In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2018
PATRICIA BANKS,
Plaintiff‐Appellant,
v.
CHICAGO BOARD OF EDUCATION
and FLORENCE GONZALES,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 7101 — Harry D. Leinenweber, Judge.
____________________
ARGUED FEBRUARY 12, 2014 — DECIDED APRIL 24, 2014
____________________
Before POSNER, FLAUM, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Patricia Banks sued her former
employer, the Chicago Board of Education, and her former
supervisor, Florence Gonzales, alleging race discrimination
and retaliation in violation of Title VII of the Civil Rights Act
of 1964 and related violations of federal and state law. The
district court granted summary judgment for the defendants
on all of Banks’s claims. Twenty‐nine days after the district
2 No. 13‐2018
court entered judgment, Banks filed what she called a mo‐
tion to alter the entry of summary judgment under Federal
Rule of Civil Procedure 59(e), which the district court denied
six days later. Banks then filed a notice of appeal. She argues
that the district court erred by granting summary judgment
for the defendants and denying her post‐judgment motion.
A Rule 59(e) motion must be filed no later than 28 days
after the entry of the judgment. Because Banks missed that
deadline by one day, her motion was not effective as a Rule
59(e) motion that could have tolled the time to file a notice of
appeal from the judgment. Accordingly, we must treat her
post‐judgment motion as a Rule 60(b) motion that did not
toll the time to appeal the summary judgment. Banks’s no‐
tice of appeal was timely only as to the district court’s denial
of her post‐judgment motion. The district court did not
abuse its discretion by denying that motion, so we affirm.
I. Factual and Procedural Background
Because we decide this case on a procedural ground, we
only sketch the underlying dispute. Plaintiff Patricia Banks
worked as a teacher at George Washington High School in
Chicago beginning in 1988. She is African‐American. Flor‐
ence Gonzales became principal at George Washington in
January 2008.
The factual record is long and many of the details are
disputed, but it is clear that Gonzales and Banks soon came
into conflict. At an April 2008 staff meeting, Banks asserted
that Gonzales’s administration had shown animosity toward
African‐American students and teachers. Banks claims that
Gonzales targeted her because of her race and in retaliation
for speaking out at the staff meeting and filing complaints
No. 13‐2018 3
with the EEOC and the Board’s Equal Opportunity Compli‐
ance Office. Gonzalez disciplined Banks repeatedly. She is‐
sued cautionary notices for insubordination, leaving her
class unattended, refusing to complete required paperwork,
and failing to submit lesson plans. Gonzales also suspended
Banks on three occasions: for striking a staff member; for be‐
ing chronically tardy and telling a staff member to “go to
hell” in front of students; and for placing advertisements for
her private massage therapy business in the school office.
These disciplinary actions culminated in a Board resolution
warning Banks that she would be dismissed if the problems
continued. They did continue, and Banks was suspended
and removed from her teaching duties in December 2010.
Some weeks into her suspension, Banks submitted a re‐
tirement letter effective June 30, 2011. She claims that she
was then placed on the Board’s “do not hire” list, which
foreclosed her from working as a substitute teacher in the
Chicago Public Schools.
Banks filed a six‐count complaint against the defendants
alleging: (1) race discrimination in violation of Title VII,
42 U.S.C. § 2000e‐2; (2) retaliation in violation of Title VII,
42 U.S.C. § 2000e‐3; (3) impairment of her right to enforce a
contract in violation of 42 U.S.C. § 1981; (4) deprivation of
her rights established by the Constitution and laws of the
United States, 42 U.S.C. § 1983; (5) retaliation for filing com‐
plaints with the EEOC and the Board’s Equal Opportunity
Compliance Office in violation of the Illinois Whistleblower
Act, 740 Ill. Comp. Stat. 174; and (6) deprivation of her right
to review her personnel file in violation of the Illinois Per‐
sonnel Record Review Act, 820 Ill. Comp. Stat. 40. On March
12, 2013, the district court granted the defendants’ motion for
4 No. 13‐2018
summary judgment on all of Banks’s claims and entered
judgment for the defendants.
On April 10, which was 29 days after the district court en‐
tered judgment for the defendants, Banks filed a motion to
alter the entry of judgment. Banks cited Federal Rule of Civil
Procedure 59(e) as the basis for her motion. She argued that
the district court erred in finding that she had not offered
sufficient evidence of a hostile work environment, an ad‐
verse employment action, or similarly situated non‐African‐
American staff members who were treated better than she
was. Banks also asserted that the court erred in concluding
that recovery under the Illinois Whistleblower Act was lim‐
ited to instances of discharge. The district court denied
Banks’s motion on April 16.
Banks filed a notice of appeal on May 10, saying she was
appealing both the entry of judgment for defendants and the
denial of her post‐judgment motion. We notified the parties
that the appeal appeared to be untimely with respect to the
original judgment. We asked Banks to submit a jurisdictional
memorandum on this issue, but it did not persuade us that
we had jurisdiction over Banks’s appeal of the judgment it‐
self. We limited the scope of Banks’s appeal to the denial of
her post‐judgment motion.
II. The Scope of Appellate Jurisdiction
Under Federal Rule of Appellate Procedure 4(a)(1)(A), a
party in a civil case must file a notice of appeal within 30
days after entry of the judgment or order appealed from.
The filing of a timely motion under Federal Rule of Civil
Procedure 59(e), however, will toll the time for filing a notice
of appeal. Fed. R. App. P. 4(a)(4)(A). Under the current ver‐
No. 13‐2018 5
sion of Rule 59(e), a motion must be filed no later than 28
days after the entry of judgment to be timely. This time limit
is unyielding. See Justice v. Town of Cicero, 682 F.3d 662 (7th
Cir. 2012) (because litigants have only until 11:59 p.m. on the
due date to file a Rule 59(e) motion electronically, a motion
filed at 3:00 a.m. the following morning was untimely).
Courts may not extend the time limit imposed by Rule 59(e).
Fed. R. Civ. P. 6(b)(2); Justice, 682 F.3d at 664–65.
When a motion is filed more than 28 days after the entry
of judgment, whether the movant calls it a Rule 59(e) motion
or a Rule 60(b) motion, we treat it as a Rule 60(b) motion. See
Justice, 682 F.3d at 665, citing Talano v. Northwestern Med. Fac‐
ulty Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001), and Hope v.
United States, 43 F.3d 1140, 1143 (7th Cir. 1994); United
States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992). A district
court’s acceptance of an untimely Rule 59(e) motion does not
save the motion from this fate. See Talano, 273 F.3d at 761.
Banks filed her post‐judgment motion outside of the 28‐
day window established by Rule 59(e). At oral argument,
Banks’s attorney wisely conceded that her motion became a
Rule 60(b) motion, and we treat it as such. Because Banks’s
post‐judgment motion was not timely under Rule 59(e), it
did not toll the time for her to file a notice of appeal of the
judgment itself, so we do not have jurisdiction to consider
her arguments challenging the grant of summary judgment.
We limit the scope of our jurisdiction to the denial of Banks’s
post‐judgment motion.
6 No. 13‐2018
III. The Denial of the Post‐Judgment Motion
We review a denial of a Rule 60(b) motion for abuse of
discretion. Bakery Machinery & Fabrication, Inc. v. Traditional
Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009) (“The district
court has great latitude in making a Rule 60(b) decision be‐
cause that decision is discretion piled on discretion.”) (inter‐
nal quotation marks omitted); Talano, 273 F.3d at 762. The
district court may grant Rule 60(b) relief in six specified cir‐
cumstances; only two are relevant to this appeal: “(1) mis‐
take, inadvertence, surprise, or excusable neglect,” and “(6)
any other reason that justifies relief.” Fed. R. Civ. P. 60(b).
The district court does not abuse its discretion by denying a
Rule 60(b) motion that is not based on one of the specified
grounds for relief. See Talano, 273 F.3d at 762.
The concern that parties or courts could use Rule 60(b) to
circumvent the time limit for filing appeals animates our
case law. E.g., Mendez v. Republic Bank, 725 F.3d 651, 659 (7th
Cir. 2013) (“If parties or courts could use Rule 60(b) to revive
cases in which a party failed to appeal within the standard
deadline, Appellate Rule 4 would lose much of its force.”);
Bell v. Eastman Kodak Co., 214 F.3d 798, 800 (7th Cir. 2000)
(dismissing an appeal of a district court’s denial of a Rule
60(b) motion where the motion “was nothing more than the
first step in an attempt to take an untimely appeal”). Where
this concern is not present, a district court may grant relief
under Rule 60(b)(1) to correct errors that might also be cor‐
rected on direct appeal. Mendez, 725 F.3d at 660–61 (affirm‐
ing district court’s grant of Rule 60(b) relief where district
judge realized she had made a mistake that rendered the
judgment incorrect and invited a party to file a Rule 60(b)
motion; the party had an appeal pending and filed its Rule
No. 13‐2018 7
60(b) motion just six days after filing its timely notice of ap‐
peal).
Absent such circumstances, a party invoking Rule 60(b)
must claim grounds for relief “that could not have been used
to obtain a reversal by means of a direct appeal.” Kiswani v.
Phoenix Sec. Agency, Inc., 584 F.3d 741, 743 (7th Cir. 2009), cit‐
ing Bell, 214 F.3d at 801. Therefore, errors of law and fact
generally do not warrant relief under Rule 60(b)(1) and cer‐
tainly do not require such relief. See Gleash v. Yuswak,
308 F.3d 758, 761 (7th Cir. 2002); see also Talano, 273 F.3d at
762 (affirming denial of Rule 60(b) motion arguing that dis‐
trict court erred in applying state law and federal employ‐
ment discrimination law).
The district court did not abuse its discretion by denying
Banks’s post‐judgment motion for relief. In her motion,
Banks argued that the district court erred by finding that she
had not offered sufficient evidence to support her claims and
by misinterpreting the Illinois Whistleblower Act. In her
brief before this court, she advances the same errors of fact
and law. These arguments could have been raised in a direct
appeal, but Banks forfeited her opportunity to appeal the
judgment because she failed to file a notice of appeal that
would have been timely with respect to the entry of judg‐
ment. To protect her ability to raise these arguments, she had
to file either a timely Rule 59(e) motion or a timely notice of
appeal, and she did neither.
Nor can Banks fit her arguments into the catch‐all provi‐
sion of Rule 60(b)(6). Relief under this provision is an “ex‐
traordinary remedy” and should be granted only in “excep‐
tional circumstances.” Bakery Machinery, 570 F.3d at 848 (quo‐
tations omitted); see also Gonzalez v. Crosby, 545 U.S. 524, 535
8 No. 13‐2018
(2005) (“extraordinary circumstances” are required to justify
reopening of a judgment under Rule 60(b)(6)). The narrow
operation of this provision reinforces our interest in barring
the use of Rule 60(b)(6) as a substitute for direct appeal. Far
from presenting any “extraordinary circumstances” that
might warrant relief under Rule 60(b)(6), Banks presented
only arguments suitable for a direct appeal for which we do
not have jurisdiction, as explained above.
The fact that the district court may have mistakenly con‐
sidered Banks’s arguments under Rule 59(e) does not compel
or even permit us to review the merits of the underlying
judgment, and we express no opinion on whether summary
judgment was correctly awarded to the defendants. Instead,
we review only the district court’s denial of Banks’s post‐
judgment motion for abuse of discretion and find that there
was none. Accordingly, we AFFIRM the district court’s deni‐
al of Banks’s post‐judgment motion.