In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3729

SUBHASH C. CHAUDHRY,

Plaintiff-Appellant,

v.

NUCOR STEEL-INDIANA and NUCOR CORP.,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 07 C 0170—Larry J. McKinney, Judge.

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ARGUED APRIL 18, 2008—DECIDED OCTOBER 15, 2008

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Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Subhash C. Chaudhry sued his

employer, Nucor Steel-Indiana, alleging that Nucor

discriminated against him in violation of Title VII of the

Civil Rights Act of 1964 when it failed to give him a

raise in June 2003 and denied him the opportunity to

visit customers, which would have qualified him for

increased compensation. The district court granted Nucor’s

motion to dismiss, relying on Ledbetter v. Goodyear Tire &
2 No. 07-3729

Rubber Co., 127 S. Ct. 2162 (2007) to hold that Chaudhry’s

discrimination claim was untimely, and then terminated

the case on the same day.

Because Chaudhry failed to file a timely EEOC charge

regarding Nucor’s failure to give him a raise in June 2003,

we conclude that the district court properly granted

Nucor’s motion to dismiss that claim as well as any

claims arising from that 2003 decision that do not involve

discrete acts of discrimination. But we also determine

that Nucor’s failure to inform Chaudhry of opportunities

to visit customers, which effectively prevented him from

qualifying for an annual raise, constitutes a distinct

discriminatory act that is not time barred. Therefore, we

affirm in part, reverse in part, and remand for further

proceedings consistent with this opinion.

I. BACKGROUND

The district court dismissed Chaudhry’s complaint for

failure to state a claim pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure so we must take as true

the facts alleged in Chaudhry’s complaint. Tamayo v.

Blagojevich, 526 F.3d 1074, 1078 (7th Cir. 2008). Chaudhry

has been employed by Nucor, which manufactures flat

rolled steel sheets, since February 1988. At the time of the

complaint, Chaudhry was a Quality Control Inspector

(“QCI”) for the temper mill production line in Nucor’s

cold mill department. His job involves inspecting the

quality of steel produced by the production employees of

the temper mill. In June 2003, Nucor increased the pay

grade for QCI’s in other divisions such as the melt shop
No. 07-3729 3

and the hot mill by two grades. However, it did not

increase the pay grade for the temper mill QCI’s, which

meant Chaudhry did not get a raise.

Chaudhry complained to Nucor, pointing out that his

duties were more labor intensive than those of the QCI’s in

other divisions whose pay grades had been increased.

Nucor responded with varying justifications for its decision and did not increase his pay grade. Nucor also

ignored Chaudhry’s complaints that his co-workers

called him names, made fun of his accent and religion

(Chaudhry is “of Asian-Indian descent”), placed meat on

top of his safety hat, and filled his safety gloves with oil.

Additionally, Nucor prevented Chaudhry from visiting

customers, which precluded him from qualifying for an

annual raise in pay grade. QCI’s who make at least four

customer visits per year in addition to completing a

course at the American Society of Materials in Cleveland,

Ohio, become eligible for an increase in pay grade. QCI’s

are notified of opportunities to visit customers by Nucor

metallurgists or supervisors. Although Chaudhry repeatedly asked to be informed of opportunities to visit

customers so he could qualify for the increase in pay

grade, Nucor failed to tell him about the opportunities.

Chaudhry filed a charge of discrimination with the EEOC

on July 28, 2006. In the charge he complained that he

was discriminated against on the basis of his race,

national origin, and religion in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., because

he did not receive a raise in pay grade, which had

been approved for other QCI’s three years prior.
4 No. 07-3729

In a separate paragraph, he stated that although Nucor

has a policy of allowing one pay grade raise per year for

employees who visit four of its customers and take a

technical course, Nucor intentionally had prevented

Chaudhry from going on customer visits. In later correspondence with the EEOC, Chaudhry also stated that he

had been harassed because of his race.

Chaudhry filed suit in district court against Nucor on

February 7, 2007, alleging acts of discrimination including:

(1) that Nucor had given raises to QCI’s in other production lines even though he does more work than the other

QCI’s; (2) that Nucor “consistently” informed all QCI’s

other than himself of opportunities to visit customers;

and (3) that Nucor failed to take measures to remedy

the discriminatory and harassing behavior by other

employees toward Chaudhry. Chaudhry alleged that

Nucor’s actions violated Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq. Nucor answered

Chaudhry’s complaint.

Three months later, the Supreme Court decided Ledbetter

v. Goodyear Tire & Rubber Co., holding that for purposes

of determining the timeliness of filing an EEOC charge

under Title VII, a new violation does not occur every

time a paycheck based on a discriminatory pay decision

is issued. 127 S. Ct. at 2163. Nucor moved to dismiss

Chaudhry’s complaint, arguing that Chaudhry’s Title VII

claims were all untimely under Ledbetter. The district

court agreed and dismissed Chaudhry’s pay discrimination claim because the decision to give the other QCI’s a

pay raise in June 2003 had occurred more than 300 days
No. 07-3729 5

prior to the filing of Chaudhry’s EEOC claim. The court

then dismissed Chaudhry’s harassment claims, holding

that they were not related to the allegations in his EEOC

charge, and that his later correspondence with the EEOC

indicating acts of harassment did not serve to expand

the scope of his original charge. Without addressing

Chaudhry’s claim that he had been denied the opportunity to go on customer visits, the court dismissed

Chaudhry’s entire suit and entered final judgment that

day.

Two days after the court dismissed Chaudhry’s complaint (and final judgment), Chaudhry filed a motion to

amend his complaint, seeking to add claims under 42

U.S.C. § 1981 because it has a longer statute of limitations

and because it does not require plaintiffs to file an

EEOC charge first. When Nucor responded that plaintiffs

cannot amend a complaint once a suit has been dismissed

without first asking to set the judgment aside, Chaudhry

responded in his reply brief that the court could construe

his motion to amend his complaint as a motion to amend

judgment. The district court (apparently reading

Chaudhry’s reply brief as a Rule 59 motion) relied on

the filing date of the reply brief to hold that the motion

was untimely and denied the motion. Chaudhry filed a

timely appeal.

II. ANALYSIS

Chaudhry challenges the dismissal of his complaint,

arguing that there were acts of discrimination in his

complaint other than Nucor’s decision not to give him

a raise in June 2003. Specifically, he contends that his
6 No. 07-3729

complaint contained two claims that were not time-barred.

Chaudhry also challenges the denial of his motion to

amend, which we address after reviewing the dismissal of

his complaint.

We review a district court’s dismissal of a complaint

pursuant to Rule 12(b)(6) de novo, accepting as true the

complaint’s well-pleaded allegations and drawing all

favorable inferences for the plaintiff. Tamayo, 526 F.3d

at 1081.

A. Chaudhry’s claims arising from the June 2003 no

raise decision are time-barred

Before challenging an unlawful employment practice

under Title VII, an employee must first file a timely EEOC

charge. Ledbetter, 127 S. Ct. at 2166. Such a charge must be

filed within 300 days after the alleged unlawful employment practice occurred or else the employee may not

challenge the practice in court. Id. at 2166-67. The

Supreme Court has emphasized the need to identify the

specific employment practice that is at issue when considering whether an EEOC charge was filed on time,

noting that “[t]he EEOC charging period is triggered

when a discrete unlawful practice takes place, . . . [but]

current effects alone cannot breathe life into prior, uncharged discrimination.” Id. at 2169. An employment

practice is a “discrete act or single occurrence that takes

place at a particular point in time.” Id. (internal quotation

marks omitted). Here, one of Chaudhry’s complaints is

that other QCI’s were given a pay grade raise in June of

2003 and he was not. This claim is time-barred; he should
No. 07-3729 7

We note also that Chaudhry does not appeal the dismissal 1

of his harassment claim.

have filed an EEOC charge within 300 days of June 2003.

Instead, he filed his first EEOC charge years later, in

July 2006.

Chaudhry does not dispute that his claim that he was

denied a raise in June 2003 claim is time-barred. However, 1

Chaudhry maintains that because he continues to be

paid less while being given more work than other QCI’s,

he has alleged an employment practice that is distinct

from the June 2003 decision not to give him a raise. Because Chaudhry does not identify what “discrete act”

other than the June 2003 decision caused this unequal work

distribution, however, what Chaudhry’s complaint boils

down to is that Nucor’s failure to give him a raise in 2003

was a discriminatory act that continued to have discriminatory effects into the statutory limitations period

because Chaudhry continues to work more for less money

than other QCI’s are paid. That the June 2003 discriminatory act continues to affect Chaudhry negatively does

not breathe new life into Chaudhry’s claim regarding

that act because under Ledbetter, he should have filed an

EEOC charge by April 2004. Accordingly, the court correctly dismissed any claims relating to the effects of

Nucor’s June 2003 decision not to give Chaudhry a raise.

See Brown v. Ill. Dept. of Natural Resources, 499 F.3d 675, 681

(7th Cir. 2007) (a plaintiff is time-barred from filing

suit under Title VII for any “discrete act” about which he

did not file an EEOC charge within the 300-day EEOC

charging deadline).
8 No. 07-3729

B. Chaudhry’s failure to notify claims are not timebarred

The preceding analysis does not apply to Chaudhry’s

claim that he was repeatedly denied the opportunity to

go on customer visits, which made him ineligible for a

raise. Chaudhry alleged in his complaint that:

By consistently informing all QCIs except Plaintiff of

opportunities to visit customers, Plaintiff [sic] allowed

all QCIs except Plaintiff to become eligible for a pay

grade, thus discriminating against Plaintiff with

respect to Plaintiff’s compensation, terms, conditions,

and/or privileges of employment.

Chaudhry discusses this allegation in his EEOC charge,

where he states that he has not been allowed to go on

customer visits with others and that Nucor “has a policy

of allowing one pay grade per year for visiting four of its

customers and taking a technical course.” Notably, though

Chaudhry discusses various actions in his EEOC charge

that he admits did not happen within the 300-day period

prior to the filing of the charge, the allegation regarding

this discriminatory action is in a separate paragraph

and contains no such admission.

Chaudhry’s complaint and EEOC charge allege that he

has been denied a raise every year for failing to meet the

prerequisite for the raise due to Nucor’s preventative

efforts, which were motivated by improper discrimination.

This claim is not time-barred because every decision by

Nucor not to give him a raise based on this criterion gives

rise to a “fresh violation.” Ledbetter, 127 S. Ct. at 2169

(reiterating that its holding did not apply to situations
No. 07-3729 9

Contrary to Nucor’s assertion, Chaudhry did not waive this 2

argument by failing to raise it before the district court. In his

opposition to Nucor’s motion to dismiss, Chaudhry argued

that he continued to be a victim of pay discrimination after

June 2003 because Nucor engaged in other activities

amounting to pay discrimination such as “informing all QCIs

except for Plaintiff of opportunities to visit customers and thus

become eligible for an increase in pay grade.” The brief further

states that these activities “fell well within the 300 day EEOC

filing requirement.”

in which an employer “engages in a series of acts each of

which is intentionally discriminatory, [where] a fresh

violation takes place when each act is committed”).

Chaudhry indicates in one of his letters to the EEOC that

in June 2006, Nucor allowed everyone an extra raise in

pay grade for taking a technical course and visiting

customers, which means this claim faces no statute of

limitations issues.

2

Nucor insists that Ledbetter disposes of this claim as well

but in Ledbetter, by the plaintiff’s own concession, all of the

pay decisions had been made outside of the limitations

period. See Ledbetter, 127 S. Ct. at 2166. The only action

that happened within the statutory period was that

Ledbetter received paychecks. Here, Chaudhry is not

alleging that the only time Nucor discriminated against

him was in 2003; rather, his allegations indicate that

discriminatory decisions were made at least once a year.

Nucor also contends that its failure to notify Chaudhry

of the customer visits does not constitute a materially

adverse employment action. See Lewis v. City of Chicago, 496
10 No. 07-3729

F.3d 645, 652 (7th Cir. 2007) (plaintiffs must demonstrate

a materially adverse employment action that resulted

from the alleged discrimination). A cognizable adverse

employment action is a “significant change in employment

status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.” Bell v.

E.P.A., 232 F.3d 546, 555 (7th Cir. 2000) (internal quotation

marks omitted). Actions that deprive the employee of

compensation which he otherwise would have earned

constitute adverse employment actions for the purposes

of Title VII. Lewis, 496 F.3d at 654. In Lewis, the plaintiff

(a female police officer) claimed that because she was

denied the opportunity to participate in an assignment

that would have provided a unique training opportunity,

she lost the ability to move forward in her career and the

potential to earn future hours of overtime. We held the

plaintiff could move forward on her theory that she had

suffered an adverse employment action. Id.

Chaudhry’s complaint alleges that he was denied the

opportunity to visit customers which in turn precluded

him from receiving a yearly raise. This sufficiently alleges

a materially adverse employment action. Nucor contends

that there is no guarantee that Chaudhry would have

received a raise even if he was notified of the customer

visits. But Nucor invites us to assume facts that are not

in the complaint and that are inconsistent with Chaudhry’s

allegations, which we will not do. This claim was improperly dismissed.
No. 07-3729 11

C. Chaudhry’s motion to amend

Finally, Chaudhry argues that the district court should

have let him amend his complaint after granting Nucor’s

motion to dismiss. The district court granted Nucor’s

motion to dismiss Chaudhry’s first complaint and simultaneously entered final judgment, which eviscerated

Chaudhry’s ability to amend his complaint. Camp v.

Gregory, 67 F.3d 1286, 1289 (7th Cir. 1995) (“If final judgment is entered dismissing the case, however, the plaintiff

loses [his right to amend].”). Although Chaudhry

quickly filed a motion for leave to amend his complaint

two days after the court granted Nucor’s motion to dismiss, he did not invoke Rule 59 or 60 until he filed his

reply brief two weeks later, when he asked the court to

construe his motion to amend as a timely filed motion to

reopen.

The district court, relying on the filing date of the reply

brief (rather than the filing date of the original motion to

amend), held that the motion was too late for Rule 59

purposes. The district court could have construed

Chaudhry’s motion to amend as a timely filed Rule 59

motion but it chose not to do so. See Camp, 67 F.3d at 1290

(district court did not abuse its discretion by permitting

amended complaint to be filed following dismissal of

original action and treating such motion as a properly

filed motion for relief from judgment). The district court

also declined to find justification to reopen the case

under Rule 60.

Because we are remanding the case, Chaudhry may refile

his motion to amend (which we assume he will do) so we
12 No. 07-3729

need not consider whether the district court abused its

discretion in denying Chaudhry’s motion to reopen. But

we note the district court’s treatment of this case. First,

terminating a case on the same day that a court grants a

motion to dismiss a complaint is a somewhat unorthodox

practice. See Foster v. DeLuca, No. 05-1491, — F.3d —, 2008

WL 4378173, at *2 (7th Cir. Sept. 29, 2008). Second, although a district court is not compelled to treat a motion

to amend as a motion to reopen, see Vicom, Inc. v. Harbridge

Merchant Services, Inc., 20 F.3d 771, 784 (7th Cir. 1994),

it seems a bit “hyper-technical” for the court to have

denied Chaudhry’s motion on that basis. Paganis v.

Blonstein, 3 F.3d 1067, 1074 (7th Cir. 1993) (Cudahy, J.

concurring). Although we appreciate that Chaudhry had

three months after Ledbetter was issued to amend his

complaint with a section 1981 claim, Chaudhry acted

expeditiously after the dismissal, the record indicates

that discovery had barely begun, and it is not clear that

his amendment would have been futile.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district

court’s dismissal of claims arising from Nucor’s June 2003

decision not to give Chaudhry a raise but REVERSE the

district court’s dismissal of Chaudhry’s claims regarding

Nucor’s failure to notify him of opportunities to visit

customers. The case is REMANDED for proceedings consistent with this opinion.

10-15-08