Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 86 C 5924-Nicholas J. Bua, Judge.
Bauer, Chief Judge, Coffee and Kanne, Circuit Judges.
Deanna L. Brown filed a Title VII sex-discrimination action in the district court on August 11, 1986. The court dismissed the suit as untimely. We affirm.
While employed by Reliable Sheet Metal Works, Inc. at Commonwealth Edison's Byron Nuclear Power Plant, Brown claims that she was subjected to numerous sexual No. advances by her supervisor, Russell Irish. Brown alleges that Irish fired her after she rejected his unwelcome advances and threatened to report such conduct to his superiors. Reliable was a sheet-metal contractor at Edison's Byron Plant during its construction.
On March 7, 1985, Brown filed a sex-discrimination charge against Reliable, Edison, and Irish with both the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC"). Brown later withdrew her charge from the IDHR, but requested that the EEOC issue a right-to-sue letter, which it did on July 30, 1985. Brown's attorney received the letter on August 8, 1985. See Jones v. Madison Service Corp., 744 F.2d 1309, 1312 (7th Cir. 1984) (limitations period begins to run on date that claimant or her attorney receives the right-to-sue letter). Pursuant to Section 706 of Title VII, the letter instructed Brown that if she intended to sue the respondents named in her charge, such suit must be filed in the appropriate United States District Court within ninety days of receipt of the letter. 42 U.S.C. § 2000e-5(G)(1).
Rather than filing in the United States District Court, Brown filed a civil rights complaint on October 28, 1985 in the Circuit Court of Cook County naming Irish, Reliable, and Edison as defendants. Brown's complaint alleged sexual harassment and wrongful discharge in violation of her civil rights as well as intentional infliction of emotional distress. Although her complaint did not mention Title VII explicitly, we construe it as stating a Title VII cause of action.*fn1
All of the defendants moved to dismiss Brown's complaint for failure to exhaust her administrative remedies as required by the Illinois Human Rights Act ("IHRA"). See 68 Ill. Rev. Stat. § 8-111(D) (1985). Alter Brown's attorney failed repeatedly to respond to the defendants' motions, the case was dismissed without prejudice to Brown's right to file a subsequent claim in federal court.
Brown did just that. On August 11, 1986, she filed a Title VII action in the United States District Court for the Northern District of Illinois. Pursuant to a defense motion, however, Judge Bua dismissed Brown's claim as untimely. Initially he ruled that Brown's state Title VII action tolled the ninety-day filing period, but that she had nonetheless filed her federal action one day too late. Alter considering Magistrate Rosemond's subsequent recommendation that the action be reinstated because of an error in computing the ninety-day filing period,*fn2 Judge Bua, persuaded by two recent decisions of the district court, reconsidered his earlier position and held that,
the commencement of a state court Title VII sex discrimination action within 90 days of receiving the EEOC's right-to-sue letter [does not] toll the running of the 90-day filing period. Wisniewski v. Commonwealth Edison, slip op., 691 F. Supp. 56 (N.D. Ill. 1987) and Sager v. Hunter Corp. slip op., 665 F. Supp. 575 (N.D. Ill. 1986).*fn3
Brown's complaint was dismissed because it was filed in federal district court long after ninety days from the receipt of her right-to-sue letter. Brown appeals claiming that the filing period was tolled during the pendency of her interim state action.
A series of Supreme Court decisions beginning with Franks v. Bowman Transportation Co., 424 U.S. 747, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976), make clear that Title VII's ninety-day filing period is subject both to waiver, see Mohasco Corp. v. Silver, 447 U.S. 807, 811, 65 L. Ed. 2d 532, 100 S. Ct. 2486 n.9 (1980), and equitable tolling, see Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 80 L. Ed. 2d 196, 104 S. Ct. 1723 (1984); Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349, 76 L. Ed. 2d 628, 103 S. Ct. 2392 (1983); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982) (holding that Title VII's filing requirements are not jurisdictional). Baldwin County suggests that equitable tolling is appropriate where the plaintiff is misled by the defendant or notified improperly of her rights by the court, or where a motion for appointment of counsel is pending when the filing period expires. Id. at 151 (citations omitted). Brown, however, does not contend that any of the defendants or the court lulled her into noncompliance with the limitations period. Nor is it contested that Brown was represented by ...