300 days of the alleged discrimination in this case. Defendant also
maintains that even if plaintiff's complaint was not time-barred, it is
still entitled to summary judgment on the merits. Because this court
finds that plaintiff did not file a written charge with the EEOC within
the 300-day statutory period and that her complaint is therefore
time-barred, it does not reach the merits of plaintiff's claim.
I. The 90-day limitation, period
Under 42 U.S.C. § 2000e-5 (f)(1), a plaintiff must file suit within
90 days of receiving a "right-to-sue" letter from the EEOC. Plaintiff
filed her original complaint on January 31, 1997. Plaintiff initially
testified in her deposition that she received her "right-to-sue" letter
on October 31 or November 1, 1996. At the beginning of the second day of
her deposition, she amended her answer and testified that she received
the letter November 4, 1996. This brought her within the 90-day statutory
period. Plaintiff testified in her deposition and at the evidentiary
hearing that she was not home on the original date of delivery, October
31, and that the Post Office left a notice that they had attempted
delivery. The next day, Saturday, November 1, plaintiff testified she
spoke with her mail carrier who stated be did not have the letter with him
and agreed to deliver it on Monday, November 4, 1996.
Defendant argues that plaintiff cannot raise a genuine issue of fact by
"adjusting" her deposition testimony. However, plaintiff correctly
asserts that litigants are free to amend their deposition testimony at
any point prior to the end of that deposition. Indeed, under Rule 30(e)
of Federal Rules of Civil Procedure, a litigant may even change his or
her deposition testimony after its completion, when reviewing the
transcript for signature. The language of the rule places no limitation
on the type of changes that can be made. Podell v. Citicorp Diners Club,
Inc., 112 F.3d 98, 103 (2nd Cir. 1997). Further, as plaintiff points
out, one of defendant's attorneys told plaintiff at the beginning of her
deposition: "If you give me an answer and you realize later that it was
incomplete or incorrect or you want to change it later, the deposition is
open until the last word."
Plaintiff had a right to amend her deposition testimony and offered a
reasonable explanation as to the reason for the change. Accordingly, this
court finds that her complaint was filed within the 90-day limitations
period and is not time-barred on this ground.
II. The 300-day limitation period
Under 42 U.S.C. § 2000e-5 (e), a plaintiff has 300 days from the
date of alleged discrimination to file a written charge with the EEOC.
This filing period is strictly applied. Baldwin County Welcome Center v.
Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984).
The statutory language of Title VII specifically provides that a
plaintiff must file a written charge with the EEOC: "Charges shall be in
writing under oath or affirmation and shall contain such information and
be in such form as the Commission requires." 42 U.S.C. § 2000e-5
Plaintiff does not contest defendant's assertion that the statute of
limitations period for any claims related to plaintiff's termination
began to run on March 31, 1994, the date defendant notified her that she
had been placed "at-risk." It is also undisputed that plaintiff did not
file a written charge with the EEOC until March 21, 1995, 355 days after
plaintiff received her "at-risk" notification. Plaintiff instead argues
that she did not file a written charge because Davidson "lulled" her into
inaction and therefore the 300-day filing period was equitably tolled.*fn6
Equitable tolling principles can apply if the EEOC "lulls" or
"affirmatively induces" the plaintiff into inaction. Schroeder v. Copley
Newspaper, 879 F.2d 266, 271 (7th Cir. 1989). Therefore, even if this
court accepts that plaintiff believed she had filed a
charge on April 14, 1994, the proper inquiry is whether Davidson "lulled"
her into this belief during and subsequent to that meeting. In
Schroeder, the plaintiff was told by an "intake person" at the EEOC that
there "wasn't much [that] she could do for [him]," and left without
filing a written charge. Id. at 268. The court held that the statement by
the EEOC employee did not constitute "lulling" or an "affirmative
In cases where equitable tolling principles have been applied, courts
have relied on explicit oral or written statements in holding that
plaintiffs were lulled into inaction. In Early v. Bankers Life and
Casualty Co., 959 F.2d 75, 81 (7th Cir. 1992), the court held that the
"erroneous representations" of an EEOC employee tolled the 300-day
limit. In Early, an EEOC investigator told the plaintiff that having
filled out the intake questionnaire, the plaintiff had done everything he
had to do at the administrative level and had two years to file suit.
Id. at 80. Similarly, in Harris v. Cook County Hospital, 971 F. Supp. 329,
331 (N.D.Ill. 1997), an EEOC counselor told the plaintiff that she
"needed to wait until the administrative procedures concluded before
filing with the EEOC." In holding that equitable tolling applied, the
court stressed that the plaintiff was "entitled to rely on this seemingly
authoritative statement by the agency presumed to know the most about
these matters." Id.
Unfortunately for plaintiff, the explicit misrepresentations relied on
in the above cases are absent in the instant case. Plaintiff does not
claim that Davidson told her that she should not or could not file a
written charge on April 14, 1994. Nor does plaintiff claim that Davidson
told her that she had to wait for defendant to complete its investigation
before she could file a complaint with the EEOC. Rather, plaintiff offers
vague and contradictory testimony that, on the one hand, she believed she
had filed a complaint on April 14, 1997, and, on the other hand, that
Davidson told her that a subsequent charge would be "back-dated" to April
14, 1997. the court finds credible Davidson's testimony that he has never
told a potential claimant that a claim could be back-dated.
Further, plaintiff admitted in her deposition and during the
evidentiary hearing that Davidson explained the 300-day limitation period
during a telephone conversation a few days after their meeting on April
14, 1994. And when filing her written charge on March 21, 1995, it is
uncontested that plaintiff did not ask the EEOC to "back-date" her
charge, nor did she subsequently contact Davidson to ask why her charge
had not been "back-dated" to April 14, 1994.
Even if plaintiff mistakenly believed that she had filed a charge on
April 14, 1994, the court finds that plaintiff was not "lulled" into this
belief by Davidson, and further finds that Davidson's alleged behavior
does not rise to the level of "affirmative inducement" contemplated by
the Seventh Circuit. Because equitable tolling does not apply, this court
finds that plaintiff's complaint is time-barred.
For the reasons set forth above, defendant's motion for summary
judgment is granted.