Newbold, Mary E. v. WI State Public

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1700
MARY ELIZABETH NEWBOLD,
Plaintiff-Appellant,
v.
WISCONSIN STATE PUBLIC DEFENDER,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00-C-391-C—Barbara B. Crabb, Chief Judge.
____________
ARGUED SEPTEMBER 9, 2002—DECIDED NOVEMBER 19, 2002
____________
Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Mary Elizabeth Newbold filed suit
against her former employer, the Wisconsin State Public
Defender (WSPD), alleging discrimination and retaliation
based on her age and sex. The district court granted
summary judgment for the WSPD after concluding that
Newbold filed her case too late to meet the statute of
limitations on her claims and that the limitations period
should not be equitably tolled. Newbold appeals, asserting
that one of her retaliation claims is timely under the doc-
trine of equitable tolling and that she also has a second
retaliation claim which the district court erroneously failed
2 No. 01-1700
to consider. Newbold does not contest that her discrimina-
tion charge was filed too late with the Equal Employment
Opportunity Commission (EEOC) and that it is doomed
unless revived by equitable tolling.
For the purposes of summary judgment, there is no
dispute about the timing of the events underlying New-
bold’s claims. In January 1995 the WSPD hired Newbold,
who was 55 at the time, as an investigator in its Racine
office. On June 21 and 22, 1995, Newbold filed harass-
ment complaints with WSPD’s affirmative action officer.
On August 3, 1995, the WSPD fired Newbold. She filed her
first charge of discrimination on May 14, 1996. The Wis-
consin Personnel Commission (WPC) and the Equal Em-
ployment Opportunity Commission do not have a work-
sharing agreement allowing a state agency filing to be
deemed concurrently filed with the EEOC. The charge
form did state that the WPC would forward a copy of the
complaint to the EEOC if Newbold checked the appropri-
ate box—which she did. The charge was not sent to the
EEOC, however, until August 6, 1996, and the EEOC did
not log it as filed until September 17, 1996.
On July 23, 1996, the Wisconsin Department of Employ-
ment Relations informed Newbold that it was removing
her name from the public defender investigator (PDI) reg-
ister, a list of certified candidates for WSPD investigator
jobs. This action was taken at WSPD’s request. On Septem-
ber 17, 1996, Newbold completed a second charge of dis-
crimination with the WPC regarding the removal of her
name from the PDI register. In this charge she stated:
The complaint I filed May 14, 1996 with the Personnel
Commission is the basis for this additional discrimina-
tion and retaliation complaint regarding the removal
of my name from the 1996 Investigator 2 list by [the
Division of Merit Recruitment and Selection] at the
request of Carla Blum, SPD Personnel Director.
No. 01-1700 3
As with her May 14 charge, Newbold checked the box to
forward it to the EEOC. The EEOC received her papers
on September 19, 1996.
The WPC ultimately dismissed her charges. On June 21,
2000, the EEOC sent Newbold a letter concurring in the
dismissal of her first retaliation charge. On December 20,
2000, the EEOC sent Newbold a letter concurring in the
dismissal of her second retaliation charge.
Newbold filed suit in the United States District Court
for the Western District of Wisconsin, alleging that the
WSPD discriminated and retaliated against her. Newbold
moved to proceed in forma pauperis, and the district
court granted the motion as to Newbold’s claim that the
WSPD retaliated against her by firing her on August 3,
1995, and removing her from the public defender investiga-
tor register on July 23, 1996.
On February 23, 2001, the district court granted the
WSPD’s summary judgment motion. The court noted that
although Newbold was terminated on August 3, 1995, she
did not file her charge of discrimination with the WPC
until May 14, 1996, or with the EEOC until September 17,
1996. Based on this charge, the court found that Newbold’s
claims were barred by the 180-day EEOC filing deadline
for retaliation claims. The court did not, however, mention
Newbold’s September 17, 1996, WPC charge which was
forwarded to the EEOC on September 19, 1996.
Our standard of review on this question of law is de novo,
but we view the facts and all reasonable inferences in favor
of Newbold, the nonmoving party. See Furnish v. SVI Sys.,
Inc., 270 F.3d 445, 448 (7th Cir. 2001).
Under 42 U.S.C. § 2000e-5(e)(1), Title VII claimants are
required to file their discrimination charge within 180 days
after the alleged unlawful employment practice. If a claim-
ant has initiated proceedings in a state agency with the
authority to grant relief from unlawful employment prac-
4 No. 01-1700
tices, however, the claimant has 300 days after the alleged
unlawful employment practice occurred to file her charge
with the EEOC. The WPC has jurisdiction over all charges
covering the employment practices of the agencies of the
State of Wisconsin except those alleging retaliation under
704(a) of Title VII. See 29 C.F.R. § 1601,74(a) at n.12.
Newbold argues that state agencies lulled her into believ-
ing that a 300-day instead of a 180-day deadline applied
to her claims and that the WPC would concurrently file
an EEOC claim when it accepted her state charge. Newbold
therefore argues that the 180-day statute of limitations
for retaliation claims should be equitably tolled and her
EEOC charge deemed timely filed.
Newbold proceeds under a theory of equitable tolling
because she alleges that the Department and the WPC—
not the WSPD—misled her. Equitable tolling permits a
plaintiff to avoid the bar of the statute of limitations
if, despite all due diligence, she is unable to obtain vi-
tal information bearing on the existence of her claims.
See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th
Cir. 1990). It may be particularly appropriate if an adminis-
trative agency misleads a plaintiff. See Alsaras v. Dom-
inick’s Finer Foods, Inc., 248 F.3d 1156, 2000 WL 1763350,
at *3 (7th Cir. 2000) (tolling appropriate when EEOC
representative told plaintiff she had a year rather than 300
days to file suit); Early v. Bankers Life and Cas. Co., 959
F.2d 75, 80 (7th Cir. 1992) (tolling appropriate when EEOC
informed plaintiff he had completed all necessary paper-
work for charge when he had only filled out intake ques-
tionnaire).
The problem for Newbold is that she was not misled
about EEOC deadlines; rather, she was given correct infor-
mation about the WPC’s deadlines. Although Newbold
provides ample documentation that she was told that a
retaliation claim under the Wisconsin Fair Employment
Act had to be filed within 300 days, nothing that she cites
No. 01-1700 5
discusses time limitations for actions under Title VII.
Furthermore, Newbold does not mention, and the record
does not indicate, any attempt on her part to ascertain the
federal deadlines and procedures for filing an EEOC claim
until December 18, 1996. Notably, one of the forms in the
WPC packet that Newbold received said:
Federal anti-discrimination and equal opportunity laws
differ from state laws. Procedures used by the federal
government in processing complaints are also differ-
ent. If more information concerning federal laws or
complaint procedures is desired, contact the Equal
Employment Opportunity Commission, 310 West Wis-
consin Avenue, Suite 800, Milwaukee, WI 53203-2211,
or telephone (414) 297-1111.
Newbold received this cautionary note on December 27,
1995. Had she heeded this note and contacted the EEOC,
she would have discovered that she still had 35 days to
timely file a retaliation charge based on her termination.
This is not a case where the EEOC misled a claimant or
where a state agency authoritatively addressed potential
EEOC deadlines. Newbold did not exercise the requisite
amount of due diligence that would entitle her to equitable
tolling, and the district court did not err in finding the
doctrine of equitable tolling inapplicable.1 We note that
1
Even if the district court had reached the merits of Newbold’s
first retaliation claim, it is highly unlikely that she would have
survived summary judgment. She essentially relies on the tem-
poral proximity of the events to establish a causal connection
between her internal complaints and her termination. The fact
that the WSPD began disciplining Newbold prior to her protected
activity weighs against the sufficiency of temporal proximity
alone. See Speedy v. Rexnord Corp., 243 F.3d 397, 403 (7th Cir.
2001). Even more deadly to Newbold’s retaliation claim is her
own theory of her case. In her brief to the WPC prior to its
(continued...)
6 No. 01-1700
Newbold’s claims likely would have been timely under
state law, but she chose to forego those remedies for suit
in federal court.
Newbold also argues that the district court erroneously
overlooked her second retaliation claim but should have
found it timely since the adverse action (taking her name
off the PDI register) occurred on July 23, 1996, and she
filed her EEOC charge on September 19, 1996—well within
the 180-day deadline.
As the WSPD notes, the district court did not interpret
Newbold’s complaint as stating two distinct retaliation
claims. Rather, the district court saw the removal of New-
bold’s name from the PDI register as potential support
for her argument that the WSPD’s rationale for her ter-
mination was a pretext for discrimination. The district
court’s reason for considering the evidence in this way is
clear—Newbold did not have a right-to-sue letter from
the EEOC on this retaliatory removal claim. Further-
more, even her WPC charge on this issue indicated that
the removal of her name was merely related to her
initial charge. Although Newbold mentioned her second
retaliation charge in her summary judgment opposition,
she did not argue in her brief that the district court
should have found this claim timely or otherwise indicate
that the court erred in its construction of her complaint.
For this reason, we believe that Newbold has waived
any argument based on the timeliness of this second
charge. See, e.g., United States v. Andreas, 150 F.3d 766,
769 (7th Cir. 1998).
1
(...continued)
determination of the merits of her claims, Newbold argued that
a supervisor at the WSPD decided to fire her in April 1995—
before she had engaged in any protected activity.
No. 01-1700 7
Even if we characterize this as an argument that the
district court should have allowed Newbold to proceed
in forma pauperis on her second retaliation claim as a
stand-alone claim, it fails on the merits. First of all,
Newbold cannot meet her burden of establishing a prima
facie case of retaliation. She did not present any evi-
dence that the removal of her name was an adverse em-
ployment action and not a normal consequence of termi-
nation for cause. See Lever v. Northwestern Univ., 979 F.2d
552, 556 (7th Cir. 1992). Clearly there can be no causal
connection between the first WPC charge and the re-
moval of her name because Carla Blum, personnel officer
for the WSPD, requested the removal of her name on July
1, 1996, but the WSPD did not learn of Newbold’s charge
until August 6, 1996. There is also no evidence that New-
bold’s internal discrimination complaints filed on June 21
and 22, 1995, were linked to the removal of her name
on July 23, 1996—over a year later. See Franzoni v. Hart-
marx Corp., 300 F.3d 767, 773 (7th Cir. 2002) (6 months
too long to establish causal connection); Lewis v. Holsum
of Fort Wayne, Inc., 278 F.3d 706, 711 (7th Cir. 2002)
(3 months insufficient). In addition, there is no evidence
that the WSPD’s rationale for requesting the removal of
her name was a pretext for covering up discrimination.
Wisconsin Administrative Code § ER-MRS 6.10(4) pro-
vides that an applicant may be removed from an employ-
ment register who “has been dismissed from the state
service for cause, and the action is requested by the ap-
pointing authority,” and Wisconsin Administrative Code
§ ER-MRS 6.10(8) provides that applicants with unsatis-
factory work records may be removed from a register.
In short, the real claim here, retaliatory discharge, is
time-barred, and allowing Newbold to proceed on any
other claim would be an exercise in futility. For these
reasons, we AFFIRM the district court’s grant of summary
judgment in the WSPD’s favor.
8 No. 01-1700
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-19-02