time between the discriminatory act and the filing of the charge is less than 300 days, the
Court cannot grant defendants’ summary judgment motion.

First, the Court must determine when the EEOC charge was filed. Staffing
Network claims that the earliest possible reporting to the EEOC was in April 2001.
However, Daum argues that her letter of March 8, 2001 to the EEOC constitutes a charge
of discrimination.

A charge of discrimination must include, inter alia, “the full name, address, and
telephone number of the person making the charge” and “{a] clear and concise statement
of the facts.” 29 C.F.R. § 1601.12. However, “a charge is sufficient when the
Commission receives from the person making the charge a written statement sufficiently
precise to identify the parties, and to describe generally the action or practices complained
of.” Id. Additionally, a charge can be amended to cure any technical defects such as lack
of verification of the charge. /d.

A recent Supreme Court case, Edelman v. Lynchburg College, dealt with the
validity of this EEOC regulation that allows a charge’s technical defects to be cured. 112
S. Ct. 1145 (2002). The Edelman Court determined whether a plaintiff's letter to the
EEOC could be cured of technical defects by a later charge that related back to the
technically deficient letter. /d. at 1148, The Edelman Court upheld the EEOC regulation
allowing a charge to be cured of technical defects noting:

Construing [statutory filing requirements] to permit the relation back of an oath

omitted from an original filing ensures that the lay complainant, who may not

know enough to verify on filing, will not risk forfeiting his rights inadvertently. At
the same time, the EEOC looks out for the employer's interest by refusing to call

for any response to an otherwise sufficient complaint until the verification has been
supplied.



time in defendant’s reply brief. Second, it is denied because fact discovery closed August

30, 2002, and the Court sees no reasonable justification for the reopening of discovery.

CONCLUSION

For the foregoing reasons, the Court denies Staffing Network’s motion for
summary judgment as to Count [ [doc. no, 11-1]. Because discovery is closed and the
Court has denied defendant’s motion for summary judgment, the Court shall not entertain

any further dispositive motions. Parties shall file the final pre-trial order in open court on

Monday, November 25, 2002 at 2:00 p.m.

SO ORDERED ENTERED:

HON. RONALD A.
United States Judge


EEOC issued a Notice of Right to Sue on September 20, 2001, see Pl.’s Compl., Ex. 1,

Right to Sue Letter, and Daum filed a multi-count complaint with this Court.

DI SSI

Summary judgment is only proper when, “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. Civ. P. 56(c). Moreover, when considering a
motion for summary judgment, this Court must view all facts in the light most favorable to
the nonmoving party and draw all reasonable inferences in its favor. Lesch v. Crown Cork
& Seal Co., 282 F.3d 467, 471 (7th Cir, 2002).

Defendant argues that summary judgment is proper because Daum’s ADA claim is
barred by the statute of limitations. In order to determine whether the plaintiff's charge of
discrimination is timely, this Court must make two inquiries. First, when did the defendant
file her charge of discrimination? Second, what is the latest date that the alleged
discrimination could have occurred? Once these two facts are established, the Court’s task
is simply to count the number of days between the filing of the charge and the date of the
alleged discrimination.

Generally a plaintiff suing under the ADA is required to havé brought an EEOC
charge within 300 days of the alleged discrimination. See 42 U.S.C. § 12117; id. § 2000¢-
5; see, e.g., Conley v. Village of Bedford Park, 215 F.3d 703, 710 (7th Cir. 2000).

Accordingly, if Daum has raised a genuine issue as to a material fact regarding whether the



Id. at 1150. While the Edelman Court remanded for a determination of whether the letter
to the EEOC constituted a charge, the stated reason for doing so was concern over whether
the EEOC and the plaintiff treated the letter as a charge. Id. at 1152.

Daum’s letter to the EEOC satisfies the basic requirements of a charge. (See Def.’s
Ex. C, Daum’s Letter.) While the letter is not verified, Edelman establishes that
subsequent charges may cure such technical defects if they relate back to the charges
contained in the letter. Edelman, 112 U.S. at 1550. Further Staffing Network has not
pointed to any evidence to support that neither the EEOC or plaintiff treated her letter as a
charge of discrimination. To the contrary, the EEOC’s response to Daum’s letter indicates
that the EEOC considered the letter a charge and told the plaintiff as much. (See Def.’s
Ex. J, EEOC’s Letter (stating “[t]his is to acknowledge your charge of employment
discrimination against the above named Respondent”).) Accordingly, the date the letter
was received by the EEOC, March 12, 2001, is the date the plaintiff filed her charge. See
29 C.F.R. § 1601.13. Therefore, Daum may base her ADA claim orl any conduct
occurring within the 300-day time period prior to March 12, 2001.

Second, considering all undisputed facts and construing any disputed facts in the
light most favorable to Daum, her ADA claim is based on alleged acts of discrimination
that are not barred by the 300-day period of limitations. Daum contends that she received
the insurance application along with a new hire packet in March or early April 2000. (PI.’s
LR 56.1 (b)(3)(A) J 10.) Viewing the facts in Daum’s favor, the latest date consistent with
the characterization “early April” is April 15, 2000. This date is important because Daum
contends that defendant’s discriminatory conduct occurred six to eight weeks after she sent
in her application for insurance. At that time, she states she was told that she had to

5

a eh POTEET SP pv SS sa SS SV SS SS


‘Minute Order Form (0697)

United States District Court, Northern District of Hlinois

nator Magiaate Judge Ronald A. Guzman “than Assigned Judge

CASE NUMBER 01 C 9643 DATE 11/18/2002

CASE Patricia Daum vs. Staffing Network, L.L.C.

TITLE

[In 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) Oo 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 briefdue__.
(4) a Ruling/Hearingon____setfor___—-_at
(5) o Status hearing[held/c ‘ontinued to] [set for/re-set for] on setfor at
(6) o Pretrial conference[held/continued to] [set for/re-set for]on__setfor__—s—sat__.
(7) Oo Trial[set for/re-set for}on__at . Pa
(8) Oo [Bench/Jury trial] [Hearing] held/continued to__at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OlLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).

ao ff [Other docket entry] Enter Memorandum Opinion and Order. For the foregoing reasons, the Court
denies Staffing Network’s motion for summary judgment as to Count I .(11-1) Because discovery is
closed and the Court has denied defendant’s motion for summary judgment, the Court shall not entertain
any further dispositive motions. Parties shall file the final pre-trial order in open court on Monday,
November 25, 2002 at 2:00 p.m.

a) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court,

No notices required.

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Notices mailed by judge's staff.

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decline her health insurance or sever her relationship with Staffing Network and that her
application would not be sent into the insurance company. (id. at J 11.) Even if the Court
were to assume that Daum sent in her application the same day she received it, eight weeks
later brings the date of the alleged discriminatory conduct to June 15, 2000. June 15, 2000
is only 270 days before March 12, 2001, the date on which the EEOC received Daum’s
charge. Accordingly, Daum has raised a genuine issue as to a material fact regarding
whether the discrimination occurred within the 300-day period of limitations so that her
ADA claim survives summary judgment.

Staffing Network opines that Daum’s deposition testimony on which she relies to
support the time frame of the alleged discrimination cannot create a genuine issue of
material fact because it contradicts information provided in her EEOC documents.
Unfortunately, Staffing Network provides no law to support its contention that, in response
to a summary judgment motion, a nonmovant cannot rely on sworn deposition testimony
regarding dates of discrimination merely because those dates do not strictly match the
dates provided in submissions to the EEOC. By raising this argument, even Staffing
Network acknowledges that there is confusion in the record regarding the dates of the
alleged discrimination. The issue goes to the weight to be given to Daum’s statement, i.e.,
credibility, which is not an issue for the Court on a summary judgment motion but the
province of the fact finder at trial. In sum, the Court denies Staffing Network’s motion for
summary judgment as to Count I

Finally, the Court denies Staffing Network’s request to redepose Daum on the issue
of the dates of the alleged discrimination because it did not have Daum’s March 8, 2001
letter prior to her deposition. First, the argument is waived because it is raised for the first

6



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
PATRICIA DAUM, ) Jt CuETED
Plaintiff, } nov 49 2002:
v. ; Judge Ronald A. Guzman
STAFFING NETWORK, L.L.C., } 01 C 9643
Defendant. }

MEMORANDUM OPINION AND ORDER

Patricia Daum has sued Staffing Network, L.L.C. for violations of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12191 et seg. (Count I) and the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132 (Count II). Before this
Court is Staffing Network’s motion for summary judgment as to Count I. For the reasons

provided in this Memorandum Opinion and Order, the motion is denied.

FACTS
Unless otherwise noted, the following facts are undisputed or have been deemed
admitted due to noncompliance with LR 56.1, which this Court strictly enforces. Daum
owned a personnel placement and employee leasing firm in the Chicago area and sold the
firm to a predecessor of the defendant. (Answer { 7.) Daum then developed a similar
business in Florida. (Jd.) After some time, Daum and Staffing Networks agreed that
Staffing Networks would take over Daum’s Florida business as well and Daum would

work for Staffing Networks as an employee. (Id.)



Daum was hired by Staffing Networks approximately March 13, 2000. (Def.’s LR
56.1(a)(3) { 6.)' Daum received an application for health insurance along with a new hire
packet in March or early April 2000.? Approximately six to eight weeks after Daum sent
in the application for insurance she was contacted by defendant’s agent, Carol Ann Philips,
who told her that she had to decline the company’s health insurance package or ‘sever the
relationship’ with Staffing Networks and that her application would not be sent into the
insurance company. (P1.’s LR 56.1(b)(3)(B) { 11.)? Subsequently, Daum’s cancer, which
had been in remission, relapsed.

Plaintiff wrote a letter to Florina Hernandez, which was received by the Equal
Employment Opportunity Commission (“EEOC”) March 12, 2001 by, alleging

discrimination on the part of Staffing Networks, (Def.’s Ex. C , Daum’s Letter.) The

' Although Daum denies that Staffing Network employed her beginning March 13, 2000, her denials are
either unsupported by the portion of the record she cites or unsupported because she failed to provide the
portion of her deposition on which she relies. (PI.’s LR 56.1(b)(3)(A) 4 6; Pl.'s LR 56.1(b)(3)(B) 4 9.) In her
LR 56.1(b)(3)(A) response to paragraph 6, she fails to provide the portion of her deposition upon which she
relies for her denial, Therefore, paragraph 6 is deemed admitted. In paragraph 9 of her LR 56.1(b)(3)(B)
statement of additional facts, Daum states that she started working for Staffing Network in late March 2000
and cites to her deposition. On page 100 of her deposition, she was asked, “When did you start working for
Staffing Network?” and she responded, “Approximately the end of March.” However, she then contradicts
herself and never explains this contradiction in the portion of the deposition provided to the Court.
Accordingly, because her statement is unsupported, the Court shall not consider it.

2 Defendant denies this allegation but does not provide “specific references to the affidavits, parts of the
tecord, and other supporting materials relied upon” as required by LR 56.1(b)(3)(A). (Def.’s LR 56.1
(b)(3)(B) 4 10.) The defendant's assertion that “all the documents indicate early March 2000” is not only
lacking a specific reference to the record, but it is also contradicted by certain parts of the record. The
Election to Participate Form, Def.’s LR 56.1 (a)(3) Ex. F, is dated March 30, 2000, the dental coverage
enrollment form, Def.’s LR 56.1 (a)(3) Ex. G, is dated April 3, 2000, and the Personnel Action Notice, Def.’s
LR 56.1 (a)(3) Ex. H, is dated March 20, 2000,

3 Although defendant denies this statement in paragraph 11 of Daum's statement of additional facts, such
statement is deemed admitted because defendant failed to provide a specific reference to record to support the
denial. See LR 56.1(a) (“If additional material facts are submitted by the opposing party pursuant to section
(b), the moving party may submit a concise reply in the form prescribed in that section for a response. All
material facts set forth in the statement filed pursuant to section (b)(3)(B) will be deemed admitted unless
controverted by the statement of the moving party.”)