In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-2837 & 10-3054

JANICE DRAPER, BRAD CLEARWATER, and

JULIE NEPOSCHLAN,

Plaintiffs-Appellants,

v.

TIMOTHY MARTIN, et al.,

Defendants-Appellees.

ANN LIBRI,

Plaintiff-Appellant,

v.

PATRICK J. QUINN, Governor of the

State of Illinois, et al.,

Defendants-Appellees.

Appeals from the United States District Court

for the Central District of Illinois.

Nos. 06-3138 & 06-3167—Jeanne E. Scott and Richard Mills, Judges.

ARGUED OCTOBER 18, 2011—DECIDED DECEMBER 30, 2011

Before EASTERBROOK, Chief Judge, and RIPPLE and

KANNE, Circuit Judges.
2 Nos. 10-2837 & 10-3054

Plaintiff-Draper’s letter contained one additional phrase 1

indicating that the abolishment was “due to lack of work.”

The other three notices did not contain this phrase.

KANNE, Circuit Judge. In two separate suits, a total

of four former Illinois Department of Transportation

(“IDOT”) employees alleged they were wrongfully terminated because of their political beliefs and party affiliation. In each case, the district court granted the defendants’ motion for summary judgment on the ground

that Illinois’s two-year statute of limitations barred the

plaintiffs’ claims. We affirm.

I. BACKGROUND

The state of Illinois faced serious budgetary challenges

near the end of fiscal-year 2004. To address the projected

budget shortfall, the drafters of the 2005 budget sought

to “[s]treamline operations and improve efficiency by

consolidating functions and reorganizing operations.”

Stripping away the euphemisms, the budget called for a

significant staff reduction, including 190 employee layoffs at IDOT.

Although there is some dispute about whether IDOT

actually created a reorganization plan, it is undisputed

that plaintiffs Janice Draper, Brad Clearwater, Julie

Neposchlan, and Ann Libri (collectively the “Plaintiffs”)

received layoff notices no later than June 15, 2004. The

written notice received by each employee was identical

in all material respects, stating: 1
Nos. 10-2837 & 10-3054 3

The district court replaced Defendant-Martin with 2

current IDOT Secretary, Gary Hanning, pursuant to Fed. R.

Civ. P. 25(d).

Plaintiff Libri does not appeal counts IV through VI, which 3

all relate to her attempt to certify a class of terminated

IDOT employees.

The Department is currently undergoing material

reorganizations. Your position . . . is targeted for

abolishment. The Department has no vacancies

to offer you at this time. Therefore, it is with

regret that I inform you that you will be laid

off . . . effective close of business June 30, 2004.

On June 30, 2006, exactly two years after the effective

date of their terminations, plaintiffs Draper, Clearwater,

and Neposchlan (the “Draper Plaintiffs”) filed a

two-count complaint pursuant to 42 U.S.C. § 1983 in the

United States District Court for the Central District of

Illinois. IDOT managers Timothy Martin, Scott Doubet,

2

Robert Millette, and Robin Black, and IDOT contractor

Michael Stout were named as defendants (the “Draper

Defendants”). The Draper Plaintiffs first alleged that

their terminations were politically motivated in violation

of the First Amendment, and second, that they were

denied a property interest in their jobs in violation of

the Fourteenth Amendment. On similar grounds, Plaintiff Libri filed an eight-count complaint in Illinois state

3

court naming Martin, Stout, and Doubet and adding
4 Nos. 10-2837 & 10-3054

The district court replaced Defendant-Blagojevich for Gov- 4

ernor Patrick J. Quinn pursuant to Fed. R. Civ. P. 25(d).

then-Governor Rod Blagojevich and IDOT manager

4

Jacob Miller as defendants (the “Libri Defendants”). The

Libri-Defendants removed the complaint to federal

court and the district court exercised supplemental jurisdiction over the state-law claims.

In both cases, the Defendants moved for summary

judgment arguing Illinois’s statute of limitations

barred Plaintiffs’ claims. Judge Scott granted the

Draper-Defendant’s summary judgment motion on

July 6, 2010, and Judge Mills similarly granted the

Libri-Defendant’s summary judgment motion on July 15,

2010. The Plaintiffs in both cases filed this timely

appeal, and we consolidated the cases.

II. ANALYSIS

Summary judgment is appropriate only when “the

movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). We review grants

of summary judgment de novo, Berry v. Chicago Transit

Auth., 618 F.3d 688, 690 (7th Cir. 2010), viewing the

record in the light most favorable to the Plaintiffs and

drawing all reasonable inferences in their favor, McCann

v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir.

2010). Although we have previously cautioned against

weighing evidence at summary judgment, Kodish v.
Nos. 10-2837 & 10-3054 5

In a four-sentence concluding paragraph, the Plaintiffs 5

summarily argue that we should apply the doctrine of

equitable tolling to the extent that we find their claims barred

by the statute of limitations. See Mull v. ARCO Durethene

Plastics, Inc., 784 F.2d 284, 291 (7th Cir. 1986) (equitable tolling

focuses on “the plaintiff’s excusable ignorance of the limitations period and on lack of prejudice to the defendant”). But,

the Plaintiffs fail to offer any record citations or analysis

supporting such a claim and we “will not hunt through the

record” looking for corroborating evidence. Gross v. Town of

Cicero, Ill., 619 F.3d 697, 705 (7th Cir. 2010). Accordingly, we

deem their undeveloped argument waived and we need not

consider it. See Crawford v. Countrywide Home Loans, Inc., 647

F.3d 642, 650 (7th Cir. 2011).

Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 507 (7th

Cir. 2010), we have also said that “a factual dispute is

‘genuine’ only if a reasonable jury could find for either

party,” SMS Demag Aktiengesellschaft v. Material Scis. Corp.,

565 F.3d 365, 368 (7th Cir. 2009).

The sole issue for our review is whether the Plaintiffs

filed their complaints within the appropriate statute

of limitations window. In Illinois, the statute of limita- 5

tions period for § 1983 claims is two years, 735 ILCS

5/13-202; Jenkins v. Vill. of Maywood, 506 F.3d 622, 623 (7th

Cir. 2007), and the claim accrues “when the plaintiff

knows or should know that his or her constitutional

rights have been violated,” Hileman v. Maze, 367 F.3d 694,

696 (7th Cir. 2004) (quoting Kelly v. City of Chicago, 4

F.3d 509, 511 (7th Cir. 1993)). We use a two-step test to

determine the accrual date: (1) we identify the injury
6 Nos. 10-2837 & 10-3054

The Plaintiffs attempt to construe Potter as holding the 6

statute of limitations begins accruing on the effective date of

termination. This misstates the holding in Potter. Instead,

Potter addresses a Title VII regulation, 29 C.F.R. § 1614.105,

which provides that federal employees fearing discrimination

must “initiate contact with a[n EEOC] Counselor within

45 days of the date of the matter alleged to be discriminatory

or, in the case of personnel action, within 45 days of the

effective date of the action.” Because the plaintiff in Potter

did not bring her action to the EEOC within 45 days of the

termination effective date, we held that her complaint was

time-barred. Potter, 445 F.3d at 1007.

and (2) we determine when the plaintiff could have

sued for that injury. Hileman, 367 F.3d at 696.

In discriminatory discharge cases, the plaintiffs’ injury

coincides with the decision to layoff the plaintiffs, not

the actual termination date. Kuemmerlein v. Bd. of Educ. of

the Madison Metro. Sch. Dist., 894 F.2d 257, 259 (7th Cir.

1990); Chardon v. Fernandez, 454 U.S. 6, 8 (1981); Del. State

Coll. v. Ricks, 449 U.S. 250, 258 (1980) (“[t]he proper focus

is upon the time of the discriminatory acts, not upon the

time at which the consequences of the acts became

most painful”). In this court, the date of the unlawful

employment practice is when a “final, ultimate, [and]

non-tentative” decision was made for which the employee

receives unequivocal notice. Flannery v. Recording Indus.

Ass’n of Am., 354 F.3d 632, 637 (7th Cir. 2004); Smith v.

Potter, 445 F.3d 1000, 1007 (7th Cir. 2006). But, in proce- 6

dural due process cases, the claim for a deprivation of

public employment accrues on the actual termination
Nos. 10-2837 & 10-3054 7

Two of these three employees were actually terminated but 7

were later rehired into different positions. Because these two

employees were terminated in accordance with their termination notices, the Plaintiffs’ uncertainty argument is significantly weakened.

date. Lawshe v. Simpson, 16 F.3d 1475, 1480 (7th Cir. 1994).

Normally, we would apply the Lawshe standard to the

Draper Plaintiffs’ procedural due process claim, but the

Draper Plaintiffs did not make this argument before

either the district court or this court. As we have often

said, “it is not this court’s responsibility to research and

construct the parties’ arguments.” APS Sports Collectibles,

Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002)

(quotation and punctuation marks omitted). Because

the Plaintiffs do not suggest that Lawshe applies, we

consider that argument waived.

On appeal, the Plaintiffs principally argue that the

statute of limitations period did not begin running

when the Plaintiffs received their termination notices

because of the uncertainty surrounding the reorganization. In other words, a “final, ultimate, [and] non-tentative” decision about which IDOT employees to terminate was never made. To bolster their claim, the Plaintiffs highlight three employees who received termina- 7

tion notice but were ultimately retained and two additional employees who received notice but were called

back to work. Without a final termination decision, the

notice each employee received was not unequivocal.

Therefore, the Plaintiffs argue that the date of the discrimi-
8 Nos. 10-2837 & 10-3054

natory act was actually the effective date of their termination. We disagree.

The alleged uncertainty in IDOT’s reorganization plan

does not change the statute of limitations accrual date,

and the district courts rightfully found Kuemmerlein to

control the outcome of these cases. There, several school

teachers filed suit against the Madison Metropolitan

School District (“MMSD”) alleging that the school district unlawfully used race as a factor in its layoff plan.

Kuemmerlein, 894 F.2d at 258. In previous years, the

district had executed similar layoffs in which the plaintiffs were targeted for termination but were ultimately

recalled to work. In fact, “[i]n the five previous years,

MMSD had recalled, within a month and a half of the

beginning of the school year, an average of fifty-one

percent of the teachers who received layoff notices,” and

in one year, the district recalled all twelve teachers

who had received notice of their termination. Id. at

258-59. On those facts, we held that even a 50% chance

of being rehired was not enough uncertainty to change

the accrual date from the date of notice to the date

of termination. Id. at 260 n.4 (“Conceivably, a sham

layoff notice, where all notified employees are eventually recalled to work, might not start the running

of the statute of limitations. The facts of this case do not

suggest such a scenario.”). There is even less uncertainty

in this case as the Plaintiffs only cited a handful of employees who were recalled. As such, this case does not

approach the sham-layoff scenario we acknowledged in

Kuemmerlein.
Nos. 10-2837 & 10-3054 9

The Plaintiffs also argue that Kuemmerlein would have

come out differently had the “final, ultimate, [and] nontentative” language we used in Flannery existed at the

time of Kuemmerlein. This is incorrect. To the contrary,

we explicitly interpreted the Supreme Court’s Ricks/

Chardon line of cases as saying the statute of limitations accrues when the defendants make a “final decision.”

Id. at 259 (emphasis added). There is no meaningful

difference between a “final” decision and a “final, ultimate,

[and] non-tentative” decision. We used this rule before

and after Kuemmerlein, and we use it again today: The

statute of limitations accrual date begins at the time of

the final discriminatory decision.

Finally, we find that the Plaintiffs are also wrong

to suggest that their individual notices were not unequivocal. Each notice letter stated that “your position . . .

is targeted for abolishment,” and “it is with regret that

I inform you that you will be laid off . . . effective close

of business June 30, 2004.” In Potter, we found a similar

notice letter satisfied this test. 445 F.3d at 1007 (the letter

provided, “You are hereby notified that you will be

removed from the Postal Service on November 27, 1998”).

There is functionally no difference between the Potter-statement, “you will be removed” and the IDOTstatement, “you will be laid off.” In both cases, there

is little doubt that a reasonable person in the Plaintiffs’

position could draw any other conclusion from that

letter than the named employee was to be terminated

effective June 30, 2004. See id. Therefore, the notice

each plaintiff received unequivocally indicated that

Plaintiffs’ employment was to end on June 30, 2004.
10 Nos. 10-2837 & 10-3054

III. CONCLUSION

We hold that the Plaintiffs’ claims are barred by Illinois’s

two-year statute of limitations and AFFIRM the district

courts’ grant of summary judgment for the Defendants.

12-30-11