Cudahy, Circuit Judge. I. Facts James Jackson, a male African-American, has beenemployed with the Rockford Housing Authority(RHA) since 1981, and currently serves as adevelopment manager. The RHA provides low-incomepublic housing. The Department of Housing andUrban Development (HUD) subsidizes RHA and otherlocal housing authorities, and it regulates low-income housing projects. In December 1985,Jackson applied for the position of SeniorHousing Manager with the RHA. Steven Anderson, amale Caucasian, also applied for the position.Alfred Brewington, the Director of ManagementServices for the RHA, interviewed both Jacksonand Anderson for the Senior Housing Managerposition. Don Johnson, RHA’s Executive Director,made the ultimate hiring decision. In 1986, hepromoted Anderson to the job. Executive DirectorJohnson is now deceased. Jackson claims that whenBrewington interviewed him, Brewington remarkedthat Jackson and Anderson were equally qualified.From the time RHA selected Anderson for theposition, until July 1995, Jackson never askedBrewington or Johnson why he lost out on theSenior Housing Manager position. Jackson wasnever informed that his race stood in the way ofthe promotion. Jackson now contends that he recently found outhe was better qualified than Anderson for theSenior Housing Manager position and that RHAdiscriminated against him by hiring an inferiorwhite candidate. The RHA position descriptionstated that the required education and experiencewere: B.S. in business administration, publicadministration, real estate or closely relatedfield, plus five years experience in business orproperty management. Experience in assisted orpublic housing preferred. Or High school diploma or equivalent plus tenyears experience in business or propertymanagement. Experience in assisted or publichousing desired, totaling at least six years.Incumbent must possess a Public Housing Manager’scertificate from a HUD approved CertifyingOrganization or capability of becoming certified.Possession of a drivers license and owntransportation is a requirement, since anincumbent must travel to perform duties. See Record Vol. 1, Tab D (Plaintiff’s Documentsin Support of Rule 12(M) Statement). At the time Jackson and Anderson submittedtheir applications, both worked as projectmanagers for the RHA and held college degrees;however, neither held degrees in the desiredfields. Anderson had more than ten yearsexperience in property management, including sixyears in assisted housing and three monthsexperience as a property manager for the RHA. Hedid not possess a Public Housing Certificate.Jackson had gained three years propertymanagement experience with public housing, and hedid possess a Public Housing Certificate. In June or July of 1995 (the record isinconsistent), Jackson learned that Anderson hadjust recently received his Public HousingCertificate, and calculated that Anderson had notpossessed the certificate at the time of theirinterviews. On August 23, 1995, Jackson filed acomplaint with the Equal Employment OpportunityCommission alleging discrimination. Followingreceipt of his Notice of Right to Sue, Jacksonfiled the present action on October 1, 1996,alleging that the RHA, or its agents, inviolation of Title VII of the Civil Rights Act of1964, failed to hire him due to his race despitehis greater qualifications, and concealed itsdiscrimination from 1986 to 1995. In the RHA’s answer to Jackson’s complaint, itdid not allege that the statute of limitationshad expired. On June 23, 1998, the RHA moved forsummary judgment, asserting that Jackson hadfailed to make a prima facie case ofdiscrimination and that his charge ofdiscrimination with the EEOC was filed untimely.Jackson responded that RHA had waived the statuteof limitations issue by failing to properly raiseit earlier, in its answer. The trial judge notedthat both parties’ briefs on the motion forsummary judgment addressed the statute oflimitations issue. After a status hearing and abriefing period, the district court permitted RHAto file an amended answer raising the affirmativedefense of untimeliness. The district courteventually granted summary judgment to the RHA onthat basis. Jackson now appeals on two grounds. First, hecontends that the district court improperlyencouraged RHA to amend its response. Second, hecontends that the judge erred in granting summaryjudgment on the statute of limitations groundbecause the RHA should have been equitablyestopped to rely on the limitations period or theperiod should have been equitably tolled. II. Analysis A. Granting Leave to Amend the Complaint Only if the district court abused itsdiscretion in granting RHA leave to amend itsanswer will this court reverse. See Orix CreditAlliance, Inc. v. Taylor Machine Works, Inc., 125F.3d 468, 480 (7th Cir. 1997). In this case,Jackson filed his complaint some eight yearsafter Title VII’s 300-day statute of limitationshad expired. See 42 U.S.C. sec. 2000e-5(e).Jackson’s complaint suggests he was well aware ofthe potential defense against his claim. Hepleaded facts and drew conclusions that appearedto be a preemptive foundation for an equitableargument excusing his untimely complaint. Forinstance, he pleaded that RHA stated “at the timeof selection” that he and Jackson were equallyqualified (thereby throwing Jackson off the scentof discrimination). See Record Vol. 1 at Tab A,page 2 (Complaint). He also pleaded that RHA”conceal[ed] its discrimination against thePlaintiff . . . [which caused its] discriminationto be continuing and persistent.” Id. In its answer, the RHA did not raise theaffirmative defense that Jackson had let thestatute of limitations expire. But in asubsequent memorandum supporting its motion forsummary judgment, RHA did raise the issue. In hisresponse to RHA’s motion for summary judgment,Jackson stated that RHA had waived the issue byfailing to raise it in the answer. See RecordVol. 2 (Plaintiff’s Response to Defendant’sMotion for Summary Judgment). Further, Jacksonargued that based on facts pleaded in hiscomplaint, he had no notice of his claims untilthe summer of 1995. See id. at 2. He concludedthat “[t]he facts of this case demonstrate thatequitable estoppel and tolling of the statute oflimitations is applicable here.” Id. at 3. The district judge scheduled a status hearingto discuss the disparity between RHA’s answer andits memorandum in support of summary judgment. Atthat hearing, the judge asked RHA whether it wasmoving orally for leave to amend the answer toraise the statute of limitations defense. Itanswered yes, and the judge gave it three days tofile a motion and supporting brief. The judgegave Jackson four days to respond. See RecordVol. 1 at Tab A, page 8. When the briefs werefiled, the district court granted leave to amendthe answer. Federal Rule of Civil Procedure 8(c) requires adefendant to plead a statute of limitationsdefense and any other affirmative defense in itsanswer to the complaint. See Fed. R. Civ. P. 8(c).On the other hand, the district court has thediscretion to allow an answer to be amended toassert an affirmative defense not raisedinitially. See Fed. R. Civ. P. 15(a). Rule 15(a)states that “leave shall be freely given whenjustice so requires.” See id. As a rule, we haveallowed defendants to amend when the plaintiffhad adequate notice that a statute of limitationsdefense was available, and had an adequateopportunity to respond to it despite thedefendant’s tardy assertion. See, e.g., Ventersv. City of Delphi, 123 F.3d 956
, 968 (7th Cir.1997). The general rule that amendment is allowedabsent undue surprise or prejudice to theplaintiff is widely adhered to by our sistercourts of appeals. See, e.g., Brinkley v. HarbourRecreation Club, 180 F.3d 598
, 612-13 (4th Cir.1999) (collecting cases). In one illustrative case, a plaintiff filed herFirst Amendment complaint about three monthsafter the statute of limitations had expired. Thedefendant did not raise the statute oflimitations defense until one month before trial,by which time “the parties had largely completedan exhaustive discovery process.” See id. Further, the reply brief in which the defendantraised the defense was filed on the eve of oralargument before the district court, and theplaintiff’s attorney did not receive a copy ofthe document until the morning of argument.Finally, the district court in Venters apparentlydid not require the defendant to file a motionfor leave to amend the answer, did not permit theplaintiff to file a surreply and gave theplaintiff just one day in which to submitevidentiary materials in opposition to thedefense. See Venters, 123 F.3d at 968-69. Weconcluded that even though the plaintiff’sknowledge of the timeline suggested that thestatute of limitations had expired, she was notobliged to address the issue if the defendant hadnot. By permitting the defendant to raise theissue at the eleventh hour, and giving theplaintiff virtually no time to respond, weconcluded that the district court had”bushwhacked” the plaintiff. See id. at 969. We reached the opposite result in a similarcase because the plaintiff had missed the statuteof limitations deadline by more than two yearsrather than just a few months. See Blaney v.United States, 34 F.3d 509, 512 (7th Cir. 1994).Further, in Blaney, the defendants had raised thedefense in a motion to dismiss, thus giving theplaintiff adequate time to reply and foreclosingthe possibility that he was unfairly surprised bythe development. See id. at 513. In the present case, there is no question thatJackson knew his claims were stale. First, hemissed the statute of limitations deadline not bya few months, but by several years. Second,Jackson himself pleaded facts that could help himevade the timeliness issue. Jackson’s descriptionof the RHA discrimination as a “continuing”offense and his reference to RHA’s”conceal[ment]” of its discrimination suggestconstruction of a firewall against the statute oflimitations defense. Record Vol. 1 at Tab A, page2 (Complaint). Further, there is no evidence that the districtcourt prejudiced Jackson by permitting RHA toamend its answer. Indeed, unlike the court inVenters, the district court here was scrupulousin protecting Jackson’s rights. It did not, as inVenters, accept a summary judgment motion at oddswith the answer. It forced RHA to request leaveto amend the complaint. It forced RHA to briefthat motion. It gave Jackson several days torespond to RHA’s motion. And it gave Jackson theopportunity to conduct additional discovery inorder to produce facts in support of hisopposition to the motion. See Record Vol. 1 atTab A, page 17 (Order granting summary judgmentmotion). Finally, no trial date had been set. Thecase was still in the formative stages. As inBlaney, the court amply protected the plaintiff’sprocedural rights but determined that justicerequired permitting the submission of an amendedanswer. The district court did not abuse itsdiscretion, and we affirm. B. Equitable Avoidance of the Statute ofLimitations Jackson tries to duck the statute oflimitations by invoking equitable remedies inresponse to RHA’s alleged “concealment” of itsdiscrimination. We review de novo grants ofsummary judgment based on the statute oflimitations. Kuemmerlein v. Madison Metro. Sch.Dist., 894 F.2d 257, 261 (7th Cir. 1990). Ourexamination has two parts. First, in terms ofelapsed time, did the statute of limitations run?Second, is there any genuine issue of materialfact regarding the time at which plaintiff’saction accrued? See id. In this case, the partiesagree that as a matter of time elapsed, thestatute had run on the alleged hiringdiscrimination. The only issue is whether, due toRHA’s alleged dissembling, Jackson may be excusedfor missing the statute of limitations. i) Equitable Estoppel Equitable estoppel, also known as fraudulentconcealment, is available if the defendant “takesactive steps to prevent the plaintiff from suingin time.” See Hentosh v. Herman M. Finch Univ. ofHealth Sciences/The Chicago Med. Sch., 167 F.3d1170, 1174 (7th Cir. 1999) (citing Cada v. BaxterHealthcare Corp., 920 F.2d 446
, 450-51 (7th Cir.1990)). Active steps triggering equitableestoppel include hiding evidence or promising notto plead the statute of limitations. See id.,citing Speer v. Rand McNally & Co., 123 F.3d 658,663 (7th Cir. 1997); see also Mull v. ARCODurethene Plastics, Inc., 784 F.2d 284, 292 (7thCir. 1986). We have found equitable estoppel onlywhere the defendant, in addition to committingthe alleged wrong giving rise to the suit, hasalso tried to prevent the plaintiff from suing intime. See Cada, 920 F.2d at 451. For instance, we found equitable estoppel torescue a plaintiff who filed an untimely agediscrimination suit because his employer seemedto lull him into delay. See Wheeldon v. MononCorp., 946 F.2d 533 (7th Cir. 1991). In Wheeldon,the plaintiff alleged that he was the only one ofseveral disgruntled workers that had a militarypension. He contended that the company decided toset an example by firing him because he wouldsuffer fewer economic consequences than otherworkers. See id. at 535. In Wheeldon, theplaintiff could have filed an age discriminationclaim, but first elected to pursue adiscrimination claim under the Vietnam EraVeterans Readjustment Assistance Act. See id. Inorder to pursue the veterans’ claim on theplaintiff’s behalf, the appropriate governmentagency asked the employer whether it hadgovernment contracts that would support theagency’s exercise of jurisdiction. See id. at537. The employer did not have such contracts,but withheld its response until one day after thestatute of limitations had run on the plaintiff’spotential age discrimination suit. See id. Weheld that there was no excuse for the tardyresponse, and that given the injury inflicted onthe plaintiff, equitable estoppel was warranted.See id. In contrast, we have refused to grant equitableestoppel when the plaintiff retained the ability,notwithstanding the defendant’s delay orresistance, to obtain information necessary topursue his claim. In one such case, an employeeassociation seeking a favorable IRS ruling aboutits retirement savings plan asked the IRS to turnover any administrative comments filed regardingthe plan. See Flight Attendants Against UALOffset v. Commissioner of Internal Revenue, 165F.3d 572 (7th Cir. 1999). The relevant statutepermitted the association to seek the commentsfrom the employer, but the association failed todo so. The IRS did not respond quickly, and theassociation claimed that the delay in receivingcrucial information caused it to miss the statuteof limitations. See id. at 575-76. We did notapply equitable estoppel because the associationcould–and by statute should–have asked theemployer rather than the IRS for the information.See id. An even less persuasive case, Hentosh,involved a female worker who filed a late suitfor sex discrimination. The plaintiff allegedthat the chairman of her medical schooldepartment made unwanted sexual demands onseveral of her coworkers, and then granted morefavorable employment terms to some of thoseworkers. 167 F.3d at 1172. The chairmaneventually resigned, some of the informationregarding his sexual demands came to light, andthe plaintiff sued. She argued that equitableestoppel should apply because it was a”reasonable inference” that the chairman tried toconceal his advances. Id. at 1174-75. We rejectedthis argument because the “secret” advances werethe cause of action; they were not propounded inorder to conceal the cause of action. See id. In the present case, Jackson argues that RHAconcealed its racial discrimination by tellinghim that he and Anderson were equally wellqualified when, in his opinion, he outrankedAnderson by virtue of his PHC certification. ButJackson claims the remark was made during theinterviewing process, before RHA hired Anderson.It seems to us that the comment could not concealdiscrimination that had not yet taken place. Ofcourse, if Anderson’s hiring was a foregoneconclusion, then if RHA concealed Anderson’salleged inferiority at any point in the hiringprocess, that could have been an effort to hidethe real considerations at play. For the sake of argument, we will examinewhether the offending statement actuallymisrepresented Anderson as Jackson’s equal, andthus may be construed as an effort to hide apreference for the white candidate. As notedabove, the RHA sought candidates with collegedegrees in business or public administration orreal estate. Neither Jackson nor Anderson heldsuch a degree, meaning that on this requirementthey were equals. The RHA also sought five yearsexperience in business or property management,with experience in assisted or public housingpreferred. Anderson had ten years experience inproperty management, with six years experience inassisted housing, but just three months in publichousing. Jackson had just three years propertymanagement experience but all in public housing. So Anderson had more general managementexperience, but Jackson had more public housingmanagement experience. On this score, neithercandidate was clearly superior. Finally, the RHArequired that the winning candidate have a PublicHousing Manager’s certificate “or capability ofbecoming certified.” Record Vol. 1, Tab D(Documents in Support of Rule 12(M) Statement)(emphasis added). [FOOTNOTE 1]
Jackson had a certificate;Anderson did not. But Anderson needed only to becapable of gaining certification. According tothe HUD Public Housing Manager CertificationHandbook, certification was designed to helpmanagers cope with “increasingly complex fiscal,social and technical problems affecting [publichousing authorities] of all sizes in all parts ofthe country.” Id. at Tab H, page 2 (HUDCertification Handbook). “The primary method bywhich an individual may obtain certification isa written examination administered by one of theApproved Certifying Organizations.” Id. at 4.Given Anderson’s college degree and his extensiveexperience in property management, the RHA wouldcertainly have been justified in thinking him”capable of becoming certified.” Thus, on thiscount–and overall–the two were equallyqualified. [FOOTNOTE 2]
We fail to see how telling Jacksonso amounted to concealment of racialconsiderations. If, between two workers withequal qualifications, the white worker ispromoted, the possibility of racial preference ishighlighted, not obscured. Had RHA wanted to hideany purported racial motive in its hiring, itwould have been better off telling Jackson thatAnderson was more qualified. Then Jackson wouldhave thought that he lost on the merits, ratherthan on race. Assured their qualifications weresimilar, Jackson could reasonably have concludedthat race was a possible factor in the selection. Because the assessment that the two candidateswere equally qualified was not a misstatement andwas not likely to hide discrimination, it cannoteasily be taken as an effort to conceal foulplay. Therefore, we affirm the district court’sdenial of an equitable estoppel defense to thestatute of limitations. ii) Equitable Tolling Equitable tolling “permits a plaintiff to avoidthe bar of the statute of limitations if despiteall due diligence he is unable to obtain vitalinformation bearing on the existence of hisclaim.” Hentosh, 167 F.3d at 1174 (quoting Cada,920 F.2d at 451). We have stated that todetermine whether a plaintiff in fact lackedvital information, a court should ask whether a”reasonable” person in the plaintiff’s positionwould have been aware of the possibility that hehad suffered an adverse employment action becauseof illegal discrimination. Chakonas v. City ofChicago, 42 F.3d 1132, 1135 (7th Cir. 1994). Particularly in discrimination cases, whichoften emerge as the result of deep-seatedsuspicions held by those in protected classes, itmay be difficult to say when a “reasonable”worker should be on notice that he has aclaim. [FOOTNOTE 3]
Because subjective accounts ofworkplace discrimination may be at odds, we havefocused on whether and when a plaintiff hadobjective information suggesting that he wastreated differently than someone in anunprotected class. For instance, in Cada, an agediscrimination plaintiff was advised he would beterminated when a replacement was hired. A fewmonths later, the replacement came on board. Theplaintiff met her; he observed that she was muchyounger than he was and had less relevantexperience. Nevertheless, the plaintiff waitedeight months after meeting her to file hisdiscrimination suit. Although there was somedispute when the statute began to run, wedeclined to toll. We reasoned that as soon as theplaintiff met his replacement and assessed herinferior qualifications, he had sufficient noticehe might have been the victim of agediscrimination. Subsequent delay in filing was inthe circumstances not to be excused. Similarly,in Hentosh, the plaintiff tried to extend thestatute of limitations on her sex discriminationclaim by stating that she had not discovered thather supervisor was sexually involved with severalcolleagues until after the statute of limitationsdeadline had passed. But the heart of theplaintiff’s claim in that case was that hersupervisor sexually harassed her by creating ahostile work environment. That she was in thedark about her supervisor’s dalliances withcoworkers did not offset the fact that she hadthe requisite objective knowledge that she wasbeing sexually harassed well before the statuteof limitations period expired. Finally, inChakonas, we held that as soon as a 63-year-oldpolice commander was forced to take earlyretirement, he was on notice of possible agediscrimination. Notably, in Chakonas, we rejectedthe plaintiff’s argument that as a lawenforcement officer he was reluctant to”disrespect” the law by bringing an agediscrimination suit. The plaintiff’s “subjectivephilosophy,” we stated, was irrelevant to theobjective question whether a reasonable personwould have known of discrimination. Jackson argues that he did not want to race tothe courthouse merely because the RHA hired awhite candidate over him. His respect for thegravity of filing a federal lawsuit iscommendable. But when Jackson learned that RHAhired the white candidate, he knew that onepossible explanation was racial discrimination. Jackson was not required to assume that this wasthe RHA’s actual hiring motive. However, he wasrequired to undertake some inquiry to verify ordiscard this theory. Jackson explains that he didnot want to “agitate,” because he could haveendangered his job. We can understand hisconcern. Scholars have documented that blackemployees may be reluctant to complain about workconditions for fear of being characterized as”angry blacks.” See Wilkens, 112 Harv. L. Rev. at1965-66. But to honor this sort of excuse wouldseem to effectively nullify the timelinessrequirement. And Chakonas does not allow us toconsider subjective explanations for failing tofile suit timely. Moreover, an objective look at the situationsuggests that Jackson could have met his burdenof inquiry in several fairly innocuous ways.Jackson certainly could have probed the relativemerits of the two candidates by asking how hecould position himself better for the nextpromotion. Indeed, some career consultantsrecommend this as a path to future promotions. [FOOTNOTE 4]
He also could have casually asked his colleagueswhat they knew about Anderson. Indeed, he mighthave phoned Anderson directly under the guise ofcongratulating him. “Due diligence” does notrequire Jackson to break into Anderson’spersonnel files, as Jackson seems to think.Whatever many courses Jackson may have taken, thebottom line is that equitable tolling does notcondone inaction. And given that tolling is anequitable remedy that adjusts the rights of twoinnocent parties, “the negligence of the partyinvoking the doctrine can tip the balance againstits application.” See Cada, 920 F.2d at 453.However understandable Jackson’s inaction was, wecannot toll the statute of limitations in thiscase. III. Conclusion In sum, the district court did not err inpermitting the defendant to file an amendedanswer to the complaint. Further, the districtcourt properly determined that Jackson failed tofile within the period prescribed by the statuteof limitations. Neither the doctrine of equitableestoppel nor the doctrine of equitable tollingare applicable in this case, and the dismissal ofthis case as time-barred is AFFIRMED. :::FOOTNOTES::: FN1
The RHA’s requirement of certification orcapability of certification was permissible. HUDregulations state that “all persons employed by[Public Housing Authorities] as Housing Managersor Assistant Housing Managers responsible for 75or more public housing units must havecertification from an Approved CertifyingOrganization as a condition for payment of theirsalaries out of PHA operating funds, unlessspecifically exempt from this requirement underpertinent provisions of the regulation and thisHandbook.” Record Vol. 1 at Tab H, page 3 (HUDCertification Handbook). The Public HousingManager Certification Program Handbook expresslystates that “[t]o provide latitude to retain orhire an individual who may not immediately meetthe standards for certification at the time whencertification is first required,” a certifyingorganization may issue a probationary certificatefor a period of one year. Id. at 15-16.Furthermore, the term of a probationarycertificate may be extended by one additionalyear, enabling the applicant sufficient time toobtain a permanent certificate. Id. FN2
It is irrelevant that Anderson delayedcertification for several years. At the timeBrewington told Jackson the two candidates wereequals, Anderson was capable of certification. FN3
See, e.g., David B. Wilkins, On Being Good andBlack, 112 Harv. L. Rev. 1924, 1963-65 (1999) (bookreview) (“[T]he vast majority of Americansbelieve that blacks and whites should have anequal chance to compete for jobs. Notwithstandingthis strong and important consensus, however, oldattitudes and beliefs about race have proven hardto shake. As study after study demonstrates, asubstantial number of whites continue to holdnegative stereotypical views about blacks. Theseviews frequently exist below the level ofconsciousness . . . . individual blacks know thatthey are in constant danger of being seen bywhites as automatically embodying these negativetraits.” As a result, some black professionalsremain silent in the face of perceived racism inorder to make white workers feel comfortable thatthey are not “one of ‘those blacks’ whoconstantly complain about racism.”). FN4
See, e.g., Camille Wright Miller, Not Advancing?Self Exam May Reveal Reasons, Roanoke Times & WorldNews, May 1, 1997, at B1 (“Q: I’ve applied forseveral internally advertised openings. I haven’tbeen given an interview for any of them. I’m veryangry; I’m not being given a chance. A: . . .[M]eet with your supervisor and ask for anevaluation of your strengths and potentialcontribution to the company. Ask your supervisorto identify areas viewed as weaknesses that mightprevent promotion.”).
Jackson v. Rockford Hous. Auth. In the United States Court of Appeals For the Seventh Circuit No. 99-1664 James F. Jackson, Plaintiff-Appellant, v. Rockford Housing Authority, Defendant-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 96 C 50348–Philip G. Reinhard, Judge. Argued January 4, 2000–Decided May 23, 2000 Before Cudahy, Kanne, and Diane P. Wood, Circuit Judges.