Janice Draper v. Timothy Martin

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2837 & 10-3054
JANICE D RAPER, B RAD C LEARWATER, and
JULIE N EPOSCHLAN,
Plaintiffs-Appellants,
v.
T IMOTHY M ARTIN , et al.,
Defendants-Appellees.
A NN L IBRI,
Plaintiff-Appellant,
v.
P ATRICK J. Q UINN, Governor of the
State of Illinois, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Central District of Illinois.
Nos. 06-3138 & 06-3167—Jeanne E. Scott and Richard Mills, Judges.
A RGUED O CTOBER 18, 2011—D ECIDED D ECEMBER 30, 2011
Before E ASTERBROOK , Chief Judge, and R IPPLE and
K ANNE, Circuit Judges.
2 Nos. 10-2837 & 10-3054
K ANNE, Circuit Judge. In two separate suits, a total
of four former Illinois Department of Transportation
(“IDOT”) employees alleged they were wrongfully termi-
nated because of their political beliefs and party affilia-
tion. In each case, the district court granted the defen-
dants’ motion for summary judgment on the ground
that Illinois’s two-year statute of limitations barred the
plaintiffs’ claims. We affirm.
I. B ACKGROUND
The state of Illinois faced serious budgetary challenges
near the end of fiscal-year 2004. To address the projected
budget shortfall, the drafters of the 2005 budget sought
to “[s]treamline operations and improve efficiency by
consolidating functions and reorganizing operations.”
Stripping away the euphemisms, the budget called for a
significant staff reduction, including 190 employee lay-
offs at IDOT.
Although there is some dispute about whether IDOT
actually created a reorganization plan, it is undisputed
that plaintiffs Janice Draper, Brad Clearwater, Julie
Neposchlan, and Ann Libri (collectively the “Plaintiffs”)
received layoff notices no later than June 15, 2004. The
written notice received by each employee was identical
in all material respects,1 stating:
1
Plaintiff-Draper’s letter contained one additional phrase
indicating that the abolishment was “due to lack of work.”
The other three notices did not contain this phrase.
Nos. 10-2837 & 10-3054 3
The Department is currently undergoing material
reorganizations. Your position . . . is targeted for
abolishment. The Department has no vacancies
to offer you at this time. Therefore, it is with
regret that I inform you that you will be laid
off . . . effective close of business June 30, 2004.
On June 30, 2006, exactly two years after the effective
date of their terminations, plaintiffs Draper, Clearwater,
and Neposchlan (the “Draper Plaintiffs”) filed a
two-count complaint pursuant to 42 U.S.C. § 1983 in the
United States District Court for the Central District of
Illinois. IDOT managers Timothy Martin,2 Scott Doubet,
Robert Millette, and Robin Black, and IDOT contractor
Michael Stout were named as defendants (the “Draper
Defendants”). The Draper Plaintiffs first alleged that
their terminations were politically motivated in violation
of the First Amendment, and second, that they were
denied a property interest in their jobs in violation of
the Fourteenth Amendment. On similar grounds, Plain-
tiff Libri filed an eight-count complaint 3 in Illinois state
court naming Martin, Stout, and Doubet and adding
2
The district court replaced Defendant-Martin with
current IDOT Secretary, Gary Hanning, pursuant to Fed. R.
Civ. P. 25(d).
3
Plaintiff Libri does not appeal counts IV through VI, which
all relate to her attempt to certify a class of terminated
IDOT employees.
4 Nos. 10-2837 & 10-3054
then-Governor Rod Blagojevich 4 and IDOT manager
Jacob Miller as defendants (the “Libri Defendants”). The
Libri-Defendants removed the complaint to federal
court and the district court exercised supplemental juris-
diction over the state-law claims.
In both cases, the Defendants moved for summary
judgment arguing Illinois’s statute of limitations
barred Plaintiffs’ claims. Judge Scott granted the
Draper-Defendant’s summary judgment motion on
July 6, 2010, and Judge Mills similarly granted the
Libri-Defendant’s summary judgment motion on July 15,
2010. The Plaintiffs in both cases filed this timely
appeal, and we consolidated the cases.
II. A NALYSIS
Summary judgment is appropriate only when “the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). We review grants
of summary judgment de novo, Berry v. Chicago Transit
Auth., 618 F.3d 688, 690 (7th Cir. 2010), viewing the
record in the light most favorable to the Plaintiffs and
drawing all reasonable inferences in their favor, McCann
v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir.
2010). Although we have previously cautioned against
weighing evidence at summary judgment, Kodish v.
4
The district court replaced Defendant-Blagojevich for Gov-
ernor Patrick J. Quinn pursuant to Fed. R. Civ. P. 25(d).
Nos. 10-2837 & 10-3054 5
Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 507 (7th
Cir. 2010), we have also said that “a factual dispute is
‘genuine’ only if a reasonable jury could find for either
party,” SMS Demag Aktiengesellschaft v. Material Scis. Corp.,
565 F.3d 365, 368 (7th Cir. 2009).
The sole issue for our review is whether the Plaintiffs
filed their complaints within the appropriate statute
of limitations window. 5 In Illinois, the statute of limita-
tions period for § 1983 claims is two years, 735 ILCS
5/13-202; Jenkins v. Vill. of Maywood, 506 F.3d 622, 623 (7th
Cir. 2007), and the claim accrues “when the plaintiff
knows or should know that his or her constitutional
rights have been violated,” Hileman v. Maze, 367 F.3d 694,
696 (7th Cir. 2004) (quoting Kelly v. City of Chicago, 4
F.3d 509, 511 (7th Cir. 1993)). We use a two-step test to
determine the accrual date: (1) we identify the injury
5
In a four-sentence concluding paragraph, the Plaintiffs
summarily argue that we should apply the doctrine of
equitable tolling to the extent that we find their claims barred
by the statute of limitations. See Mull v. ARCO Durethene
Plastics, Inc., 784 F.2d 284, 291 (7th Cir. 1986) (equitable tolling
focuses on “the plaintiff’s excusable ignorance of the limita-
tions period and on lack of prejudice to the defendant”). But,
the Plaintiffs fail to offer any record citations or analysis
supporting such a claim and we “will not hunt through the
record” looking for corroborating evidence. Gross v. Town of
Cicero, Ill., 619 F.3d 697, 705 (7th Cir. 2010). Accordingly, we
deem their undeveloped argument waived and we need not
consider it. See Crawford v. Countrywide Home Loans, Inc., 647
F.3d 642, 650 (7th Cir. 2011).
6 Nos. 10-2837 & 10-3054
and (2) we determine when the plaintiff could have
sued for that injury. Hileman, 367 F.3d at 696.
In discriminatory discharge cases, the plaintiffs’ injury
coincides with the decision to layoff the plaintiffs, not
the actual termination date. Kuemmerlein v. Bd. of Educ. of
the Madison Metro. Sch. Dist., 894 F.2d 257, 259 (7th Cir.
1990); Chardon v. Fernandez, 454 U.S. 6, 8 (1981); Del. State
Coll. v. Ricks, 449 U.S. 250, 258 (1980) (“[t]he proper focus
is upon the time of the discriminatory acts, not upon the
time at which the consequences of the acts became
most painful”). In this court, the date of the unlawful
employment practice is when a “final, ultimate, [and]
non-tentative” decision was made for which the employee
receives unequivocal notice. Flannery v. Recording Indus.
Ass’n of Am., 354 F.3d 632, 637 (7th Cir. 2004); Smith v.
Potter, 445 F.3d 1000, 1007 (7th Cir. 2006). 6 But, in proce-
dural due process cases, the claim for a deprivation of
public employment accrues on the actual termination
6
The Plaintiffs attempt to construe Potter as holding the
statute of limitations begins accruing on the effective date of
termination. This misstates the holding in Potter. Instead,
Potter addresses a Title VII regulation, 29 C.F.R. § 1614.105,
which provides that federal employees fearing discrimination
must “initiate contact with a[n EEOC] Counselor within
45 days of the date of the matter alleged to be discriminatory
or, in the case of personnel action, within 45 days of the
effective date of the action.” Because the plaintiff in Potter
did not bring her action to the EEOC within 45 days of the
termination effective date, we held that her complaint was
time-barred. Potter, 445 F.3d at 1007.
Nos. 10-2837 & 10-3054 7
date. Lawshe v. Simpson, 16 F.3d 1475, 1480 (7th Cir. 1994).
Normally, we would apply the Lawshe standard to the
Draper Plaintiffs’ procedural due process claim, but the
Draper Plaintiffs did not make this argument before
either the district court or this court. As we have often
said, “it is not this court’s responsibility to research and
construct the parties’ arguments.” APS Sports Collectibles,
Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002)
(quotation and punctuation marks omitted). Because
the Plaintiffs do not suggest that Lawshe applies, we
consider that argument waived.
On appeal, the Plaintiffs principally argue that the
statute of limitations period did not begin running
when the Plaintiffs received their termination notices
because of the uncertainty surrounding the reorganiza-
tion. In other words, a “final, ultimate, [and] non-tenta-
tive” decision about which IDOT employees to ter-
minate was never made. To bolster their claim, the Plain-
tiffs highlight three employees 7 who received termina-
tion notice but were ultimately retained and two addi-
tional employees who received notice but were called
back to work. Without a final termination decision, the
notice each employee received was not unequivocal.
Therefore, the Plaintiffs argue that the date of the discrimi-
7
Two of these three employees were actually terminated but
were later rehired into different positions. Because these two
employees were terminated in accordance with their termina-
tion notices, the Plaintiffs’ uncertainty argument is sig-
nificantly weakened.
8 Nos. 10-2837 & 10-3054
natory act was actually the effective date of their termina-
tion. We disagree.
The alleged uncertainty in IDOT’s reorganization plan
does not change the statute of limitations accrual date,
and the district courts rightfully found Kuemmerlein to
control the outcome of these cases. There, several school
teachers filed suit against the Madison Metropolitan
School District (“MMSD”) alleging that the school dis-
trict unlawfully used race as a factor in its layoff plan.
Kuemmerlein, 894 F.2d at 258. In previous years, the
district had executed similar layoffs in which the plain-
tiffs were targeted for termination but were ultimately
recalled to work. In fact, “[i]n the five previous years,
MMSD had recalled, within a month and a half of the
beginning of the school year, an average of fifty-one
percent of the teachers who received layoff notices,” and
in one year, the district recalled all twelve teachers
who had received notice of their termination. Id. at
258-59. On those facts, we held that even a 50% chance
of being rehired was not enough uncertainty to change
the accrual date from the date of notice to the date
of termination. Id. at 260 n.4 (“Conceivably, a sham
layoff notice, where all notified employees are even-
tually recalled to work, might not start the running
of the statute of limitations. The facts of this case do not
suggest such a scenario.”). There is even less uncertainty
in this case as the Plaintiffs only cited a handful of em-
ployees who were recalled. As such, this case does not
approach the sham-layoff scenario we acknowledged in
Kuemmerlein.
Nos. 10-2837 & 10-3054 9
The Plaintiffs also argue that Kuemmerlein would have
come out differently had the “final, ultimate, [and] non-
tentative” language we used in Flannery existed at the
time of Kuemmerlein. This is incorrect. To the contrary,
we explicitly interpreted the Supreme Court’s Ricks/
Chardon line of cases as saying the statute of limita-
tions accrues when the defendants make a “final decision.”
Id. at 259 (emphasis added). There is no meaningful
difference between a “final” decision and a “final, ultimate,
[and] non-tentative” decision. We used this rule before
and after Kuemmerlein, and we use it again today: The
statute of limitations accrual date begins at the time of
the final discriminatory decision.
Finally, we find that the Plaintiffs are also wrong
to suggest that their individual notices were not unequivo-
cal. Each notice letter stated that “your position . . .
is targeted for abolishment,” and “it is with regret that
I inform you that you will be laid off . . . effective close
of business June 30, 2004.” In Potter, we found a similar
notice letter satisfied this test. 445 F.3d at 1007 (the letter
provided, “You are hereby notified that you will be
removed from the Postal Service on November 27, 1998”).
There is functionally no difference between the Pot-
ter-statement, “you will be removed” and the IDOT-
statement, “you will be laid off.” In both cases, there
is little doubt that a reasonable person in the Plaintiffs’
position could draw any other conclusion from that
letter than the named employee was to be terminated
effective June 30, 2004. See id. Therefore, the notice
each plaintiff received unequivocally indicated that
Plaintiffs’ employment was to end on June 30, 2004.
10 Nos. 10-2837 & 10-3054
III. C ONCLUSION
We hold that the Plaintiffs’ claims are barred by Illinois’s
two-year statute of limitations and A FFIRM the district
courts’ grant of summary judgment for the Defendants.
12-30-11