47 Fair Empl.prac.cas. 607,47 Empl. Prac. Dec. P 38,144deanna L. Brown, Plaintiff-appellant, v. Reliable Sheet Metal Works, Inc., Commonwealth Edisoncompany, and Russell Irish, Defendants-appellees, 852 F.2d 932 (7th Cir. 1988)

Deanna L. Brown filed a Title VII sex-discrimination action in the district court on August 11, 1986. The court dismissed the suit as untimely. We affirm.

While employed by Reliable Sheet Metal Works, Inc. at Commonwealth Edison's Byron Nuclear Power Plant, Brown claims that she was subjected to numerous sexual advances by her supervisor, Russell Irish. Brown alleges that Irish fired her after she rejected his unwelcome advances and threatened to report such conduct to his superiors. Reliable was a sheet-metal contractor at Edison's Byron Plant during its construction.

On March 7, 1985, Brown filed a sex-discrimination charge against Reliable, Edison, and Irish with both the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC"). Brown later withdrew her charge from the IDHR, but requested that the EEOC issue a right-to-sue letter, which it did on July 30, 1985. Brown's attorney received the letter on August 8, 1985. See Jones v. Madison Service Corp., 744 F.2d 1309, 1312 (7th Cir. 1984) (limitations period begins to run on date that claimant or her attorney receives the right-to-sue letter). Pursuant to Section 706 of Title VII, the letter instructed Brown that if she intended to sue the respondents named in her charge, such suit must be filed in the appropriate United States District Court within ninety days of receipt of the letter. 42 U.S.C. § 2000e-5(f) (1).

Rather than filing in the United States District Court, Brown filed a civil rights complaint on October 28, 1985 in the Circuit Court of Cook County naming Irish, Reliable, and Edison as defendants. Brown's complaint alleged sexual harassment and wrongful discharge in violation of her civil rights as well as intentional infliction of emotional distress. Although her complaint did not mention Title VII explicitly, we construe it as stating a Title VII cause of action.¹ 

All of the defendants moved to dismiss Brown's complaint for failure to exhaust her administrative remedies as required by the Illinois Human Rights Act ("IHRA"). See 68 Ill.Rev.Stat. Sec. 8-111(D) (1983). After Brown's attorney failed repeatedly to respond to the defendants' motions, the case was dismissed without prejudice to Brown's right to file a subsequent claim in federal court.

Brown did just that. On August 11, 1986, she filed a Title VII action in the United States District Court for the Northern District of Illinois. Pursuant to a defense motion, however, Judge Bua dismissed Brown's claim as untimely. Initially he ruled that Brown's state Title VII action tolled the ninety-day filing period, but that she had nonetheless filed her federal action one day too late. After considering Magistrate Rosemond's subsequent recommendation that the action be reinstated because of an error in computing the ninety-day filing period,²  Judge Bua, persuaded by two recent decisions of the district court, reconsidered his earlier position and held that,

the commencement of a state court Title VII sex discrimination action within 90 days of receiving the EEOC's right-to-sue letter [does not] toll [ ] the running of the 90-day filing period. Wisniewski v. Commonwealth Edison, 691 F. Supp. 56, (N.D. Ill. 1987) and Sager v. Hunter Corp., [665 F. Supp. 575] slip op., No. 86 C 5923 (N.D. Ill. Oct. 20, 1986).³ 

Brown's complaint was dismissed because it was filed in federal district court long after ninety days from the receipt of her right-to-sue letter. Brown appeals claiming that the filing period was tolled during the pendency of her interim state action.

A series of Supreme Court decisions beginning with Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976), make clear that Title VII's ninety-day filing period is subject both to waiver, see Mohasco Corp. v. Silver, 447 U.S. 807, 811 n. 9, 100 S. Ct. 2486, 2490 n. 9, 65 L. Ed. 2d 532 (1980), and equitable tolling, see Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S. Ct. 1723, 1725, 80 L. Ed. 2d 196 (1984); Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349, 103 S. Ct. 2392, 2395, 76 L. Ed. 2d 628 (1983); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982) (holding that Title VII's filing requirements are not jurisdictional). Baldwin County suggests that equitable tolling is appropriate where the plaintiff is misled by the defendant or notified improperly of her rights by the court, or where a motion for appointment of counsel is pending when the filing period expires. Id. 466 U.S. at 151, 104 S. Ct. at 1725 (citations omitted). Brown, however, does not contend that any of the defendants or the court lulled her into noncompliance with the limitations period. Nor is it contested that Brown was represented by counsel throughout these proceedings. Rather, she argues that her erroneous but good faith filing in Illinois state court tolled the ninety-day filing period because she had a reasonable legal basis for believing that Illinois offered an appropriate forum in which to bring her Title VII action.

Brown relies on Fox v. Eaton Corp., 615 F.2d 716 (6th Cir. 1980) and Valenzuela v. Kraft, Inc., 801 F.2d 1170 (9th Cir. 1986), modified on petition for reh'g, 815 F.2d 570 (1987), in which the Sixth and Ninth Circuits tolled the ninety-day period because the plaintiffs filed their state Title VII actions when concurrent jurisdiction over such claims appeared to exist. Each state subsequently rejected jurisdiction, however, and dismissed the plaintiffs claims. Although filed in federal district court after the expiration of the ninety-day period, both circuit courts permitted tolling and allowed the plaintiffs to bring their Title VII actions because of the perceived inequity of dismissing their claims simply because they failed to predict a subsequent rejection of state court jurisdiction.

Whatever the validity of equitable tolling in Fox and Valenzuela, it cannot support Brown's contentions here. For even though state jurisdiction over Title VII was not yet settled in Illinois when Brown filed her suit, see Patzer v. Board of Regents of University of Wisconsin Systems, 763 F.2d 851, 855 n. 4 (7th Cir. 1985), the IHRA clearly had limited state court jurisdiction over all employment discrimination actions by requiring that its administrative procedures first be exhausted. Thus, unlike the plaintiffs in Fox and Valenzuela, Brown had no reasonable basis to believe that she could bring her Title VII action directly in the Illinois courts.

That the Illinois legislature intended to preclude direct access to the courts for all civil rights claims is evidenced by the IHRA's prohibition that:Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this act.

68 Ill.Rev.Stat. Sec. 8-111(D); see also Cahoon v. Alton Packaging Corp., 148 Ill.App.3d 480, 101 Ill.Dec. 934, 499 N.E.2d 522 (5th Dist.1986), appeal dismissed, --- U.S. ----, 107 S. Ct. 3202, 96 L. Ed. 2d 689 (1987) (although decided after Brown filed her claim, the court's rejection of direct access for a federal ADEA claim was based on the plain language and clear intent of the IHRA that all civil rights claims be prosecuted in the administrative forum before reaching the court). Moreover, before Brown filed her civil rights action, the Illinois Supreme Court clearly recognized the broad preemptive effect of the IHRA and the need to exhaust its extensive administrative requirements before invoking state court jurisdiction over any civil rights claim.⁴  See Mein v. Masonite Corp., 109 Ill. 2d 1, 92 Ill.Dec. 501, 485 N.E.2d 312 (1985); see also Thakkar v. Wilson Enterprises, Inc., 120 Ill.App.3d 878, 76 Ill.Dec. 331, 458 N.E.2d 985 (1st Dist.1983); Dykstra v. Crestwood Bank, 117 Ill.App.3d 821, 73 Ill.Dec. 307, 454 N.E.2d 51 (1st Dist.1983). Although the Mein court dealt with an age discrimination claim brought under the Illinois Human Rights Act, it rejected direct access to the Illinois courts for redress of all civil rights violations without qualification. Thus, to preserve the state's administrative scheme for settling civil rights disputes, the court held that

courts have no jurisdiction to hear independent actions for civil rights violations. It is clear that the legislature intended the Act, with its comprehensive scheme of remedies and administrative procedures, to be the exclusive source for redress of alleged human rights violations.

Mein, 92 Ill.Dec. at 304, 485 N.E.2d at 315.

The absolute language of the IHRA along with the Illinois Supreme Court's unqualified rejection of direct state court jurisdiction over civil rights claims and the defendants' motions to dismiss for failure to exhaust the IHRA's administrative requirements, all put Brown overwhelmingly on notice that she lacked any reasonable legal basis for invoking state court jurisdiction over her claims. Equitable tolling is particularly inappropriate where Brown not only filed erroneously in state court despite abundant notice that she first needed to exhaust the IHRA's administrative requirements, but also where she failed even to pursue the state action she now claims, in equity, should permit her to refile in federal court. Unlike the claimants in Valenzuela and Fox, Brown has neither "exercised great diligence" nor "demonstrated the due diligence which statutes of limitations are designed to engender." See Baldwin County, 466 U.S. at 151, 104 S. Ct. at 1725 ("One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.").⁵ 

The judgment of the district court is AFFIRMED.