JACQUELYN M. CARLSON, Plaintiff-Appellant,
Christian Brothers Services, Defendant-Appellee.
September 28, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15 C1154 - John
Robert Blakey, Judge.
POSNER, Flaum, and Manion, Circuit Judges.
POSNER, Circuit Judge.
plaintiff filed this suit against her former employer,
defendant Christian Brothers Services (the parties refer to
it as CBS), charging disability discrimination. CBS is a
religious organization headquartered near Chicago that
provides health and a number of other services to the Roman
Catholic community in Illinois, other parts of the United
States, and Canada. See Christian Brothers Services,
www.cbservices.org (visited Oct. 26, 2016, as were
the other websites cited in this opinion). The plaintiff, a
senior customer service representative of the defendant, was
in an automobile accident in March 2011 as a result of which
she had to use a cane, and limped, and she was fired on
February 1, 2012, because (she contends) of a perceived
disability (mobility impairment) caused by the accident that
had required her to take time off from work and to use her
health insurance to pay the costs she'd incurred as a
result of the accident. She argues that in these
circumstances her employer's firing her violated the
Americans with Disabilities Act.
requires a complainant to submit a charge of discrimination
to the Equal Employment Opportunity Commission (EEOC) within
a statutory deadline-here 300 days from the alleged incident
of discrimination -and to receive a right to sue notice from
the EEOC, before suing. 42 U.S.C. §§ 2000e-5(e)(1),
(f)(1). The district judge granted summary judgment for CBS
on the ground that the plaintiff had failed to submit a
charge in time and therefore could not maintain her suit.
months after being fired she filed with the Illinois
Department of Human Rights (IDHR) (which administers the
Illinois Human Rights Act, 775 ILCS 5/1 et seq.,
which like the ADA prohibits discrimination on grounds of
disability) a "Complainant Information Sheet" (the
parties call it a "CIS"), which asks the
complainant for basic information about his or her claim. On
the basis of the CIS IDHR decides whether it has jurisdiction
and if it does it copies the information in the CIS on to an
official charge form, which the filer can sign and submit.
The CIS also asks the complainant to check a box if the
employer has more than 15 employees in Illinois, and to check
another box if the employer has more than 15 employees in the
United States; Carlson checked both boxes.
has a worksharing agreement with EEOC, whereby a charge filed
with IDHR is automatically cross-filed with EEOC. But a
complaint of discrimination-the document the
plaintiff filed with IDHR-is not a charge. A charge is the
administrative equivalent of a complaint filed in court; a
CIS is not unless it asks for relief and thus functions as a
charge. Federal Express Corp. v. Holowecki, 552 U.S.
389, 402 (2008). Without such a request the CIS is just a
pre-charge screening form, which does not prompt IDHR to
notify the employer, launch an investigation, or sponsor
mediation between the parties-filing a charge form does.
IDHR, "Charge Process, " www. Illinois.
gov/dhr/FilingaChar ge/Pages/Intake. aspx; IDHR, "Path
of a Charge, " www.illinois.gov/dhr/Filinga
Charge/Pages/Path_of_a_Charge. aspx. But the CIS filer may
believe that the filing will nudge the person or entity
complained of to settle with the complainant on terms
favorable to the latter, thus sparing the complainant the
cost and time and anxiety of a contested proceeding.
was no pre-charge settlement with CBS, however, or so far as
appears any negotiation. Carlson's lawyer did contact
IDHR in 2012 about the possibility of mediation, but nothing
came of it. Instead on March 5, 2013, the plaintiff filed a
Charge of Discrimination with IDHR, copy to EEOC. But that
was 398 days after she'd been fired, and the deadline to
file a charge with the EEOC when the complainant had
initially instituted a proceeding with a state or local
agency is 300 days. 42 U.S.C. § 2000e-5(e)(1). Carlson
thus had failed to exhaust her administrative remedies-a pre-
requisite to suit-and so the district judge dismissed her
suit as untimely.
filed the CIS within the deadline, however, and argues that
it was a charge and therefore timely. And although her CIS
states "THIS IS NOT A CHARGE/' the EEOC deems a
charge sufficient when it is a "written statement
sufficiently precise to identify the parties, and to describe
generally the action or practice complained of, " 29
C.F.R. § 1601.12(b), and Carlson's CIS meets those
requirements. It identifies the parties -Carlson and
Christian Brothers Services-and states that she was fired for
"us[ing] a cane at work, " "walk[ing] with a
limp, " and "taking time off from work and for
using [her] health insurance to pay for the severe car
accident [she had experienced] ... in March 2011." But
the CIS did not request remedial action, and so was not a
charge. Federal Express Corp. v. Holowecki, supra,
552 U.S. at 402.
plaintiff contends that what nevertheless made the CIS a
charge was the statement in it that it "authorize[s]
EEOC to look into the discrimination alleged." But that
is a far cry from a "charge" as the word is
ordinarily understood. Although the CIS form does say that
IDHR will cross-file the complainant's "charge of
discrimination" with EEOC, it also says "THIS IS
NOT A CHARGE, " followed immediately by the statement
that "if IDHR accepts your claim, we will send you a
charge form for signature." And while it's true that
29 C.F.R. § 1601.12(b) states that "a charge may be
amended to cure technical defects or omissions, including
failure to verify the charge, or to clarify and amplify
allegations made therein" and that "such amendments
... will relate back to the date the charge was first
received, " her CIS contained more than a technical
defect if conceived of as a charge because it requested no
relief and the statement on the form that we quoted
above-"if IDHR accepts your claim, we will send you a
charge form for signature"-makes clear that the claim
was merely a prelude to a charge, and not the charge itself;
and a prelude to what turned out to be nothing.
all this, the EEOC has submitted an amicus curiae brief in
which it argues that the plaintiff's CIS was the
equivalent of a charge-thus ignoring what the Supreme Court
said in Federal Express Corp. v. Holowecki, supra,
552 U.S. at 402-that a charge must request relief, and the
plaintiff's CIS did not. The EEOC argues that by filing
the CIS Carlson consented to the disclosure of her personal
information to her employer, which shows she wanted remedial
action. But the CIS says "if IDHR takes a
charge based on the information provided, I consent for
IDHR to disclose my identity and personal information"
(emphasis added). It's true that event ...