Bettina S. Sharp v. United Airlines, Incorporated

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1875
BETTINA S. SHARP,
Plaintiff-Appellant,
v.
UNITED AIRLINES, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 0478--Elaine E. Bucklo, Judge.
Argued October 30, 2000--Decided January 2, 2001
Before RIPPLE, DIANE P. WOOD and EVANS, Circuit
Judges.
RIPPLE, Circuit Judge. Bettina Sharp brought
this cause of action against her former employer,
United Airlines, Inc. ("United"), in which she
alleged that United discriminated against her
based on her pregnancy. The district court
granted summary judgment for United. For the
reasons set forth in the following opinion, we
affirm the judgment of the district court.
I
BACKGROUND
A. Facts
Ms. Sharp worked as a flight attendant for
United from July 1990 until October 1993, when
she, along with other female attendants, were
terminated for exceeding United’s weight
restrictions. Those terminated brought a class
action lawsuit in the Northern District of
California, Frank v. United Airlines, Inc.
("Frank litigation"), No. C-92-0692, in which
they alleged that United’s weight policy
discriminated against them on the basis of their
sex, age, and disability.
In February 1995, United offered reinstatement
to fourteen former flight attendants, including
Ms. Sharp, who were class members in the Frank

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litigation. In a letter to the class members’
lawyer, United offered to reinstate the women
with no loss of seniority. United further stated
that it would treat the litigants’ time off the
job as a leave of absence. Finally, the offer did
not require the women to waive any potential
claims against United arising out of the initial
termination. United stated that the offer would
remain open for thirty days, after which time it
would be deemed rejected. All fourteen former
attendants received identical offers.
United was able to contact ten of the fourteen
flight attendants immediately; of the ten
individuals that were contacted, seven accepted
the offer within the specified time period. Two
indicated they would like to accept but could not
due to individual circumstances (one had started
school and another was living in Uruguay). Ms.
Sharp, through the attorney representing the
class, advised United that she "would like to
accept but [was] pregnant and [could not] go
through requalifying until after the delivery and
recuperation." R.40, para. 43 (internal quotation
marks and citations omitted). Thus, she did not
accept United’s offer.
The remaining four women ultimately were located
and contacted. United permitted those women to
accept its offer after the original deadline had
expired, as long as they accepted the offer
within thirty days after they received notice of
it. All four accepted within the thirty-day
window.
In April 1996, nine months after the birth of
her child, Ms. Sharp requested that United renew
its offer for reinstatement with full seniority.
Through the lawyer representing the class, she
informed United that she was recovered fully and
she wanted to return to work. The next month, Ms.
Sharp wrote directly to United; she explained
that the original offer had come at the "wrong
time" for her to accept because she had been in
the last two trimesters of a high-risk pregnancy.
R.40, Ex.D at Ex.21. She also advised United that
her doctor had suggested that she not return to
work for one year following the delivery to
permit her time to recuperate.
United decided in August 1996 not to renew its
original reinstatement offer. United’s counsel
indicated that two other women had turned down
its offer and that Ms. Sharp’s reason for
declining did not warrant an exception,
especially given that Ms. Sharp could have
accepted the offer and promptly taken maternity
leave. At this time, Ms. Sharp realized that
United would not renew the original offer of
reinstatement.

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Ms. Sharp and her husband, a United pilot, then
directly lobbied various United officials to
renew the original reinstatement offer. In
February 1998, in response to these inquires,
United sent, through the attorney representing
the class, a revised reinstatement offer to Ms.
Sharp. According to the terms of this offer, Ms.
Sharp would retain her seniority for the time
periods she worked between 1990 and 1993.
However, she would be required to sign a general
release and waive her participation in any
litigation against United. The offer remained
open for fourteen days.
On March 3, 1998, Ms. Sharp’s attorney advised
United that Ms. Sharp would not accept the second
reinstatement offer because the terms were less
favorable than those contained in the first
reinstatement offer. Then, Ms. Sharp filed a
charge of discrimination with the Equal
Employment Opportunity Commission. The charge
alleged that United had discriminated against Ms.
Sharp on the basis of her pregnancy because
"other non-pregnant flight attendants were
reinstated with seniority and were not requested
to sign any waivers." R.26, Ex.3. The EEOC was
unable to conclude that United’s actions violated
Title VII and, therefore, dismissed the charge in
November 1998.
B. District Court’s Disposition
Ms. Sharp filed her complaint in district court
in January 1999. In her complaint, Ms. Sharp
alleged that United had discriminated against her
on the basis of her sex and her pregnancy when it
failed to renew its initial offer of
reinstatement to her after the birth of her
child. United denied the material allegations of
the complaint and raised three affirmative
defenses: 1) the complaint failed to state a
claim for which relief could be granted; 2) Ms.
Sharp’s claims were untimely in that she failed
to bring her charge of discrimination within the
300 day statute of limitations; and 3) Ms. Sharp
failed to mitigate her damages.
Shortly thereafter, United moved for summary
judgment on several grounds. United maintained
that Ms. Sharp’s claim was based solely on the
1998 offer of reinstatement, which was a
settlement offer and therefore inadmissible under
Federal Rule of Evidence 408. United also
contended that Ms. Sharp could not make out a
prima facie case of pregnancy discrimination
because she was not pregnant at or near the time
that the discriminatory conduct allegedly took
place. Furthermore, United argued, Ms. Sharp’s
claims were untimely: "[Ms.] Sharp," it stated,

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"did not file a discrimination charge in 1996
when she understood that United was not renewing
its earlier offer. The only act that occurred
within 300 days of her charge was United’s 1998
offer giving her a second chance to return to
work in exchange for a waiver of current and
potential claims." R.24 at 8-9 (internal
citations omitted). Finally, United maintained
that Ms. Sharp could not come forward with
evidence that non-pregnant, former United
employees had been treated more favorably than
she had been treated.
The district court granted United’s motion for
summary judgment. It held that Ms. Sharp had
failed to establish a prima facie case of
pregnancy discrimination. Specifically, the
district court determined that Ms. Sharp had not
shown the requisite connection between her
pregnancy and United’s failure to reinstate her
pursuant to the terms of its original offer.
Moreover, the district court concluded, Ms. Sharp
had not set forth sufficient evidence to show
that her pregnancy, rather than her decision not
to accept United’s initial reinstatement offer,
was the reason United rejected her later attempt
to return to work. The district court did not
address whether Ms. Sharp had filed her charge
with the EEOC within the applicable statute of
limitations. Ms. Sharp now appeals the district
court’s judgment in favor of United.
II
DISCUSSION
We review de novo the district court’s grant of
summary judgment. See Silk v. City of Chicago,
194 F.3d 788, 798 (7th Cir. 1999). "Summary
judgment is proper if the record as a whole shows
that there is no genuine issue as to any material
fact and that the moving party is entitled to
judgment as a matter of law." Moore v. J.B. Hunt,
Inc., 221 F.3d 944, 950 (7th Cir. 2000) (internal
quotation marks and citations omitted). In
conducting our review, however, we are not bound
to the issues determined by the district court;
we may affirm a grant of summary judgment "on a
ground other than that relied upon by the
district court . . . so long as the alternative
basis finds adequate support in the record."
Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d
560, 562 (7th Cir. 1996).
On appeal, Ms. Sharp maintains that the district
court erred in granting summary judgment for
United because she established a prima facie case
of pregnancy discrimination. She further asserts
that she came forward with evidence that United’s
proffered justification for treating her
differently, that she rejected United’s first

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offer of reinstatement, was not worthy of
credence. Finally, Ms. Sharp takes issue with the
district court’s determination that she would be
entitled to relief only if she had established
that the underlying discharge was discriminatory.
It is unnecessary to address these issues,
however, because we conclude that Ms. Sharp’s
action is time-barred.
Ms. Sharp makes clear in her complaint, in her
opposition to United’s motion for summary
judgment, and in her brief to this court that
United’s alleged discriminatory act was its
failure to renew its original offer of
reinstatement to her after she had indicated
interest in returning to work. See R.1 at 3
("Defendant discriminated against plaintiff
treating her differently than other non-pregnant
employees who were reinstated without losing
their seniority or being required to sign
litigation waivers."); R.40 at 1 ("Plaintiff was
discriminated against because United refused to
reinstate her on the same terms it did regarding
similarly situated individuals who were not
pregnant."); Appellant’s Br. at 7 ("This instant
action is a claim of pregnancy discrimination
arising out of defendant United Airline’s
(United) decision to reinstate a class of flight
attendants who had been discharged under a weight
control program. Although Ms. Sharp . . . was a
member of that class, United refused to reinstate
her because she was pregnant."). According to her
deposition testimony, Ms. Sharp became aware of
the fact that United was not going to renew its
original offer of reinstatement in 1996. See
R.26, Ex.2 at 59. She also was aware in 1996 that
United had renewed the original offer to other
flight attendants, whom United had been unable to
contact during the pendency of the original offer
period; Ms. Sharp believed that United’s refusal
to reinstate her on the same terms as those
offers was "unjust" and "discriminatory." R.26,
Ex.2 at 33-35.
According to statute, a plaintiff in a deferral
state such as Illinois must file a charge of
discrimination with the EEOC or equivalent state
agency within 300 days after the "alleged
unlawful employment practice." 42 U.S.C. sec.
2000e-5(e)(1). The 300-day limit, we have stated,
begins to run when the defendant has taken the
action that injures the plaintiff and when the
plaintiff knows she has been injured, see Cada v.
Baxter Healthcare Corp., 920 F.2d 446, 449-50
(7th Cir. 1990), "not when [she] determines that
the injury was unlawful," Thelen v. Marc’s Big
Boy Corp., 64 F.3d 264, 267 (7th Cir. 1995).
Ms. Sharp has identified the "alleged unlawful
employment practice" as United’s refusal to renew

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the original settlement offer. Furthermore,
according to Ms. Sharp’s own testimony, United
communicated this refusal in August 1996, and she
became aware of it at that time. Nevertheless,
Ms. Sharp did not file her charge of
discrimination until almost two years later on
June 18, 1998. Consequently, Ms. Sharp’s charge
was untimely, and that untimeliness bars the
present action. See Conley v. Village of Bedford
Park, 215 F.3d 703, 710 (7th Cir. 2000).
In response to the timeliness argument in the
district court, Ms. Sharp argued that either
equitable estoppel, equitable tolling, or the
continuing violation theory saved her claim. Ms.
Sharp failed to reiterate these arguments on
appeal and, as a practical matter, those
arguments are waived. See Hardy v. City Optical
Inc., 39 F.3d 765, 771 (7th Cir. 1994) (stating
that, when an appellant does not respond in his
reply brief to an alternative ground for
upholding the ruling, the appellant "waives, as a
practical matter anyway, any objections not
obvious to the court to specific points urged by
the appellee").
However, even if Ms. Sharp had pressed her
arguments on appeal, we do not believe that
equitable estoppel, equitable tolling, or the
continuing violation theory render Ms. Sharp’s
action timely. The doctrine of equitable
estoppel, also known as fraudulent concealment,
"is available if the defendant takes active steps
to prevent the plaintiff from suing in time."
Jackson v. Rockford Housing Auth., 213 F.3d 389,
394 (7th Cir. 2000) (internal quotation marks and
citations omitted). In her submissions to the
district court, Ms. Sharp pointed only to
United’s willingness to respond to her requests
for reconsideration as the action that caused her
to delay in filing a charge of discrimination. We
previously have held, however, that when an
employer provides an avenue (or avenues) for
review of adverse employment actions, without
more, the doctrine of equitable estoppel is not
applicable. See Lever v. Northwestern Univ., 979
F.2d 552, 555-56 (7th Cir. 1992) (stating that
pursuing a grievance via an internal grievance
proceeding does not postpone accrual of a claim
under Title VII).
Equitable tolling does little more to save Ms.
Sharp’s claims. "A plaintiff may toll the statute
of limitations if, despite all due diligence, he
is unable to obtain enough information to
conclude that he may have a discrimination
claim." Thelen, 64 F.3d at 268. Yet, by her own
admission, Ms. Sharp was aware in August 1996
that United did not intend to renew its original
offer of reinstatement to her and also that

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United had renewed the same offer to other
employees. Consequently, Ms. Sharp had adequate
information in August 1996 to file a charge of
discrimination.
Finally, Ms. Sharp has not come forward with
evidence of a "continuing violation" that might
extend the statute of limitations. Before the
district court, Ms. Sharp argued that United’s
subsequent refusals to reconsider its decision of
August 1996 (not to renew the original offer),
culminating in the less-generous 1998 offer,
constituted a continuing course of pregnancy
discrimination. However, "[a]n employer’s refusal
to undo a discriminatory decision is not a fresh
act of discrimination." Lever, 979 F.2d at 556.
Consequently, United’s subsequent refusal to
reconsider the August 1996 decision does not
constitute a separate act of discrimination and
cannot bring Ms. Sharp’s claims within the 300-
day statute of limitations.
Conclusion
For the foregoing reasons, we affirm the
judgment of the district court.
AFFIRMED

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