Tara V. LUEVANO, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.
No. 11-1917
United States Court of Appeals, Seventh Circuit.
Argued Feb. 13, 2013. Decided July 16, 2013.
It is thus clear that Officer Kermon‘s entire argument is dependent upon a disputed fact. Our cases have given fair warning that an interlocutory appeal will be dismissed if the argument for qualified immunity is dependent upon disputed facts. See Jones v. Clark, 630 F.3d at 680; Levan, 604 F.3d at 369-70; Viilo, 547 F.3d at 712; White, 509 F.3d at 835-37; Via, 469 F.3d at 624-25; McKinney, 463 F.3d at 688-90; accord McKenna v. City of Royal Oak, 469 F.3d 559, 561-62 (6th Cir. 2006). Rather than accept the district court‘s factual assumptions, Kermon has simply ignored or denied that a factual dispute exists and built his argument for qualified immunity on that disputed fact. See Viilo, 547 F.3d at 712 (“In denying rather than embracing the facts the district court held to be sufficiently well-supported to create jury issues, the defendants have pleaded themselves out of court.“); White, 509 F.3d at 836-37 (no jurisdiction where appellant‘s “legal arguments [were] wholly dependent upon, and inseparable from, his reliance on disputed facts“). This is in stark contrast to cases like Jones v. Clark, 630 F.3d at 681, and Sallenger, 473 F.3d at 738-39, where we found jurisdiction to exist after the appellants unambiguously conceded in their briefs and at oral argument that they were proceeding on the facts assumed by the district court, even though factual disputes had crept into their respective appeals.
III
Here, the district court found that the issue of whether Gutierrez was swaying or walking with an unsteady gait is a genuine factual dispute in need of a jury‘s attention. Officer Kermon‘s unabashed reliance on that disputed fact in support of his plea for qualified immunity deprives us of jurisdiction over this interlocutory appeal. We therefore DISMISS this appeal for want of jurisdiction.
Virginia v. Moore, 553 U.S. 164, 168-76, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008).
Norma W. Zeitler (argued), Attorney, Barnes & Thornburg LLP, Chicago, IL, for Defendant-Appellee.
Before BAUER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
Tara Luevano appeals the dismissal of her sex discrimination and retaliation claims against her employer, Wal-Mart Stores, Inc. Although the appeal presents a thicket of procedural issues, its ultimate resolution on the merits is straightforward. Luevano‘s original, timely, pro se complaint sufficiently stated claims for sex discrimination and retaliation in violation of
Because the case was dismissed under
On June 28, 2010, two days before the ninety-day deadline expired, Luevano filed in the district court a pro se complaint, along with a request to proceed IFP and a request for appointed counsel (technically, recruited counsel, but we‘ll ignore that nuance here). Luevano used the four-page form complaint provided by the Northern District of Illinois for employment discrimination claims. She checked the boxes for sex discrimination, failure to stop harassment, and retaliation based on a protected activity. She included two handwritten pages alleging three basic things: (1) her co-worker harassed her because she was a woman; (2) her supervisor refused to correct her co-worker‘s behavior because the supervisor and the co-worker were both men; and (3) her supervisor retaliated against her by reducing her hours and “subject[ing her] to intimidation” because she escalated her complaints to the district manager of human resources.
Pursuant to
Luevano filed an amended pro se complaint on August 4, 2010. The amended complaint added: “I believe I have been discriminated [sic] because of my sex female and retaliated against, in violation of
On August 9, 2010, the district court granted Luevano‘s motion to amend her complaint. Ten days later, on August 19, 2010, the district court granted Luevano leave to proceed IFP and appointed counsel for her. The district court also gave Luevano until September 30, 2010 to file a second amended complaint with the assistance of counsel, explaining that Luevano “appears to have timely claims under Title VII and the assistance of counsel appears reasonably necessary to enable her to present those claims to the Court.”
In the meantime, on June 7, 2010, Luevano had filed a second EEOC charge alleging that Wal-Mart retaliated against her for filing the first EEOC charge. On June 30, 2010, Luevano received a second right to sue letter from the EEOC.
With the aid of appointed counsel, on September 29, 2010, Luevano filed her second amended complaint, which included all allegations in the first two complaints but did not mention the retaliation that was the subject of the second EEOC charge. The second amended complaint and summons were served on Wal-Mart on October 1, 2010.
On October 21, 2010, Wal-Mart moved to dismiss the second amended complaint as untimely because Luevano had failed to file it within ninety days of receipt of her first EEOC right to sue letter. Luevano‘s appointed counsel then moved to amend the second amended complaint to include acknowledgment of the second EEOC right to sue letter since the second amended complaint was filed within ninety days of receipt of the second right to sue letter. The district court granted Luevano‘s motion to amend her second amended complaint, resulting in a third amended complaint filed on November 24, 2010. The third amended complaint alleged, for the first time, retaliation for having filed the first EEOC charge. Wal-Mart renewed its motion to dismiss the third amended complaint as untimely.
The district court granted Wal-Mart‘s motion to dismiss and entered a final judgment of dismissal with prejudice pursuant to
II. Appellate Jurisdiction
The district court‘s final judgment dismissing Luevano‘s action is appealable under
The general rule is that an appeal from a final judgment allows the appellant to challenge any interlocutory actions by the district court along the way toward that final judgment. Habitat Educ. Ctr. v. U.S. Forest Serv., 607 F.3d 453, 456 (7th Cir. 2010);
According to Wal-Mart, however, the July 9, 2010 dismissal of the complaint without prejudice restarted the ninety-day clock when Luevano received it on July 12. With just two more days remaining of the original ninety, Wal-Mart argues, the dismissal of the complaint without prejudice ripened into a final judgment dismissing the entire action with prejudice on July 14, leaving Luevano thirty days to file a notice of appeal. Wal-Mart concludes that Luevano‘s failure to file an appeal within those thirty days means that the July 9, 2010 order became a final judgment not subject to a collateral attack in this appeal.
We reject this argument for reasons we detail below. In summary, the district court did not enter a
A. Final Appealable Orders
The district court‘s order of July 9, 2010 dismissed only the complaint, not the entire action, and the order was not accompanied by a separate final judgment under
When a district court believes it is done with a case, it enters a final judgment under
In this case, the district court‘s July 9, 2010 order made crystal clear that the court was not finished with the case. The order found that Luevano qualified for IFP status and then screened her complaint pursuant to
In assessing the potential finality of an order, we may analyze not only the text of the order but also the district court‘s behavior. Here, the district court allowed and considered multiple amendments to the original complaint, making clear that it was not finished with the case on July 9. See LeBlang Motors, Ltd. v. Subaru of America, Inc., 148 F.3d 680, 687 (7th Cir. 1998) (“If the dismissal was without prejudice, then it was not a ‘final decision’ unless LeBlang could not file another complaint.“). “[W]hen a district court grants a plaintiff leave to amend his pleading, the court signals that the action has not been fully and finally adjudicated on the merits, and that further proceedings will follow.” Hunt v. Hopkins, 266 F.3d 934, 936 (8th Cir. 2001). That is what happened here. If plaintiff had filed a notice of appeal for the July 9 order, we would have dismissed it. The later amended complaints and the rulings on them were merely a continuation of the original action stemming from the timely filed original complaint.
Before moving on to some of the nuances of IFP procedures, we must also acknowledge the manifest injustice that would result if we were to adopt Wal-Mart‘s position that the July 9 order became final and appealable on July 14, 2010. That reasoning would place the burden on Luevano, a pro se plaintiff, to understand that the July 9 order was final and therefore appealable even when the district court itself did not understand it as such and did not enter a final judgment. Furthermore, within the thirty days Wal-Mart argues were available to appeal, the district court both considered Luevano‘s first amended complaint and appointed an attorney to amend that complaint.1
It‘s not as if Luevano received the dismissal without prejudice and forgot about her lawsuit. She worked actively to amend her complaint within the thirty-day period in which she supposedly could have
B. Equal Treatment of IFP and Fee-Paying Plaintiffs
But for Wal-Mart‘s arguments based on plaintiff‘s IFP status, there would be no doubt about whether the July 9 order was appealable or whether the later amended complaints related back to the original complaint and were thus timely.
The filing of a complaint commences a civil action in federal court.
Thus, if Luevano had paid the civil filing fee when she submitted her original complaint to the district court, there would be no doubt about her ability to proceed with her amended complaint or our ability to review the order resolving the original complaint. In arguing otherwise, Wal-Mart focuses on the fact that Luevano was not a fee-paying litigant but moved the court for IFP status. This does not matter. IFP plaintiffs have the same right as other plaintiffs to amend a timely filed complaint at least once as a matter of course pursuant to
The only difference regarding IFP and fee-paying plaintiffs arises in
If a district court‘s sua sponte dismissal in such cases were without leave to amend, we would face serious questions about fair access to the courts. Without at least an opportunity to amend or to respond to an order to show cause, an IFP applicant‘s case could be tossed out of court without giving the applicant any timely notice or opportunity to be heard to clarify, contest, or simply request leave to amend. See Eades v. Thompson, 823 F.2d 1055, 1061-62 (7th Cir. 1987) (“Sua sponte dismissals without prior notice or an opportunity to be heard on the issues underlying the dismissal, however, generally may be considered hazardous.... [S]ua sponte dismissals may prejudice plaintiffs
Those hazards are especially great because of case law, discussed further below, holding that dismissal of an entire suit (not just a complaint) without prejudice can mean that the applicable statute of limitations will have run before the plaintiff can correct the problem. For purposes of a statute of limitations, it is as if the dismissed suit had never been filed. See Lee v. Cook County, 635 F.3d 969, 971-72 (7th Cir. 2011); Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 923 (7th Cir. 2003); Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000). Under the reasoning of those cases, the conditional suspension of the statute of limitations clock that occurs upon filing the complaint not only comes to an end but is actually undone retroactively. Thus, for example, if the district court here had actually dismissed the entire suit on July 9, the statute of limitations would be deemed to have run in the meantime, on June 30. This hazard is present in any type of case but is especially great in cases subject to very short filing deadlines, such as Title VII employment discrimination cases.
Focusing on Luevano‘s IFP status, Wal-Mart implicitly asks us to adopt a rule under which IFP plaintiffs do not have leave to amend as a matter of right after a section 1915 sua sponte dismissal for failure to state a claim. We reject that proposed rule. District courts must allow IFP plaintiffs leave to amend at least once in all circumstances in which such leave would be granted to fee-paying plaintiffs under
This liberal pleading rule is consistent with the directive in section 1915(e) that a court “shall” dismiss an IFP case if the complaint fails to state a claim for relief. The statute does not require that the dismissal be with prejudice and without leave to amend. All but one of the circuits that have decided the question have held that IFP plaintiffs have the same right to amend that fee-paying plaintiffs enjoy. These circuits have crafted a sensible rule: IFP applicants whose complaints are dismissed pursuant to a section 1915 screening for failure to state a claim should be granted leave to amend at least once in all cases in which
We agree with our colleagues in these other circuits. Dismissals under
Under
Relation back in Luevano‘s situation is exactly what
C. Wal-Mart‘s Remaining Arguments
To avoid this result and block consideration of the merits of the July 9, 2010 order of dismissal, Wal-Mart relies on two cases, Lee v. Cook County, 635 F.3d 969 (7th Cir. 2011), and Elmore v. Henderson, 227 F.3d 1009 (7th Cir. 2000). Both cases held that the plaintiffs’ suits were time-barred because earlier, timely suits had been dismissed without prejudice.
As we explained in Elmore, “a suit dismissed without prejudice is treated for statute of limitations purposes as if it had never been filed,” and this rule is needed to prevent nullification of statutes of limitations by repeated filings and dismissals. 227 F.3d at 1011. Wal-Mart contends that the July 9, 2010 order in this case had the effect of dismissing Luevano‘s suit without prejudice, so that for purposes of the statute of limitations, it is as if her original
Lee and Elmore do not apply here for a simple reason. In both, the earlier cases had been dismissed with final judgments that dismissed the entire cases without prejudice. As we have explained, the July 9, 2010 order in this case dismissed only the complaint, not the entire case. The timely-filed case remained pending, and plaintiff could amend her complaint to address the problems found by the district court. Lee and Elmore therefore do not undermine our conclusion that the July 9, 2010 order was not final and did not ripen into a final judgment on July 14, 2010.6
Finally, Wal-Mart argues that we do not have jurisdiction to consider the July 9, 2010 order in this appeal because Luevano did not refer to that order in her notice of appeal. Such a reference was not necessary.
To sum up our discussion of our jurisdiction to consider the July 9, 2010 dismissal of the original complaint, “[a] decision is appealable under
III. The Merits of the July 9, 2010 Order
On the merits, we conclude that the district court erred in dismissing Luevano‘s original complaint for failure to state a claim upon which relief may be granted. We review dismissals under
Luevano used the four-page form complaint provided by the Northern District of Illinois for employment discrimination claims. She checked the boxes for sex discrimination as well as failure to stop harassment and retaliation based on a protected activity. The complaint form provides just six lines to state the “facts supporting the plaintiff‘s claims of discrimination,” implying that the statement should be concise. Instead of filling in these six lines, Luevano‘s original complaint alleged in two attached pages of handwritten detail that she had suffered harassment at the hands of her coworker for months, and despite repeated complaints to her supervisor, her supervisor “made excuses for his disorderly conduct and did nothing.”
She further alleged that “after asking my male manager once again what was being done about my complaints, he told me he understood my harasser because he‘s a male and that he wanted to help him and related situation [sic] to his brother and himself both males.” Luevano further alleged that after complaining to the human resources district manager about her supervisor‘s unwillingness to stop her coworker‘s harassment, she was “then subjected to intimidation by my manager being watched on my breaks and ultimately they cut my hours.” Luevano also alleged that “as a result of the harassment I have suffered serious medical issues and expenses.” She attached to her form complaint her first EEOC charge and right to sue letter, an electronic time sheet showing her reduction in hours, a police report documenting a report she made against the male co-worker, and a medical form requesting leave of absence due to emotional and physical distress.
The original complaint stated claims for relief. As a preliminary matter, the pleading standards for pro se plaintiffs are considerably relaxed, Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), even in the wake of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). See Arnett v. Webster, 658 F.3d at 751 (reminding courts to “construe pro se complaints liberally and hold them to a less stringent standard than formal pleadings drafted by lawyers“); see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (explaining after Iqbal that the plaintiff need only “give enough details about the sub-
Furthermore, the Supreme Court has made clear that the pleading standards in Title VII cases are different from the evidentiary burden a plaintiff must subsequently meet when using the method of indirect proof under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (explaining that “we have rejected the argument that a Title VII complaint requires greater ‘particularity,’ because this would ‘too narrowly constric[t] the role of the pleadings’ “) (internal quotations omitted) (brackets in original). “In addition, under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case.” Id.
While there is some unresolved tension between Swierkiewicz and the Court‘s later decisions in Twombly and Iqbal, we have “affirmed our previous holdings that, in order to prevent dismissal under
The district court found that Luevano did not plead facts sufficient to show that her co-worker harassed her because of her sex. Even if that was correct, the district court failed to address Luevano‘s viable claim that her supervisor discriminated against her because of her sex and her claim that her supervisor subjected her to a hostile work environment.8 The court seemed to construe the complaint as alleging that only the male co-worker was the harasser, so that Luevano had not alleged that the harassment was motivated by a protected characteristic, in this case her sex. When the supervisor is the harasser, the employer is strictly liable, subject to an affirmative defense if there was no tangible employment action. Williams v. Waste Mgmt. of Ill., Inc., 361 F.3d 1021, 1029 (7th Cir. 2004).9
Luevano‘s first complaint pled facts consistent with supervisor-based harassment that, under the lenient pleading standards for pro se plaintiffs, were sufficient to state a claim that her supervisor harassed her because of her sex. She clearly pled that her supervisor chose not to remedy the situation because her supervisor and Luevano‘s co-worker were both males and her supervisor wanted to help him just as he helps his brother. She also attached documents, not required by the concise form provided by the Northern District of Illinois, indicating that she suffered medical consequences as a result of the alleged intimidation and harassment by her manager. Luevano thus sufficiently pled the facts necessary to state a claim that she was harassed by her supervisor.
Luevano‘s original, timely complaint also included a viable claim for retaliation. To plead a retaliation claim under Title VII, a plaintiff must allege that she engaged in statutorily protected activity and was subjected to adverse employment action as a result of that activity, though she need not use those terms, of course. See McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 483 (7th Cir. 1996). Even at the summary judgment stage, which requires more from the plaintiff than the pleading stage, “[t]o establish a prima facie case of retaliation, an employee need not present proof of a causal link between the protected expression in which the plaintiff engaged (as by filing a complaint about an unlawful act by his employer) and the adverse employment action of which he is complaining.” Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 897 (7th Cir. 2003) (internal quotations omitted). Here the statutorily protected activity was the filing of the complaint against Luevano‘s supervisor. The materially adverse action was reduction of assigned working hours. These were sufficient to meet the first two requirements of a prima facie claim, which is all Luevano needed to do at that stage.
Luevano thus sufficiently pled a claim for retaliation. Furthermore, a plaintiff “need not succeed on her sexual harassment claim to make out a prima facie case of retaliatory discharge.” Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994). “In order for plaintiff‘s expression to be protected by section 2000e-3(a), the challenged practice need not actually violate Title VII. Instead, it is sufficient if the plaintiff has a reasonable belief she is challenging conduct in violation of Title VII.” Holland v. Jefferson Nat‘l Life Ins. Co., 883 F.2d 1307, 1314 (7th Cir. 1989). The district court thus erred in finding that Luevano‘s first complaint failed to state a claim upon which relief could be granted for both supervisor-based harassment and retaliation.
Wal-Mart argues, and the district court found, that Luevano‘s third amended complaint could not relate back to her second amended complaint because the third amended complaint added a new claim under a new EEOC right to sue letter, which was based on a new EEOC charge alleging retaliation for having filed the first EEOC charge. Luevano contends the second amended complaint did refer to the second EEOC right to sue letter. The parties’ briefs have focused on the second right to sue letter and whether or not the third amended complaint can relate back to the second amended complaint because the second right to sue letter started a new ninety-day statute of limitations.
The district court‘s judgment dismissing the action is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.
Notes
The district court in this case denied Luevano‘s initial IFP petition. It did so because it incorrectly determined that the complaint failed to state a claim, not because Luevano could afford to pay the filing fee. If the district court had correctly denied Luevano‘s initial IFP petition, then we might face what Williams-Guice described as a “worst case” scenario, with an IFP complaint filed shortly before the statute of limitations was about to run out, which is often the case with employment discrimination cases. See 45 F.3d at 165. In that case, we might have to consider whether to extend the “reasonable time” that Williams-Guice sensibly suggested should be allowed for an unsuccessful IFP applicant to pay the filing fee, see id., to a case where the unsuccessful applicant responded with a successful amendment to the complaint. Because the district court erred in denying Luevano‘s original IFP application, though, our correction of that error in this decision means that Luevano‘s original complaint should be deemed filed in a timely manner, as if the district court had not made that error. Finally, note that a district court can avoid the complications we face here by keeping an IFP application under advisement, rather than denying it, while the plaintiff is given a reasonable but finite time to try to cure the problems the court finds with the complaint.