Mary Grzanecki v. Bravo Cucina Italiana

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 9, 2011*
Decided February 11, 2011
Before
JOHN L. COFFEY, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 10-2294
MARY GRZANECKI,
Plaintiff-Appellant,
v.
BRAVO CUCINA ITALIANA, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 10 C 736
James F. Holderman,
Chief Judge.
O R D E R
Mary Grzanecki appeals the dismissal with prejudice of an action she brought under
the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34, against her former
employer, the restaurant Bravo Cucina Italiana. The district court concluded that
Grzanecki’s action was untimely because she alleged that she had received a right-to-sue
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
The appellees were not served with process in the district court and are not*
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Accordingly, the appeal is submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2)(C).

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No. 10-2294 Page 2
letter from the Equal Employment Opportunity Commission more than 90 days before
filing her complaint, and that she did not qualify for equitable tolling. We affirm.
Grzanecki alleged that Bravo hired her as a server in August 2008, when she was 49
years old, only to demote her soon thereafter to hostess and reduce her hours in order to
accommodate the schedule of a 22-year-old coworker. When Grzanecki lodged a grievance
with a human resources officer, the defendants allegedly retaliated by harassing her in
unspecified ways and then firing her in December 2008.
According to her complaint, Grzanecki filed a charge against Bravo with the EEOC
and then received a right-to-sue letter on October 31, 2009. The letter informed her that she
had 90 days from receipt of the letter to file a lawsuit. See 29 U.S.C. § 626(e); 42 U.S.C.
§ 2000e-5(f)(1); DeTata v. Rollprint Packaging Prods., Inc., —— F.3d ——, 2011 WL 93034, at *5
(7th Cir. Jan. 12, 2011). On February 2, 2010—94 days later— Grzanecki filed her complaint
and an accompanying motion to proceed as a pauper. The district court screened the
complaint under 28 U.S.C. § 1915(e)(2)(B) and denied Grzanecki leave to proceed
in forma pauperis without prejudice; the court pointed out that her own allegations
confirmed the suit’s untimeliness, but permitted her to amend the complaint to add
allegations that might warrant equitable tolling.
In an amended complaint, Grzanecki explained that she had tried to learn from the
EEOC and the court’s intake department whether the 90-day limit included holidays and
weekends, but did not get an answer. Her confusion, she alleged, was compounded by
distress at her mother’s death and her loss of another job. Alternatively, she asserted that
federal procedure deals in business days rather than calendar days, that various statutes
guaranteed her a longer limitations period anyway, and that the period was tolled by the
restaurant’s ongoing, “larger program of discrimination.”
The district court dismissed the complaint with prejudice, concluding that equitable
tolling was unwarranted because neither the court nor any of the defendants had misled
Grzanecki into filing late. Further, the court determined that none of the cited statutes
bearing longer limitations periods applied to ADEA suits, and that no legal authority
supported her contention that a defendant’s ongoing discrimination against other
employees tolls the period applicable to her.
On appeal Grzanecki devotes most of her brief to recounting the chronology of these
proceedings, and she again asserts in general terms that she was entitled to pauper status
and more than 90 calendar days to file the complaint. But equitable tolling is available only
when the court or an opponent takes some action that lulls or misleads a plaintiff into filing
late. Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984); Prince v. Stewart, 580 F.3d

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No. 10-2294 Page 3
571, 575 (7th Cir. 2009). As the district court concluded, the refusal of the EEOC and court
to provide legal advice did not affirmatively mislead Grzanecki.
Further, the district court correctly determined that the Federal Rules of Civil
Procedure, both before and after their 2009 amendment, required the inclusion of weekends
and holidays in a 90-day period. Compare FED. R. CIV. P. 6(a)(1)(B) (2010) (including
weekends and holidays in all periods unless otherwise specified), with id. 6(a)(2) (2008)
(amended Dec. 2009) (weekends and holidays included in periods longer than 11 days).
The court’s Local Rules do not provide otherwise.
Equally unavailing is Grzanecki’s argument that some limitations period other than
90 days applied. As the district court recognized, the statutes she cites, such as 28 U.S.C.
§ 1658, have nothing to do with the ADEA. Nor has she pointed to any legal authority to
support her contention that a plaintiff may ignore the 90-day limit when a defendant
continues to discriminate against other employees.
Finally, although we acknowledge that dismissing an action as untimely at the
pleading stage is unusual, we have held that a district court may so proceed under Rule
12(b)(6) if the plaintiff pleads herself out of court by making allegations that conclusively
establish the action’s untimeliness. Cancer Found., Inc., v. Cerberus Capital Mgmt., LP, 559
F.3d 671, 674-75 (7th Cir. 2009); United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005);
Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002). We see no reason to treat dismissal
under § 1915(e)(2)(B) any differently. The district court exercised adequate care by inviting
Grzanecki to add allegations in support of equitable tolling, and the dismissal of her
amended complaint was proper.
AFFIRMED.

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