Opinion
Case No. 01 C 3203.
January 2, 2003
ORDER
Plaintiff Susan Agostin sued her former employer American Airlines ("American") for violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. American moved to dismiss the third amended complaint on the grounds that Agostin: (1) failed to file her complaint and filing fee within 90 days of receiving her right-to-sue notice from the Equal Employment Opportunity Commission ("EEOC"); (2) failed to serve American with the complaint in accordance with Fed.R.Civ.P. 4; and, alternatively, (3) improperly raised claims that exceed the scope of her EEOC charge. For the reasons that follow, American's motion to dismiss is denied.
Background
Given the nature of this motion to dismiss, the procedural chronology is important. On or about February 3, 2001, just over three years after filing her discrimination charge with the EEOC and the Illinois Department of Human Rights, Agostin received notice of her right to sue from the EEOC. As the right-to-sue letter expressly stated, she had ninety days from the date she received the letter to initiate a lawsuit. On May 1, 2001, plaintiff (who was living in Ohio) called this courthouse and spoke with a supervisor in the Clerk of the Court's ("Clerk") office, who told Agostin to file her complaint immediately due to the 90-day deadline and that she could amend the complaint later. (Agostin Aff., Pl.'s Mem. Opp. Mot. Dismiss, Ex. A, ¶ 9.) On May 2, the Clerk's office received a packet of information from Agostin containing her right-to-sue letter, the charge of discrimination she had filed with the EEOC, and a cover letter that stated "I am filing this lawsuit myself to protect my 90 Day deadline." The Clerk's office stamped that complaint "filed" that same day and opened the case.
In the original complaint, Agostin stated that she received notice on either February 2nd or 3rd.
On May 15, the court entered an order dismissing the case without prejudice for failure to conform with the Federal Rules of Civil Procedure because the "case was filed with no apparent complaint, appearance form or filing fee." (Order of 5/15/01.) On May 29, the Clerk's office received a second packet from Agostin containing a motion to reopen the case, the first amended complaint (using the standard fill-in-the-blank form provided by the Clerk's office), an appearance form, a motion for appointment of counsel, and an application to proceed in forma pauperis ("IFP"). On June 14, the court denied the IFP application because it was unable to determine from the first amended complaint whether Agostin had a claim. In the order, the court "cautioned [Agostin] to take the time and care necessary to explain her claim so that the court can understand it." (Order of 6/14/01.) On November 8, the court denied the motion to reopen the case and motion for appointment of counsel submitted on May 29 because those motions were predicated on the same complaint that the court deemed insufficient. On November 14, the Clerk's office received Agostin's second motion to reopen the case, together with a motion for appointment of counsel, an IFP application, and the second amended complaint (which includes twenty-three pages of factual allegations).
The docket reflects only when the second amended complaint was filed by the Clerk's office, not when it was received: it was not stamped "filed" until January 22, 2002 (when the court entered an order reopening the case). Although there is no "received" stamp, the document is dated November 6, 2001, and Agostin confirmed with this court's minute clerk that the second amended complaint was received in November 2001. (Agostin Aff., Pl.'s Mem. Opp. Mot. Dismiss, Ex. A., ¶ 15.).
On January 22, 2002, based on the detailed second amended complaint, the court granted Agostin's motion to reopen the case, motion for appointment of counsel, and IFP application, and appointed Carol Popalowski as counsel. (Order of 01/22/02.) The next day, the Clerk's office issued the first summons in this case (which was mailed to Ms. Popalowski). On February 5, 2002, Carol Popalowski filed a motion to withdraw due to a conflict of interest, which was granted on February 8. On February 12, Thomas Riley was appointed as counsel. But Mr. Riley filed a motion to withdraw on March 14, which was granted on March 22. The court then appointed Agostin's current counsel, John Zabriskie of Foley Lardner on April 4.
American's counsel filed an appearance on May 8. On May 23, the court granted Agostin leave to file an amended complaint before May 31. The Clerk's office issued an alias summons on May 29, and the next day, American was served with the summons and third amended complaint. In the third amended complaint, Agostin for the first time raises a constructive discharge claim. American now seeks dismissal of that complaint.
Discussion
A. Agostin's Action is Not Time-Barred.
American's first argument for dismissal is that Agostin failed to file her complaint and filing fee (or an IFP application) within 90 days of receiving her right-to-sue letter from the EEOC. The court rejects this argument because Agostin filed her original complaint before the 90 days expired and the failure to pay the filing fee at the time of filing does not bar her claims.
Under 42 U.S.C. § 2000e-5(f)(1), a plaintiff has 90 days to file a civil action after receiving a right-to-sue letter from the EEOC. It is undisputed that Agostin filed her right-to-sue letter and EEOC charge, along with a cover letter indicating her desire to preserve her right to sue, within the 90-day window. Rather, the dispute is whether that initial filing constitutes a complaint sufficient to commence a civil action.
Relying on Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984), and this court's order of May 15, 2001, American argues that Agostin's initial filing was not a valid complaint under Fed.R.Civ.P. 8, and thus did not commence this lawsuit under Fed.R.Civ.P. 3. Rule 3 states: "A civil action is commenced by filing a complaint with the court." Rule 8 states that a complaint "shall contain" a short and plain statement of the claim, jurisdictional basis, and demand for relief. In Baldwin, the Supreme Court held that filing a right-to-sue letter was not the equivalent of a complaint because nothing in the letter set forth the factual basis for the plaintiff's discrimination claim. 466 U.S. at 149-50. Accordingly, the Court found that the plaintiff failed to initiate litigation within the 90-day statute of limitations. Id. But Agostin did not simply file her right-to-sue letter — she also filed the discrimination charge she originally submitted to the EEOC. The charge sets forth the factual basis of her claims and thus saves her case. Although the Seventh Circuit has not addressed the issue, in decisions issued after Baldwin both the Eighth and Eleventh Circuit held that where the EEOC charge outlines the facts underlying the charge of discrimination, its inclusion was sufficient to meet the "short and plain statement" requirement of Rule 8 and thus sufficient to commence the litigation for statute of limitations purposes. Page v. Ark. Dep't of Corr., 222 F.3d 453, 454-55 (8th Cir. 2000); Judkins v. Beech Aircraft Corp., 745 F.2d 1330, 1332 (11th Cir. 1984); see also Block v. Boeing Military Airplane Co., 671 F. Supp. 19, 21 (Kan. 1987).
American urges the court not to follow that line of cases, arguing that Agostin essentially is asking the court to reverse its order of May 15, 2001. The court, however, believes that Page and Judkins reached the correct result. In fact, after reviewing those decisions, the court is persuaded that its decision to dismiss the original complaint was wrong. There were problems with the lack of appearance and filing fee, but the original complaint itself — although in irregular form — was sufficient because Agostin's EEOC charge sufficiently outlines the facts underlying her discrimination claim. A pro se plaintiff should be given "a certain degree of leniency." Taylor v. Ill. State Police, No. 92 C 6479, 1993 WL 479008, at *2 (N.D. Ill. Nov. 17, 1993). As the Seventh Circuit has stated, "while the court is not to become an advocate, it is incumbent on it to take appropriate measures to permit the adjudication of pro se claims on the merits, rather than to order their dismissal on technical grounds." Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996). Moreover, even if the format deficiencies warranted dismissal with leave to amend, the original filing was a complaint sufficient to toll the statute of limitations. Accordingly, Agostin commenced this litigation within 90 days of receiving her right-to-sue letter. Further, as American concedes, because the original complaint was filed within the statute of limitations, each of Agostin's amended complaints also were timely: they "arose out of the conduct . . . set forth in the original pleading" and thus relate back to the original complaint under Fed.R.Civ.P. 15(c).
A American also notes that the original complaint did not state the jurisdictional basis or a demand for relief, as required by Rule 8. But the court is not persuaded that those deficiencies alone would be fatal. See Block, 671 F. Supp. at 21. Furthermore, Agostin's original complaint sufficiently, albeit indirectly, addresses jurisdiction and directly addresses the relief sought: both the cover letter and the right-to-sue letter expressly refer to the ADA (a federal statute) and the cover letter states that Agostin seeks back pay and damages.
Agostin's failure either to pay the filing fee or to submit an IFP application when she filed the original complaint does not alter the court's conclusion that the original complaint was timely-filed. "[A] complaint is filed for statute of limitations purposes when it is in the actual or constructive possession of the clerk, regardless of the untimely payment of the required filing fee." Rodgers v. Bowen, 790 F.2d 1550, 1552 (11th Cir. 1986) (internal quotation marks and citations omitted). In reaching this decision, the Eleventh Circuit stated that many circuits have long recognized that local rules should not be elevated to the status of jurisdictional requirements. Id. at 1551; see also Gilardi v. Schroeder, 833 F.2d 1226, 1233 (7th Cir. 1987) (complaint should be deemed timely filed if submitted to clerk within the statute of limitations even if filing fails to conform with requirements of local rules); Lyons v. Goodson, 787 F.2d 411, 412 (8th Cir. 1986); Loya v. Desert Sands Unified School Dist., 721 F.2d 279, 280-81 (9th Cir. 1983); Brown v. City of Meridian, 356 F.2d 602, 606 (5th Cir. 1966); Johnson v. Brown, 803 F. Supp. 1414, 1418 (N.D. Ind. 1992). Although the court acknowledged that 28 U.S.C. § 1914 (which requires clerks to collect a $150 filing fee) is not merely a local rule, it analogized § 1914 to 28 U.S.C. § 1917 (which concerns payment of filing fees for appeals). Rodgers, 790 F.2d at 1552. Following the lead of the Supreme Court in Parissi v. Telechron, Inc., 349 U.S. 46 (1955) (which held that the untimely payment of a filing fee does not affect an otherwise timely notice of appeal), the court held that plaintiff's claim should not be barred because the filing fee was not received within the statute of limitations. Rodgers, 790 F.2d at 1553.
In Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999), the Seventh Circuit agreed with Rodgers, holding that for statute of limitations purposes a habeas petition "need not be accompanied by the required filing fee or IFP application, so long as one or the other is sent within a reasonable amount of time after the petition and there is no evidence of bad faith on the Petitioner's part." Here, there is no evidence of bad faith on Agostin's part or of unreasonable delay: she filed her original IFP petition just a few weeks after the original complaint. American argues that Jones is limited to habeas cases and thus has no relevance here, but this court disagrees. In support of its ruling in Jones, the Seventh Circuit expressly relied on rulings in non-habeas cases, including Rodgers, stating that "[t]his ruling is also consistent with other [civil cases] wherein an untimely submission of a filing fee does not time-bar a cause of action that has otherwise been timely filed." Id. at 503.
American also urges the court to follow Dow v. Enterprise Leasing, No. 00 C 4126, 2000 WL 1774081 (N.D. Ill. Dec. 1, 2000), a case that is factually analogous to the case at bar because it involved an untimely IFP application. The Dow court suggested that a complaint is not filed until the filing fee required by § 1914 is paid. 2000 WL 1774081 at *3. This court, however, respectfully disagrees with Dow. First, Jones is equally on point and, whether or not Jones is controlling, the court finds it both more authoritative and persuasive than Dow. Second, the Dow court's consideration of § 1914 was incomplete. Section 1914 states, "The clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court . . . to pay a filing fee of $150. . . ." 28 U.S.C. § 1914(a). Section 1914 further states that "[e]ach district court by rule or standing order may require advance payment of fees." Id. § 1914(c) (emphasis added). Although § 1914 does mandate a fee of $150, it does not specify when that payment is due, nor does it address when a complaint is deemed "filed." The holdings in Rodgers and Jones thus do not contradict § 1914. The court, following Page, Judkins, Rodgers, and Jones, finds that Agostin's original complaint was filed for the purposes of the statute of limitations on May 2, 2000, and therefore was timely.
In accordance with Local Rule 3.3, the Clerk's office will file a complaint when it arrives even if the plaintiff fails to submit payment or an IFP application at that time. Local Rule 3.3 states:
(a) Any document submitted for filing for which a filing fee is required must be accompanied either by the appropriate fee or an IFP petition. Not withstanding [sic] this provision, the clerk will file any document including a complaint in a civil action, a notice of appeal, or other document for which a filing fee is prescribed, without prepayment, but such filings shall be subject to the sanctions set forth in section (e) of this rule.
. . .
(e) Upon denial of an IFP petition, the clerk shall notify the person filing the documents of the amount of fees due. If the required fees are not paid within 15 days of the date of such notification, or within such other time as may be fixed by the court, the clerk shall notify the judge before whom the matter is pending of the nonpayment. The court may then apply such sanctions as it determines necessary including dismissal of the action.
N.D. Ill. L.R. 3.3. Notably, the court retains discretion to determine what, if any, sanctions are warranted.
Section 1914 applies to all civil litigants, including habeas petitioner (who simply have a lower fee). Thus, if Dow is correct, the Seventh Circuit's decision in Jones is wrong.
B. Failure to Serve the Complaint Within 120 Days Does Not Warrant Dismissal
American also argues that the case should be dismissed because Agostin failed to serve the complaint in accordance with Fed.R.Civ.P. 4(m). Under Rule 4(m), if a plaintiff fails to serve a summons and complaint on a defendant "within 120 days after the filing of the complaint," a district court "shall dismiss the action without prejudice . . . or direct that service be effected within a specified time. . . ." Fed.R.Civ.P. 4(m). But before dismissing an action, "a district court must first inquire whether a plaintiff has established good cause for failing to effect timely service." Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). Significantly, if a plaintiff meets the burden of showing good cause for the failure to serve, the court "has no choice but to extend the time for service, and the inquiry is ended." Id. Further, "absent a showing of good cause, a district court must still consider whether a permissive extension of time is warranted." Id. at 341.
The 120-day period begins to run when the complaint is filed. Geiger v. Allen, 850 F.2d 330, 333 (7th Cir. 1988) (citing Fed.R.Civ.P. 4(m)). If an action is dismissed, however, that time period is tolled between the date of dismissal and the date the court reinstates the action. Id. Here, Agostin filed her original complaint on May 2, 2001. The court dismissed the case without prejudice on May 15, and did not reinstate it until January 22, 2002. Between the time of filing and the time of dismissal, thirteen days passed, leaving Agostin 107 days to serve the summons and complaint after the case was reinstated. American, after refusing to waive service, was served with the summons and complaint on May 30 — 128 days after reinstatement of the case. Agostin thus exceeded the allotted service period by twenty-one days.
Although Agostin exceeded the 120-day period, she has met her burden of showing good cause for needing additional time. When the court reinstated the case, it also granted Agostin's motion for appointment of counsel. The first two lawyers appointed by the court subsequently were granted leave to withdraw (due to professional and personal conflicts). Agostin's current counsel was not appointed until April 2, 2002. American was served less than sixty days later. Given that Agostin lost seventy-two days waiting for appointment of counsel who actually could represent her, the court finds an extension of the 120-day period is warranted, and further finds that the additional twenty-one days needed in this case was appropriate.
C. The Third Amended Complaint Does Not Exceed the Scope of the EEOC Charge
American relies heavily on Ocasio v. Fashion Inst. of Tech., 86 F. Supp.2d 371, 376-77 (S.D.N.Y. 2000), a case in which the court dismissed the action of a pro se plaintiff for failing to effect service under Rule 4(m). Id. The court does not find Ocasio instructive. There, although the court gave plaintiff several opportunities to show good cause (including setting a hearing for which plaintiff failed to appear), the plaintiff failed to provide any legitimate reason for failing to serve on time. Id. Conversely Agostin, as discussed above, adequately established good cause. Further, in Ocasio the New York federal district court did not consider whether a permissive extension of time was warranted despite plaintiff s failure to show good cause — an inquiry required in this circuit. See Panaras, 94 F.3d at 341. Even if the withdrawal of appointed counsel were not sufficient to establish good cause in the case at bar, this court would permit an extension.
American also moves to dismiss the third amended complaint on the grounds that Agostin's constructive discharge claim falls outside the scope of the initial EEOC charge. As a threshold matter, the court notes that resolving this issue requires an examination of the content of the EEOC charge, a document that is beyond the face of the third amended complaint. Because the EEOC charge (which was part of the original complaint) is an administrative record, the court can take judicial notice of the EEOC charge without converting this motion to a motion for summary judgment. See Martin v. Snyder, No. 00 C 983, 2002 WL 484911, at *3 (N.D. Ill. Mar. 28, 2002).
As a general rule, a plaintiff may assert only such employment discrimination claims in a lawsuit that she raised in her EEOC charge. Cheek v. W. S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). The rule is a condition precedent, not a jurisdictional requirement. Id. Its purposes are to allow the EEOC an opportunity to fully investigate claims and attempt to settle disputes and to give the employer notice of the employee's claims. Id. But the rule is liberally construed. Because most EEOC charges are completed by laypeople, a plaintiff claiming employment discrimination "need not allege in an EEOC charge each and every fact that combines to form the basis of each claim in her complaint." Id. Rather, the claims in a complaint fall within the scope of the EEOC charge as long as those claims are "'like or reasonably related to the allegations of the charge and growing out of such allegations.'" Id. (quoting Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976)). This test is satisfied when there is a factual relationship between the claims, i.e., where the charge and complaint "describe the same conduct and implicate the same individuals." Cheek, 31 F.3d at 501.
After reviewing the EEOC charge and Agostin's constructive discharge claim, the court concludes that the constructive discharge claim meets the "reasonable relationship" requirement. Although the constructive discharge theory was not raised in the EEOC charge, that claim implicates no new individuals and is based entirely on the same facts as Agostin raised in her EEOC charge. See Jackson v. Chicago Firefighters Union Local #2, No. 99 C 1651, 2001 WL 726992, at *7 (N.D. Ill. June 27, 2001) (constructive discharge claim reasonably related to allegations in EEOC charge); Cerns v. Village of Orland Park, No. 98 C 77553, 1999 WL 756155, at *3-4 (N.D. Ill. Sept. 13, 1999) (termination claim reasonably related to failure-to-accommodate claim raised in EEOC charge); Freeman v. Chicago Park Dist., No. 94 C 5624, 1997 WL 371098, at *4 (N.D. Ill. June 27, 1997) (discriminatory discharge claim reasonably related to racial harassment and discrimination claims raised in EEOC charge). "To state a claim for constructive discharge, a plaintiff needs to show that [her] working conditions were so intolerable that a reasonable person would have been compelled to resign." Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996). In this case, it is reasonable to infer that when Agostin finally resigned from American in October 1999, she did so because the allegedly discriminatory working conditions had become too much for her to bear. Accordingly, the court finds that her constructive discharge claim can be reasonably inferred from the allegations in the EEOC charge, and therefore fall within the scope of that charge.
Conclusion
The court denies American's motion to dismiss in its entirety.