disparate (and more favorable) treatment that had been accorded
the other employee. According to Jessup’s EEOC charge, ten days
less than six months elapsed between the time of that discovery
(January 27, 2000) and the date on which he filed the
administrative charge (July 17, 2000). On that score Amtrak

cites a group of cases exemplified by Cada v. Baxter Healthcare

Corp., 920 F.2d 446, 452 (7° Cir. 1990), all of which define
equitable tolling in terms of requiring that otherwise outlawed
EEOC charges must be filed within a “reasonable time” after the
employee or ex-employee has obtained the information providing
the gravamen of the charge.

No bright line is identified in any of the Seventh Circuit
cases to mark the watershed between such a reasonable time and an
unreasonable delay. Cada involved an eight-month delay, which
the court described as a “huge” interval under the circumstances
(920 F.2d at 453). Other cases have rejected greater delay
periods, and in one instance a slightly shorter period, but no
case from our Court of Appeals has addressed a period quite as
short as that posed here.

That situation obviously makes it problematic (to say the
least) to consider ruling that Jessup (particularly when he
initiated his EEOC charge and this action without the benefit of
counsel) must be knocked out of the box as_a matter of law. But

this Court need not address that issue, for there is considerable


“upon investigation, Defendant has determined [it] may be
applicable.” But that assertion has to be viewed as makeweight
at best and as bogus at worst, for Jessup’s EEOC charge--a
photocopy of which was attached as Ex. 1 to his AC--expressly
showed on its face the selfsame period of delay that is now
sought to be relied upon by Amtrak: the termination of Jessup’s
employment in October 1998, with his EEOC charge having been
filed about 21 months later in July 2000.

That time lapse, disclosed from the very beginning of this
lawsuit, plainly placed the EEOC charge long past the statutory
300-day provision, patently posing a potential limitations
problem. In response Jessup has made the obvious equitable
tolling argument disclosed in the EEOC charge and repeated in AC
{21 and 12--that the reinstatement of the female employee did
not take place until toward the end of 1999 and was not
discovered by Jessup until the latter part of January 2000, so
that he could scarcely be faulted for having failed to assert
disparate treatment that had not even occurred and could not have
been known until those dates.

To its credit, Amtrak has backed away from its initial
statute of limitations position--it does not challenge the
potential availability of equitable tolling under such
circumstances. Instead Amtrak’s line of attack focuses on the

delay that took place after Jessup says that he learned of the



irony in Amtrak’s posture in this case to begin with. It seeks
to fault Jessup, not for a violation of the normal statute of
limitations as such (remember that his EEOC charge was filed well
within a 300-day time period after he had first learned of the
circumstances that could give him a viable employment
discrimination claim or claims), but rather because it Says he
waited too long after having learned those facts. Yet Amtrak
itself--which is represented by able counsel, as layman Jessup
had not been when he went to EEOC--delayed for almost as long
before it saw fit to advance a claim of untimeliness that was
obvious from the very beginning.

To this Court’s knowledge there is no doctrine that
specifies that a four-month delay of one type is reasonable (and
hence excusable), while a delay of just under six months is not.
It is well established that a district court is within its rights
in applying Rule 8(c) as it reads, requiring that a statute of
limitations defense (like every other AD) must be included in a
defendant’s answer or be considered to have been forfeited (see,

e.g., Ventures v. City of Delphi, 123 F.3d 956, 967-68 (7TM Cir.

1997) and the numerous cases cited there). One of the oldest of
our jurisprudential maxims teaches “that he who seeks Equity must

do Equity” (Joseph Story, Commentaries on Equity Jurisprudence

1:77 (1836)), and that maxim might well have been written for the

circumstances of this case.


Minute O°

Aran oa
United States District Court, Northern District of Iinois
Name of Assigned Judge Milton I. Shadur Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 00 C 8065 DATE 8/8/2001
CASE Melvin Jessup vs. National Railroad Passenger Corp.
TITLE
[ln the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) gq Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due. .
(4) a Ruling/Hearing on set for at
(5) i Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(©) o Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) oa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OGeneral Rule21 CI) FRCP41(a)(1) OO FRCP41(a)(2).
co) if [Other docket entry] | Enter Memorandum Opinion and Order. Amtrak is denied leave to file its
Second Amended Answer that would add a defense of untimeliness on limitations grounds.
dl af [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of notices
JY | Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form. @
Copy to judge/magistrate judge. vat
be “TG 8/8/2001
courtroom ves st Os] ate mailed notice
SN deputy’s Oy Aug -8 Fi au ~
initials "
Date/time received in
central Clerk’s Office mailing deputy initials



In summary, whether Amtrak is viewed as having waived (or
more accurately as having forfeited) its claim of untimeliness by
having failed to assert it either in its original Answer or in
its Amended Answer, or whether Jessup is treated as having acted
in a sufficiently timely fashion by going to EEOC to file his
charge a bit less than six months after having learned of his
potentially viable claim, the result is the same. Amtrak is
denied leave to file its SAA that would add a defense of
untimeliness on limitations grounds.

Milton I. Shadur
Senior United States District Judge

Date: August 8, 2001


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MELVIN JESSUP,
Plaintiff,
v. No. 00 C 8065

NATIONAL RAILROAD PASSENGER
CORPORATION,

Defendant. AUG 0 9 2001

MEMORANDUM OPINION AND ORDER

National Railroad Passenger Corporation (“Amtrak”) has
sought leave to file a Second Amended Answer (“SAA”) to the
Amended Complaint (“AC”) brought by its ex-employee Melvin Jessup
(“Jessup”). It hopes by doing so to advance for the first time a
proposed statute of limitations affirmative defense (“AD”).
Because Amtrak's effort to do so at this late date (seven months
after Jessup--who was then an indigent plaintife acting pro se--
originally filed suit, and four months after Amtrak had first
answered the AC filed on Jessup’s behalf by counsel appointed by
this Court to represent him pro bono publico) implicates
equitable considerations, this opinion will review the bidding
before turning to the statute of limitations issue.

On February 20, 2001 Jessup’s appointed counsel filed the
two-count AC that charged Amtrak with both age-based and sex-
based discrimination, alleging that another employee--a female
who was younger than Jessup--had been terminated by Amtrak for

alleged misuse of travel vouchers and deprivation of revenue at


the same time that Jessup was suspended on identical charges, but
had then been reinstated to her full-time position while Jessup
had not (instead Amtrak terminated Jessup’s employment about two
months after the August 1998 suspension, and it has never
reinstated him). Amtrak answered the AC on March 20, including
in its responsive pleading these three ADs:

1. Plaintiff has failed to mitigate his damages.

2. Defendant terminated Plaintiff's employment
for a legitimate non-discriminatory reason.

3. Plaintiff’s claims are barred by the
provisions of the Railway Labor Act.

This Court quickly issued a brief March 22 sua sponte
opinion that in part pointed out the impropriety of Amtrak’s AD 2
and that said this about AD 3:

And if Amtrak wishes to assert the defense set out in

AD 3, it cannot do so by simply listing the issue and

then sitting back with the question unresolved.

Instead Amtrak must file a motion for dismissal on that

ground on or before April 2, 2001 and must notice the

motion up for presentment promptly thereafter, failing
which it will be deemed to have waived that defense.
Just a week later Amtrak filed its Amended Answer that dropped
both AD 2 and AD 3, leaving only its mitigation-of-damages AD 1
in place.
As stated earlier, almost exactly four months later Amtrak

has tendered a proposed SAA that would advance this second AD:

Plaintiff’s claims are barred by the applicable statute
of limitations.

According to Amtrak's motion, it has sought that addition because