1. The Equitable Estoppel Doctrine
The Equitable Estoppel Doctrine applies when the employer
"takes active steps to prevent the plaintiff from suing in time,
as by promising not to plead the statute of limitations." Cada,
920 F.2d at 450-451; Mull, 784 F.2d at 292. To postpone the
date of accrual under the Equitable Estoppel Doctrine, the
plaintiff must show that the defendant attempted to mislead him
or her. Cada, 920 F.2d at 452. The Equitable Estoppel Doctrine
does not apply in this case, because there is no evidence in the
record to show that USF & G "took active steps" to prevent Ms.
Murrell from suing on time.
2. The Equitable Tolling Doctrine
The Equitable Tolling Doctrine applies "if despite all due
diligence [the employee] is unable to obtain vital information
bearing on the existence of his claim." Cada, 920 F.2d at 451,
452; Mull, 784 F.2d at 291. To postpone the date of accrual
under the Equitable Tolling Doctrine, the plaintiff must show
that he "could not by the exercise of reasonable diligence have
discovered essential information bearing on his claim." Cada, 920
F.2d at 452. The Equitable Tolling Doctrine does not apply in
this case, because there is no evidence in the record to show
that Ms. Murrell had any problems discovering essential
information related to her claim.
Ms. Murrell has raised a genuine issue of material fact, as to
whether the last alleged discriminatory act occurred on or after
March 18, 1997 and, therefore, whether her EEOC charge was
time-barred. Thus, because a genuine issue of material fact
exists, Defendants USF & G and Netmax are not entitled to
judgment as a matter of law.
IT IS THEREFORE ORDERED that: Defendants' Motion for Summary
Judgment be, and the same hereby is, DENIED.
*fn2 Ms. Murrell has not fully and strictly complied with the
particular requirements of Local Rule 12(N). However, since her
lengthy, rambling document is not entirely defective, the Court
will make an allowance, wherever possible (despite the
inconvenience and drain on the Court's time in so doing).
Ms. Murrell and her attorney should consider themselves warned
— in the future, they will not find this Court so agreeable or
accommodating towards similar shortcomings. In the future, when
putting pen to paper, they should be mindful that, as the Seventh
Circuit has colorfully stated, "[j]udges are not like pigs,
hunting for truffles buried in briefs." United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
*fn3 Charles Nelson is also Head of the SID. (EEOC Compl. ¶
*fn4 Ms. Murrell has referred to statements made by Ms.
McCutcheon regarding this memorandum of March 7th. (Pl.'s 12(N) ¶
2.) However, the Court cannot consider this evidence, since Ms.
Murrell failed to include Ms. McCutcheon's depositional testimony
as evidence of these statements. Plaintiff's Exhibit 12, which
Ms. Murrell refers to, is Mr. Kesler's deposition, not Ms.
McCutcheon's deposition. (Pl.'s Ex. 12.)
*fn5 It appears to the Court that this severance package was
tied to Ms. Murrell's possible resignation. Therefore, Ms.
Murrell had two options: participate in a P.I.P. or resign.
*fn6 In her Affidavit, Ms. Murrell claims that she continued to
check her voice mail and respond to it until mid-April of 1997,
when Defendants changed her voice mail and access code. (Pl.'s
12(N) ¶¶ 2, 6; Pl.'s Ex. 14 ¶ 11.) This conflicts with what was
said during her deposition. As the Seventh Circuit held, in
Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th Cir.
1999), "when a conflict arises between a plaintiff's own sworn
deposition and his sworn affidavit, the deposition testimony
overrides statements made in the affidavit." Thus, this Court
will disregard paragraph 11 of Ms. Murrell's Affidavit.
*fn7 Although this "offer" is not mentioned in the 12(M) or
12(N) Statements, it is part of the record, as one of Plaintiff's
*fn8 According to Ms. Murrell, she requested an extension for
the retrieval of the equipment, but Mr. Kesler refused it. (EEOC
Compl. ¶ 46.)
*fn9 Amazingly, Ms. Murrell objects that this entry of
Defendants' violates Local Rule 12(M). That objection is
overruled. See, supra, n. 1.
Ms. Murrell also objects to the contents of this letter,
alleging that the cited material: 1) contains inadmissible
hearsay under Federal Rule of Evidence 802; and 2) was written in
furtherance of settlement discussions. (Pl.'s 12(N) ¶ 14.)
Defendants claim that the letter: 1) establishes Mr. Bowman's
understanding of Ms. Murrell's status of employment and her
demands; and 2) is not being offered for the truth of the matter
asserted. (Defs.' Supp. 12(M) ¶ 14.) Furthermore, Defendants
believe that Ms. Murrell's objection, that this letter was
written in furtherance of settlement discussions, is
The Court will allow the introduction of this evidence on the
basis that the statements are not being offered to prove the
truth of the matter asserted under Federal Rule of Evidence
801(c). Moreover, the Court notes that this document is a
"[r]ecord of regularly conducted activity" under Federal Rule
of Evidence 803(6), and therefore would fall under that hearsay
exception. Finally, the Court finds no evidence to show that
these statements were made in furtherance of a settlement
negotiation, or that this letter, even if, arguendo, made in
furtherance of a settlement would be inadmissible under Federal
Rule of Evidence 408.
*fn10 Ms. Murrell objects to the contents of this letter on the
same basis as her objections to the May 19, 1997 letter:
Likewise, the Court overrules Ms. Murrell's objections for the
same reasons stated before. See, supra, n. 9.
*fn11 Ms. Murrell claims that USF & G sent her a "Termination of
Employment" notice by certified mail and cites to this notice as
Pl.'s Ex. I. (Pl.'s 12(N) ¶ 2 at 11.) However, there is no Pl.'s
Ex. I in the record and, therefore, no evidence of such a
*fn12 Ms. Murrell again objects to the contents of this letter
on the same basis as the two earlier objections. Similarly, the
Court overrules Ms. Murrell's objections for the same reasons
given before. See, supra, nn. 9-10.
*fn13 The allegations of earlier sexual harassment and
discrimination, from Count I of the Complaint, appear to be
linked by Ms. Murrell's claim of an ongoing, or "continuing"
violation. (See Pl.'s Mem. Opp. at 10-11; EEOC Compl. ¶ 47.)
*fn14 Under Title VII of the Civil Rights Act of 1964, Illinois
is a "deferral" state, so plaintiffs have 300 days to file a
charge, instead of the usual 180 days. 42 U.S.C. § 2000e-5(e);
Lever v. Northwestern Univ., 979 F.2d 552, 553 (7th Cir. 1992);
Hentosh v. Herman M. Finch Univ. of Health Sciences,
167 F.3d 1170, 1173-74 (7th Cir. 1999). According to Title VII, "state
fair employment practices agencies have primary jurisdiction over
employment discrimination complaints." 42 U.S.C. § 2000e-5(c);
Delaware State College v. Ricks, 449 U.S. 250, 254, 101 S.Ct.
498, 66 L.Ed.2d 431 (1980). Therefore, in the present case, the
EEOC first referred Ms. Murrell's charge to the appropriate
Illinois agency, the Illinois Department on Human Rights
("IDHR"). (Compl. ¶ 16(c).) The IDHR eventually waived its
jurisdiction, and the EEOC processed Ms. Murrell's claim through
its agency. (Compl. ¶ 16(c).)