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Ativie v. Northshore University HealthSystem

United States District Court, N.D. Illinois, Eastern Division

February 23, 2017



          SAMUEL DER-YEGHIAYAN, District Judge

         This matter is before the court on Defendant NorthShore University Health Systems' (NorthShore) motion for summary judgment. For the reasons stated below, the motion for summary judgment is granted.


         Plaintiff Diane Ativie (Ativie) contends that she is a 57-year-old African-American female and that she began working for NorthShore as a social worker in 1995, and that she continues to be employed by NorthShore. Ativie contends that while working for NorthShore she was subjected to remarks by patients and co-workers relating to her race. Ativie also contends that she suffered certain adverse actions. For example, Ativie contends that her job title was changed, that her job responsibilities were changed, that she did not get input on job assignments, that she was given poor performance evaluations, and that she was denied salary increases. Ativie claims that such actions were taken against her because of her race and age. Ativie includes in her complaint a claim alleging discrimination based on her race brought under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. (Count I), a race discrimination claim brought under 42 U.S.C. § 1981 (Section 1981) (Count II), and a claim alleging discrimination based on her age brought under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. (Count III). NorthShore now moves for summary judgment on all claims.


         Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A “genuine issue” in the context of a motion for summary judgment is not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Phillip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).


         I. Title VII and ADEA Claims

         NorthShore argues that the Title VII and ADEA claims are untimely. A plaintiff seeking to bring Title VII or ADEA claims must “file her suit within 90 days from the date the EEOC gives notice of the right to sue.” Houston v. Sidley & Austin, 185 F.3d 837, 838-39 (7th Cir. 1999)(stating that the “90-day period begins to run when the claimant receives actual notice of her right to sue” but that “the actual notice rule does not apply to plaintiffs who fail to receive actual notice through their own fault”). The record reflects that Ativie received notice of the EEOC Notice of Rights in regard to her claims on September 5, 2015, and that she needed to file her Title VII and ADEA claims by December 4, 2015. Ativie, however, did not file the instant action until December 7, 2015.

         Ativie admits that the deadline was on December 4, 2015, and that the filing was not made until December 7, 2015, (Resp. 4-5), but argues that the court should employ the tolling doctrines and allow her to proceed in this matter on her Title VII and ADEA claims. Under the doctrine of equitable tolling, a plaintiff can “avoid the bar of the statute of limitations if despite all due diligence [s]he is unable to obtain vital information bearing on the existence of h[er] claim.” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990); see also Knauf Insulation, Inc. v. S. Brands, Inc., 820 F.3d 904, 908 (7th Cir. 2016)(stating that “a litigant is entitled to equitable tolling of a statute of limitations only if the litigant establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing”)(internal quotations omitted)(quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). Ativie merely indicates in a conclusory manner without a detailed explanation that her counsel was mixed up about what day of the week December 4, 2015 fell on and missed the deadline. Such an explanation fails to show that her claims were diligently pursued and fails to provide a sufficient justification for allowing the limitations period to run. The Seventh Circuit has made clear that “[e]quitable tolling is reserved for rare instances in which a plaintiff was prevented in some extraordinary way from filing h[er] complaint in time.” Blanche v. United States, 811 F.3d 953, 962 (7th Cir. 2016)(internal quotations omitted)(quoting Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850 (7th Cir. 2001)); see also Rosado v. Gonzalez, 832 F.3d 714, 718 n.3 (7th Cir. 2016)(indicating that “a lawyer's error in allowing a statute of limitations to run is not the type of extraordinary circumstance justifying equitable tolling”); Johnson v. McCaughtry, 265 F.3d 559, 566 (7th Cir. 2001)(stating that “[g]enerally, a lawyer's mistake is not an extraordinary circumstance justifying the application of equitable tolling”). There has been no showing by Ativie of extraordinary circumstances that would toll the limitations period in this case. Ativie also argues that Federal Rule of Civil Procedure 6 applies. (Resp. 4). Ativie, in making such arguments, also inexplicably references parties and dates from another case, such as when she makes reference to “the Plaintiff at his Washington, D.C. home” and a letter dated October 26, 2015. (Resp. 4). Also, as NorthShore correctly points out the Notice of Rights sent by the EEOC is not a pleading covered by Rule 6 and Rule 6 provides no relief to Ativie in this instance. Therefore, NorthShore's motion for summary judgment on the Title VII and ADEA claims is granted.

         II. Section 1981 Claims

         NorthShore contends that Ativie has failed to point to sufficient evidence to support her Section 1981 Claim. Ativie argues that she can proceed under the indirect method of proof. (Resp. 10). Under the indirect method of proof, a plaintiff must establish a prima facie case by showing: (1) that “she is a member of a protected class, ” (2) that “she met [her employer's] legitimate job expectations, (3) that “she suffered an adverse employment action, ” and (4) that “similarly situated employees outside of the protected class were treated more favorably.” Chaib v. Geo Grp., Inc., 819 F.3d 337, 342 (7th Cir. 2016). If the plaintiff establishes a prima facie case, the “burden shifts to [the employer] to give a legitimate, nondiscriminatory reason for” its action, and, if given, the burden shifts back to the plaintiff to show that the given reason was a pretext for unlawful discrimination. Id.; see also Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 892 (7th Cir. 2016)(giving prima facie case elements for a failure-to-promote claim).

         A. Local Rule 56.1 Admissions

         NorthShore argues that Ativie has admitted certain facts pursuant to Local Rule 56.1. Pursuant to Local Rule 56.1 a plaintiff seeking to dispute a fact in a statement of material facts must cite to evidence in the record that supports the disputed position. LR 56.1; Boyd v. City of Chicago, 2016 WL 7157354, at *4 (N.D. Ill. 2016). In the absence of such a citation, the fact is deemed to be undisputed. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003)(stating that “Local Rule 56.1's enforcement provision provides that when a responding party's statement fails to controvert the facts as set forth in the moving party's statement in the manner dictated by the rule, those facts shall be deemed admitted for purposes of the motion” and that “a failure to respond by the nonmovant as mandated by the local rules results in an admission”); see also Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004)(stating that “a district court is entitled to expect strict compliance with Rule 56.1”). In addition, ...

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