Opinion
Cause No. 1:01-CV-384
April 23, 2002.
MEMORANDUM OF DECISION AND ORDER
1. Introduction
This matter is before the Court on a motion to dismiss the Plaintiff's Amended complaint brought under the Americans with Disabilities Act ("ADA:), 42 U.S.C. § 12101, for lack of jurisdiction, or alternatively for summary judgment. Defendant Autoliv ASP, filed the instant motion on January 29, 2002, and defendant Blue Line Staffing joined Autoliv's motion on February 5, 2002. The Plaintiff filed her response on March 11, 2002. The Defendants indicate they will not file a reply.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
Although the Defendants characterize their motion as a one to dismiss under Fed.R.Civ.P. 12(b)(1) or for summary judgment under Fed.R.Civ.P. 56, we will analyze it as a motion for summary judgment because the sole issue raised, whether the Plaintiff filed her complaint within 90 days of notice of a right to sue, is not jurisdictional. See St. Louis v. Alverno College, 744 F.2d 1314, 1316 n .2 (7th Cir. 1984); e.g., Gibson v. West, 201 F.3d 990, 993 (7th Cir. 2000).
Autolive and Blue Line Staffing will collectively be referred to as "the Defendants."
However, on March 20, 2002, we notified the parties that we would construe the motion as one for summary judgment and allowed them to submit additional Fed.R.Civ.P. 56(c) materials. On March 28, 2002, the Plaintiff filed an affidavit to supplement her response. Therefore, this matter is now ripe, and for the following reasons, the Defendants' motion will be DENIED.
2. Procedural and Factual Background
On April 21, 2001, the Plaintiff filed a charge of discrimination against the Defendants with the Equal Employment Opportunity Commission ("EEOC") alleging she was terminated in violation of the Americans with Disability Act ("ADA"), 42 U.S.C. § 12101, et seq. After investigating the matter, the EEOC issued its Determination, and notice of right to sue ("Right-to-Sue letter") on July 12, 2001.
On October 22, 2001, the Plaintiff filed an application to proceed in forma pauperis with an attached initial proposed complaint, alleging receipt of the EEOC's Right-to-Sue letter on October 22, 2001. On October 24, 2001, Chief Judge Lee took the motion under advisement, noting that the Plaintiff appeared to have mistakenly alleged she received her Right-to-Sue letter on the same day she filed her complaint and granted her an opportunity to amend. Subsequently, on November, 21, 2001, the Plaintiff submitted a proposed amended complaint, this time alleging receipt of the right to sue letter on September 3, 2001, with a marginal notation "moved three times." (Docket No. 3/6 at 2.)
In her affidavit, the Plaintiff seeks to explain why it took her until September 3, 2001, to receive a letter sent on July 12, 2001. Specifically, she maintains that financial circumstances forced her to move from the address she provided to the EEOC to her sister's home. (Pl.'s Aff., ¶ 2(b).) Later, she moved again, this time in with a friend. (Id., ¶ 2(c).) The Plaintiff further maintains that because she had no definite residence, she had her mail forwarded to an Aunt's home, where she did not live at all. Apparently, the mail was forwarded to the Aunt, but was not available to the Plaintiff because the Aunt was, at least part of the time, out of town. (Id., ¶ 2(d).)
3. Summary Judgment Standard
Summary judgment is proper "if 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 that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 2512; In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir. 1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir. 1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986)).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir. 1988); Guenin v. Sendra Corp., 700 F. Supp. 973, 974 (N.D. Ind. 1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. However, "[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained" and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir. 1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.
In any event, in employment discrimination matters, the standard on summary judgment is applied with "added rigor." Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). As the Seventh Circuit reiterated in Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1169 (7th Cir. 1994), citing the standard set out in Sarsha:
Summary judgment is appropriate only when the materials before the court demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Accordingly, we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict. [citations omitted].
The anachronistic term "Directed Verdict" is no longer used; rather, it has been more accurately retitled "Judgment as a Matter of Law." See Fed.R.Civ.P. 50(a). A defendant is entitled to such a judgment if "there is no legally sufficient evidentiary basis for a reasonable jury to find for" the plaintiff. Id.
However, the 7th Circuit has recently clarified its use of the phrase added rigor, stating that the "original use of this phrase indicates that it was merely included to stress the fact that employment discrimination cases typically involve questions of intent and credibility, issues not appropriate for this court to decide on a review of a grant of summary judgment." Alexander v. Wisconsin Dept. of Health and Family Servs. 263 F.3d 673, 681 (7th Cir. 2001).
4. Discussion
A plaintiff alleging an ADA claim must file suit within 90 days after the EEOC provides notice of a right to sue. 42 U.S.C. § 12117(a); 2000e-5(f)(1); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 849-50 (7th Cir. 2001) (Title VII). In most cases, the 90-day period begins to run on the day the Plaintiff actually receives the notice. See Bobbitt, 268 F.3d at 538; Houston v. Sidley Austin, 185 F.3d 837, 839 (7th Cir. 1999); Jones v. Madison Service Corp., 744 F.2d 1309, 1312 (7th Cir. 1984); St. Louis, 744 F.2d at 1316; Archie v. Chicago Truck Drivers, 585 F.2d 210, 216 (7th Cir. 1978).
However, the Seventh Circuit analyzes these cases in one of three ways. Simon v. City of Naperville, 71 F. Supp.2d 882, 883 (N.D.Ill. 1999) (citing Archie, 585 F.2d at 216; Jones, 744 F.2d at 1312; St. Louis, 744 F.2d at 1316); Garza v. Cook County State's Attorney, 1999 WL 528513, *2 (N.D.Ill. 1999). First, in cases where the Right-to-Sue letter is mailed to the claimant's residence but received by someone other than the claimant, the 90-day period commences on the date she actually receives the letter. See Archie, 585 F.2d at 216. Second, in cases where the Right-to-Sue letter is sent to the plaintiff's attorney, the 90-day period begins to run when the attorney actually receives the notice. See Jones, 744 F.2d at 1312. Finally, "when the claimant does not receive the notice in a timely fashion due to her own fault, the `actual notice' rule does not apply." Bobbitt, 268 F.3d at 538 (failure to notify EEOC of new address); Jones, 744 F.2d at 1313.; St. Louis, 744 F.2d at 1317. See also Simon, 71 F. Supp.2d at 883 (identifying the three circumstances for equitable tolling); Garza, 1999 WL 528513, at *2; Harding v. Fort Wayne Foundry/Pontiac Div., Inc., 919 F. Supp. 1223, 1229 (N.D.Ind. 1996). In the latter instance, an earlier receipt is presumed. This case involves either the first or third circumstance.
The Defendants contend that under the third method, the Plaintiff is not entitled to the actual notice rule given her frequent moves without notice to the EEOC, and, therefore, the presumptive delivery date of July 17, 2002, (i.e., 5 days after the EEOC issued the notice) should apply. See, e.g., Davis v. Visteon Systems L.L.C. 2001 WL 1781928, *4 (S.D.Ind. Dec. 14, 2001) (citing Washington v. Foresman, 148 F.R.D. 241, 244 (N.D.Ind. 1993) (applying the five-day presumption in Title VII case) and Loyd v. Sullivan, 882 F.2d 218 (7th Cir. 1989) (five-day presumption in a Social Security case)); Luttrell v. O'Connor Chevrolet, Inc., 2001 WL 1539045, *2 (N.D.Ill. Nov. 30, 2001). Of course, if we adopt that point of view, the Plaintiff's complaint would be untimely by a matter of days.
The Plaintiff, in response, argues that as an unrepresented claimant, she took reasonable steps to ensure delivery of her mail through the use of a forwarding order, but "`fortuitous circumstances or events beyond . . . her control" intervened (i.e., the Aunt's leaving town), and this prevented her timely receipt of the EEOC notice. Garza, 1999 WL 528513, at *2 (quoting St. Louis, 744 F.2d at 1316); Jones, 744 F.2d at 1312; Archie, 585 F.2d at 215.
A claimant bringing an ADA suit must notify the EEOC of any change of address. See 29 C.F.R. § 1601.7(b) ("The person claiming to be aggrieved has the responsibility to provide the Commission with notice of any change in address"). In that regard, the Seventh Circuit has stated:
[The] burden of providing the EEOC with changes of address is minimal. It is unreasonable to expect the EEOC to pore over its files, and those of state administrative agencies, in an effort to ascertain which of the addresses contained therein is correct. . . .
The claimant is obviously in a far better position to ensure that the Commission has current, accurate information and to provide that information in much less time than it would take an EEOC employee to go through the claimant's file.
St. Louis, 744 F.2d at 1316-17.
Here, while the Plaintiff failed to update the EEOC with her current address, we are unconvinced on these facts that the delay of receipt of the Right-to-Sue letter was truly her fault.
When viewed in a light most favorable to the Plaintiff, she appears to allege her mail was delivered to her Aunt's home pursuant to a forwarding order filed with the United States Postal Service ("Postal Service"). Although our research has revealed no case squarely addressing whether filing such a forwarding order alone is sufficient to toll the limitations period, several cases consider it a "reasonable precaution" to ensure delivery. See, e.g., Jones v. Michael Reese Hosp., 1991 WL 105583, *2 (N.D.Ill. June 7, 1991) (updating EEOC with address and filing forwarding order with Postal Service are reasonable steps to ensure delivery); Allen v. Chicago Transit Authority, 2000 WL 1139893, *7 (N.D.Ill. Aug. 10, 2000) (same); Harding, 919 F. Supp. at 1230 ("[a]t the least, [the plaintiff] could have taken the rudimentary step of filling out a change of address form and mailing it to the post office."). In short, we are not convinced the Plaintiff is at fault at all.
Moreover, at least one unpublished Seventh Circuit opinion has indicated that filing a forwarding order with the Postal Service is sufficient, and while we do not cite it as authority, we find Day v. Lincoln Insurance Agency, Inc., 1 Fed. Appx. 521, 2000 WL 1946741 (7th Cir. Dec. 19, 2000) persuasive. There, the Seventh Circuit stated "[the plaintiff] took reasonable steps to ensure that his mail was forwarded, and it is at least arguable that the forwarding instruction created the equivalent of an accurate address for him, as long as that instruction was in effect." Id. at 522, 2000 WL 1946741, at *2. (emphasis added).
However, we need not reach that issue here because on these facts the case is closer to the Archie line of cases. Indeed, the Plaintiff's Right-to-Sue letter was delivered to her temporary mailing address (i.e., the Aunt's home) where it was apparently received by her Aunt, but not received by the Plaintiff until September 3, 2001. See, e.g., Archie, 585 F.2d at 214 (actual notice rule applies if notice sent to claimant's address but received by third party); Simon 71 F. Supp.2d at 884. Moreover, nothing in Archie indicates that the notice must be delivered to the Plaintiff's permanent address. See Simon, 71 F. Supp.2d at 884. Indeed, "it would [hardly make] sense to have the letter delivered to one's permanent [address] if one was temporarily residing elsewhere." Id. Moreover, because the Plaintiff had her mail sent to a temporary address, her Aunt was likely unfamiliar with the situation and probably did not even read the letter, which means the Plaintiff was ignorant of her rights until she actually received her letter. See Jones, 744 F.2d at 1312 (citing Archie, 585 F.2d at 210). Indeed, perhaps the Aunt's lack of familiarity can best be demonstrated, or at least inferred, by her going out of town, without even affording the with Plaintiff a way to access her mail. Such fortuitous circumstances work to toll the limitations period. See St. Louis, 744 F.2d at 1316; Jones, 744 F.2d at 1312; Archie, 585 F.2d at 215. Thus, the 90-day period began to run on September 3, 2001, when the Plaintiff actually received the Right-to-Sue letter, making the filing of her suit timely.
CONCLUSION
For the foregoing reasons, the Defendants' motion for summary judgment is DENIED.