NONPRECEDENTIAL DISPOSITION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
Argued December 16, 2014
Decided March 16, 2015
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐1639
VICTORIA L. THOMAS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:05‐cv‐253‐RLM
NATIONAL EDUCATION
ASSOCIATION‐SOUTH BEND, Robert L. Miller, Jr.,
Defendant‐Appellee. Judge.
O R D E R
Victoria Thomas, a former teacher and assistant principal, appeals the dismissal
of her fair‐representation and civil‐rights suit against her union for failure to prosecute.
The litigation has been protracted; the district court dismissed the suit after Thomas for
a second time left her case inactive for nearly a year. Because Thomas had adequate
notice of the possibility of dismissal, and the district court did not abuse its discretion,
we affirm.
When Thomas was an assistant principal at an Indiana middle school, she struck
an autistic student with her belt in a playful manner. The school thereafter demoted
Thomas to a teaching position and transferred her to another middle school. At the new
No. 14‐1639 Page 2
school, Thomas applied for two assistant principal positions and one transfer, but each
application was denied. She remained in the same teaching position until her retirement
three years later.
While she was still teaching, Thomas began this litigation, which has now
dragged on for nine years. In June 2005 Thomas sued the school, three administrators,
and her local union, NEA‐South Bend. She alleged in part that the school and
administrators demoted and transferred her because of her race, sex, and age (she was
51 at the time) and in retaliation for refusing to sign a settlement agreement. She also
charged the union with discrimination and breaching its duty of fair representation
under the Labor Management Relations Act, 29 U.S.C. § 185, because it refused—based
on her race and age—to pursue her grievance against the school.
Eight months later the district court dismissed the LMRA claims because the Act
does not apply to public schools. 29 U.S.C. § 152(2); Strasburger v. Bd. of Educ., Hardin
Cnty. Cmty. Unit School Dist. No. 1, 143 F.3d 351, 359–60 (7th Cir. 1998).
One and a half years after that, in July 2007, the court stayed the remaining
discrimination claims against the union in order to allow Thomas to exhaust her
administrative remedies before the Indiana Education Employment Relations Board,
the agency responsible for administering a state law prohibiting unfair labor practices.
See Fratus v. Marion Cmty. Sch. Bd. of Trustees, 749 N.E.2d 40, 44 n.1, 45–46 (Ind. 2001).
In April 2008 the court granted the school defendants’ motion for summary
judgment because Thomas’s discrimination and retaliation claims were barred by a
settlement agreement (Thomas had agreed to release the school from liability in
exchange for retaining a teaching position), and also failed on the merits.
In May 2008 the union moved to dismiss her remaining claims under FED. R. CIV.
P. 41(b) for failure to prosecute because Thomas had yet to file a complaint with the
state agency. Thomas filed a complaint with the state agency seven days later, however,
so the court denied the motion.
Two years later, in May 2010, the state agency concluded that the union had not
engaged in any unfair labor practice and dismissed Thomas’s complaint. Thomas
appealed that decision through all levels of the state courts, and the Indiana Supreme
Court eventually declined to hear the case.
No. 14‐1639 Page 3
In October 2010, the school and administrators sought entry of final judgment
under FED. R. CIV. P. 54(b). But the court, concerned about the prospect of piecemeal
litigation, denied the request.
More time passed, and in November 2013 the school defendants moved to
dismiss the suit under Rule 41(b) for lack of prosecution. Thomas responded—one day
late—and also moved to reopen her claims against the union. In January 2014, its
patience apparently finally wearing thin, the court granted final judgment to the school
defendants based on its April 2008 grant of summary judgment in their favor.
At a subsequent hearing in February 2014 on Thomas’s pending motion to
reopen her suit, the union again moved to dismiss any remaining claims for failure to
prosecute because the federal litigation had been inactive for three years and the state
proceedings had concluded nearly a year earlier. The union noted that this was its
second Rule 41(b) motion to dismiss for failure to prosecute, that the school defendants
had also filed a Rule 41(b) motion, that the state agency had ruled against Thomas on
the merits, and that two witnesses were no longer available. Thomas responded that she
has been “fighting this issue constantly,” that the union caused the delay by moving to
stay the federal proceedings, and that the state agency’s adverse decision on the
merits—relieving the union of culpability for an unfair labor practice—did not bar her
remaining discrimination claims against the union.
At the hearing’s conclusion, the court dismissed the case for failure to prosecute.
Dismissal, the court explained, was appropriate for four reasons, as laid out in Kasalo v.
Harris & Harris, Ltd., 656 F.3d 557, 561 (7th Cir. 2011). First, Thomas’s nearly one‐year
delay in returning to federal court after exhausting her administrative remedies
prejudiced the union because one witness had died and another had relocated. Second,
no broader social objectives would be harmed by the dismissal of a straightforward,
single‐plaintiff suit. Third, the merits of Thomas’s discrimination claims were weak,
having already been partially rejected by the state agency. And fourth, Thomas did not
adequately explain the one‐year period of inactivity after the state proceedings had
concluded. The court determined that these Kasalo factors outweighed the
countervailing considerations that Thomas had substantially complied with deadlines,
that the delay was caused by her lawyer, and that the delay did not disrupt the court’s
calendar.
On appeal Thomas challenges only the court’s Rule 41(b) dismissal order in favor
of the union, and maintains that the court abused its discretion by dismissing her
complaint without first warning her. But a plaintiff is adequately warned so long as
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there is due warning that dismissal is a real possibility. See Fischer v. Cingular Wireless,
LLC, 446 F.3d 663, 665–66 (7th Cir. 2006); Williams v. Chicago Bd. of Educ., 155 F.3d 853,
857 (7th Cir. 1998). An explicit warning is not required. See Link v. Wabash R.R. Co., 370
U.S. 626, 632 (1962); Kasalo, 656 F.3d at 562. Here, Thomas was on notice that her
inactivity courted dismissal for failure to prosecute because the union had first moved
in 2008 to dismiss her case for failure to prosecute (after she had waited ten months to
file her complaint with the state agency).
Thomas next argues that the district court erred by disregarding the union’s
responsibility for the delay, since the federal proceedings had been stayed in 2007 at the
union’s request. But the relevant delays—the ten‐month delay in 2008 in filing a
complaint with the state agency and the eleven‐month delay in 2013 in returning to
federal court—occurred because of Thomas’s inactivity, not because the federal claims
were temporarily suspended. Indeed, shortly after the state‐court proceedings
concluded, the union e‐mailed Thomas’s attorney seeking dismissal of the remaining
claims, but Thomas did not file anything with the district court for another year.
Thomas also asserts that the court should not have dismissed the case because
the delays were short and she did not act in bad faith. But delays of similar length have
incurred dismissal for failure to prosecute, even absent a finding of bad faith. See Aura
Lamp & Lighting, Inc. v. Int’l Trading Corp., 325 F.3d 903, 905, 909 (7th Cir. 2003) (delays
of seven months or less); Johnson v. Kamminga, 34 F.3d 466, 467–68 (7th Cir. 1994)
(five‐month and eleven‐month delays); Ruzsa v. Rubenstein & Sendy Attorneys at Law, 520
F.3d 176, 177–78 (2d Cir. 2008) (seven‐month delay); United States ex rel. Drake v. Norden
Sys., Inc., 375 F.3d 248, 255 (2d Cir. 2004) (seventeen‐month delay was significant
duration); Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002) (delays of six and
eight months). And Thomas did not adequately explain the ten‐month and
eleven‐month delays. Given Thomas’s pattern of neglect, the district court was within
its discretion to dismiss Thomas’s claims for failure to prosecute.
AFFIRMED.