Susan Kinder v. Marion County Prosecutor ’ S Office

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1952
S USAN K INDER ,
Plaintiff-Appellant,
v.
M ARION C OUNTY PROSECUTOR ’ S O FFICE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:22-cv-01952-MPB-MJD — Matthew P. Brookman, Judge.
____________________
A RGUED J ANUARY 14, 2025 — DECIDED M ARCH 26, 2025
____________________
Before R IPPLE, BRENNAN , and K OLAR , Circuit Judges.
BRENNAN , Circuit Judge. Susan Kinder believed her em-
ployer, a county prosecutor’s office, racially discriminated
against her when it reassigned her to a new role. She alleged
violations of Title VII and the Equal Protection Clause. But her
statutory claim was untimely, and her constitutional claim is
barred because the prosecutor’s office is not a suable “person”
under 42 U.S.C. § 1983. So, we affirm the summary judgment
decision against her.

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2 No. 24-1952
I
Kinder is a white woman employed by the Marion County
Prosecutor’s Office (“MCPO”). She worked there as a recep-
tionist and later was promoted to an advocate position, in
which she worked closely with children impacted by crime.
After her promotion, Kinder performed the same responsibil-
ities as two other advocates who were black women.
Kinder had repeated run-ins with one of those women,
Lydia Richardson, who voiced multiple complaints about
Kinder to their managers. Specifically, Richardson alleged
Kinder had made racially insensitive remarks to her. The
MCPO’s chief counsel, Celita Scott, investigated the com-
plaints but found them unsubstantiated. Instead, the employ-
ees Scott interviewed said the animosity between Kinder and
Richardson went “both ways.”
Scott discussed these issues with Ryan Mears, the elected
Marion County Prosecutor, who wished to fire both Kinder
and Richardson. He thought their inability to set aside “petty
disagreements” detracted from the office’s mission. Mears
had the ultimate authority to hire and fire employees, yet he
acquiesced to Scott’s suggestion that the two be reassigned to
different roles. Kinder’s new job lacked some of the positive
qualities that Richardson retained in her new role, such as the
ability to interact with victims. Ultimately, Kinder saw her
transfer as a demotion to a receptionist role. Richardson said
she “enjoy[ed]” her new position.
Because of this alleged differential treatment, Kinder filed
a racial discrimination claim with the Equal Employment Op-
portunity Commission. After investigation the EEOC decided
not to pursue a civil action against the prosecutor’s office. On

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No. 24-1952 3
April 28, 2022, the agency uploaded a letter to the EEOC por-
tal notifying her she had 90 days after receiving the letter to
sue the MCPO in district court. See 42 U.S.C. § 2000e-5(f)(1).
The letter stated that receipt “generally occurs on the date that
you (or your representative) view this document.”
Kinder’s counsel received an email that day telling him a
“new document was added” to the portal, but he could not
access the document itself. So, he called the EEOC multiple
times to ask about the document. The agency emailed him on
June 15, 2022, saying Kinder’s “charge was closed” on April
28, and that he “will need to view the Notice of Right to Sue”
in the portal. After additional unsuccessful attempts to access
the document, he mailed a letter to the EEOC, requesting it
send him the right-to-sue letter. In this correspondence, he
acknowledged his “client only has 90 days from the date the
investigation was closed to file a complaint” in district court.
On July 6, 2022, Kinder’s counsel eventually received the
right-to-sue letter via email. The letter was still dated April 28,
2022. Counsel requested it be revised to reflect the date of re-
issuance, but the agency did not provide a new letter. Kinder’s
counsel did not attempt to clarify with the EEOC whether he
was still bound by the April 28 date or the later July 6 date.
Kinder filed a complaint against the MCPO in the South-
ern District of Indiana on October 4, 2022. This was 159 days
after April 28, 111 days after June 15, and 90 days after July 6.
The complaint alleged claims under Title VII and the Four-
teenth Amendment’s Equal Protection Clause.
The MCPO moved for summary judgment. Relying on
this court’s decision in Lax v. Mayorkas, 20 F.4th 1178 (7th Cir.
2021), it argued Kinder’s Title VII claim was not timely, as it

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4 No. 24-1952
was filed outside the 90-day statutory window. Per the pros-
ecutor’s office, Lax establishes that the clock begins running,
at a minimum, as soon as the plaintiff knows the right-to-sue
letter has issued—whether or not the plaintiff could access it.
See id. at 1182–83. As to the equal protection claim, the MCPO
argued it was an arm of the state and thus not a “person” sub-
ject to suit under 42 U.S.C. § 1983. See Jones v. Cummings, 998
F.3d 782, 786 (7th Cir. 2021) (holding an Indiana county pros-
ecutor is a non-suable state official).
The district court granted summary judgment to the
MCPO on both claims. It concluded that, under Lax, June 15
served as the “operative notice date,” yet the complaint was
not filed within the 90-day window. The court also found the
MCPO to be an arm of the state, immune from § 1983 claims
under the Eleventh Amendment. Kinder timely appeals both
rulings.1
II
Kinder first contends the 90-day window to file her Title
VII claim did not commence until she could access the letter
on July 6, 2022. If that is true, her claim was timely. She next
argues that, although the prosecutor may be an immune state
official, material factors separate the individual from the of-
fice. If so, even though Kinder may not sue the county prose-
cutor, she may sue the office as a municipal entity under
§ 1983.
Because the case was resolved on summary judgment, we
review the district court’s decision de novo, viewing the facts
1 The district court had subject-matter jurisdiction under 28 U.S.C.
§ 1331. We have appellate jurisdiction under 28 U.S.C. § 1291.

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No. 24-1952 5
through a lens most favorable to Kinder. Walters v. Pro. Lab.
Grp., LLC, 120 F.4th 546, 548 (7th Cir. 2024). Summary judg-
ment is warranted when “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(a).
A
Our court holds that the 90-day Title VII clock begins tick-
ing not when the plaintiff reads the right-to-sue letter, but as
soon as the plaintiff is on notice the letter has issued. In Lax,
the plaintiff received an email alerting him to “the Agency’s
Final Action” in his case, with his right-to-sue letter attached.
20 F.4th at 1180–81. Through no fault of his own, he was una-
ble to open the letter itself until the following day. Id. at 1181.
He did not file his lawsuit in district court until 91 days after
receiving the email—90 days after he viewed the letter. Id. The
district court held that the 90-day window “commenced
when he received the email, not when he opened the attach-
ment.” Id. at 1182. It was irrelevant that the plaintiff “was un-
able—rather than simply unwilling—to read the notice on the
day he received it.” Id.
The MCPO also points to the Eighth Circuit’s decision in
McDonald v. St. Louis University, 109 F.4th 1068 (8th Cir. 2024),
which is factually similar to this case. There, the plaintiff re-
ceived an email that “a new document was added to” her por-
tal. Id. at 1070. The email did not describe the document. Id. at
1071. Although the notification did not alert her to a final
agency decision, as the email did in Lax, the document refer-
enced was the right-to-sue letter. Id. at 1070. The plaintiff’s at-
torney lost the password to the portal, waiting over a month
to ask the EEOC to email him the letter directly. Id. The agency

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6 No. 24-1952
did so, and the plaintiff filed suit within 90 days of reading
the letter, but 137 days after the initial portal notification. Id.
The court held that the 90-day window opened after the
first email’s receipt, even though the plaintiff did not know
the agency had concluded its investigation on that date. Id. at
1071. It reached this conclusion even though the letter, like the
one here, said a suit must be filed “within 90 days of [her]
receipt of this notice.” Id. at 1070 (cleaned up).
Taken together, Lax and McDonald start the countdown—
at a minimum—when Kinder had notice of the agency’s final
decision. There is no dispute that, on June 15, Kinder’s coun-
sel was notified the “charge was closed with the EEOC,” and
that he knew the right-to-sue letter was available in the portal.
Under Lax, this is enough. See 20 F.4th at 1183.
Under the Eighth Circuit’s more stringent framework, the
clock would have begun running here on April 28, even be-
fore notification of a final agency decision. See McDonald, 109
F.4th at 1071. But we leave for another day whether to adopt
McDonald wholesale. Under either date, April 28 or June 15,
Kinder’s suit was untimely.
Kinder counters that because her right-to-sue letter said
she must sue within 90 days of receipt, which “generally oc-
curs” when the document is viewed, her suit was timely. We
do not believe, nor did the court in McDonald, that this generic
language takes the case outside of Lax’s general rule. 109 F.4th
at 1070.
Instead, if unusual circumstances prevent a plaintiff from
reading a letter, the question arises whether the deadline
should be equitably tolled. That doctrine provides relief when
a claimant is “prevented in some extraordinary way from

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No. 24-1952 7
filing his complaint in time.” Lax, 20 F.4th at 1183 (quoting
Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850 (7th Cir.
2001)). Courts may extend statutory deadlines when “external
obstacle[s]” that are “both extraordinary and beyond [a
party’s] control” prevent timely filing. Lombardo v. United
States, 860 F.3d 547, 552 (7th Cir. 2017) (quoting Menominee In-
dian Tribe of Wis. v. United States, 577 U.S. 250, 256 (2016)). But
Kinder did not argue—before the district court or in her open-
ing brief—that her deadline should have been equitably
tolled. That argument therefore is not properly before us. See
Bradley v. Village of University Park, 59 F.4th 887, 897 (7th Cir.
2023) (arguments not presented in the district court or open-
ing brief are waived).
Further, Kinder’s counsel did not clarify with the EEOC
whether his client was bound by the April 28 date. And, even
assuming April 28 was the operative notice date, he had three
weeks after reading the right-to-sue letter on July 6 to timely
file Kinder’s claim. These two facts do not show the “exercise
[of] due diligence in preserving” legal rights necessary to
warrant equitable tolling. Lax, 20 F.4th at 1183 (quoting Irwin
v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990)); McDonald, 109
F.4th at 1072. The district court was thus correct to grant sum-
mary judgment to the MCPO on Kinder’s Title VII claim.
B
Next up is Kinder’s equal protection claim. The district
court granted summary judgment to the MCPO because it
concluded the office was an arm of the state, rather than a
“person” under 42 U.S.C. § 1983. That statute provides a
cause of action against “[e]very person who, under color of”
state law, deprives a plaintiff of federal rights. Id. States and
their officials are not suable “persons” under § 1983, as the

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8 No. 24-1952
statute did not abrogate states’ Eleventh Amendment immun-
ity. See Jones, 998 F.3d at 786 (quoting Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989)).
Courts cannot evaluate whether a local government offi-
cial acts for the state “in some categorical, ‘all or nothing’
manner.” McMillian v. Monroe County, 520 U.S. 781, 785 (1997).
We “look to the state laws creating the official’s position, as
well as the state laws governing the official’s actions, state-
court decisions, and the financial interdependence between
the official and the state.” Jones, 998 F.3d at 786. The Supreme
Court has said it “is of considerable importance” whether “a
money judgment against a state instrumentality or official
would be enforceable against the State.” Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 430 (1997); see also Parker v. Franklin
Cnty. Cmty. Sch. Corp., 667 F.3d 910, 927 (7th Cir. 2012) (apply-
ing Regents in the § 1983 context).
Our court held in Jones that an Indiana county prosecutor
served as a state official, and was thus not a “person” under
§ 1983, when “prosecuting criminal cases.” 998 F.3d at 786–87.
But because the evaluation is not “categorical,” McMillian, 520
U.S. at 785, Jones does not necessarily resolve the issue here:
Whether the prosecutor’s office in its employment function is
also an arm of the state.
An initial matter requires clarification. Kinder argues Jones
is distinguishable because she has not sued Mears in his “of-
ficial capacity,” but rather the MCPO “as an employer.” But
even as an employer, the MCPO acts in its “official capacity.”
Jones dealt with a suit against a prosecutor in his official ca-
pacity, yet the Supreme Court has held that “an official-capac-
ity suit is … to be treated as a suit against the entity.” Kentucky
v. Graham, 473 U.S. 159, 166 (1985); see also Will, 491 U.S. at 71

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No. 24-1952 9
(saying that holding otherwise “would allow [plaintiffs] to
circumvent congressional intent by a mere pleading device”).
Accordingly, the lawsuit in Jones was against both the prose-
cutor in his official capacity and the prosecutor’s office as an
entity.
Turning back to the question of the “person” who can be
sued under § 1983, Jones dealt extensively with the Indiana
laws creating the prosecutor’s office. We provide a brief sum-
mary here. Prosecutors are constitutional officials, “remova-
ble only by way of impeachment.” Jones, 998 F.3d at 786 (citing
I ND. C ONST. art. 7, §§ 13, 16). Their offices were “carved out of
the office of the attorney general as it existed at common law.”
State ex rel. Neeriemer v. Daviess Cir. Ct. of Daviess Cnty., 142
N.E.2d 626, 628 (Ind. 1957). Local prosecutors, similar to the
attorney general, “exercise certain sovereign powers.” Foster
v. Pearcy, 387 N.E.2d 446, 449 (Ind. 1979).
No state laws govern the MCPO’s employment decisions
per se. But Indiana law does contain a requirement for coun-
ties to finance prosecutors’ offices as to employment. Counties
must pay the salaries for non-state-salaried prosecutors, “in-
vestigators, [and] clerical assistance,” as well as other
expenses “necessary for the proper discharge of the duties im-
posed by law” on the elected prosecutors. I ND. C ODE § 33-39-
6-2(h).
Kinder’s strongest argument is that there is financial inter-
dependence between some of the office’s employees and the
county, as only the prosecutor and certain deputy prosecutors
are paid by the state. Id. §§ 33-39-6-2(a), 33-39-6-5. The remain-
ing employees are paid by the county. But there are two rea-
sons why Kinder’s argument does not require us to treat the
office as a county instrumentality.

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10 No. 24-1952
First, the Supreme Court did not find the factor of county
funding determinative in McMillian, where the county was re-
sponsible for paying the sheriff’s salary. 520 U.S. at 791. Pay-
ment from the county did not “tip the balance” away from the
sheriff being a state official because the county did not have
“the discretion to refuse payment completely.” Id. In McMil-
lian, Alabama had a funding scheme similar to that here,
where the county could not refuse funds below what was
“reasonably necessary” to the sheriff’s operations. Id. at 791–
92 (citation omitted). In Indiana, counties may be compelled
to remit payment if they are found to have withheld funds
below a “necessary” level. Brown v. State ex rel. Brune, 359
N.E.2d 608, 609–10 (Ind. Ct. App. 1977). Because Indiana law
ensures that counties cannot deny prosecutors’ offices neces-
sary funds, counties lack “control over” the offices. McMillian,
520 U.S. at 791. Albeit in a different context, the Indiana Su-
preme Court has held that probation officers, even though
paid from county treasuries, qualify as state employees. Lake
Cnty. Bd. of Comm’rs v. State, 181 N.E.3d 960, 966 (Ind. 2022).
These decisions support the conclusion that the MCPO is not
excluded from being an arm of the state solely because it re-
ceives some county funding.
Second, in Regents the Supreme Court instructed that
when evaluating financial interdependence, courts must con-
sider whether any money judgment “would be enforceable
against the State.” 519 U.S. at 430. Many courts, including
ours, have placed special emphasis on this factor. See Parker,
667 F.3d at 927; Monroe v. Fort Valley State Univ., 93 F.4th 1269,
1279 (11th Cir. 2024); Kreipke v. Wayne State Univ., 807 F.3d 768,
776 (6th Cir. 2015). Indeed, the Eleventh Circuit has recog-
nized that “the presence of a state treasury drain alone may
trigger Eleventh Amendment immunity and make

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No. 24-1952 11
consideration of the other factors unnecessary.” Pellitteri v.
Prine, 776 F.3d 777, 783 (11th Cir. 2015) (quoting Manders v.
Lee, 338 F.3d 1304, 1327 n.51 (11th Cir. 2003) (en banc)) (ana-
lyzing employment-related § 1983 claim against county sher-
iff).
Indiana law provides for just such a drain from the state
treasury. The state will “pay the expenses incurred by” a pros-
ecutor for an action that arises from making or performing “a
decision, a duty, an obligation, a privilege, or a responsibility
of the prosecuting attorney’s office.” I ND. CODE § 33-39-9-4.
These “expenses” include all costs related to litigation—attor-
ney’s fees, judgment or settlement amounts, and costs. Id.
§ 33-39-9-2. As the Southern District of Indiana has noted, this
indemnification obligation “draws no distinction between”
suits “based on prosecution of a criminal case” and those
“based on [employment] decisions.” Bibbs v. Newman, 997 F.
Supp. 1174, 1180 (S.D. Ind. 1998). So, even though Marion
County pays the salaries of some of the MCPO’s employees,
a significant financial interdependence exists between that
prosecutor’s office and the State of Indiana.
After considering the many laws creating the prosecutor’s
office, as well as the financial interdependence between that
office and the state, we conclude that for Kinder’s claim, the
MCPO is an arm of the state. It is therefore not a suable “per-
son” under § 1983.
We emphasize two additional points. This holding does
not, as Kinder argues, “open[] the door for all 91 prosecutors’
office[s] in Indiana” to racially discriminate with no recourse
available to plaintiffs. Congress may by statute abrogate
states’ Eleventh Amendment immunity, as it did via Title VII.
See Fitzpatrick v. Bitzer, 427 U.S. 445, 456–57 (1976). Also, this

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12 No. 24-1952
decision was made more straightforward by the state’s in-
demnifying county prosecutors for all actions taken within
the scope of employment. Based on our review of the caselaw
and other state statutes, this indemnification is rare—even for
Indiana officials. See I ND. C ODE § 36-1-17-3 (establishing that
local government officials may be eligible for reimbursement
from the county, not the state, and only when proceedings
terminate in the official’s favor). We offer no opinion on
whether a county prosecutor’s office would enjoy immunity
from a § 1983 claim alleging discriminatory employment
practices absent this broad indemnification obligation.
* * *
Kinder’s Title VII claim was untimely, and the Marion
County Prosecutor’s Office is not a suable “person” under 42
U.S.C. § 1983 on her employment claim. We therefore A FFIRM
the district court’s summary judgment decision.

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