Earl Kelly Prince v. Marilyn Stewart

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1632
EARL KELLY PRINCE,
Plaintiff-Appellant,
v.
MARILYN STEWART, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 5849—Ronald A. Guzmán, Judge.
SUBMITTED JULY 29, 2009—DECIDED SEPTEMBER 2, 2009
Before POSNER, COFFEY, and MANION, Circuit Judges.
POSNER, Circuit Judge. Earl Kelly Prince worked for the
Chicago Teachers Union until he was fired in the
summer of 2004. In November he filed a charge of dis-
crimination with the Illinois Department of Human
Rights. When almost a year passed without any response
from either the Department or the EEOC, he filed this
lawsuit against the union and several of its officers. The
complaint charges employment discrimination in viola-

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2 No. 08-1632
tion of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq., and the Age Discrimination in Employ-
ment Act, 29 U.S.C. §§ 621 et seq.; race discrimination in
violation of the Constitution, actionable under 42 U.S.C.
§ 1981; and breach of contract under Illinois law.
The district court dismissed the suit in December 2006,
without prejudice, because Prince had not obtained a right-
to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f); 29
U.S.C. § 626(e). The EEOC finally sent him a right-to-sue
letter in April 2007, but it was returned by the post office
as unclaimed. The Commission mailed the letter again,
and Prince acknowledges having received it on July 25.
Nine days later he filed a motion to reopen his case. The
district judge granted the motion, as he was auth-
orized to do by Rule 60(b)(6) however the motion was
captioned. Ahmed v. Dragovich, 297 F.3d 201, 208-09 (3d Cir.
2002); cf. Chambers v. City of Fordyce, 508 F.3d 878, 881 (8th
Cir. 2007) (per curiam). That subsection of Rule 60(b) is
broad enough (see, e.g., Klapprott v. United States, 335 U.S.
601, 614-15 (1949); Donald v. Cook County Sheriff’s Dep’t,
95 F.3d 548, 553-54, 558 (7th Cir. 1996); Knox v. Lichenstein,
654 F.2d 19, 21-22 (8th Cir. 1981))—it authorizes the
setting aside of a final judgment on any ground not
specified in the preceding subsections (“any other reason
justifying relief from the operation of the judgment”)—to
encompass the reopening of a proceeding that had been
dismissed without prejudice because it had been filed
prematurely. But when a few days after the motion
was granted Prince asked to withdraw it because he
would be out of state and unable to proceed with the case

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No. 08-1632 3
immediately, the judge vacated the order that he had
entered reopening the case, and so the dismissal of
Prince’s suit stood.
On October 23, 2007, exactly 90 days after receiving
the re-sent right-to-sue letter, Prince filed a second
motion to reopen. The judge responded three weeks
later by denying the motion and stating that if Prince
wanted to pursue his claims he would have to bring a
new lawsuit. He could not do that, because by now the
statute of limitations had expired. Instead he filed a
“motion for clarification” in which he argued that he
should be allowed to proceed without filing a new com-
plaint because he had moved (the reference is to the
second motion) to reopen his case within 90 days after
receiving the right-to-sue letter and so within the
statutes of limitations applicable to his employment-
discrimination claims; the 90 days run from the date of
receipt, not of mailing. 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C.
§ 626(e); Reschny v. Elk Grove Plating Co., 414 F.3d 821, 823
(7th Cir. 2005); Houston v. Sidley & Austin, 185 F.3d 837, 838-
39 (7th Cir. 1999). The district judge denied the motion,
telling Prince that litigation is not a “yo-yo game” and
“you can’t come in here every other week and change
your mind about whether or not you want the case to
go forward.”
Prince appeals from the denial of his second motion to
reopen. The defendants argue that we lack jurisdiction
of the appeal because he didn’t file a notice of appeal
within 30 days of the order dismissing his complaint.
But he is not asking us to review that dismissal. His

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4 No. 08-1632
second motion to reopen, like his first, was authorized by
Fed. R. Civ. P. 60(b)(6)—and indeed exemplifies the use
of the rule as “the proper remedy for situations where
a series of misunderstandings took place between
counsel [in this case the litigant himself, since he had no
lawyer] and the district judge.” Knox v. Lichtenstein, supra,
654 F.2d at 22; see also International Association of Heat &
Frost Insulators & Asbestos Workers, 516 F.2d 504 (5th
Cir. 1975) (per curiam). And the denial of such a motion
is reviewable independently of the earlier order
dismissing the complaint. SEC v. Van Waeyenberghe, 284
F.3d 812, 814 (7th Cir. 2002) (per curiam). And despite
its caption the motion that Prince filed within 10 days
for clarification of the denial of his second motion chal-
lenged the legal basis for the denial and is therefore
deemed a motion to alter or amend that denial within
the meaning and 10-day deadline of Fed. R. Civ. P. 59(e).
Martinez v. City of Chicago, 499 F.3d 721, 727 (7th Cir.
2007). Prince appealed within 30 days of the denial of
that timely motion, which makes his appeal also timely.
Id. at 724-25.
We thus have jurisdiction and can proceed to the
merits of the second motion to reopen. Prince filed the
motion as we said on the ninetieth day after receiving
the EEOC’s right-to-sue letter. Had he instead refiled
his original complaint that day he would have been
entitled to an adjudication of his claims because his
suit would have been timely. But of course by the time
the motion was denied it was too late for him to bring
a new suit; his 90 days had expired.

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No. 08-1632 5
When the district judge granted Prince’s first motion to
reopen this told Prince—a pro se litigant—that moving to
reopen was a permissible way to proceed now that he
had obtained the right-to-sue letter. Prince should not
have followed up the grant of the motion by asking the
court to halt proceedings and reinstate the dismissal of
his suit because he was not yet ready to proceed. There
was as yet no schedule telling the parties when to file
what, so there was no need for Prince to worry about
not being able to proceed immediately with the further
stages of the litigation. He made a mistake in asking the
judge to reinstate the dismissal of this suit, but the
mistake harmed no one. It merely irritated the judge.
The defendants argue that the second motion to
reopen was properly denied because Prince filed it 97 days
after the EEOC re-sent the right-to-sue letter. But the
limitations period in both Title VII and the ADEA begins
to run, as we said, when the claimant receives the letter,
not when it was sent, and Prince claims to have first
received it on the ninetieth day before he filed the mo-
tion. The defendants, who have the burden of proving that
the suit was untimely, e.g., Mosely v. Board of Education, 434
F.3d 527, 535 (7th Cir. 2006); Tregenza v. Great American
Communications Co., 12 F.3d 717, 718 (7th Cir. 1993); Ebbert
v. DaimlerChrysler Corp., 319 F.3d 103, 108 (3d Cir. 2003),
may be able to prove that Prince received the first mailing
but deliberately or carelessly refused to open it, or was
otherwise responsible for not reading it; in either of those
events the limitations period would have begun to run in
April 2007 and his suit would be time-barred. Reschny v.
Elk Grove Plating Co., supra, 414 F.3d at 823; Covington v.

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6 No. 08-1632
Illinois Security Service, Inc., 269 F.3d 863, 865 (7th Cir.
2001); Kerr v. McDonald’s Corp., 427 F.3d 947, 952 (11th Cir.
2005) (per curiam); Graham-Humphreys v. Memphis Brooks
Museum of Art, Inc., 209 F.3d 552, 558 (6th Cir. 2000); Hunter
v. Stephenson Roofing, Inc., 790 F.2d 472 (6th Cir. 1986). A
motion to reopen may not be used to extend the statute of
limitations when there is no ground for tolling the statute.
But at this stage there is no indication of why the letter
initially was unclaimed, and so we must (though only
provisionally) take Prince at his word that, through no
fault of his own, he first received it on July 25. St. Louis v.
Alverno College, 744 F.2d 1314, 1317 (7th Cir. 1984).
Assuming the second motion was timely, we can’t see
any reason for the district court’s having denied it and by
doing so prevented Prince from pursuing what for all
we know is a meritorious case. This is not a case like
Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984)
(per curiam), where instead of filing a complaint within
90 days of receiving the right-to-sue letter the plaintiff
filed the letter and asked the court to deem it a com-
plaint. The district court in that case had done nothing
to confuse the plaintiff about how to proceed; nor had
she any other excuse that would have justified tolling
the 90-day statute of limitations. In this case, by granting
the plaintiff’s initial motion to reopen, the district court
lulled him into thinking he didn’t have to refile his com-
plaint; and lulling a pro se litigant provides a valid basis
for invoking equitable tolling to stop the running of the
statute of limitations, as in Warren v. Department of the
Army, 867 F.2d 1156 (8th Cir. 1989). Equitable tolling is
properly invoked in any case in which “the court has led

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No. 08-1632 7
the plaintiff to believe that she had done everything
required of her,” Baldwin County Welcome Center v. Brown,
supra, 466 U.S. at 151, or has “misled a party regarding the
steps that the party needs to take to preserve a claim.”
Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005); see, e.g.,
Seitzinger v. Reading Hospital & Medical Center, 165 F.3d
236, 240 (3d Cir. 1999); Browning v. AT&T Paradyne,
120 F.3d 222, 227 (11th Cir. 1997); Carlile v. Spouth Routt
School District Re 3-J, 652 F.2d 981, 986 (10th Cir. 1981); cf.
Early v. Bankers Life & Casualty Co., 959 F.2d 75, 81 (7th
Cir. 1992); Anderson v. Unisys Corp., 47 F.3d 302, 306-07
(8th Cir. 1995); Martinez v. Orr, 738 F.2d 1107, 1112
(10th Cir. 1984).
The judgment of the district court is therefore reversed
and the case remanded for further proceedings con-
sistent with this opinion.
REVERSED AND REMANDED.
9-2-09

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