NONPRECEDENTIAL DISPOSITION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 October 21, 2009*
Decided October 21, 2009
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
No. 09‐2305
JEANIE M. PELNARSH, Appeal from the United States District
Plaintiff‐Appellant Court for the Central District of Illinois.
v. No. 07‐cv‐1302
R.R. DONNELLEY & SONS COMPANY, Joe Billy McDade,
Defendant‐Appellee. Judge.
O R D E R
Jeanie Pelnarsh sued her former employer, R.R. Donnelley & Sons, under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e‐17, alleging that several
supervisors and coworkers subjected her to a sexually hostile work environment and that
Donnelley retaliated against her for complaining about it. The district court granted
summary judgment for Donnelley on the grounds that Pelnarsh did not have sufficient
*
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).
No. 09‐2305 Page 2
evidence to establish a retaliation claim, and that she did not timely file an administrative
charge of discrimination as to her sexual‐harassment claim. Pelnarsh appeals only the
dismissal of the sexual‐harassment claim. We affirm the judgment.
We construe the following facts in the light most favorable to Pelnarsh. See Winsley
v. Cook County, 563 F.3d 598, 602 (7th Cir. 2009). Pelnarsh began working at Donnelley’s
facility in Pontiac, Illinois, in 1999 and remained with the company until she was fired in
January 2006. On October 1, 2005, Pelnarsh transferred to Donnelley’s facility in Mendota,
Illinois. Pelnarsh contends that, during her tenure with the company, male supervisors and
coworkers subjected her to constant sexual harassment including physical touching,
propositions for sex, and lewd comments about her appearance. After she transferred to
Mendota, however, the only unwelcome conduct Pelnarsh endured was a series of
haranguing phone calls from Joe Carlberg, her former supervisor in Pontiac. In the calls
Carlberg insisted that she continue to work remotely on assignments for him and
threatened to make her life miserable if she refused.
When Pelnarsh was terminated in January 2006, Donnelley gave “gross misconduct”
as the reason. The company discovered that Pelnarsh had used a company credit card to
pay for thousands of dollars of personal expenses. Pelnarsh pleaded guilty to theft in state
court and served a 90‐day sentence for making these unauthorized purchases. On
September 21, 2006, she filed a charge of discrimination with the Equal Employment
Opportunity Commission and the Illinois Department of Human Rights; the EEOC issued a
right‐to‐sue letter after the case had been pending for more than 180 days.
Pelnarsh then filed a complaint in district court, and Donnelley moved for summary
judgment, asserting as a defense that Pelnarsh had filed her charge of discrimination with
the EEOC too late. Pelnarsh opposed the motion, and gave two reasons why she believed
that her administrative charge was timely. First, she asserted that she submitted other
administrative charges to the EEOC between December 2005 and August 2006, which were
well within 300 days of the alleged discriminatory conduct. But Pelnarsh did not offer any
evidence that there had been previous charges of discrimination, and the district court
concluded that the undisputed evidence established that her only administrative charge
was filed with the EEOC on September 21, 2006. Pelnarsh does not contest this conclusion
on appeal.
Second, Pelnarsh asserted in response to Donnelley’s motion for summary judgment
that Carlberg’s calls constituted sexual harassment, and that she filed her administrative
charge within 300 days of those calls. To support this assertion, Pelnarsh pointed to her
deposition testimony where she verified the accuracy of a letter she had written to the
administrative investigator. In the letter Pelnarsh explained: “I didn’t endure any sexual
No. 09‐2305 Page 3
harassment while I was at the Mendota plant. The only harassment that transpired was by
Joe Carlberg who constantly called every day.” Pelnarsh described the content of these calls
in an unsworn statement accompanying her opposition to summary judgment. The district
court refused to credit this statement and noted that her deposition testimony contradicted
her position that the sexual harassment continued after she transferred to Mendota.
On appeal Pelnarsh argues that she identified a material question of fact as to when
the alleged sexual harassment ceased, and that the district court erred by refusing to allow a
jury to decide if her case was timely. We review a grant of summary judgment de novo.
Adelman‐Reyes v. Saint Xavier Univ., 500 F.3d 662, 665 (7th Cir. 2007).
Administrative exhaustion is a prerequisite to filing a lawsuit under Title VII, but the
requirement is not jurisdictional. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393
(1982); Volovsek v. Wis. Depʹt of Agric., Trade, & Consumer Prot., 344 F.3d 680, 687 (7th Cir.
2003). Instead, lack of exhaustion, which is Donnelley’s theory in this case, is an affirmative
defense on which the company bears the burden of proof. See Salas v. Wis. Dep’t of Corr., 493
F.3d 913, 922 (7th Cir. 2007). Thus, summary judgment was appropriate only if Donnelley
established through undisputed evidence that Pelnarsh failed to timely file her charge of
discrimination with the EEOC. See Laouini v. CLM Freight Lines, Inc., No. 08‐3721, 2009 WL
2535818, *2 (7th Cir. Aug. 20, 2009).
Illinois is a deferral state, so Pelnarsh was required to file a charge of discrimination
with the EEOC within 300 days of some offending conduct. See 42 U.S.C. § 2000e‐5(e)(1);
Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 396 (7th Cir. 1999). Since Pelnarsh
complains of a hostile work environment, the 300‐day period is measured from the date of
the last hostile act even if that act would not, standing alone, give rise to a claim of sexual
harassment. See Natʹl R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 115‐18 (2002); Pruitt v.
City of Chicago, 472 F.3d 925, 927 (7th Cir. 2006). Thus, Pelnarsh’s claim must be based on
conduct occurring on or after November 26, 2005. If there is no evidence of hostile conduct
after that date, Pelnarsh’s claim was untimely. See Lucas v. Chi. Transit Auth., 367 F.3d 714,
724 (7th Cir. 2004). The hostile conduct that Pelnarsh allegedly endured occurred in the
Pontiac facility, before her transfer to Mendota on October 1, 2005. To overcome this
problem of timing, Pelnarsh insists that the calls she received from Carlberg after her
transfer were hostile acts. Her contention rests on three premises. First, she argues, the calls
were constant and their frequency alone constitutes sexual harassment regardless of
content. Second, she continues, her former supervisor’s work‐related demands were
inappropriate because she no longer worked for him. And finally, says Pelnarsh, the calls
were hostile because Carlberg threatened to “make her life hell” if she did not continue to
work for him.
No. 09‐2305 Page 4
These calls, as Pelnarsh describes them, do not evince sexual harassment and cannot
salvage her claim from being dismissed as untimely. The district court recognized that
Pelnarsh did not submit admissible evidence concerning the content of these calls, but even
if we credit the description in the unsworn statement she submitted at summary judgment,
the only reasonable conclusion is that the calls were work related; as Pelnarsh herself
explained both in her unsworn statement and her deposition testimony, Carlberg constantly
called and made work‐related demands on her time. There is no evidence to suggest that
these calls were motivated by Pelnarsh’s gender, so they do not serve to further her sexual‐
harassment claim. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79‐81 (1998).
Moreover, even a threat to “make her life hell,” if made to persuade her to continue doing
Carlberg’s work and not because of her gender, cannot be considered sexual harassment
since inappropriate conduct inflicted in a gender‐neutral fashion is outside the scope of Title
VII. See Berry v. Delta Airlines, 260 F.3d 803, 808 (7th Cir. 2001). And to the extent that
Pelnarsh thinks that any frequent and unwanted calls can constitute harassment under Title
VII no matter the content of the calls, her position is frivolous and falls far short of her
burden of demonstrating that her workplace was both objectively and subjectively hostile.
See Ezell v. Potter, 400 F.3d 1041, 1047 (7th Cir. 2005).
Finally, Pelnarsh suggests on appeal that even if her administrative charge was
untimely, she should be permitted to go forward with her lawsuit based on the doctrines of
equitable tolling and estoppel. But because she failed to raise these doctrines in the district
court, they are waived. See Laouini, 2009 WL 2535818, at *6; Grayson v. City of Chicago, 317
F.3d 745, 751 (7th Cir. 2003). On this record, moreover, neither doctrine is relevant.
Estoppel is primarily intended to redress situations where the employer conceals the very
fact of discrimination or otherwise tries to prevent the employee from bringing a lawsuit.
See Lucas, 367 F.3d at 723. Equitable tolling would require Pelnarsh to demonstrate that
circumstances outside of her control prevented her from timely filing with the EEOC and
that she diligently pursued her claims despite those conditions. See Beamon v. Marshall &
Ilsley Trust Co., 411 F.3d 854, 860‐61 (7th Cir. 2005). Pelnarsh could not successfully invoke
these doctrines because she knew she was being harassed as early as 1999, and she has not
identified any circumstance that prevented timely filing.
AFFIRMED.