# United States C ou rt of App eals

For the Seventh Cir cuit Chicago, Illinois 60604
Submi tte d October 1, 2013 * Deci ded October 2, 2013
Before

FRANK H. EASTERBROO K, Circ uit Judge

ANN CLAIRE WI LLIAMS , Circ uit Judge JOHN DANIEL TIND ER, Circ uit Judge
No. 13-1739 JASON LEE NIEM AN, Plaintiff–Appell ant,

v. KEITH HALE d/b/a INSURANCE SEARC H GROUP, Defen dant–Appellee

. Appeal from the United Stat es Di stric t Court for t he Central Dis tr i ct of Illi noi s.
No. 12 C 1012 James E. Shadi d, Chief Ju dge

.

O R D E R Jason Ni eman appli ed for a j ob wi th Peoria-b ased RLI Insurance Company, whi ch had ret ai ned Keith Hal e to conduc t a search for quali fi ed appli cants. After the posi tion w as gi ven to another candi date, Niem an fi led a laws ui t inan Illi noi s court naming as defendan ts RLI, sever al company employees i nvolv ed in the hi ring process, and Hale (who does business under the name Insurance Search Group). Ni eman clai med that all of the defendants had vi olated t he Illi noi s Hu man Ri ghts Act, see 775 ILCS §§ 5/2-102, 5/6-101, and that RLI had vi olated Title VII of the Civi l Ri ghts Act of 1964, 42 U.S.C. §§ 2000e to 2000e -17. The defendants remove d the case to federal court, but all of them except Hale have sett led wi th Ni eman. Th e di stric t court gr anted Hale’s NON PRECEDENTIAL DISPOSITION To be ci ted only i n acc or dance w i th Fed. R. App. P. 32.1

After exami ning the briefs and the recor d, we have conclu ded that o ral * arg ument i s unnecess ary . Thus the appeal i s submi tte d on the briefs and record. See F E D

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. P. 34(a)( 2).No. 13-1739 Page 2

motion to dis mi ss an d sanc tioned Ni eman on the gr ound that hi s compl ai nt i s fri vo lous. Ni eman ch allenges both deci si ons, whi le Hale asks u s to im pose addi tional s ancti ons for pursui ng a frivolous appeal. We conc lude that the dis tr i ct court should not have gr anted either of Hale’s moti ons; the clai m against hi m wi ll go for ward, though we anti ci pate that the courtwi ll now exercis e i ts di screti on to remand the sui t to state court

.
At seve nty-ni ne pages Ni eman’s pro se compli ant i s tedi ous, bu t Hale has never contended that it fai ls to state a claimunder the Human Ri ghts Act. We r ead the document (Ni eman’s thi rd effort ) as a whole, Atk ins v. C ity of Chicago , 631 F.3d 823, 831–32 (7th Ci r. 2011), and construe i t lib erally in hi s favor, Marsha ll v. Kn ight, 445 F.3d 965, 969 (7th Ci r. 2006). Mo stly the complaint concerns the RLI defendants; the allegations against Hale are straightforwar d. For our purpo ses, w e accept those allegations as tr ue. See Wigod v. W ells F ardo Ba nk, N.A. , 673 F.3d 547, 555 (7th Cir. 2012).

Hale li ves i n Texas bu t r ecrui ts and vets candi dates for j obs wi th i nsu rance carriers across the country. Niem an has a d egr ee i n finance an d has w or ked inthe i ndus tr y for ov er 20 y ears. In Febr uary 2011 a colleag ue alerted himthat a v acanc y announc ement on Hale’s webs i te appear ed to be for a jo b wi th RLI. At the time Ni eman was d ays away from settling a Ti tle VII sui t agains t hi s former employ er, Nat i onwi de Mutual Insurance Company. See Nieman v. Natio nwide Mut. Ins. Co. , No. 09 C 3304 (C.D. Ill. Mar. 4, 2011). Ni eman promptly sent an appli cati on to Hale via e- mai l, and Hale phoned hi m the same day to pr ov i de details about the j ob and to r equest addi tional m ater i als. After sever al more conv ersations, H ale i nformed Ni eman that hi s appli cati on had been sen t to RLI.

A week later , though, Hale not i fi ed Ni eman that the company had sai d he was not sui ted for the j ob becaus e he was n ot handli ng clai ms on a dai ly basi s. Ni eman told Hale that infact he was handling clai ms every day, and fearin g that Hale had li ed about sending hi s appli cati on to RLI, Niem an sent a résumé di rectly to t he company. Four days later Hale called to say t hat RLI now wanted to i nterv i ew hi m. Wi thi n a week Ni eman had traveled t o Peor i a for a brief, ini tial interv i ew and then been as ked to ret urn for what Hale sai d would b e a series of i nterv i ews w i th the Vic e Presi dent of Clai ms an d several o f hi s subordinates. Those i nterv i ews las ted a to tal of thr ee hours, and during each ses si on Ni eman was asked why he had left hi s job at Nat i onwi de; he
was n ot aske d about hi s separati on from o ther e mployer s.

Ni eman was not hired, and he s uspec ted that hi s law sui t agains t Nationwi de was one of the reasons (at the time he als o suspec ted that hi s race, age, and sex wereNo. 13-1739 Page 3

motivatin g factor s). H e cross-fi led an admini strat i ve complai nt wi th the Equal Employment Oppor tuni ty C ommi ssi on and the Illin ois Department o f Hum an Ri ghts. See 775 ILCS § 5/7A -102. The s tate agency to ok t he lead, and i ts i nvestigati on confi rmed that, after Ni eman’s ini tial interv i ew, at least thre e of the si x per sons he m et during the callb ack had learned about hi s li tigati on wi th a former employer . One of tho se three, t he company’s Clai ms D i recto r, t old the Depart ment’s investigator that Niemanhad li sted on hi s résumé a f or mer employer where she had a c ontact; she called for a refer ence and found out that Niemanmi ght be inli tigati on wi th another former employer , though wi th whom the contact di d not k now. The Clai ms D i recto r shared this i nformation wi th two ot her in ter view ers, but the Department’ s investigator was u nable to confi rm that RLI knew the “det ai ls” of Ni eman’s s ui t agains t Nationwi de when h e was rejected for the posi tion. Th e i nvestigator sought to i nterv i ew Hale, bu t Hale refused. Ultim ately t he Department concluded that Ni eman’s charge was not support ed by sub stanti al evidenc e.
The Illinoi s Hu man Ri ghts Act makes i t unlawf ul for any per son to r etaliate again st another for eng agin g inprot ected acti vity. Id . § 5/6-101(A). It i s als o unlawf ul to ai d and abet another’ s vi olation of the Act or to wilf ully i nterfer e wi th an admini strat i ve i nvestigati on of an alleged v i olation. Id . § 5/6-101(B) , (C). An aggrieved part y may ask the Illin ois HumanRi ghts Commi ssi on or a ci rcui t court to awar d damages or o ther relief. Id . §§ 5/7A-102, 5/8A-104. Ni eman’s c omplaint alleges that R LI refused to hire hi m bec ause of hi s law sui t agains t Nationwi de; hi s cl ai m agai nst Hale i s lessclear, but apparently he contends that Hale shares responsi bi li ty fo r RLI ’s hi ring deci si on and that he i mpeded the Department’s i nvestigati on by re fus i ng to partici pate. (Ni eman als o beli eves thatHale blac klis ted hi m for j obs wi th ot her in surance c ompani es after hi s rej ecti on by RLI; a Title VII sui t pre mi sed on thi s theory i s pending i n the Nor thern Di stric t of Texas. See Nieman v. Hale, No. 3:12-cv-2433 (N.D . Tex. July 23, 2013) (order di smi ssing complaint wi th leave t o amend).)

Hale moved to di smi ss. As we’ve not ed, he di d not contend t hat Ni eman’s complaint fai ls to state a claim . Instead, Hale ass ert ed that Nieman ’s admini strat i ve charge is defi ci ent and thus the clai m agai nst hi m cannot g o for ward. Before filing a state-law clai m for re li ef under the Illi noi s Hu man Ri ghts Act, an agg rieved party mus t sub mi t a charge t o the Depart ment of HumanRi ghts wi thi n 180 days of the unlaw ful conduc t. 775 ILCS § 5/7A-102. That charge must inclu de enough “detail as to sub stanti ally appris e any part y pro perly concerned as to the time, plac e, and fac ts surroundi ng the allege d ci vil ri ghts violation.” Id. Hale reasoned that Nieman’s charge i s un sati sfac tor y becaus e i t does not name hi m or I nsu rance Sear ch G ro up as aNo. 13-1739 Page 4

respondent and, on hi s vi ew, “i s compl etely lacki ng i n any refer ence” to their i nvolv ement i n unlaw ful c onduct.

Ni eman coun ter ed that a par ty no t named as a respondent may sti ll be su ed i f he
was n otifi ed of the charge and g i ven a chance to part i ci pate inthe admi ni strat i ve i nvestigati on. Ni eman ass ert ed that he had sent copi es of all pertinen t documents to Hale and that the Depart ment’s investigator had tried in vainto cont act Hale. The Department’s not i ce of di smi ssal, whi ch Ni eman submi tte d to t he court, is replet e wi th refer ences to Hale and i denti fi es hi m as a w i tness w ho di d not r eply to i nterv i ew requests made by phone, by mai l, and through hisatto rney. Nieman al so sub mi tte d the
or i gin al draft of t he admini strat i ve charg e, whi ch a D epart ment employee had prepar ed and sent to Niem an for r eview after hi s intake interv i ew. That draft i denti fi es Hale as the person r esponsi

ble for RLI’ s hi ring deci si on, but Ni eman returned it wi th Hale’s name lined out and the name of the Vi ce Presi dent of Claim s substi tuted. In a tr ansm i ttal let ter he explai ned hi s ass umpti on that Hale did n ot mak e the hi ring deci si on “given the ty pi cal nature of employment r ecrui ter s.”
In gr anti ng Hale’s motion the di stric t court, ci tin g deci si ons interpr eting Ti tle VII, reasoned that a person notnamed in an admini strat i ve charg e gener ally cannot be sued. The original draft of the charg e, the court i mpli ed, was i rr elevant because Ni eman had
remov ed Hale’s nam e and di scoun ted the likelihood t hat he was involv ed in the hi ring deci si on. And the addi tional information developed about Hale during the Department’s investigation, the court continu ed, di d not help Ni eman bec ause he n ever sub mi tte d an amended charge t o the ag ency. In a single sentence at the end of this di scu ssi on, the j udge added that Niem an’s compl ai nt i s “so vague” thatno defendant “could be f ai rly appr i sed of the clai m agai nst i t, much l ess di scern a cl ai m to r eli ef that i s plau si ble on i ts face.”

Ni eman moved for r econsi derat i on. He noted, and backed up wi th e-mai l
corr espondence, that before the Depart ment had fini shed i ts i nvestigati on he didtr y to amend hi s ch arg e to i nclu de Hale. He was told by t he i nvestigator that hischarge could not be amended to inc lude addi tional respondents, s o he subm i tte d a separate charge naming Hale as the respondent. That charge was left unresolved when the Department closed i ts investigati on. Ni eman als o asserted t hat hi s compl aint makes clear that R LI’s management had been vague about its reasons f or not hiring hi m, wh i ch, he s ai d, supp or t hi s contenti on that Hale “may hav e had some say” in the hi ring deci si on and “may have acted as a ‘cat’s paw’ in us i ng an i mproper ani mus as to encourag e the Plainti ff’s d i squali fi cati on.”No. 13-1739 Page 5

Hale di d not r espond at all, and nei ther did the di stric t court say anythin g about Ni eman’s eff or ts to e ncompas s Hale in hi s admini strat i ve charg e. Instead the court deni ed the motion to r econsi der wi th the ex planati on that Nieman h ad been “undeterr ed” by a “clear message” that, as a matter of law, he c ould not stat e a clai m again st anyone o ther t han RLI, the employer . The court added that it di d not matt er whether defendants other t han RLI had been inclu ded i n the admini strat i ve charg e becau se no other defendant “could b e construed as the employer i n the context of this
case u nder any concei vable stret ch of the i magi nati on.” The court later ret urned to t hi s theme as justi fi cati on for g ranting Hale’s m otion for sancti ons in the amount of $17,000. On appeal Ni eman rai ses a numb er o f arguments relating to Hale, but only t hose challen gin g the dis mi ssalof hi s compl ai nt and the sancti ons award meri t dis cus si on. (Much of Ni eman’s b rief c oncerns defendan ts wi th whom he settled after t hi s appeal was fi led.) Before we turn to the merits, though, we mu st address Hale’s c ontent i on that Ni eman’s noti ce of appeal i s ti mely only as to the or der awarding san cti ons.
The di stric t court di smi ssed the law sui t as again st Hale (and s ever al other defendants) i n February 2012. Ni eman and the four remai ning defendants s ett led and fi led a sti pulati on of di smi ssalon Octo ber 3, 2012. That same day the clerk o f the court enter ed a “remark ” on the docke t in di cati ng that t he “cas e i s di smi ssed w i th prej udi ce pursuant to the S tipu lation of D i smi ssal .” Yet no t untilApril 2013 di d the di stric t fi nally di spose of the defendants’ moti ons for sancti ons, and only then di d the judge i ssu e a judgment meet i ng the r equi rements of Feder al Rule of Ci vil P ro cedure 58. That judgment was entered o n the docketthe day it was i ssu ed, April 8. Ni eman als o fi led hi s noti ce of appeal that day. According to Hale the o rder di smi ssing hi m from the laws ui t became final in October when the las t of t he defendants s ett led, whi ch m eans, he says, that Ni eman had 30 days fro m that date t o fi le a notic e of appeal. F E D

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. P. 4(a)( 1). It follows, Hale conti nues, that Ni eman’s noti ce of appeal fi led i n April i s ti mely only as to the award of sancti ons.
Hale i s mi staken. The 30 days run not fro m the “final deci si on” but from the “entry of the j udgment or or der appealed fro m.” F E D

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. P. 4(a) (1)( A); Sherman v. Quin n , 668 F.3d 421, 424 (7th Cir. 2012). Whena judgment o r o rder i s requi red t o be set out o n a separate document (as w as true inthi s cas e, seeF E D

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. P. 58(a)) , the date o f entry i s postponed unti l the clerk ent ers the separat e document on the docket or else 150 days have elapsed, whi chever happens fi rst. See F E D

. R. C I V

. P. 58(c )(2) ; F E D

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. P. 4(a)( 7)(A)( i i ); Lawuary v. United S tat es , 669 F.3d 864, 865 (7th Cir. 2012). The di stric t court could have i ssu ed an order di smi ssing the case in October whi le sti ll keepin g theNo. 13-1739 Page 6

sanc tions motions u nder advisem ent, but i t was not required to do so. And though we have sai d that a pendi ng motion for sancti ons wi ll not deprive us of juris di cti on ov er an appeal from the merits i f the di stric t court has entered “a j udgment defini tively and completely dis posi ng of the underly i ng acti on,” Clevel and v. Berkson , 878 F.2d 1034, 1036 (7th Ci r. 1989), we have notsai d that t he court cannot wi thhold that j udgment unti l after decid i ng the sancti ons i ssu es. A “remark ” on the docke t is not what we had in mind in Clevel and . The only judgment ent ered in thi s cas e was entered the day t hat Ni eman fi led hi s noti ce of appeal.

Mor eov er, ev en i f we ac cept Hale’s ass umpti on that t he October 3 “remark ” on the docket consti tutes the “entr y of t he judgment o r o rder appealed from,” the clock would not have r un after 30 days as Hale insi sts. He c ould perhaps argue thatNi eman’s notic e of appeal i s un tim ely becaus e he fi led i t mor e than 180 days after O ctober 3. But Hale has n ot made t hi s argument, and thus has forfeited i t. See Dolan v. United S tat es , 130 S. Ct . 2533, 2538 (2010); Peterson v. Somers Du blin L td. , No. 12-2464, 2013 WL 4767495 (7th Ci r. S ept. 6, 2013) (“Stat utor y time li mi ts for appeal can be juris di cti onal, but tim e li mi ts i n the Rules of Appellate Procedure ar e not.”); Carter v. Hodge, No. 13-2243, 2013 WL 4022531, at *2–3 (7th Cir. Aug. 8, 2013). By fai li ng eve n to mention Federal Rule o f Appellate Pro cedure 4(a)( 7)(A)( i i ), Hale has forfeited i ts prot ecti on. We pro ceed to t he meri ts. In the dis tr i ct court and now i n thi s court Hale has pressed the single contention that he cannot be sued u nder the I llinoi s Hu man Ri ghts Act becaus e Ni eman’s fi rst admi ni strat i ve charg e does not name hi m as a respondent. The di stric t court went further and concluded that Hale cannot be sued bec ause he i s not t he employer who turned down Ni eman for a jo b. Both contentions are wrong.

The di stric t court ’s view , whi ch even Hale does not defend, rests on the mi staken beli ef that the Human Ri ghts Act is equi valent t o Ti tle VII. Nieman’s complaint relies on § 5/6-101, wh i ch proscribes retaliati on, ai di ng and abetting vi olations of the Act, and i nterfer i ng wi th i nvestigati ons conduc ted by t he Department of Human Ri ghts. 775 ILCS § 5/6-101(A–C). Those prohib i tions apply to any person , not j ust to employ ers, and thus the court was wrong in conclu di ng that Nieman d oes not stat e a clai m si mply becau se Hale i s not the employ er fro m wh om he sought a j ob. See Anderson v. Pistne r, 499 N.E.2d 566, 569 (Ill. App. Ct. 1986) (explaining that, under § 5/6-101, a per son other than an employer may be li able for violatin g the A ct).

The di stric t court also was led astray by Hale’s premi se that the absence of hi s name as a respondent in the or i gin al charge is fatal to Nieman’s laws ui t. The courtNo. 13-1739 Page 7

based that conclu si on not o n deci si ons from Illi noi s interpr eting the Act but on cases di scu ssing Ti tle VII. The absence of a party’s name from an i ni tial charge is n ot di sposi tive, however , and Hale c i tes no Illin ois authority t o the cont rar y. See Bd. of Educ. of City of Chicago v. Cady, 860 N.E.2d 526, 534 (Ill. App. Ct. 2006); Muraoka v. Ill. Human Rights Comm’n , 625 N.E.2d 251, 256 (Ill. App. Ct. 1993). Instead, what’s i mport ant i s that a charge be “i n su ch detai l as to subs tantially appri se any party proper ly concerned as to t he tim e, place, and f acts su rr ounding the allege d ci vil ri ghts violation.” 775 ILCS. 5/7A-102. And in maki ng that det ermin ation the state court s review allsupp or tin g documents. See Cady, 860 N.E.2d at 534; Muraoka , 625 N.E.2d at 256–59.

Hale was RLI’s employment ag ent, and he sat squarely between the company and Ni eman. Hale has never deni ed that Niemancopi ed hi m on all of hi s submi ssi ons to t he Department. And nei ther can he deny that, given hi s role as the point person between RLI and Ni eman, he s urely would have understo od fro m the charge that Ni eman beli eves he di d not g et t he jo b wi th RLI because of hi s pri or li tigati on and not becau se he i s less quali fi ed than the ot her appli cants. Moreo ver , we are notpersuaded that Nieman ’s edi ts to t he fi rst dr aft of the charge cut in Hale’s f avo r: Not only did the i ntake o ffi cer appreci ate t he depth of Hale’s involv ement i n the hi ring process after i nterv i ewing Ni eman, bu t r esponsi bi li ty fo r ev aluati ng the r elevant facts “to ascertai n whom the complainant fai rly charg es wi th di scri minati on” i s the jo b of the Department, not t he aggr i eved par ty. See Cady , 860 N.E.2d at 534; Muraoka , 625 N.E.2d at 257.

Mor eov er, t he di stric t court faulted Ni eman for not hav i ng sought t o amend hi s
or i gin al charge to add Hale as a respondent, and then the court dis reg arded Niem an’s explanation that he had tried to do ex actly thatbut was thwarted by t he i nvestigator assi gned to hi s cas e. Copies of corr espondence s ubm i tte d by Ni eman establi sh that he di d seek to add Hale as a respondent bu t was told that t he Department does notpermi t amendmen ts to an admi ni strat i ve charg e. That statement fro m the Department’s i nvestigator cannot be reconci led wi th the ag ency’s pub li shed regulations, whi ch speci fy that a “charg e may be amended to subs titute or name addi tional respondents.” I L L

. A D M I N

. C OD E tit. 56, § 2520.360; see Cady, 860 N.E.2d at 534. Li kewi se, the di stric t court dis reg arded the supplemental ch arg e that Niemansub mi tte d to t he Department after he was refused an opportuni ty t o amend. That submi ssi on would have relat ed back to t he origi nal ch arg e i f Hale “had ti mely notice of the origi nal ch arg e and the fact i t mi ght be invo lved ther ei n.” I L L

. A D M I N

. C OD E tit. 56, § 2520.360(c ).

If there are o ther r easons w hy Ni eman’s adm i ni strat i ve charg e mi ght be defi ci ent, Hale di d not bring them to t he di stric t court ’s attent i on. The one reason he didNo. 13-1739 Page 8

give—the absenc e of hi s nam e from the o riginal ch arg e—cannot justif y the dis mi ssalof Ni eman’s c omplai nt. The cas e mus t be remanded for furt her pro ceedings.

Fin ally, ther e i s the matter of the $17,000 sancti ons award. The di stric t court ’s deci si on to i mpose san cti ons turned entirely on its b eli ef that a clai m against Hale un der the Human Ri ghts Act is fri vo lous as a m atte r o f law. In li ght o f our conclus i on that t he case against Hale cango fo rward, t he di stric t court ’s i mposi tion of san cti ons on thi s basi s was an abus e of di screti on. See L eveski v. ITT Educ. Servs ., Inc. , 719 F.3d 818, 839–40 (7th Ci r. 2013).

We have r eviewed N i eman’s other ar guments conc ernin g hi s cas e agains t Hale, and none has m erit. Accordi ngly, we vacate t he di stric t court ’s judgment to the ext ent it di smi sses the complaint agains t Hale and i mposes s ancti ons for bringing sui t agains t hi m. On remand the di stric t courtshould as sess whether to ret urn thi s li tigati on to state court, si nce the federal clai ms that prompted its removal hav e all been resolved. See 28 U.S.C. 1367(c); Bond v. Atk inson , 2013 WL 4511469, *4 (7th Ci r. 2013); RWJ Mgmt . Co. v. BP Prods. N.A., Inc. , 672 F.3d 476, 478 (7th Cir. 2012). Hal e’s motion for appellate
sanc tions, see F E D

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. P. 38, i s deni ed.