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Harris v. Roseland Community Hospital Association

April 3, 2006


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Carolyn Harris, a registered nurse, has filed a pro se lawsuit against her former employer Roseland Community Hospital Association under the Americans with Disabilities Act, alleging Roseland terminated her based on her disability. 42 U.S.C. § 12112. The ADA, like other employment discrimination statutes, requires a plaintiff to exhaust administrative remedies before filing suit by filing a complaint with the Equal Employment Opportunity Commission. More specifically, the statute requires the plaintiff to file a charge with the EEOC within 300 days of the employer's alleged discriminatory action. See 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1). Roseland has moved for summary judgment on the ground that Harris failed to file a timely EEOC charge. For the reasons stated below, the Court grants Roseland's motion.


Following the Court's review of Harris's initial pro se complaint, we noted that it did not appear that Harris had complied with the 300 day limit, so we entered an order directing Harris to explain why she had not filed her EEOC charge within that period. The order explained the basis for the 300 day limit as well as the possibility of equitable tolling. See Order of June 3, 2005.

On June 24, 2005, Harris filed a response to the Court's order. In her response, Harris said that she believed she had to pursue internal remedies within Roseland Hospital before going to the EEOC. She said she had filed an internal complaint on February 9, 2004 but that Roseland personnel refused to meet with her. Harris stated that she consulted an attorney, Kathleen Baliunas of the law firm of Odelson & Sterk, on February 12, 2004. According to Harris, "Attorney Baliunas simply refused to follow-up on [Roseland's] refusal to respond to [Harris's] letter" and advised Harris that "'I cannot [make] them (RCH) answer me.'" Pl. Resp. (filed June 24, 2005) at 2. In the same response, Harris stated that when she asked Baliunas to take the case to court, Baliunas replied that "a judge will laugh you out of court for that little amount of money" but agreed to try again to contact Roseland. After a further delay, Harris says, she called Baliunas again, in November 2004 around the Thanksgiving holiday; Baliunas said "she had other cases, and that plaintiff could go ahead and file her case with the EEOC." Id. Upon filing a charge with the EEOC, Harris stated, she was advised that the charge was untimely. Id. at 3. Harris concluded her response to the Court's order by stating that she had been given information -- we assume by Baliunas -- that she had to pursue an internal complaint first, that as a lay person she had no knowledge of the law, and that she had relied on Baliunas. Id. She asked the Court not to dismiss the case.

After reviewing Harris's response, the Court entered an order stating that we were "somewhat skeptical whether Harris' claimed ignorance of the law, combined with inaction and perhaps poor advice by her counsel, is enough to entitle her to equitable tolling" of the 300 day period. See Order of July 5, 2005 at 2. But because the statute of limitations is an affirmative defense, we allowed Harris's case to proceed, leaving it to Roseland to raise the defense if it chose to do so. Id. Following service of the suit on Roseland, it moved for summary judgment, raising the limitations issue.


Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When deciding a motion for summary judgment, the Court must view the facts in favor of the non-moving party and draw reasonable inferences on her behalf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The undisputed facts show that Roseland terminated Harris's employment on January 1, 2004. It is likewise undisputed that Harris did not file a charge of discrimination with the EEOC until December 21, 2004 -- 354 days after she was fired. For this reason, Roseland contends that Harris's claim is time-barred. See Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 860 (7th Cir. 2005).

In her pro se response to Roseland's motion, Harris contends that the Court should apply the doctrine of equitable tolling and allow her to pursue her claim. The doctrine of equitable tolling allows a plaintiff to pursue an otherwise time-barred claim "if despite all due diligence

[s]he is unable to obtain vital information bearing on the existence of [her] claim." Hentosh v. Herman M. Finch Univ. Health Sciences / Chicago Med. Sch., 167 F.3d 1170, 1174 (7th Cir. 1999).

In her response, Harris lays out in a bit more detail what occurred after she retained attorney Baliunas. In April 2004, about 100 days after Harris's termination, Baliunas wrote to Roseland, contending that Harris's supervisors had caused her emotional distress while on the job and had wrongfully terminated her. Baliunas's letter did not refer to the ADA, and it made no allegation of termination based on disability. See Pl. Resp., Ex. C. In late June 2004, Baliunas advised Harris that Roseland had not responded to her inquiries; in her correspondence to Harris, Baliunas stated that "the statute of limitations for retaliatory discharge for filing a complaint with the [Illinois Department] of Public Health is two years from your discharge." Id. Baliunas's correspondence to Harris made no mention of the ADA or a claim of disability discrimination, and it made no reference to the need to file an EEOC charge as a prerequisite to a federal employment discrimination claim or to the 300 day limitation for filing such a charge.

Harris contends that she repeatedly inquired of Baliunas regarding her case and that Baliunas told her that she had received no response from Roseland. Harris contends, as she did in her June 2005 response to the Court's initial order, that Baliunas denigrated her case due to the supposedly small amount of money involved. Harris says that in November 2004, after repeated inquiries, Baliunas said that she "had other case[s], and that [Harris] could go ahead and file her case with [the] EEOC." Pl. Resp. at 3. By that time, however, over 300 days had run following Harris's termination (304 days had passed as of the end of October 2004).

Harris also states in her response that after she filed her lawsuit in this Court, she sought other counsel. Specifically, on October 10, 2005, she sought assistance from the organization Equip for Equality, a disability-rights group. See Pl. Resp., Ex. D-1. About two weeks later, Equip for Equality sent Harris a letter saying that in order to determine whether to represent her, it needed a copy of Harris's employment contract and her complete personnel file, as well as other documentation. Harris says ...

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