NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 29, 2014*
Decided September 29, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐2148
RENEE S. SMITH Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 12 C 07541
EMB, INC.,
Defendant‐Appellee. John J. Tharp, Jr.,
Judge.
O R D E R
Renee Smith appeals from the dismissal with prejudice of her employment
discrimination suit against her former employer, EMB, Inc. (a medical supply
company). Smith’s lawsuit was untimely and her complaint also fails to state a claim for
relief. Thus, we affirm the judgment.
*
After examining the parties’ briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 14‐2148 Page 2
Smith, who is black and now 52 years old, worked various jobs during her 7‐year
tenure at EMB, including sales, billing, and training. She says that she was fired on
August 15, 2011, four days after accusing the company of engaging in discrimination.
(The operative complaint says that Smith was discharged in 2012, but all of her other
submissions say 2011, as does her brief in this court. We assume that the reference to
2012 is a typo.) Smith, though, was denied unemployment benefits because the Illinois
Department of Employment Security concluded that she had left the company
voluntarily. Then on June 8, 2012 (298 days after her employment had ended) Smith
filed a charge of discrimination with the Equal Employment Opportunity Commission
and the Illinois Department of Human Rights. She asserted that EMB fired her because
of her age, sex, and race, and because she had complained about discrimination.
Smith received a right‐to‐sue letter on June 21, 2012. Ninety‐one days later, on
Thursday, September 20, 2012, she filed a complaint in federal district court claiming
discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e–2, e‐3, and the Age Discrimination in Employment Act, 29 U.S.C. § 623.
The next day Smith filed an amended complaint that incorporates about 25 pages of
attached correspondence purportedly showing discrimination. The district court
screened the amended complaint, see Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999), and
dismissed it without prejudice for failure to comply with Rule 8(a) of the Federal Rules
of Civil Procedure, see Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 820–21 (7th
Cir. 2009).
Smith also had asked the district court to recruit counsel. The court denied this
request because in her motion Smith conceded that, with time, she would be able to
obtain a lawyer without the court’s assistance.
EMB was served after Smith filed a second amended complaint, this time
alleging only sex discrimination and retaliation. Although Smith used a form complaint
for lawsuits brought under 42 U.S.C. § 1983, the company understood her complaint to
be premised on Title VII and moved to dismiss the suit on the ground that it is
untimely. EMB asserted that Smith had filed suit more than 90 days after receiving her
right‐to‐sue letter, and also that the unlawful conduct alleged in her complaint occurred
more than 300 days before she filed her administrative charge of discrimination. See 42
U.S.C. § 2000e–5(e)(1), (f)(1); Groesch v. City of Springfield, Ill., 635 F.3d 1020, 1024 n.2 (7th
Cir. 2011). In response Smith did not dispute that she was suing under Title VII. She
also conceded that she had missed the 90‐day window; Smith apologized for being late
but did not offer an explanation or excuse for her tardiness. On the other hand, Smith
No. 14‐2148 Page 3
asserted that her charge of discrimination had been timely because, she insisted, EMB’s
discriminatory and retaliatory conduct had continued after her discharge.
The district court dismissed the lawsuit with prejudice. The court first concluded
that the suit was untimely because Smith had filed it more than 90 days after receiving
her right‐to‐sue letter, and that Smith had not asserted any “extraordinary
circumstance” warranting the application of equitable tolling. The court alternatively
concluded that, although not all of the allegedly unlawful conduct asserted by Smith
had occurred more than 300 days before she filed her administrative charge of
discrimination, her second amended complaint nevertheless fails to state a claim for
relief.
On appeal Smith concedes, again, that her lawsuit was not filed within 90 days
from when she received her right‐to‐sue letter, but she argues that the district court
should have equitably tolled the filing deadline. Her brief is unclear, but we think she is
saying that her complaint was untimely because a clerk’s office employee misinformed
her about the deadline. The defendant ignores the explanation that Smith gives in her
brief, which might well have supported a claim of equitable tolling had it been raised in
the district court. But it wasn’t, and it’s too late now. See FEDNAV Int’l Ltd. v.
Continental Ins. Co., 624 F.3d 834 (7th Cir. 2010); County of McHenry v. Ins. Co. of the West,
438 F.3d 813, 819–20 (7th Cir. 2006).
A Title VII plaintiff must file her lawsuit within 90 days of the date she receives a
right‐to‐sue letter. 42 U.S.C. § 2000e‐5(f)(1); Averhart v. Sheriff of Cook County, Ill., 752
F.3d 1104, 1106 (7th Cir. 2014). Equitable tolling is available to a plaintiff who has
pursued her rights diligently and points to an extraordinary circumstance that
prevented timely filing. Lee v. Cook County, Ill., 635 F.3d 969, 972 (7th Cir. 2011);
Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850–51 (7th Cir. 2001). That includes a
plaintiff who was misled by the court about the necessary steps to preserve her claim.
Prince v. Stewart, 580 F.3d 571, 574–75 (7th Cir. 2009). But in her response opposing the
motion to dismiss, Smith acknowledged that she filed her complaint late and apologized
for her lack of diligence; she cannot change her story now to shift the blame. See Wigod v.
Wells Fargo Bank, N.A., 673 F.3d 547, 555 (7th Cir. 2012) (recognizing that plaintiff
appealing dismissal of complaint may elaborate on factual allegations but new facts
must be consistent with assertions in district court); Belom v. Nat’l Futures Ass’n, 284
F.3d 795, 799 (7th Cir. 2002) (noting that arguments not presented to district court
cannot be made on appeal).
No. 14‐2148 Page 4
But even if Smith’s complaint was timely, we would still affirm on the ground
that her complaint fails to state a claim for relief, although we disagree with the district
court’s analysis. The district court reasoned that Smith did not adequately plead claims
for sex discrimination or retaliation because she did not include enough facts to suggest
that she was paid less because of her sex or that she was a victim of retaliation. But
Smith was not required to include the degree of factual detail apparently expected by
the district judge. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Carlson v. CSX
Trans., Inc., 758 F.3d 819, 827 (7th Cir. 2014); Luevano v. Wal‐Mart Stores, Inc., 722 F.3d
1014, 1028–29 (7th Cir. 2013). For Smith’s claim of sex discrimination, she needed to
plead only that EMB imposed a specific adverse employment action on the basis of her
sex. See Carlson, 758 F.3d at 827; Luevano, 722 F.3d at 1028. And for her retaliation claim,
Smith needed to allege only that she was subject to an adverse employment action after
she engaged in a specifically identified protected activity. See Carlson, 758 F.3d at 828;
Luevano, 722 F.3d at 1029; Abuelyaman v. Ill. State. Univ, 667 F.3d 800, 814 (7th Cir. 2011);
Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). Still, while these
pleading requirements are minimal and far short of what the district court thought
necessary, Smith did not meet them. She has yet to illuminate what adverse
employment action she suffered because of her sex and what she reported to her
general manager as “discriminatory.”
Lastly, Smith argues that the district court abused its discretion by refusing to
enlist counsel, because, she says, she was unable to navigate the litigation system
without professional assistance. In reviewing a district court’s decision to deny a pro se
litigant’s request for recruited counsel, we look at the information provided to the court
at the time the decision was made. Bracey v. Grondin, 712 F.3d 1012, 1016 (7th Cir. 2013);
Pruitt v. Mote, 503 F.3d 647, 659 (7th Cir. 2007) (en banc). Here, Smith’s request for
counsel—in which she assured the district court that she would succeed in retaining
counsel if given more time—was made with her complaint that was dismissed at
screening. At that stage enlisting counsel would have been premature, see Romanelli v.
Suliene, 615 F.3d 847, 852 (7th Cir. 2010), and Smith never renewed her request once the
defendant was served.
AFFIRMED.