United States District Court, N.D. Illinois, Eastern Division
November 1, 2004.
HEDRICK G. HUMPHRIES, Plaintiff,
CBOCS WEST, INC., Defendant.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This is an employment discrimination case brought Plaintiff,
Hedrick Humphries ("Humphries"), pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and
42 U.S.C. § 1981. Defendant, CBOCS West, Inc. ("Cracker Barrel"),
has moved to dismiss Humphries' Title VII claims of the
complaint, with prejudice, on the basis that they were untimely
filed. For the reasons set forth below, the motion to dismiss is
Humphries had been employed at Cracker Barrel Restaurant for
three years as an associate manager. Upon termination from
Cracker Barrel, in December of 2001, he filed a two-count
discrimination claim with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination on the basis of race
and retaliation in violation of the Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000 et seq. and 42 U.S.C. § 1981.
In turn the EEOC, dismissing Humphries' complaint, issued him a
Notice of Right to Sue on March 3, 2003. The notice informed
Humphries that if he wanted to commence a civil action, he was
required to file a complaint with the court within 90 days of his
receipt of the notice. Accordingly, Humphries had until June 5,
2003 to file the complaint.
On June 2, 2003, three days prior to the expiration of the
90-day statutory period, Humphries filed the lawsuit, along with
a motion for the appointment of counsel and an application for
leave to proceed In Forma Pauperis ("IFP"). On June 25, 2003,
we denied Humphries' IFP application on the basis that, first,
his income was above the poverty threshold level and, second, the
petition lacked other pertinent information necessary to make a
determination as to his financial circumstances.
Subsequently, Humphries amended the IFP application to include
the missing financial information and resubmitted the request to
this court on October 14, 2003. Denying the amended application
on October 22, 2003, we determined that Humphries was not
indigent and, therefore, was ineligible to proceed IFP. Following the second denial, Humphries, again amended the IFP
application and submitted it to this court on December 2, 2003.
Upon reviewing the third request, we denied the petition and
ordered him to pay the filing fee. On January 12, 2004, 195 days
beyond the 90-day statutory of limitations period, Humphries paid
the filing fee.
The legal issue before this court is whether Humphries'
complaint was timely "filed" within the meaning of
42 U.S.C. § 2000e-5(f)(1), since the filing fees were paid outside of the
90-day statute of limitations period.
Cracker Barrel contends that since Humphries paid the filing
fees 184 days after the expiration of the 90-day statute of
limitations period, Humphries' complaint was untimely filed under
42 U.S.C. § 2000e-5(f)(1). Thereby, pursuant to the Federal Rules
of Procedure Rule 12(b)(6), defendant has moved to dismiss the
complaint, "for failure to state a claim upon which relief can be
granted". Fed.R. Civ. P. 12(b)(6).
In determining whether to grant a 12(b)(6) motion to dismiss,
the Court will accept "the well-plead allegations in the
complaint as true and draw all reasonable inferences in favor of
the plaintiff." Hentosh v. Herman M. Finch University of Health
Sciences 167 F.3d 1170, 1173 (7th Cir. 1999). "A court may
dismiss a complaint only if it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations." Hishon v. King & Spalding, 467 U.S. 69,
73 (1984). "We view the facts in the complaint in the light most favorable
to the non-moving party." Hentosh, 167 F.3d at 1173.
42 U.S.C. § 2000e-5(f)(1) requires that a plaintiff must file a
civil action within 90 days of receiving the EEOC Notice of the
Right to Sue. A "civil action is commenced by filing a
complaint with the court." Fed.R. Civ. P. 3. Emphasis added.
According to the Northern District of Illinois Local Rules, a
complaint is "filed" when the complaint, accompanied with the
appropriate filing fee, is submitted to the clerk. Local Rule
3.3. However, a court "may authorize the commencement . . . of
any suit . . . without prepayment of fees and costs" if the
plaintiff is unable to pay. 28 U.S.C. § 1915(a); see
Williams-Guise v. Board of Education of the City of Chicago,
45 F.3d 161, 162 (7th Cir. 1995). Where the plaintiff is unable to
pay the filing fee, he may submit a petition to the court to
proceed IFP. If the judge approves the IFP petition, the
complaint is deemed "filed" either on the date of the judge's
order or on date the complaint and IFP petition was placed in
custody of the clerk. Local Rule 3.3; see Williams-Guise,
45 F.3d 161, 162 (7th Cir. 1995); Stephenson v. CNA Financial
Corporation, 777 F. Supp. 596, 589 (N.D. Ill. 1991); Quiles v.
O'Hare Hilton, 572 F. Supp. 866, 867 (N.D. Ill. 1983).
However, in cases where the judge rejects an IFP petition, the
complaint is not deemed "filed" until the date the filing fees
are paid. Williams-Guise, 45 F.3d 161 at 162; Robinson v. America's Best Contacts and Eyeglasses,
876 F.2d 596, 597 (7th Cir. 1989). For purposes of the statute of
limitations, when an IFP petition is submitted to the clerk, the
court will temporarily suspend or toll the limitations period
while the court determines whether to grant or deny the IFP
petition. However, the limitations period resumes running upon
the date the plaintiff receives notification of the denial.
Williams-Guise v. Board of Education of the City of Chicago,
45 F.3d 161, 162 (7th Cir. 1995); Triplett v. Midwest Wrecking
Co., 155 F. Supp. 2d 932, 935 (N.D. Ill. 2001); see Jarrett v.
U.S. Sprint Communications Co., 22 F.3d 256, 259 (10th Cir.
In the instant case, Humphries received the Notice of the Right
to File on March 6, 2003. The notice provided that in order to
file a civil action, Humphries must file suit within 90 days, or
by June 5, 2003. Accordingly, Humphries timely submitted his
complaint and his first IFP petition on June 2, 2003, three days
before the expiration of the 90-day statute of limitations filing
period. In a minute order, dated June 25, 2003, we denied
Humphries' IFP petition.
Accordingly, the 90-day statute of limitations tolled during
the processing of the petition, but resumed running upon
Humphries' notification of the denial. Since the date upon which
he was notified of the denial cannot be determined from
Humphries' complaint, this court will include three days for
service by mail pursuant to Fed.R. Civ. P. 6(e). Truitt v. County of Wayne,
961 F. Supp. 181, 183
(E.D. Mich. 1997). Therefore, the statute of limitations
resumed running on June 28, 2003, which left Humphries three days
to file his complaint before the expiration of the 90-day
statutory period. In other words, Humphries had until July 1,
2003 to pay his filing fee, thereby "filing" his complaint with
the court. Humphries, however, did not pay the filing fee until
January 12, 2004, 187 days after the expiration of the 90-day
statute of limitations period. Therefore, Humphries' complaint
was not timely "filed" in accordance with
42 U.S.C. § 2000(e)-(f)(5).
More importantly, while the court on three separate occasions
denied Humphries' IFP petition, it never granted Humphries an
extension of time in which to either pay the filing fee or to
submit an amended IFP petition. Where the court grants a
complainant an extension of time to pay the filing fee, a
complaint can be held as timely even though the filing fee was
paid beyond the 90-day statutory period. See Robinson v.
America's Best Contacts and Eyeglasses, 876 F.2d 596, 598 (7th
Cir. 1989) (complaint held as timely since filing fee was paid
within a court approved 90-day extension of the Title VII
limitations period); Triplett v. Midwest Wrecking Company,
155 F. Supp. 2d 932, 936 (N.D. Ill. 2001) (complaint held as timely
since filing fee was paid within a court approved 10 day
extension of the Title VII limitations period); United States
ex. rel. Cardenas v. Detella, No. 97 C 3005, 1998 U.S. Dist. LEXIS 15920, at *3 (N.D. Ill. Sept. 24, 1998) (complaint held as
timely since filing fee was paid within court approved 25 day
extension of the habeas corpus limitations period).
Further, in absence of a court order granting an extension of
time in which to pay a filing fee, a complaint can be deemed
"timely" filed if the filing fee is paid within 15 days of the
notification of the denial of the IFP petition. Local Rules
3.3(e); see Chatman v. Condell Medical Center, et al., No. 99 C
5603, 2001 U.S. Dist. LEXIS 11369, at *13 (N.D. Ill. Aug. 2,
2001) (complaint was held timely because the filing fee was paid
10 days after notification of the IFP petition denial).
Therefore, in order for Humphries to have filed a timely
complaint, the filing fee had to either be paid prior to the
expiration of the 90-day filing period or 15 days after
notification of the first IFP petition in accordance with Local
It should be noted that there are exceptions to the Title VII
90-day filing requirement prescribed in
42 U.S.C. § 2000(e)-(f)(5). While the 90-day time limit is not a
"jurisdictional prerequisite to filing a Title VII lawsuit, but
rather, is more akin to a statute of limitations and subject to
waiver, estoppel, and equitable tolling under appropriate
circumstances." Hentosh v. Herman M. Finch University of Health
Sciences, 167 F.3d 1170, 1174 (7th Cir. 1999); see Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). One exception is the doctrine of equitable estoppel, sometimes
referred to as fraudulent concealment. Under this doctrine, a
limitations period is suspended when "defendant takes active
steps to prevent the plaintiff from suing in time, such as by
hiding evidence or promising not to plead the statue of
limitations." Hentosh, 167 F.3d at 1174. Since Humphries'
complaint neither alleges nor provides a basis to infer that
defendant purposely hindered Humphries' ability to file a timely
complaint, equitable estoppel is not applicable in this case.
A second exception is equitable tolling. This doctrine permits
a plaintiff to avoid the bar of the statute of limitations if,
despite all due diligence, he is unable to obtain vital
information bearing on the existence of his claim. Id. at 1174.
"Equitable tolling should be exercised only sparingly and not in
cases where claimant failed to exercise his due diligence in
preserving his legal rights." Knight v. City of Milwaukee, No.
98-2510, 1998 WL 846857, at *2 (7th Cir. Nov. 25, 1998).
Similarly, Humphries' complaint neither alleges nor provides a
basis to infer that his untimely filling of his complaint was due
to his inability to obtain information that was essential to
establishing his claim. Therefore, the doctrine of equitable
tolling cannot be applied in this case to bar the 90-day statute
of limitations requirement.
Humphries asserts that in the Seventh Circuit, once the court
denies an IFP petition, the complainant has a "reasonable" amount
of time in which to pay the filing fee. Relying on Williams-Guice v. Board of Education,
45 F.3d 161 (7th Cir. 1995), Humphries contends that his Title VII
complaint should not be dismissed as untimely because the fee was
paid within a reasonable time after the third IFP petition was
denied. The fact that Humphries paid the filing fee 35 days after
the date of the third IFP petition denial is irrelevant. While
reasonableness may be a factor into the inquiry as to whether a
complaint that has been filed outside of the 90-day statute of
limitation period is timely, the Seventh Circuit has not
established reasonableness as the controlling standard of
In Williams-Guice, the Court discussed a hypothetical fact
pattern that is similar to this case and raised the very question
on which this case turns: "What happens when the plaintiff lodges
the complaint and application to proceed IFP with two days to go
[on the statute of limitations clock] and does not learn about
the judge's order denying the complaint until the time has run?"
Id. at 165. However, the Williams-Guice Court left this
question unanswered and instead, gave two potential solutions,
one being that the "time remains in suspension for a
"reasonable time". Id. Emphasis added. Since
Williams-Guice, the Seventh Circuit has yet to resolve this
issue. Additionally, since the issue in Williams-Guise involved
the timeliness of service of process and not the timeliness of
the filing of a complaint, the discussion of a possible
"reasonableness test" is dicta, and, therefore, not controlling.
Thus, Humphries' assertion that the complaint was timely filed because the filing fee was paid within
a "reasonable" amount of time after the third denial of the IFP
petition is misguided.
Even if this court was persuaded to use a "reasonableness test"
to determine whether Humphries had timely filed his complaint, he
would not have satisfied that standard. The court denied the
first IFP petition on June 25, 2003. Even allowing three days for
mail service, Humphries was notified of the denial on June 28,
2003 and yet did not submit an amended IFP petition until October
14, 2003, 118 days after notification of the denial. Moreover, we
denied the second IFP petition on October 22, 2003. Again,
allowing three days for mail service, Humphries was notified of
the denial on October 25, 2003 but did not submit the third
petition until December 2, 2003, 38 days later after notification
of the denial. Finally, we denied the third petition on December
8, 2003 and the filing fee was paid on January 14, 2004. Adding
three days for mail service, the fees were not paid until 32 days
after notification of the denial of the third petition. Taking
into account three days for mail service and the three days that
were remaining on the statute of limitations clock when Humphries
received notification of the denial of the first IFP petition, he
had until July 1, 2003, the end of the limitations period, to
file a timely complaint.
Therefore, Humphries did not pay the filing fee until 195 days
after the expiration of the 90-day statute of limitations period.
Accepting the 195 days as reasonable would be inconsistent with the rationale for the
90-day statute of limitations for Title VII discrimination cases.
Congress has expressed the limitations bar not in months or
years, but in days. It requires . . . the court complaint to be
filed within 90 days after the receipt of the EEOC "right to sue"
letter. 42 U.S.C. § 2000e-5(e)(1). Implicit in this legislation
is a policy that there should be no delay in employment
discrimination cases. It is a recognition that memories may fail
in the workplace in recalling the minutia of what is said and
what was done. It therefore becomes necessary to hear testimony
while precise recollections are keen and are not dulled by undue
passage of time. Sanders v. Venture Stores, Inc. 56 F.3d 771,
775 (7th Cir. 1995). Therefore, it is clear that the time period
of 195 days greatly undermines the purpose of the statute of
For the foregoing reasons we grant Cracker Barrel's motion to
dismiss Humphries' claims under Title VII, with prejudice, on the
basis that his Title VII claims were untimely filed.
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