Opinion
Cause No. IP 00-1047-C H/G
March 27, 2003.
ENTRY ON MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff Nadine Davenport has sued the Indiana Masonic Home Foundation, Inc. ("the Foundation") and members of its Board of Directors alleging that her employer, the Indiana Masonic Home ("the Home"), discriminated against her on the basis of sex and race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Equal Pay Act, 29 U.S.C. § 206(d), and discriminated against her on the basis of a disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. Davenport also asserts contract and tort claims under Indiana law.
Defendants filed a Motion for Partial Summary Judgment in which they seek a determination that Davenport's Title VII and ADA claims are time-barred because she filed her EEOC charge of discrimination more than 300 days after she was terminated and knew of her termination. In the alternative, defendants assert that Davenport's Title VII and ADA claims must fail because the Grand Lodge of the Free and Accepted Masons of the State of Indiana d/b/a Indiana Masonic Home ("the Grand Lodge") is exempt from the requirements of Title VII and the ADA as a bona fide private membership club.
In a footnote the defendants advance the argument that plaintiff's federal claims also must fail because the Foundation, the only entity plaintiff had theretofore alleged had violated federal law, was never plaintiff's employer. Defendants maintained, and still maintain, that plaintiff's true employer was the Grand Lodge of the Free and Accepted Masons d/b/a Indiana Masonic Home. The court allowed plaintiff to amend her complaint by interlineation to add the Grand Lodge as a defendant. Defendants' reply brief asserts that the Foundation is entitled to summary judgment because the Grand Lodge was plaintiff's true employer. The relationship between the Grand Lodge and the Home was discussed extensively in the briefs, but the relationship between the Foundation and the Grand Lodge or the Home is far from clear. Therefore, the court will not grant full summary judgment to the Foundation.
Because Davenport's Title VII and ADA claims are manifestly time-barred, the court grants defendants' motion for partial summary judgment without addressing whether the Grand Lodge is a bona fide private membership club. The court also does not address the related issue whether Davenport's true employer was the Home, through the Indiana Masonic Home Foundation. That related issue is also not addressed because the timeliness issue disposes of Davenport's Title VII and ADA claims.
After taking the deposition of Gail Hammond, who was Director of Operations for the Home while Davenport was employed as the Human Resources Director, plaintiff filed a supplemental brief with leave of the court. Defendants responded but also filed a motion to strike. Defendants' motion argues that plaintiff's supplemental brief should be stricken pursuant to Local Rule 56.1(d)(2) because it solely concerns plaintiff's Equal Pay Act claim, which was not addressed in defendants' motion for partial summary judgment and related briefs. The court agrees. Defendants moved for summary judgment only with respect to Davenport's Title VII and ADA claims. Thus, plaintiffs' Equal Pay Act claim was not a relevant subject for discussion in the "supplemental brief," which was actually a surreply as provided for in the parties' joint motion of March 27, 2002. Accordingly, defendants' motion to strike is GRANTED. Plaintiff is free to discuss her Equal Pay Act claim if and when it comes properly before this court.
Relevant Factual Background
The relevant facts are set forth in the light most favorable to Davenport, the non-movant. See, e.g., Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999). All reasonable inferences have been drawn in her favor; nonetheless, adverse facts established by defendants beyond reasonable dispute are necessarily included in the narrative. The decisive facts are when Davenport was terminated, when she knew of her termination, and when she filed her EEOC charge of discrimination.Plaintiff Nadine Davenport started her position as the Human Resources Director for the Indiana Masonic Home on March 16, 1998. Davenport Aff. ¶ 2.
The Home claims that Davenport was terminated on April 9, 1999. Ashbaugh Aff. ¶ 5. On or about April 15, 1999, the Home received an Unemployment Insurance Notice of Request for Information concerning Davenport's employment. Id., ¶ 6, Ex. A. Davenport's Indiana Workforce Development Determination of Eligibility lists her date of separation from the Home as April 9, 1999. Ashbaugh Aff., Ex. B. On April 15, 1999, Davenport herself stated in paperwork submitted to the Indiana Department of Workforce Development that she had been terminated on April 9, 1999. Def. Ex. 4. On May 3, 1999, Davenport wrote a letter to David Ashbaugh, CEO of the Home, in which she stated, "I am making a written request for the reason as to my termination on April 9, 1999." Id., Ex. C. On May 17, 1999, Ashbaugh responded to Davenport's letter; he stated that her employment "from March 16, 1998 to April 9, 1999" was "terminated for unsatisfactory work performance." Id., Ex. D. On approximately May 25, 1999, Davenport was hired by another employer as a full-time Employment Specialist. Def. Ex. 5.
On June 2, 1999, Davenport received a form letter from the Home's Benefit Coordinator regarding her eligibility for continued health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). The letter states that on June 2, 1999, the Benefit Coordinator was notified of a "qualifying event" that occurred on June 2, 1999, and then the box next to "termination of the employee" is checked as the qualifying event. Id. Thus, Davenport claims she was actually terminated on June 2, 1999. Davenport Aff., ¶¶ 2, 3. Davenport filed her Charge of Discrimination with the EEOC on March 3, 2000. Ashbaugh Aff., Ex. E.
Discussion Summary Judgment Standard
Summary judgment is properly granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 511-512 (7th Cir. 1996). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998). In making this determination, the court must view all of the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999); NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995).
The moving party bears the initial burden of production to establish "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); NLFC, Inc. v. Devcom Mid-America, 45 F.3d at 234. The burden then shifts to the non-movant, who may not rest upon mere allegations, but by affidavits, depositions, or other evidence must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); NLFC, Inc. v. Devcom Mid-America, 45 F.3d at 234. The court must enter summary judgment when the non-moving party has failed to "come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question . . .". Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994), citing Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52. However, if genuine doubts remain and a reasonable fact-finder could find for the non-moving party, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
Timeliness of Davenport's Title VII and ADA Claims
To bring a suit under Title VII, a plaintiff in a deferral state such as Indiana must have filed a charge with the EEOC complaining of the alleged act of discrimination within 300 days of the occurrence of the alleged discriminatory act or event. See 42 U.S.C. § 2000e-5(e); see also Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 445 (7th Cir. 1994). The same is true for a suit under the ADA. See 42 U.S.C. § 12117(a) (incorporating Title VII's charge filing requirements). If a plaintiff has not filed a timely EEOC charge, the complaint is untimely. See Hentosh v. Herman M. Finch Univ. of Health Sciences/The Chicago Med. Sch., 167 F.3d 1170, 1173-74 (7th Cir. 1999). This statutory limitations period serves to "protect employers from the burden of defending claims arising from employment decisions that are long past." Delaware State College v. Ricks, 449 U.S. 250, 256-57 (1980).
Under Ricks, the limitations period begins to run at the time the decision constituting the allegedly discriminatory conduct occurs and is communicated to the employee. Ricks, 449 U.S. at 258. In the present case, the allegedly discriminatory act was Davenport's termination. Thus, the limitations period began to run on the date when the decision to terminate Davenport was made and communicated to her.
To have fallen within 300 days of her EEOC charge, the decision to discharge Davenport would have had to have been made and communicated to her on or after May 8, 1999. Davenport claims on the basis of the COBRA notice that she was terminated on June 2, 1999. However, there is no genuine doubt that Davenport was actually terminated on April 9, 1999, and that she knew she was terminated on April 9, 1999. The undisputed facts show that she wrote a letter in which she herself stated her date of separation was April 9, 1999, to which the Home replied that she was indeed terminated on that date for poor performance. She applied for unemployment benefits prior to April 15, 1999, and she told the Indiana Department of Workforce Development that she had been terminated on April 9, 1999. She was later hired for full-time employment in another position on or around May 25, 1999. These facts establish beyond reasonable dispute that she was fired, and knew she was fired, well before May 8, 1999.
Nonetheless, Davenport insists that her actual separation did not occur until June 2, 1999. The COBRA notice does in fact state that Davenport was terminated on June 2, 1999, but it also states that the Benefit Coordinator was notified of her termination on June 2, 1999. One reasonable interpretation of that letter is that the Benefit Coordinator simply inserted the date she was notified of the qualifying event as the date of the qualifying event itself. Davenport asserts the COBRA notice evinces that the Home was not notified of her termination until June 2, 1999. But as shown by the Home's May 17, 1999 letter to Davenport, they were quite aware of their own previous determination to terminate her. She also implies that the date in the notice should be afforded weight because the Home would be deterred by federal law from malfeasance in her COBRA notification. In light of all the evidence of termination in April, including plaintiff's own statements to that effect, her argument is creative but not convincing, and certainly not enough to raise a genuine issue of material fact. See also Bruno v. United Steelworkers of America, 784 F. Supp. 1286, 1318 (N.D. Ohio 1992) (finding in suit under COBRA that plaintiff's argument, "in the face of overwhelming evidence to the contrary and in contravention of his stated position to date," that COBRA notice established different date of discharge, was "patently unreasonable"), aff'd mem., 983 F.2d 1065 (6th Cir. 1993).
Moreover, even if the official date of Davenport's separation were in fact June 2, 1999, the limitations period would have begun to run on April 9, 1999. The two relevant factors under Ricks are the date the decision was made and the date Davenport was notified of the decision. The evidence cited above clearly establishes that both events occurred on April 9, 1999. No reasonable jury could find anything other than that Davenport was terminated, and knew it, on April 9, 1999. The filing of her charge with the EEOC was therefore untimely. The court is left only to consider whether her claim might be saved by any applicable tolling doctrine.
Tolling Doctrines
The tolling doctrines of equitable estoppel and equitable tolling cannot salvage Davenport's claims. Equitable estoppel comes into play only if the defendant "takes active steps to prevent the plaintiff from suing in time, as by promising not to plead the statute of limitations." Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir. 1990). It requires some deliberate wrongdoing by the defendant. There is no evidence of such conduct in this case. Equitable tolling applies where a plaintiff knows she has been injured, but cannot obtain information necessary to decide whether the injury is due to wrongdoing. Cada, 920 F.2d at 451. If a reasonable person in Davenport's position would not have known until after May 8, 1999 that she had been discharged in possible violation of Title VII and the ADA, Davenport might be able to invoke the doctrine of equitable tolling. See id; Chakonas v. City of Chicago, 42 F.3d 1132, 1135 (7th Cir. 1994). Davenport need only have been aware of the "possibility" of a claim of discrimination to prevent the application of equitable tolling. See Hentosh, 167 F.3d at 1175; Cada, 920 F.2d at 451. But Davenport offers no explanation for her delay, much less an explanation claiming that she did not know of any possible discriminatory motive for her termination until after May 8, 1999.
Finally, Davenport cites Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 269 (7th Cir. 1995), among other cases, for the proposition that this court should be lenient because she was only 29 days late in filing her charge. In Thelan, the court dismissed the plaintiff's ADEA claim because it was filed ten months after the latest allegedly discriminatory act had occurred. The point, however, is that Davenport missed the statutory deadline. "Statutes of limitations are not arbitrary obstacles to the vindication of just claims, therefore they should not be given a grudging application." Cada, 920 F.2d 452-53. Davenport has offered no explanation that might justify the application of equitable tolling to her claim.
The court also denies defendants' motion to strike the affidavit of Susan Harden, which plaintiff filed long after the summary judgment briefing was completed. Harden's affidavit provides no admissible evidence relevant to the timeliness of Davenport's claims, but the motion is denied so that there is no confusion about Davenport's possible future ability to rely on the affidavit with respect to her Equal Pay Act claims.
Conclusion
The undisputed facts show that Davenport was terminated and notified of her termination on April 9, 1999, and did not file her EEOC charge until March 3, 2000, well over 300 days later. As no grounds exist upon which the statute of limitations might be tolled, her claims under Title VII and the ADA are time-barred. Defendants' Motion for Partial Summary Judgment is GRANTED.So ordered.