U. S. Court of Appeals Affirms Summary Judgment Where Plaintiff Could Not Show That Equitable Tolling Applied and Plaintiff Missed the Filing Deadline by More Than Two Years

Levia Moultrie began working at Penn Aluminum in 1990. Over the next 20 years, Moultrie worked in different positions, including forklift operator, block operator, utility coiler and scrap chopper.

In September 2008, Moultrie used his seniority to take on the job of forklift operator. The collective bargaining agreement between Moultrie’s union and Penn Aluminum gave Moultrie two days to show that he could perform the job.

A little more than a week after Moultrie switched into the forklift operator job, he began experiencing performance problems. During one shipment he was tasked with handling, Moultrie incorrectly hooked up some wires causing a delay in a shipment.

The error resulted in Moultrie receiving counseling for inadequate job performance from one of his supervisors. Two days after the counseling began, Moultrie received a warning for an unsafe incident involving an oven when part of the forklift damaged an oven door. A week after that incident, Moultrie again attached wires improperly causing the thermocouple wires to be cut. This incident brought on another counseling session.

Moultrie’s problems at work continued, and in February 2009 he was written up for placing tags on the wrong piles, something that took several hours to straighten out.

The next day the temporary manager moved Moultrie out of his job as a forklift operator to a job that Moultrie called a “dirty” job, operating the chopper. Another employee was given the “clean” job of a forklift operator. Moultrie filed a grievance. Moultrie’s grievance mentioned nothing about race; however, Moultrie alleged that the incident was racially motivated. Moultrie’s union refused to include an allegation of racism in his grievance.

Even though Moultrie continued to work at the plant, he was essentially demoted because of his write-ups and carelessness at work. He was disqualified from the forklift position. Moultrie filed a grievance challenging the disqualification. The grievance did not mention race, and Moultrie claimed the union representative refused to include the allegations of racism.

Penn Aluminum rejected Moultrie’s grievance on May 21, 2009. Neither the union nor Moultrie filed for arbitration within the ten-day period required under the collective bargaining agreement. Moultrie filed charges of discrimination with the Illinois Department of Human Rights and U.S. Equal Employment Opportunity Commission on Sept. 3, 2009. The agency notified Moultrie in November 2009 that his charge would be dismissed because it was not supported by substantial evidence.

On June 14, 2011, Moultrie filed a complaint in the U.S. District Court for the Southern District of Illinois. The complaint alleged a violation of the collective bargaining agreement, breach of the union’s duty of fair representation, racial discrimination and retaliation.

The district court dismissed the Illinois state law claim as time-barred and entered summary judgment against Moultrie on all remaining claims. Moultrie appealed to the U.S. Court of Appeals for the 7th Circuit.

The appeals panel began by noting that Moultrie’s claim of violation of the collective bargaining agreement was subject to a six-month statute of limitations under Section 10(b) of the National Labor Relations Act.

Because Moultrie first raised his claim against Penn in an amended complaint in October 2011, more than two years after the deadline to file for arbitration, the panel found that Moultrie had to rely on the doctrine of equitable tolling. However, the panel found that Moultrie had no basis for equitable tolling on the limitations statute. In addition, there was no evidence that Penn Aluminum was guilty of fraudulent concealment.

Lastly, the panel disposed of Moultrie’s discrimination claims. The panel found that the evidence did not show that he was meeting his employer’s legitimate expectations, nor did Moultrie identify any similarly situated employees who were treated better than he. As a result, the court of appeals affirmed the decision of the district court dismissing his case.

Susan I. Moultrie, executor of the Estate of Levia Moultrie v. Penn Aluminum International, LLC, No. 13-2206 (U.S. Court of Appeals, 7th Cir., Sept. 10, 2014).

Kreisman Law Offices has been handling work injury cases, construction site accident cases, business litigation, employer-employee disputes and commercial litigation for individuals and families for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Northbrook, Northlake, Oak Forest, Oak Lawn, Oak Park, Olympia Fields, Orland Hills, Franklin Park, Flossmoor, Elmwood Park, Elgin, Dixmoor, Deerfield, Crete, Matteson, Countryside, Country Club Hills, Chicago Ridge, Burr Ridge, Buffalo Grove, Vernon Hills, Bridgeview, Broadview, Bellwood, Maywood, Hillside, Harvey and South Holland, Ill.

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