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Newbold v. Wisconsin State Public Defender

November 19, 2002

MARY ELIZABETH NEWBOLD, PLAINTIFF-APPELLANT,
v.
WISCONSIN STATE PUBLIC DEFENDER, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Wisconsin. No. 00-C-391-C--Barbara B. Crabb, Chief Judge.

Before Easterbrook, Kanne, and Evans, Circuit Judges.

The opinion of the court was delivered by: Evans, Circuit Judge.

ARGUED SEPTEMBER 9, 2002

Mary Elizabeth Newbold filed suit against her former employer, the Wisconsin State Public Defender (WSPD), alleging discrimination and retaliation based on her age and sex. The district court granted summary judgment for the WSPD after concluding that Newbold filed her case too late to meet the statute of limitations on her claims and that the limitations period should not be equitably tolled. Newbold appeals, asserting that one of her retaliation claims is timely under the doctrine of equitable tolling and that she also has a second retaliation claim which the district court erroneously failed to consider. Newbold does not contest that her discrimination charge was filed too late with the Equal Employment Opportunity Commission (EEOC) and that it is doomed unless revived by equitable tolling.

For the purposes of summary judgment, there is no dispute about the timing of the events underlying Newbold's claims. In January 1995 the WSPD hired Newbold, who was 55 at the time, as an investigator in its Racine office. On June 21 and 22, 1995, Newbold filed harassment complaints with WSPD's affirmative action officer. On August 3, 1995, the WSPD fired Newbold. She filed her first charge of discrimination on May 14, 1996. The Wisconsin Personnel Commission (WPC) and the Equal Employment Opportunity Commission do not have a worksharing agreement allowing a state agency filing to be deemed concurrently filed with the EEOC. The charge form did state that the WPC would forward a copy of the complaint to the EEOC if Newbold checked the appropriate box--which she did. The charge was not sent to the EEOC, however, until August 6, 1996, and the EEOC did not log it as filed until September 17, 1996.

On July 23, 1996, the Wisconsin Department of Employment Relations informed Newbold that it was removing her name from the public defender investigator (PDI) register, a list of certified candidates for WSPD investigator jobs. This action was taken at WSPD's request. On September 17, 1996, Newbold completed a second charge of discrimination with the WPC regarding the removal of her name from the PDI register. In this charge she stated:

The complaint I filed May 14, 1996 with the Personnel Commission is the basis for this additional discrimination and retaliation complaint regarding the removal of my name from the 1996 Investigator 2 list by [the Division of Merit Recruitment and Selection] at the request of Carla Blum, SPD Personnel Director.

As with her May 14 charge, Newbold checked the box to forward it to the EEOC. The EEOC received her papers on September 19, 1996.

The WPC ultimately dismissed her charges. On June 21, 2000, the EEOC sent Newbold a letter concurring in the dismissal of her first retaliation charge. On December 20, 2000, the EEOC sent Newbold a letter concurring in the dismissal of her second retaliation charge.

Newbold filed suit in the United States District Court for the Western District of Wisconsin, alleging that the WSPD discriminated and retaliated against her. Newbold moved to proceed in forma pauperis, and the district court granted the motion as to Newbold's claim that the WSPD retaliated against her by firing her on August 3, 1995, and removing her from the public defender investigator register on July 23, 1996.

On February 23, 2001, the district court granted the WSPD's summary judgment motion. The court noted that although Newbold was terminated on August 3, 1995, she did not file her charge of discrimination with the WPC until May 14, 1996, or with the EEOC until September 17, 1996. Based on this charge, the court found that Newbold's claims were barred by the 180-day EEOC filing deadline for retaliation claims. The court did not, however, mention Newbold's September 17, 1996, WPC charge which was forwarded to the EEOC on September 19, 1996.

Our standard of review on this question of law is de novo, but we view the facts and all reasonable inferences in favor of Newbold, the nonmoving party. See Furnish v. SVI Sys., Inc., 270 F.3d 445, 448 (7th Cir. 2001).

Under 42 U.S.C. § 2000e-5(e)(1), Title VII claimants are required to file their discrimination charge within 180 days after the alleged unlawful employment practice. If a claimant has initiated proceedings in a state agency with the authority to grant relief from unlawful employment practices, however, the claimant has 300 days after the alleged unlawful employment practice occurred to file her charge with the EEOC. The WPC has jurisdiction over all charges covering the employment practices of the agencies of the State of Wisconsin except those alleging retaliation under 704(a) of Title VII. See 29 C.F.R. § 1601,74(a) at n.12. Newbold argues that state agencies lulled her into believing that a 300-day instead of a 180-day deadline applied to her claims and that the WPC would concurrently file an EEOC claim when it accepted her state charge. Newbold therefore argues that the 180-day statute of limitations for retaliation claims should be equitably tolled and her EEOC charge deemed timely filed.

Newbold proceeds under a theory of equitable tolling because she alleges that the Department and the WPC-not the WSPD--misled her. Equitable tolling permits a plaintiff to avoid the bar of the statute of limitations if, despite all due diligence, she is unable to obtain vital information bearing on the existence of her claims. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990). It may be particularly appropriate if an administrative agency misleads a plaintiff. See Alsaras v. Dominick's Finer Foods, Inc., 248 F.3d 1156, 2000 WL 1763350, at *3 (7th Cir. 2000) (tolling appropriate when EEOC representative told plaintiff she had a year rather than 300 days to file suit); Early v. Bankers Life and Cas. Co., ...


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