Elvin Farris v. Vector Construction, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 12, 2023
Decided August 1, 2023
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 22-3183
ELVIN FARRIS,
Plaintiff-Appellant,
v.
VECTOR CONSTRUCTION, INC.,
Defendant-Appellee.
Appeal from the United States District
Court for the Central District of Illinois.
No. 22-cv-2107
Colin S. Bruce,
Judge.
O R D E R
Elvin Farris, a construction worker, sued Vector Construction, his former
employer, for discrimination and retaliation alleging that it fired him rather than
accommodate his work-related disability. The district judge granted Vector’s motion to
dismiss, concluding that Farris’s charge with the Equal Employment Opportunity
Commission was untimely. Farris appeals, arguing that the judge should have found
his charge timely or granted him leave to amend his complaint. Because the charge is
untimely and amendment would have been futile, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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We accept the allegations in the complaint as true and draw all reasonable
inferences in Farris’s favor. Chaidez v. Ford Motor Co., 937 F.3d 998, 1004 (7th Cir. 2019).
Farris worked for Vector Construction for decades until August 2018 when he was
discharged. Farris inhaled chemical insulation spray after he was denied an appropriate
respirator given his preexisting asthma. Farris complained to his supervisor that safety
regulations were being ignored, and on August 5 he was “sent home” from work until
further notice. It is unclear what reason Vector gave Farris, but he believed Vector
discriminated and retaliated against him by laying him off for raising safety concerns.
Farris learned later that his removal from work was permanent. In October 2018,
believing he was still employed, Farris sought a loan from his company retirement plan.
On October 25 a Vector employee informed him that Vector had fired him in August.
On July 29, 2019, nearly a year after being sent home, Farris filed a charge with
the Equal Employment Opportunity Commission. He alleged that Vector had violated
the Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213, by discriminating against
him for his asthma and retaliating against him for reporting unsafe working conditions.
In the charge Farris listed August 5, 2018, as the date of Vector’s latest discriminatory
act; he did not mention that he learned he was fired in October. The EEOC dismissed
Farris’s charge and issued a Right to Sue letter.
Farris then filed a complaint under the ADA in federal court, and Vector moved
to dismiss on timeliness grounds. Vector argued that Farris’s EEOC charge was
untimely because he filed it more than 180 days after August 5 when he alleged that
Vector last discriminated against him. Farris responded that the EEOC found his charge
timely and included an EEOC investigator’s declaration acknowledging his claim as
filed within 300 days of October 25 when he learned that his discharge was permanent.
Farris also included corroborating notes from his intake interview and emails from the
Vector staffer who informed Farris in October that he had been fired.
The judge granted Vector’s motion and dismissed Farris’s complaint with
prejudice. Noting that Illinois is a “deferral” state, the judge explained that Farris had to
file his EEOC charge within 300 days of the last allegedly unlawful act. See Stepney v.
Naperville Sch. Dist. 203, 392 F.3d 236, 239 (7th Cir. 2004). The judge ruled that even if
Farris did not know that he was fired until October 2018, his claims accrued in August
when he suspected that Vector had discriminatory and retaliatory motives for sending
him home from work. And because he could not amend his complaint to revive his

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No. 22-3183 Page 3
time-barred claims, the judge considered amendment futile and dismissed the
complaint with prejudice. See Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).
On appeal Farris argues that the judge erred by rejecting his EEOC charge, and
therefore his federal claims, as time-barred. Farris argues primarily that the judge erred
by conflating two “separate and distinct adverse actions”: the layoff in August and the
firing in October. He argues that regardless of whether a “discriminatory layoff” claim
accrued in August, a "discriminatory termination” claim did not accrue until he learned
in October that he was fired.
The judge correctly dismissed Farris’s claims as time-barred. In his EEOC charge,
Farris alleged that Vector last discriminated against him by sending him home on
August 5. He had 300 days—until June 1, 2019—to file a charge against Vector for doing
so “or lose the ability to recover for it.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
110–11 (2002); 42 U.S.C. § 2000e-5(e)(1). Because he filed his charge on July 29, 2019,
nearly two months late, Farris may not bring federal claims arising from his removal
from work.
Farris’s later discovery of new information about the precise scope of the injury
does not start a new limitations clock. A claim accrues when a plaintiff “knows or
should know” that he has been injured. See Draper v. Martin, 664 F.3d 1110, 1113
(7th Cir. 2011). Here, that’s August 5, 2018, when Farris first “awaken[ed] to the
possibility” that Vector had illegally removed him from work. Beamon v. Marshall &
Ilsley Tr. Co., 411 F.3d 854, 861 (7th Cir. 2005). To rely on the discovery rule, Farris
would have to show that he could not have learned sooner through reasonable
diligence that Vector considered his position terminated. Farris makes no such showing,
and he cannot use his October “discovery” that he was fired in August “to pull in the
time-barred discriminatory act.” Nat’l R.R. Passenger Corp., 536 U.S. at 113.
Farris’s October notice was not a separate and distinct adverse act: there is no
meaningful difference between his “layoff” and his “termination” when it comes to
Vector’s alleged motive. Vector’s allegedly discriminatory discharge, not its
characterization, was the relevant conduct. See Draper, 664 F.3d at 1115. Farris was
injured when Vector sent him home—and never called him back—not in October when
he learned that he had been fired. Id. at 1113.
And if October were significant, it is too late for Farris to pursue a claim based on
a “discrete” act then. We have long held that an EEOC charge limits and defines any

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subsequent federal claims. See Riley v. City of Kokomo, 909 F.3d 182, 189 (7th Cir. 2018)
(citing Green v. Nat’l Steel Corp., 197 F.3d 894, 898 (7th Cir. 1999)). Farris filed one EEOC
charge, which identifies only the removal from work as Vector’s last discriminatory act.
Any claims arising from “separate and distinct” actions in October, then, fall outside the
scope of the charge and may not be brought in federal court. Nat’l R.R. Passenger Corp.,
546 U.S. at 113; Riley, 909 F.3d at 189. Because no amended complaint could state a claim
for relief, the judge correctly dismissed Farris’s complaint with prejudice.
AFFIRMED

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