Stephanie Gray-Brock v. Illinois American Water Compan

NONPRECEDENTIAL DISPOSITION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 June 18, 2015*
Decided July 23, 2015

Before

RICHARD A. POSNER, Circuit Judge

DANIEL A. MANION, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 15-1238

STEPHANIE A. GRAY-BROCK, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.

v. No. 14-1045

ILLINOIS AMERICAN WATER James E. Shadid,
COMPANY, et al., Chief Judge.
Defendants-Appellees.

ORDER

Stephanie Gray-Brock, a 53-year-old African American, was fired from her
temporary job at Illinois American Water, a private utility company, four days after
calling the company’s ethic’s hotline to complain that management had discriminated
against an African-American coworker who is over 50. Brock (the name she uses in her
brief) sued the company and four supervisors claiming retaliatory discharge in violation

*
After examining the 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. 15-1238 Page 2

of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. §§ 2000e-2(1), 2000e-3(a), and the
Age Discrimination in Employment Act, see 29 U.S.C. § 623(a). She later sought to amend
her complaint to add a retaliation claim under 42 U.S.C. § 1981. The district court
granted the defendants’ motion to dismiss the statutory claims as untimely, and also
denied Brock leave to amend. We agree with the court’s handling of Brock’s claims
under Title VII and the ADEA, and also conclude that Brock waived objection to the
court’s refusal to allow her to add a § 1981 claim. Accordingly, we affirm the judgment.

Because the suit was dismissed on the complaint, we accept as true the facts
alleged by Brock. See Kristofek v. Vill. of Orland Hills, 712 F.3d 979, 982 (7th Cir. 2013).
Brock worked as a clerk at Illinois American Water for three months in the spring of
2012. She was hired as a temporary employee to contact customers and schedule meter
replacements. Within the first month, Brock was telling supervisors that her coworker
(who apparently did not protest herself) was receiving unfavorable work assignments
and hours. Brock did not complain about her own assignments or hours. Brock’s
performance was rated as “excellent” in her 30-day review, but less than three weeks
later she was told that her services no longer were needed. This was four days after she
had called the ethics hotline.

Brock filed an administrative charge with the Illinois Department of Human
Rights alleging that she was fired in retaliation for calling the hotline. That charge
automatically was cross-filed with the Equal Employment Opportunity Commission.1
Brock then applied for unemployment benefits but was turned down because Illinois
American Water had reported that she quit voluntarily. This denial of benefits prompted
a second administrative charge alleging that the company had lied to the state
unemployment agency in retaliation for her first charge. See Robinson v. Shell Oil Co., 519
U.S. 337, 346 (1997) (former employees alleging retaliatory postemployment actions
protected by Title VII).

Brock then hired an attorney who, without permission, withdrew the second
administrative charge thinking it was duplicative of the first. On the withdrawal form
the lawyer included the number assigned by the EEOC to Brock’s first administrative

1
The IDHR automatically cross-files with the EEOC a charge that alleges
employment discrimination prohibited by federal law. Complaint Process: Federal Agencies
and Courts, ILLINOIS DEPARTMENT OF HUMAN RIGHTS, http://www2.illinois.gov/dhr/
filingacharge/pages/federal_agencies_and_courts.aspx (last visited June 18, 2015).
No. 15-1238 Page 3

charge, but both the IDHR and EEOC sent confirmation that the second charge had been
withdrawn, just as counsel asked. The IDHR proceeded to investigate, but could not
substantiate, Brock’s first charge, and eventually that charge was dismissed. The EEOC
then mailed a right-to-sue letter to Brock and her attorney. Brock did not receive her
copy directly but delivery to her attorney constituted constructive receipt. See Reschny v.
Elk Grove Plating Co., 414 F.3d 821, 823 (7th Cir. 2005). Yet counsel did not file a federal
complaint within the allotted 90 days after receiving the EEOC’s letter, see 42 U.S.C.
§ 2000e-5(f)(1); 29 U.S.C. § 626(e), so Brock fired the lawyer and complained to the
attorney disciplinary commission.

By the time Brock filed this action, five months had passed since counsel had
received notice of her right to sue. The defendants moved to dismiss, arguing that Brock
had failed to exhaust the administrative complaint she withdrew and missed the statute
of limitations for the charge underlying the EEOC’s right-to-sue letter. Brock countered
that the statute of limitations should have been equitably tolled by her lawyer’s
negligence in missing the deadline, and that the lawyer’s withdrawal of her second
charge should be overlooked because counsel wrote the wrong case number on the form
and, what’s more, acted without her consent. Brock also moved to amend her complaint,
in part to add a claim under § 1981, but also to alert the district court that the EEOC
recently had sent her a right-to-sue notice on the administrative charge that had been
withdrawn.

The district court agreed with the defendants that Brock’s suit was untimely as to
her initial, exhausted administrative charge. And though Brock somehow had received a
right-to-sue letter on her second charge, the court continued, she cannot proceed on that
basis because that administrative charge had been withdrawn. The court further denied
Brock’s motion to amend with the explanation that “further amendment would be
futile” given that “this action is untimely.”

Brock moved for reconsideration, arguing that the judgment should be set aside
because she had not personally received the right-to-sue letter on her first administrative
charge and only recently had obtained more evidence of her attorney’s negligence. In her
motion and memorandum, totaling over 50 pages, Brock did not assert that the district
court had overlooked her request to add a claim under § 1981. The defendants opposed
the motion on the ground that Brock had received constructive notice of the right-to-sue
letter when her attorney received a copy and that her attorney’s negligence does not
warrant equitable tolling. The district court agreed with the defendants and denied the
motion.
No. 15-1238 Page 4

On appeal Brock insists that her statutory claims are timely because she never
received the EEOC’s letter. But Brock concedes that her attorney received the letter, and
that’s enough to trigger the statute of limitations. See Reschny, 414 F.3d at 823; Grayson v.
O’Neill, 308 F.3d 808, 817 (7th Cir. 2002); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850
(7th Cir. 2001). Brock did not file her federal complaint until five months after her
attorney received notice of her right to sue, well beyond the 90-day limit for Title VII
claims. See 42 U.S.C. § 2000e-5(f)(1). And that deadline applies equally to Brock’s ADEA
claim. See 29 U.S.C. § 626(e); Houston v. Sidley & Austin, 185 F.3d 837, 838–39 (7th Cir.
1999).

Still, Brock maintains that her suit is timely because she eventually received a
right-to-sue letter on the second charge. But Brock’s attorney withdrew that charge.
See 29 C.F.R. § 1601.10. The IDHR issued an “Order of Closure” stating that the charge
had been closed pursuant to the withdrawal and that “this action also terminates” the
EEOC’s “processing of this charge.” The EEOC mailed Brock a letter in which it stated
that the “Commission has confirmed and accepted the withdrawal” and closed the
charge. As the district court acknowledged, the EEOC inexplicably sent Brock a
right-to-sue letter three months after confirming that the second charge had been closed.
But there is no evidence in the record that the EEOC had ever attempted to investigate
that charge, as the agency would do before issuing a right-to-sue letter. See 42 U.S.C.
§ 2000e-5(b); Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1649 (2015). Brock’s remedy for
her attorney’s purported negligence is a malpractice action, not a judicial ruling
dispensing with the exhaustion requirement of Title VII and the ADEA. See Sheikh v.
Grant Reg’l Health Ctr., 769 F.3d 549, 552 (7th Cir. 2014); Lee v. Cook Cnty., Ill., 635 F.3d 969,
973 (7th Cir. 2011).

Brock also argues that the district court erred by overlooking her proposed § 1981
claim when the court denied leave to further amend her complaint. Brock might have
been able to proceed under that provision because § 1981 has a four-year statute of
limitations and does not require exhaustion. See Smith v. Bray, 681 F.3d 888, 896 n.2 (7th
Cir. 2012). But after the district court had granted the defendants’ motion for summary
judgment and denied Brock leave to amend, she filed a lengthy submission seeking
reconsideration. That submission covers much ground but says nothing about the
proposed § 1981 claim being overlooked, and this failure by Brock to alert the district
court to the oversight and ask for relief resulted in waiver. See LaBella Winnetka, Inc. v.
Vill. of Winnetka, 628 F.3d 937, 943 (7th Cir. 2010); Lekas v. Briley, 405 F.3d 602, 614 (7th Cir.
2005); Denius v. Dunlap, 209 F.3d 944, 958–59 (7th Cir. 2000); Chicago Downs Ass’n, Inc. v.
Chase, 944 F.2d 366, 370–71 (7th Cir. 1991).
No. 15-1238 Page 5

Lastly, Brock filed a motion with this court requesting sanctions against the
defendants’ attorneys primarily because, according to Brock, they did not clear up the
confusion relating to the charge numbers. Aside from this contention being meritless,
our authority to impose sanctions is limited to misconduct on appeal, see FED. R. APP.
P. 38; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 407 (1990), and Brock has identified
none.

We have considered Brock’s remaining arguments and none has merit.

AFFIRMED.