United States District Court, N.D. Illinois, Eastern Division
DER-YEGHIAYAN, District Judge
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
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.
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
Title VII and ADEA Claims
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,
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.
Section 1981 Claims
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).
Local Rule 56.1 Admissions
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,