In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-1700

MARY ELIZABETH NEWBOLD,

Plaintiff-Appellant,

v.

WISCONSIN STATE PUBLIC DEFENDER,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 00-C-391-C—Barbara B. Crabb, Chief Judge.

____________

ARGUED SEPTEMBER 9, 2002—DECIDED NOVEMBER 19, 2002

____________

Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Mary Elizabeth Newbold filed suit

against her former employer, the Wisconsin State Public

Defender (WSPD), alleging discrimination and retaliation

based on her age and sex. The district court granted

summary judgment for the WSPD after concluding that

Newbold filed her case too late to meet the statute of

limitations on her claims and that the limitations period

should not be equitably tolled. Newbold appeals, asserting

that one of her retaliation claims is timely under the doctrine of equitable tolling and that she also has a second

retaliation claim which the district court erroneously failed
2 No. 01-1700

to consider. Newbold does not contest that her discrimination charge was filed too late with the Equal Employment

Opportunity Commission (EEOC) and that it is doomed

unless revived by equitable tolling.

For the purposes of summary judgment, there is no

dispute about the timing of the events underlying Newbold’s claims. In January 1995 the WSPD hired Newbold,

who was 55 at the time, as an investigator in its Racine

office. On June 21 and 22, 1995, Newbold filed harassment complaints with WSPD’s affirmative action officer.

On August 3, 1995, the WSPD fired Newbold. She filed her

first charge of discrimination on May 14, 1996. The Wisconsin Personnel Commission (WPC) and the Equal Employment Opportunity Commission do not have a worksharing agreement allowing a state agency filing to be

deemed concurrently filed with the EEOC. The charge

form did state that the WPC would forward a copy of the

complaint to the EEOC if Newbold checked the appropriate box—which she did. The charge was not sent to the

EEOC, however, until August 6, 1996, and the EEOC did

not log it as filed until September 17, 1996.

On July 23, 1996, the Wisconsin Department of Employment Relations informed Newbold that it was removing

her name from the public defender investigator (PDI) register, a list of certified candidates for WSPD investigator

jobs. This action was taken at WSPD’s request. On September 17, 1996, Newbold completed a second charge of discrimination with the WPC regarding the removal of her

name from the PDI register. In this charge she stated:

The complaint I filed May 14, 1996 with the Personnel

Commission is the basis for this additional discrimination and retaliation complaint regarding the removal

of my name from the 1996 Investigator 2 list by [the

Division of Merit Recruitment and Selection] at the

request of Carla Blum, SPD Personnel Director.
No. 01-1700 3

As with her May 14 charge, Newbold checked the box to

forward it to the EEOC. The EEOC received her papers

on September 19, 1996.

The WPC ultimately dismissed her charges. On June 21,

2000, the EEOC sent Newbold a letter concurring in the

dismissal of her first retaliation charge. On December 20,

2000, the EEOC sent Newbold a letter concurring in the

dismissal of her second retaliation charge.

Newbold filed suit in the United States District Court

for the Western District of Wisconsin, alleging that the

WSPD discriminated and retaliated against her. Newbold

moved to proceed in forma pauperis, and the district

court granted the motion as to Newbold’s claim that the

WSPD retaliated against her by firing her on August 3,

1995, and removing her from the public defender investigator register on July 23, 1996.

On February 23, 2001, the district court granted the

WSPD’s summary judgment motion. The court noted that

although Newbold was terminated on August 3, 1995, she

did not file her charge of discrimination with the WPC

until May 14, 1996, or with the EEOC until September 17,

1996. Based on this charge, the court found that Newbold’s

claims were barred by the 180-day EEOC filing deadline

for retaliation claims. The court did not, however, mention

Newbold’s September 17, 1996, WPC charge which was

forwarded to the EEOC on September 19, 1996.

Our standard of review on this question of law is de novo,

but we view the facts and all reasonable inferences in favor

of Newbold, the nonmoving party. See Furnish v. SVI Sys.,

Inc., 270 F.3d 445, 448 (7th Cir. 2001).

Under 42 U.S.C. § 2000e-5(e)(1), Title VII claimants are

required to file their discrimination charge within 180 days

after the alleged unlawful employment practice. If a claimant has initiated proceedings in a state agency with the

authority to grant relief from unlawful employment prac-
4 No. 01-1700

tices, however, the claimant has 300 days after the alleged

unlawful employment practice occurred to file her charge

with the EEOC. The WPC has jurisdiction over all charges

covering the employment practices of the agencies of the

State of Wisconsin except those alleging retaliation under

704(a) of Title VII. See 29 C.F.R. § 1601,74(a) at n.12.

Newbold argues that state agencies lulled her into believing that a 300-day instead of a 180-day deadline applied

to her claims and that the WPC would concurrently file

an EEOC claim when it accepted her state charge. Newbold

therefore argues that the 180-day statute of limitations

for retaliation claims should be equitably tolled and her

EEOC charge deemed timely filed.

Newbold proceeds under a theory of equitable tolling

because she alleges that the Department and the WPC—

not the WSPD—misled her. Equitable tolling permits a

plaintiff to avoid the bar of the statute of limitations

if, despite all due diligence, she is unable to obtain vital information bearing on the existence of her claims.

See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th

Cir. 1990). It may be particularly appropriate if an administrative agency misleads a plaintiff. See Alsaras v. Dominick’s Finer Foods, Inc., 248 F.3d 1156, 2000 WL 1763350,

at *3 (7th Cir. 2000) (tolling appropriate when EEOC

representative told plaintiff she had a year rather than 300

days to file suit); Early v. Bankers Life and Cas. Co., 959

F.2d 75, 80 (7th Cir. 1992) (tolling appropriate when EEOC

informed plaintiff he had completed all necessary paperwork for charge when he had only filled out intake questionnaire).

The problem for Newbold is that she was not misled

about EEOC deadlines; rather, she was given correct information about the WPC’s deadlines. Although Newbold

provides ample documentation that she was told that a

retaliation claim under the Wisconsin Fair Employment

Act had to be filed within 300 days, nothing that she cites
No. 01-1700 5

1 Even if the district court had reached the merits of Newbold’s

first retaliation claim, it is highly unlikely that she would have

survived summary judgment. She essentially relies on the temporal proximity of the events to establish a causal connection

between her internal complaints and her termination. The fact

that the WSPD began disciplining Newbold prior to her protected

activity weighs against the sufficiency of temporal proximity

alone. See Speedy v. Rexnord Corp., 243 F.3d 397, 403 (7th Cir.

2001). Even more deadly to Newbold’s retaliation claim is her

own theory of her case. In her brief to the WPC prior to its

(continued...)

discusses time limitations for actions under Title VII.

Furthermore, Newbold does not mention, and the record

does not indicate, any attempt on her part to ascertain the

federal deadlines and procedures for filing an EEOC claim

until December 18, 1996. Notably, one of the forms in the

WPC packet that Newbold received said:

Federal anti-discrimination and equal opportunity laws

differ from state laws. Procedures used by the federal

government in processing complaints are also different. If more information concerning federal laws or

complaint procedures is desired, contact the Equal

Employment Opportunity Commission, 310 West Wisconsin Avenue, Suite 800, Milwaukee, WI 53203-2211,

or telephone (414) 297-1111.

Newbold received this cautionary note on December 27,

1995. Had she heeded this note and contacted the EEOC,

she would have discovered that she still had 35 days to

timely file a retaliation charge based on her termination.

This is not a case where the EEOC misled a claimant or

where a state agency authoritatively addressed potential

EEOC deadlines. Newbold did not exercise the requisite

amount of due diligence that would entitle her to equitable

tolling, and the district court did not err in finding the

doctrine of equitable tolling inapplicable.1

 We note that
6 No. 01-1700

1 (...continued)

determination of the merits of her claims, Newbold argued that

a supervisor at the WSPD decided to fire her in April 1995—

before she had engaged in any protected activity.

Newbold’s claims likely would have been timely under

state law, but she chose to forego those remedies for suit

in federal court.

Newbold also argues that the district court erroneously

overlooked her second retaliation claim but should have

found it timely since the adverse action (taking her name

off the PDI register) occurred on July 23, 1996, and she

filed her EEOC charge on September 19, 1996—well within

the 180-day deadline.

As the WSPD notes, the district court did not interpret

Newbold’s complaint as stating two distinct retaliation

claims. Rather, the district court saw the removal of Newbold’s name from the PDI register as potential support

for her argument that the WSPD’s rationale for her termination was a pretext for discrimination. The district

court’s reason for considering the evidence in this way is

clear—Newbold did not have a right-to-sue letter from

the EEOC on this retaliatory removal claim. Furthermore, even her WPC charge on this issue indicated that

the removal of her name was merely related to her

initial charge. Although Newbold mentioned her second

retaliation charge in her summary judgment opposition,

she did not argue in her brief that the district court

should have found this claim timely or otherwise indicate

that the court erred in its construction of her complaint.

For this reason, we believe that Newbold has waived

any argument based on the timeliness of this second

charge. See, e.g., United States v. Andreas, 150 F.3d 766,

769 (7th Cir. 1998).
No. 01-1700 7

Even if we characterize this as an argument that the

district court should have allowed Newbold to proceed

in forma pauperis on her second retaliation claim as a

stand-alone claim, it fails on the merits. First of all,

Newbold cannot meet her burden of establishing a prima

facie case of retaliation. She did not present any evidence that the removal of her name was an adverse employment action and not a normal consequence of termination for cause. See Lever v. Northwestern Univ., 979 F.2d

552, 556 (7th Cir. 1992). Clearly there can be no causal

connection between the first WPC charge and the removal of her name because Carla Blum, personnel officer

for the WSPD, requested the removal of her name on July

1, 1996, but the WSPD did not learn of Newbold’s charge

until August 6, 1996. There is also no evidence that Newbold’s internal discrimination complaints filed on June 21

and 22, 1995, were linked to the removal of her name

on July 23, 1996—over a year later. See Franzoni v. Hartmarx Corp., 300 F.3d 767, 773 (7th Cir. 2002) (6 months

too long to establish causal connection); Lewis v. Holsum

of Fort Wayne, Inc., 278 F.3d 706, 711 (7th Cir. 2002)

(3 months insufficient). In addition, there is no evidence

that the WSPD’s rationale for requesting the removal of

her name was a pretext for covering up discrimination.

Wisconsin Administrative Code § ER-MRS 6.10(4) provides that an applicant may be removed from an employment register who “has been dismissed from the state

service for cause, and the action is requested by the appointing authority,” and Wisconsin Administrative Code

§ ER-MRS 6.10(8) provides that applicants with unsatisfactory work records may be removed from a register.

In short, the real claim here, retaliatory discharge, is

time-barred, and allowing Newbold to proceed on any

other claim would be an exercise in futility. For these

reasons, we AFFIRM the district court’s grant of summary

judgment in the WSPD’s favor.
8 No. 01-1700

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-19-02