After awhile, enough is enough and even the most tolerant and forgiving person can take no more. But does a plaintiff forfeit her right to sue for any act of discrimination within the limitation period, if she let the first one pass and it was beyond the limitation period? This issue came before the Seventh Circuit recently in Stuart v. Local 227, 14-1710 (November 14, 2014).
The plaintiff, Stuart, is a professional driver, and she wanted union referrals for driving jobs related to movie and TV productions, because those driving jobs paid the most. The local never in its 70 year history had referred a female driver for any of the TV or movie jobs. At the end of 2009, the local adopted a rule that anyone who wanted one of the movie/TV jobs had to complete and submit an application for referral, which Stuart did in March 2010. Months later, after receiving no referrals, Stuart called the local's business agent "a number of times"; the business agent, in essence, said "don't call me, I'll call you." In the four and a half years since, Stuart has received no referrals, although there has been no lack of work.
Stuart filed an EEOC charge of sex discrimination in October 2011, and received her right to sue letter in September 2013. She filed suit timely within the 90 day period in December 2013. The local, in its answer, pleaded the affirmative defense that the administrative statute of limitations had expired, because Stuart did not allege in her complaint any discriminatory actions within the 300 day period proceeding filing of her EEOC charge.
The district court, Judge Milton Shadur, without motion from the local ordered Stuart to respond to the statute of limitations defense. Stuart explained in response that the local had not referred her any of the numerous movie and TV project jobs in the 300-day period. The district court ruled that Stuart's suit was untimely, and that she had known since 2005 that the local discriminated based on gender, noting that her complaint had alleged that she had not been referred any jobs going all the way back to 2005. The Seventh Circuit, in a rather stinging opinion authored by Judge Richard Posner, reversed, making two essential points:
- "A plaintiff is not required to negate an affirmative defense in his or her complaint."
- "There is no rule that a plaintiff who has been repeatedly discriminated against by her employer cannot challenge any of the discriminatory acts under Title VII unless she files her EEOC charge within 300 days after the first such act. ... That would be an absurd rule. It would require employee to infuriate her employer or union by complaining about what might be an inconsequential act of discrimination that she did not expect to be repeated."
So the case was remanded for further proceedings, although before a different district judge based on the "abruptness and irregularity of the district judge’s handling of this case (we can’t understand his deciding to dismiss the complaint with prejudice, thereby preventing the plaintiff from amending the complaint, or his instructing his law clerk to request the plaintiff’s EEOC charge from the plaintiff’s lawyer, without telling the defendant, even though the charge was not part of the record), and the unmistakable (and to us incomprehensible) tone of derision that pervades his opinion, we have decided that further proceedings in the district court should be before a different district judge."
Judge Posner also took pains to explain the idiom, "hoist by her own petard":
“Hoist with his own petard,” famously spoken in Hamlet, means “lifted” by the explosion of one’s own little bomb—a “petard” is a small bomb.
Robert L. Abell
www.RobertAbellLaw.com
