ANALYSIS

Combined argues that Shaffer’s individual lawsuit is barred by the ninety-day filing
requirement of 42 U.S.C. § 2000e-5(f)(1). That statute requires the EEOC to determine whether
it wishes to file a civil action on behalf of an aggrieved party in a Title VII matter. If the EEOC
declines to so proceed, it must provide a right-to-sue letter to the aggrieved party, who then has
ninety days to file a charge against the allegedly discriminating party.

“[A] suit dismissed without prejudice is treated for statute of limitations purposes as if it
has never been filed.” Elmore v. Henderson, 227 F.3d 1009, 1111 (7th Cir. 2000); Accord Beck
v. Caterpillar Inc., 50 F.3d 405, 407 (7th Cir. 1995); Robinson vy. Willow Glen Acad., 895 F.2d
1168, 1169 (7th Cir, 1990); United States v. Mt. Vernon Mem’l Estates, Inc., 734 F.2d 1230,
1236 (7th Cir. 1984).

In this case, Shaffer received her right-to-sue letter from the EEOC on
September 17, 2001. Shaffer and the other Radmanovich plaintiffs filed their original action on
December 13, 2001 — just three days before Shaffer’s ninety-day filing period ran out. On
February 12, 2002, Shaffer was dismissed without prejudice from the original Radmanovich
action. Shaffer did not file her own suit until March 8, 2002. Combined contends that this suit is
barred because it was filed long after December 17, 2001, as required by 42 U.S.C. § 2000e-5(f).

Shaffer argues that a pending class action tolls the statute of limitations for class
members. America Pipe & Constr. Co. v. Utah, 414 U.S. 538, 552-53 (1974). Moreover,
Shaffer contends that all class members, regardless of whether they have filed their own legal
action, are entitled to equitable tolling from the ninety-day filing rule until class certification is

denied. “Once the statute of limitations has been tolled, it remains tolled for all members of the



Here, Shaffer suggests that Judge Alesia, sua sponte, dismissed her from the original
Radmanovich action, and that a reasonable time period was necessary to r-file a new complaint.
The records of the proceeding is to the contrary. On February 5, 2002, Judge Alesia gave the
original Radmanovich plaintiffs, including Shaffer, a choice: (1) either convert the original action
to a class action with one named plaintiff; or (2) dismiss all but one plaintiff from the original
action and have the remaining plaintiffs each file an individual suit. It is clear that on
February 12, 2002, Shaffer elected to be dismissed from the original Radmanovich action,
pursuant to Judge Alesia’s February 5 ruling. Under these circumstances, Shaffer cannot be said
to be surprised regarding the ninety-day filing requirement. Shaffer’s conduct in the untimely
refiling of her claim will not equitably toll the ninety-day filing requirement further.

Finally, Shaffer argues that Combined should be estopped from raising the ninety-day
filing requirement as a defense because it waited to present this argument until this Motion for
Summary Judgment. However, Shaffer’s only authority on this issue discusses motions to
compel discovery. Price v. Maryland Cas. Co., 561 F.2d 609, 611-12 (Sth Cir. 1977);
Commonwealth Edison Co. v. Allis-Chalmers Manu. Co., 40 F.R.D. 96, 108 (N.D. Ill. 1966).

Shaffer offers no support for the proposition that a defendant who properly pleads an
affirmative defense must use that defense as soon as possible or the defense is waived. Here,
Combined properly pled the ninety-day filing requirement as an affirmative defense at the earliest
possible time — in its Answer. Therefore, Combined is not estopped from raising the filing

requirement of § 2000e-5(f).



On September 17, 2001, the EEOC issued Shaffer a Dismissal and Notice of Rights
(“right-to-sue letter”). Def.’s 56.1 3. On December 13, 2001, Shaffer, along with nine other
plaintiffs, filed suit against Combined in the Northern District of Illinois before the Honorable
Judge Alesia in Radmanovich v. Combined Insurance Company of America, 01 C 9502 (“the
original Radmanovich action”). Def.’s 56.1 4 5.

On February 5, 2002, Judge Alesia, sua sponte, informed these plaintiffs in open court
that they could not maintain the original Radmanovich action with multiple named plaintiffs.
Def.’s 56.196. He gave the plaintiffs two options: either (1) convert the original action to a
class action with one named plaintiff; or (2) dismiss all but one plaintiff from the original action
and have the remaining plaintiffs each file individual suits. Def. Ex. C., Tr. of Proceedings, Feb.
5, 2002, at 3-6.

On February 8, 2002, Shaffer and eight other plaintiffs in the original Radmanovich
action filed a motion requesting Judge Alesia to enter an order incorporating his February 5
order. Def.’s $6.17. On February 12, 2002, Judge Alesia granted this motion and dismissed
Shaffer and the eight other plaintiffs from the original Radmanovich action without prejudice.
He also granted the remaining plaintiff, Traci Radmanovich, leave to file an amended complaint
by February 27, 2002. PI.’s Resp. to Def.’s 56.1 8.

On February 26, 2002, Traci Radmanovich filed her amended class action complaint
against Combined (“the Radmanovich class action”). Shaffer and the other plaintiffs in the
original Radmanovich action were members of the class as described in Traci Radmanovich’s
amended complaint. Pl.’s 56.1 167. On March 8, 2002, Shaffer filed the instant lawsuit.

Def.’s 56.199.



putative class until class certification is denied.” Crown, Cork & Seal Co. v. Parker, 462 U.S.
345, 354 (1983) (emphasis added). Therefore, Shaffer claims that she remained an absent class
member, after her dismissal from the original Radmanovich action, until at least June 26, 2003,
when Judge Alesia finally denied class status.

However, plaintiffs that file their own individual lawsuit before class certification is
denied do not obtain the benefits of the Crown, Cork & Seal class-action tolling. Wachovia Bank
& Trust Co., N.A. v. Nat'l Student Mktg. Corp., 650 F.2d 342, 346 n.7 (D.C. Cir. 1981); Chazen
v. Deloitte & Touche, LLP, 247 F. Supp. 2d 1259, 1271-72 (N.D. Ala. 2003); Prohaska v.
Somafor, S.N.C., 138 F. Supp. 2d 422, 432-33 (W.D.N.Y. 2001); Primavera Familienstifung v.
Askin, 130 F. Supp. 2d 450, 513-14 (S.D.N.Y. 2000); Rahr v. Grant Thorton, LLP, 142 F. Supp.
2d 793, 799-800 (N.D. Tex. 2000); Chinn v. Giant Food, Inc., 100 F. Supp. 2d 331, 334-35 (D.
Mad. 2000); Wahad v. City of New York, No. 75 Civ. 6203, 1999 WL 608722, at *5-6 (S.D.N.Y.
Aug. 12, 1999); Stutz v. 3M, 947 F. Supp. 399, 400-04 (S.D. Ind. 1996); Pulley y. Burlington N.,
Inc., 568 F. Supp. 1177, 1179-80 (D. Minn. 1983).

Generally, these opinions reflect a policy that plaintiffs who elect to individually pursue
their own claims cannot “reap the benefits of a doctrine which is designed for a group — the class
and its putative members.” In re Brand Name Prescription Drugs Antitrust Litig., No. 94 C 897,
1998 WL 474146, at * 8 (N.D. Ill. Aug. 6, 1998) (Kocoras, J.); see also Chemco, Inc. y. Stone,

McGuire & Benjamin, No. 91 C 5041, 1992 WL 188417, at * 2 (N.D. Ill. July 29, 1992) (“Only



ANUy to evee

CONCLUSION

For the foregoing reasons, Combined’s Motion for Summary Judgment is granted.

Dated: rues. 17 2003 y

a
JOHN W. DARRAH
United States District Judge

1\—



MinutefOrder Form (06197)
United States District Court, Northern District of Illinois
Tv
Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 02 C 1774 DATE 11/17/2003
CASE Shaffer vs. Combined Insurance Co
TITLE
[in the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(65) oa Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motion due
(3) o Answer brief to motion due. . Reply to answer brief due
(4) o Ruling/Hearing on set for _at
(5) Oo Status hearing{held/continued to] {set for/re-set for] on set for _ at
(6) Q Pretrial conference{held/continued to] [set for/re-set for] on set for at .
(or) Qa Trial[set for/re-set for] on at
(8) im} (Bench/Jury trial] [Hearing] held/continued to at
(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) O Local Rule 41.1 OO FRCP41(a)(1) OO FRCP41(a)(2)
(0) «= [Other docket entry] For the reasons stated in the attached memorandum opinion and order,
defendant’s motion for summary judgment is granted. Case closed. Enter Memorandum Opinion and
Order.
di) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. number of notices
Notices mailed by judge’s staff. NOY 1° 200
Notified counsel by telephone. date dockered
w& | Docketing to mail notices.
¥_| Mail AO 450 form. can pags SH ssi ON Uy G
Copy to judge/magistrate judge. 4
. pA ©. date mailed notice
courtroom fon
ME deputy's ‘ ate!
initials —- aa
SRatevtime rex
central Clerk's Office cvailing deputy initials



if class certification was denied . . . would the putative class members be able to bring suits
individually under American Pipe [and Crown, Cork & Seal].”) (Zagel, J.).!

Shaffer, in voluntarily dismissing her first suit, can no longer claim the protection of a
putative class member under American Pipe and Crown, Cork, & Seal. Shaffer filed her first
lawsuit before Judge Alesia on December 13, 2001, three days before the ninety-day period for
filing would have expired. Tolling the remaining part of that period before she withdrew from
that suit and remained a putative class member permitted her to file this action within the three
untolled days remaining, until February 15, 2002. Shaffer did not do so; she chose to voluntarily
withdraw from the class and file this suit three weeks thereafter, on March 8, 2002.

Shaffer next argues that the ninety-day filing requirement should be equitably tolled.
Equitable tolling rarely applies, and the doctrine should not be used in situations where the
plaintiff negligently failed to preserve her legal rights. Tyler v. Runyon, 70 F.3d 458, 465 n.8&
(7th Cir. 1995) (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). Other courts
have discussed equitable tolling in the context of the ninety-day filing rule of § 2000e-5(f).
“[R]eceipt of a second EEOC Notice does not constitute grounds for equitable tolling where a
party has actual knowledge of the first Notice.” Santini v. Cleveland Clinic Fla., 232 F.3d 823,
825 (11th Cir. 2000); see also Witt v. Roadway Express, 136 F.3d 1424, 1430 (10th Cir. 1998);
Davidson v. Serv. Corp. Int'l, 943 F. Supp. 734, 737-40 (S.D. Tex. 1996), aff'd sub nom.

Davidson v. Guardian Plans, Inc., 132 F.3d 1454 (Sth Cir. 1997).

‘But see Amati v. City of Woodstock, Nos. 92 C 20347, 94 C 50235, 1197 WL 587493, at
*6 (N.D. Ill. Aug. 7, 1997) (allowing, without discussing any related authority on the issue, new
plaintiffs to file suit during the pendency of class certification instead of intervening in the class
action).



Sng ety

UNITED STATES DISTRICT COURT Le toe
NORTHERN DISTRICT OF ILLINOIS . TM
EASTERN DIVISION Nov 1 9 2003
BONNIE SHAFFER, )
) '
Plaintiff, ) NOY 75 2093
)
v. ) No: 02 C 1774
)
COMBINED INSURANCE COMPANY ) Judge John W. Darrah
OF AMERICA, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Bonnie Shaffer (“Shaffer”), filed suit against Defendant, Combined Insurance
Company of America (“Combined”). Shaffer alleges violations of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e. Presently before the Court is Combined’s Motion for Summary
Judgment. For the reasons that follow, Combined’s Motion for Summary Judgment is granted.

LEGAL STANDARD

Summary judgment is appropriate when no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Cincinnati Ins. Co.
yv. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). “One of the principal
purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims
or defenses ....” Celotex Corp. v, Catrett, 477 U.S. 317, 323 (1986). Thus, although the
moving party on a motion for summary judgment is responsible for demonstrating to the court
why there is no genuine issue of material fact, the non-moving party must go beyond the face of

the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to

Ufo


demonstrate, through specific evidence, that a genuine issue of material fact exists and to show
that a rational jury could return a verdict in the non-moving party’s favor. Celotex, 477 U.S. at
322-27, Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp.,
24 F.3d 918, 923 (7th Cir. 1994).

Disputed facts are material when they might affect the outcome of the suit. First Ind.
Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992), When reviewing a motion for summary
judgment, a court must view all inferences to be drawn from the facts in the light most favorable
to the opposing party. Anderson, 477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185
F.3d 726, 731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475
US. at 586. Ifthe evidence is merely colorable or is not significantly probative or is no more
than a scintilla, summary judgment may be granted. Anderson, 477 U.S. at 249-250.

BACKGROUND

The undisputed facts, for the purposes of this motion, taken from the parties’ Local Rule
56.1(a) & (b) statements of material facts (referred to herein as “Pl.’s 56.1" and “Def’s 56.1") and
exhibits, are as follows.

Combined is a nationwide insurance company that sells supplemental insurance door to
door to the public. Pl.’s 56.1 41. Shaffer began selling insurance for Combined in Iowa as a
sales agent in 1994, Def.’s 56.1 | 10. Shaffer filed her underlying charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”) on January 31, 2001. Def.’s 56.1 4

2.