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PAYNE v. COOK CTY. HOSP.

August 31, 1989

ETHEL PAYNE, Plaintiff,
v.
COOK COUNTY HOSPITAL, Defendant


James B. Moran, United States District Judge.


The opinion of the court was delivered by: MORAN

JAMES B. MORAN, UNITED STATES DISTRICT JUDGE.

 Plaintiff Ethel Payne ("Payne") brings suit alleging discrimination on the basis of national origin, in violation of Title VII, 42 U.S.C. 2000e et seq. We have before us defendant Cook County Hospital's ("hospital") motion to dismiss the complaint as untimely and as stating a claim for which relief cannot be granted because the hospital is a non-suable entity. For the following reasons, defendant's motion to dismiss is granted. However, Payne is granted leave to file an amended complaint naming the County of Cook as the defendant.

 FACTS

 The facts of plaintiff's complaint, which the court accepts as true for the purposes of this motion, are that the hospital terminated Payne on June 6, 1985 because of her national origin. Plaintiff received her Equal Employment Opportunity Commission ("EEOC") "determination" and "notice of right to sue" on February 12, 1988. After several inquiries directed to the Chicago and California district offices of the EEOC, Payne received the right-to-sue letter on June 3, 1988. Less than 90 days thereafter, on August 11, 1988, plaintiff filed a complaint in the Central District of California alleging wrongful termination due to her national origin.

 The California court denied her in forma pauperis request and ordered dismissal of the action without prejudice to plaintiff's ability to refile after examining the complaint's deficiencies and prepaying the $ 120 filing fee. Payne v. Cook County Hospital, No. CV 88-4938 (C.D. Cal. August 17, 1988). Subsequently, Payne's motion for reconsideration was also denied, the court holding, sua sponte, that venue and jurisdiction were lacking on the face of the complaint. Payne v. Cook County Hospital, No. CV 88-4938 (C.D. Cal. September 16, 1988). The court noted that "had plaintiff chosen, and assuming plaintiff is correct in her assertion of when she received her 'right to sue' letter, an action could have been filed in the Northern District of Illinois before the running of the statute of limitations." Id.

 The pending complaint was filed on October 12, 1988 and plaintiff's petition for leave to file and proceed in forma pauperis was subsequently granted. We now consider defendant's motion to dismiss.

 DISCUSSION

 I. The Limitations Period

 Under Title VII a plaintiff has 90 days from receipt of the right-to-sue letter to file suit. 42 U.S.C. ยง 2000e-5f(1). For a while the circuit courts disagreed over whether that provision codified a jurisdictional requirement or specified the limitations period appropriate to such actions. Compare Air Line Stewards and Stewardesses Ass'n v. Trans World Airlines, Inc., 630 F.2d 1164 (7th Cir. 1980) (jurisdictional limit) with Carlile v. South Routt School District Re 3-J, 652 F.2d 981 (10th Cir. 1981) (limitations period), and Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981) (same). The Supreme Court resolved that dispute in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982), reh'g denied sub nom., Independent Federation of Flight Attendants v. Trans World Airlines, Inc., 456 U.S. 940, 72 L. Ed. 2d 461, 102 S. Ct. 2001 (1982). Zipes held that the statutory period for filing a discrimination charge with the EEOC serves solely to ensure that Title VII actions are timely. As such, the Court served notice that various defenses to timeliness motions were available:

 
By holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires, we honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer.

 Id. at 398. The Court subsequently applied this same logic to timeliness allegations respecting the 90-day period in which to file a Title VII court action -- the provision allegedly violated here. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 80 L. Ed. 2d 196, 104 S. Ct. 1723 (1984), reh'g denied, 467 U.S. 1231, 81 L. Ed. 2d 885, 104 S. Ct. 2691 (1984); Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 76 L. Ed. 2d 628, 103 S. Ct. 2392 (1983).

 For equitable tolling to apply, Baldwin County requires that plaintiffs show either

 
(1) excusable ignorance of or noncompliance with the limitations period, evidently with no prejudice to defendant, see, e.g., Gates v. Georgia-Pacific Corp., 492 F.2d 292 (9th Cir. 1974) (inadequate notice from EEOC of limitations period); Harris v. Walgreen's Distribution Center, 456 F.2d 588 (6th Cir. 1972) (pending motion for appointment of counsel triggers tolling); Carlile v. South Routt School District Re 3-J, 652 F.2d 981 (10th Cir. 1981) (court had led plaintiff to believe she had complied with filing rules); or (2) affirmative misconduct of defendant that lulled the plaintiff into inaction, see, e.g., Villasenor v. Lockheed Aircraft Corp., 640 F.2d 207 (9th Cir. 1981); Wilkerson v. ...

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