojtanek’s initial charge did not
include a claim of retaliation, he is left only with his later, untimely charge of retaliation.
See Swearnigen‐El v. Cook Cnty. Sheriff’s Dep’t,
602 F.3d 852, 864–65 (7th Cir. 2010); Vela v. Vill.
of Sauk Vill.,
218 F.3d 661, 664 (7th Cir. 2000) (noting that allegations outside four corners of
charge may be considered when charging party clearly intended agency to investigate those
allegations). Thus, dismissal of Wojtanek’s ADEA suit claiming retaliation was proper.
AFFIRMED.
