Shukeitha Jackson v. Abbvie Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 13, 2025*
Decided February 13, 2025
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 24-2311
SHUKEITHA JACKSON,
Plaintiff-Appellant,
v.
ABBVIE INC.,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 23-cv-03747
Mary M. Rowland,
Judge.
O R D E R
Five years after AbbVie Inc. fired Shukeitha Jackson, she sued it alleging AbbVie
violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2, and the Civil
Rights Act of 1866, id. § 1981, based on race discrimination and retaliation. The district
court dismissed her suit with prejudice, concluding it was incurably untimely. Because
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-2311 Page 2
Jackson’s suit is untimely and she did not preserve arguments that she seeks to raise on
appeal, we affirm.
Jackson’s claims were dismissed on the pleadings, so we take the facts that she
alleges in her complaint as true. Schimandle v. Dekalb Cnty. Sheriff's Off., 114 F.4th 648,
652 (7th Cir. 2024). Throughout the first half of 2018, a coworker harassed Jackson
because she was Black. Jackson complained to her supervisor about the mistreatment in
May, and AbbVie fired her on July 31, 2018. Believing that AbbVie fired her illegally,
two months later Jackson filed charges with the Illinois Department of Human Rights
and the Equal Employment Opportunity Commission, alleging racial harassment and
unlawful discharge. More than two years later, in 2020, she filed another charge with
the Department and EEOC, raising the same claims but adding facts. The EEOC sent
her two right-to-sue notices. First, on September 6, 2022, it notified her of her right to
sue on her factually enhanced charge from 2020; then, about nine months later, on June
10, 2023, it notified her of her right to sue on her substantively identical charge from
2018 which she had elected to pursue before the Illinois Human Rights Commission.
Three days after receiving the latter of the two notices, she filed this suit, alleging that
AbbVie violated Title VII and § 1981 when it failed to stop harassment against her and
fired her because of her race and complaints.
AbbVie moved to dismiss Jackson’s complaint as untimely, citing Federal Rule of
Civil Procedure 12(b)(6). (We note that a motion under Rule 12(b)(6) challenges the legal
sufficiency of a claim. But an argument like AbbVie’s about an affirmative defense like
untimeliness does not challenge the legal sufficiency of a claim; instead, it contests the
adequacy of the pleadings, which is the subject of Rule 12(c). We therefore analyze this
appeal under that Rule. See Schimandle, 114 F.4th at 652.) It argued that she filed her
Title VII claim late because 90 days had passed since she received her first right-to-sue
notice, and her § 1981 claim was also untimely because the four-year limitations period
(beginning in July 2018) had already expired when she sued in 2023. Jackson responded
that her receipt of the second right-to-sue notice—which she received three days before
suing—governed the timeliness of her suit and that the time to sue on her § 1981 claim
was tolled while she exhausted her administrative remedies on her Title VII claim. The
district court rejected these arguments and dismissed Jackson’s complaint with
prejudice, concluding that her claims were untimely and that no amendment could cure
that deficiency.
Dismissal on the pleadings was correct. Jackson had 90 days after receiving her
first right-to-sue notice to file her Title VII claims. See 42 U.S.C. § 2000e-5(f)(1).

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No. 24-2311 Page 3
According to her complaint, she received that right-to-sue notice on September 6, 2022.
Because she sued in June 2023, six months past the 90-day deadline, her suit was
untimely. And she does not provide support for her previous contention that her
receipt of her second right-to-sue notice governed the timeliness of her suit. Although
we have not yet addressed this scenario, the other circuits that have reached it have
ruled that the receipt of a second right-to-sue notice based on a substantively identical
charge that yielded an earlier notice does not extend or restart the statutory 90-day
filing deadline. See Rivera-Diaz v. Humana Ins. of P.R., 748 F.3d 387, 391 (1st Cir. 2014);
Soso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d 827, 828 (2d Cir. 1986); Spears v.
Mo. Dep’t of Corrs. & Human Res., 210 F.3d 850, 853 (8th Cir. 2000); Brown v. Unified Sch.
Dist. 501, 465 F.3d 1184, 1186 (10th Cir. 2006). Because Jackson does not dispute that her
two charges are substantively identical, this principle applies here to time-bar her Title
VII claim.
Jackson’s § 1981 claim was also untimely. Because AbbVie fired Jackson in 2018
and § 1981 claims have a four-year statute of limitations, see 28 U.S.C. § 1658(a), Jackson
needed to file her § 1981 suit before 2023, which she did not do. And statutory
exhaustion requirements—like those under Title VII—do not apply to § 1981 or toll that
statute’s time limits. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 464–66 (1975).
Jackson offers two responses on appeal, but neither is persuasive. She first argues
that the district court should have given her leave to amend her complaint to include
facts supporting equitable tolling of her claim-filing deadlines. It is true that, in
pleading a complaint, a plaintiff need not anticipate an affirmative defense like the
statute of limitations or attempt to rebut it. Sabo v. Erickson, __F.4th __, __, 2025 WL
354484, at *2 (7th Cir. Jan. 31, 2025) (en banc). But “we have repeatedly held that a party
opposing a motion in the district court must inform the court of the factual and legal
reasons why the motion should not be entered, and if it fails to do so it cannot then raise
those arguments on appeal.” O’Gorman v. City of Chicago, 777 F.3d 885, 890 (7th Cir.
2015) (citations omitted). Once AbbVie argued in its motion to dismiss that equitable
tolling would not extend Jackson’s deadlines to sue on her Title VII and § 1981 claims,
Jackson had to assert facts and legal reasons to counter AbbVie’s position. But she did
not. Nor did she ask for leave to amend to assert those facts. It is thus too late to attempt
to raise those new facts for the first time on appeal. See id. (affirming dismissal of
complaint as untimely where plaintiff failed to provide the district court with a reason
not to dismiss her complaint including granting him leave to amend).

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No. 24-2311 Page 4
Similarly, Jackson contends that the district court should not have allowed
AbbVie to argue untimeliness as a defense because she asserts, for the first time on
appeal, that AbbVie concealed evidence about her claims. This is an argument for
equitable estoppel. Again, Jackson had the opportunity to assert facts supporting this
equitable-estoppel contention to the district court in her response to AbbVie’s motion to
dismiss. But she failed to do so, and therefore she may not ask us to address it now.
See Braun v. Vill. of Palatine, 56 F.4th 542, 553 (7th Cir. 2022).
AFFIRMED

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