Tara Luevano v. Walmart Stores, Incorporated

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1917

T ARA V. L UEVANO,

Plaintiff-Appellant,

v.

W AL-M ART S TORES, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:10-cv-03999—Virginia M. Kendall, Judge.

A RGUED F EBRUARY 13, 2013—D ECIDED JULY 16, 2013

Before B AUER, S YKES, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. Tara Luevano appeals the

dismissal of her sex discrimination and retaliation

claims against her employer, Wal-Mart Stores, Inc. Al-

though the appeal presents a thicket of procedural issues,

its ultimate resolution on the merits is straightforward.

Luevano’s original, timely, pro se complaint sufficiently

stated claims for sex discrimination and retaliation

in violation of Title VII of the Civil Rights Act of 1964.

2 No. 11-1917

The district court erred in dismissing that original com-

plaint but correctly did not dismiss the entire action.

Accordingly, Luevano’s claims in the later amended

complaints all relate back to the timely filing of the

original complaint. We therefore reverse and remand

for further proceedings on the merits of Luevano’s

claims. Along the way, we also address some procedural

snarls that district courts can and should avoid in

handling complaints filed by plaintiffs seeking to

proceed in forma pauperis (IFP).

I. Factual and Procedural Background

Because the case was dismissed under Federal Rule of

Civil Procedure 12(b)(6), we must assume that Luevano’s

factual allegations are true. Luevano works at Wal-Mart

as a greeter. In 2010, she complained to her supervisor

that a co-worker was repeatedly harassing her in a

hostile and disruptive way. The supervisor refused to

act and the harassment continued. Luevano escalated her

complaints to Wal-Mart’s district manager of human

resources but found no relief. Instead, her working

hours were cut. Luevano next filed a charge with the

Equal Employment Opportunity Commission (EEOC)

alleging that her male co-worker harassed her, that

her supervisor refused to intervene, and that she was

discriminated against based on her gender. The EEOC

issued a right to sue letter telling Luevano that she

had ninety days to sue in a federal district court.

On June 28, 2010, two days before the ninety-day dead-

line expired, Luevano filed in the district court a pro se

No. 11-1917 3

complaint, along with a request to proceed IFP and a

request for appointed counsel (technically, recruited

counsel, but we’ll ignore that nuance here). Luevano

used the four-page form complaint provided by the

Northern District of Illinois for employment discrimina-

tion claims. She checked the boxes for sex discrim-

ination, failure to stop harassment, and retaliation based

on a protected activity. She included two handwritten

pages alleging three basic things: (1) her co-worker ha-

rassed her because she was a woman; (2) her supervisor

refused to correct her co-worker’s behavior because

the supervisor and the co-worker were both men; and

(3) her supervisor retaliated against her by reducing

her hours and “subject[ing her] to intimidation” because

she escalated her complaints to the district manager

of human resources.

Pursuant to 28 U.S.C. § 1915(e)(2), which directs

district courts to screen all complaints accompanied by

an IFP request for failure to state a claim, among other

things, the district court dismissed Luevano’s com-

plaint without prejudice. In an order dated July 9, 2010,

the court found that Luevano had failed to allege

properly that the harassment or retaliation had occurred

because of her sex. That finding apparently overlooked

both the alleged sex discrimination by Luevano’s super-

visor and the fact that a retaliation claim does not

require proof that the retaliation itself was motivated

by sex. Retaliation for protected activity aimed at

asserting or protecting legal rights is unlawful. The

district court acted properly, however, in giving Luevano

an opportunity to amend her complaint to cure these

4 No. 11-1917

perceived problems. The order told Luevano that the

court would reconsider her request for appointed

counsel “if she provides the Court with an amended

Complaint providing a sufficient basis for the Court to

find that the harassment of which she complains

occurred due to her sex.”

Luevano filed an amended pro se complaint on

August 4, 2010. The amended complaint added:

“I believe I have been discriminated [sic] because of my

sex female and retaliated against, in violation of Title VII

of the Civil Rights Act of 1964, as amended, for engaging

in protected activity.” The amended complaint also

explained that the supervisor refused to investigate

Luevano’s complaints and that he too participated in

“making sexist comments with approval and excuses for

the male harasser’s offensive, hostile verbal abuse . . . .”

The amended complaint added that her supervisor

“confirmed male favoritism and protection” by choosing

not to discipline her male co-worker. Luevano also at-

tached to her amended complaint sections of Wal-Mart’s

discrimination and harassment policies, underlining

the portions she felt had been violated.

On August 9, 2010, the district court granted Luevano’s

motion to amend her complaint. Ten days later, on

August 19, 2010, the district court granted Luevano

leave to proceed IFP and appointed counsel for her. The

district court also gave Luevano until September 30, 2010

to file a second amended complaint with the assistance

of counsel, explaining that Luevano “appears to have

timely claims under Title VII and the assistance of

No. 11-1917 5

counsel appears reasonably necessary to enable her to

present those claims to the Court.”

In the meantime, on June 7, 2010, Luevano had filed a

second EEOC charge alleging that Wal-Mart retaliated

against her for filing the first EEOC charge. On June 30,

2010, Luevano received a second right to sue letter from

the EEOC.

With the aid of appointed counsel, on September 29,

2010, Luevano filed her second amended complaint,

which included all allegations in the first two com-

plaints but did not mention the retaliation that was the

subject of the second EEOC charge. The second amended

complaint and summons were served on Wal-Mart on

October 1, 2010.

On October 21, 2010, Wal-Mart moved to dismiss

the second amended complaint as untimely because

Luevano had failed to file it within ninety days of

receipt of her first EEOC right to sue letter. Luevano’s

appointed counsel then moved to amend the second

amended complaint to include acknowledgment of the

second EEOC right to sue letter since the second

amended complaint was filed within ninety days of

receipt of the second right to sue letter. The district court

granted Luevano’s motion to amend her second

amended complaint, resulting in a third amended com-

plaint filed on November 24, 2010. The third amended

complaint alleged, for the first time, retaliation for

having filed the first EEOC charge. Wal-Mart renewed its

motion to dismiss the third amended complaint as un-

timely.

6 No. 11-1917

The district court granted Wal-Mart’s motion to

dismiss and entered a final judgment of dismissal with

prejudice pursuant to Federal Rule of Civil Procedure 58.

Luevano v. Wal-Mart Stores, Inc., 2011 WL 1113401 (N.D. Ill.

March 24, 2011). The district court held that all of

Luevano’s complaints were untimely except for her

original complaint, which the court had dismissed for

failure to state a claim. The district court found that

“upon denial of her IFP claim and dismissal of her com-

plaint without prejudice on July 9, 2010, the limitations

period restarted, and Luevano had just two days to re-

file her complaint.” Luevano had waited more than

two days, so her first, second, and third amended com-

plaints were filed too late. The district court also held

that Luevano’s third amended complaint was untimely

with respect to her second EEOC charge, first men-

tioned in the third amended complaint, because that

complaint was filed more than ninety days after

Luevano received the second right to sue letter. Luevano

has appealed.

II. Appellate Jurisdiction

The district court’s final judgment dismissing

Luevano’s action is appealable under 28 U.S.C. § 1291. Wal-

Mart contends, however, that we do not have jurisdic-

tion to consider the district court’s July 9, 2010 dismissal

of Luevano’s original complaint as part of this appeal.

The question is important because it affects the time-

liness of Luevano’s amended complaints.

The general rule is that an appeal from a final

judgment allows the appellant to challenge any inter-

No. 11-1917 7

locutory actions by the district court along the way

toward that final judgment. Habitat Educ. Ctr. v. U.S.

Forest Serv., 607 F.3d 453, 456 (7th Cir. 2010); Shah v. Inter-

Continental Hotel Chicago Operating Corp., 314 F.3d 278,

281 (7th Cir. 2002). “Until a judgment is rendered ‘final’

by entry of a separate document under Fed. R. Civ.

P. 58, no one need appeal . . . . Interlocutory orders there-

fore may be stored up and raised at the end of the

case . . . .” Kurowski v. Krajewski, 848 F.2d 767, 772-73

(7th Cir. 1988) (internal citations omitted). The July 9,

2010 order is thus properly characterized as an inter-

locutory order that we may review as part of this

appeal from the final judgment.

According to Wal-Mart, however, the July 9, 2010

dismissal of the complaint without prejudice restarted

the ninety-day clock when Luevano received it on

July 12. With just two more days remaining of the

original ninety, Wal-Mart argues, the dismissal of the

complaint without prejudice ripened into a final judg-

ment dismissing the entire action with prejudice on

July 14, leaving Luevano thirty days to file a notice of

appeal. Wal-Mart concludes that Luevano’s failure to

file an appeal within those thirty days means that the

July 9, 2010 order became a final judgment not subject to

a collateral attack in this appeal.

We reject this argument for reasons we detail below.

In summary, the district court did not enter a Rule 58

judgment in connection with the July 9, 2010 order,

and it contemplated additional proceedings in the case,

including an amended complaint, so the order was not

8 No. 11-1917

an appealable final judgment. That much would be

obvious in any case in which the plaintiff was not pro-

ceeding IFP, and we explain below that Luevano’s use

of IFP procedures does not change the result. We take

this opportunity to clarify some issues in our case law

regarding district courts’ powers and duties in

screening complaints under section 1915(e).

A. Final Appealable Orders

The district court’s order of July 9, 2010 dismissed

only the complaint, not the entire action, and the order

was not accompanied by a separate final judgment

under Rule 58. That controls the issue of our jurisdiction

and our ability to consider the July 9 order as part of this

appeal. The simple dismissal of a complaint does not

terminate the litigation. “In contrast, a dismissal of the

entire action ends the litigation and forces the plaintiff

to choose between appealing the judgment or moving

to reopen the judgment and amend the complaint

pursuant to Fed. R. Civ. P. 59 or Rule 60.” Benjamin v.

United States, 833 F.2d 669, 671 (7th Cir.1987).

When a district court believes it is done with a case, it

enters a final judgment under Rule 58. For practical

reasons, we have recognized that in some cases in

which a district court has not actually entered a Rule 58

judgment, the district court believes it has finished

its work. We may treat such an order as an appealable

final judgment if it is clear that the district court

believes it has finished its work on the case. In such cases,

though, it is essential that there be a clear signal from

No. 11-1917 9

the district court that we should treat an order not ac-

companied by a final judgment as if it had been accompa-

nied by one. Furnace v. Bd. of Trustees of Southern

Illinois Univ., 218 F.3d 666, 670 (7th Cir. 2000) (discussing

and collecting cases in which dismissal without final

judgment is considered final because “it is clear from

the record that the district court found that the action

could not be saved by any amendment of the com-

plaint”) (internal quotations omitted); Principal Mut. Life

Ins. Co. v. Cincinnati TV 64 Ltd. P’ship, 845 F.2d 674, 676

(7th Cir. 1988) (collecting cases). We look to the content of

a district court order to determine whether the district

court terminated the action in its entirety or if the

order allowed for amendment of the complaint and

continuation of the action. Furnace, 218 F.3d at 669 (“[I]f a

judgment entry dismisses only the complaint, it is not

a final judgment. To determine whether a judgment is

final, the language of the judgment itself is controlling.”)

(internal quotations and citations omitted).

In this case, the district court’s July 9, 2010 order

made crystal clear that the court was not finished with

the case. The order found that Luevano qualified for

IFP status and then screened her complaint pursuant to

section 1915(e). On the merits, the order found that

“Luevano has not presented a plausible basis for a claim

of discrimination on the basis of her sex. Thus, Luevano’s

claim [sic] is not properly before the court under § 1915

and is dismissed for failure to state a claim upon

which relief may be granted.” In denying without preju-

dice the motion for appointed counsel, the court

instructed that if Luevano “provides the Court with an

10 No. 11-1917

amended Complaint providing a sufficient basis” for her

claims, the court would reconsider Luevano’s request

for counsel. In conclusion, the court explained that

Luevano’s “Complaint is dismissed without prejudice

for failure to state a claim upon which relief can be

granted.” The district court’s order not only con-

templated but invited continuation of the suit via an

amended complaint.

In assessing the potential finality of an order, we

may analyze not only the text of the order but also the

district court’s behavior. Here, the district court allowed

and considered multiple amendments to the original

complaint, making clear that it was not finished with

the case on July 9. See LeBlang Motors, Ltd. v. Subaru of

America, Inc., 148 F.3d 680, 687 (7th Cir. 1998) (“If the

dismissal was without prejudice, then it was not a ‘final

decision’ unless LeBlang could not file another com-

plaint.”). “[W]hen a district court grants a plaintiff

leave to amend his pleading, the court signals that the

action has not been fully and finally adjudicated on the

merits, and that further proceedings will follow.” Hunt

v. Hopkins, 266 F.3d 934, 936 (8th Cir. 2001). That is what

happened here. If plaintiff had filed a notice of appeal

for the July 9 order, we would have dismissed it. The

later amended complaints and the rulings on them were

merely a continuation of the original action stemming

from the timely filed original complaint.

Before moving on to some of the nuances of IFP proce-

dures, we must also acknowledge the manifest injustice

that would result if we were to adopt Wal-Mart’s posi-

No. 11-1917 11

tion that the July 9 order became final and appealable

on July 14, 2010. That reasoning would place the burden

on Luevano, a pro se plaintiff, to understand that the

July 9 order was final and therefore appealable even

when the district court itself did not understand it as

such and did not enter a final judgment. Furthermore,

within the thirty days Wal-Mart argues were available

to appeal, the district court both considered Luevano’s

first amended complaint and appointed an attorney to

amend that complaint.1

It’s not as if Luevano received the dismissal without

prejudice and forgot about her lawsuit. She worked

actively to amend her complaint within the thirty-day

period in which she supposedly could have appealed the

July 9, 2010 order. This was the logical course of action,

especially in the case of a pro se plaintiff who did not

receive the benefit of a clear judgment of dismissal show-

ing finality as directed by Federal Rule of Civil Proce-

dure 58. See Brekke v. Morrow, 840 F.2d 4 (7th Cir. 1988)

(remanding to district court to enter final judgment and

to grant plaintiff a new thirty days to appeal, and dis-

1

There are certain situations in which the district court cannot

extend the time limit to appeal a final judgment, and in those

cases we cannot review a decision resulting from a district

court’s improper tolling. Bowles v. Russell, 551 U.S. 205, 208

(2007). Here, however, we are not powerless: Bowles con-

sidered a district court’s attempt to extend the deadline for

filing an appeal; we are considering instead whether an

appealable order was entered at all. Bowles therefore does

not affect our jurisdiction.

12 No. 11-1917

cussing difficulty for IFP plaintiffs in discerning potential

finality of order when court does not enter final judgment

pursuant to Rule 58). To say, as Wal-Mart does, that the

order became a final judgment on July 14, 2010 and that

Luevano should have realized that and appealed the

order then would impose wholly unrealistic require-

ments on a pro se litigant.

B. Equal Treatment of IFP and Fee-Paying Plaintiffs

But for Wal-Mart’s arguments based on plaintiff’s IFP

status, there would be no doubt about whether the July 9

order was appealable or whether the later amended

complaints related back to the original complaint and

were thus timely.

The filing of a complaint commences a civil action

in federal court. Fed. R. Civ. P. 3. If a timely complaint is

dismissed but the action remains pending, as occurred

here, an amended complaint relates back to the filing of

the original complaint when “the amendment asserts

a claim or defense that arose out of the conduct, transac-

tion, or occurrence set out — or attempted to be set out —

in the original pleading . . . .” Fed. R. Civ. P. 15(c)(1)(B);

Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001);

Woods v. Indiana Univ.-Purdue at Indianapolis, 996 F.2d

880, 884 (7th Cir. 1993) (explaining that relation back

“has its roots in the equitable notion that dispositive

decisions should be based on the merits rather than

technicalities”); Donnelly v. Yellow Freight System, Inc., 874

F.2d 402, 410 (7th Cir. 1989) (affirming Title VII judg-

ment for employee; amended complaint filed in federal

No. 11-1917 13

court related back to timely original complaint filed in

state court under state law).

Thus, if Luevano had paid the civil filing fee when

she submitted her original complaint to the district court,

there would be no doubt about her ability to proceed

with her amended complaint or our ability to review

the order resolving the original complaint. In arguing

otherwise, Wal-Mart focuses on the fact that Luevano

was not a fee-paying litigant but moved the court for

IFP status. This does not matter. IFP plaintiffs have the

same right as other plaintiffs to amend a timely filed

complaint at least once as a matter of course pursuant

to Federal Rule of Civil Procedure 15(a) and to make

further amendments with leave of court.

The only difference regarding IFP and fee-paying

plaintiffs arises in section 1915(e), which directs courts to

screen all complaints filed with requests to proceed IFP

and provides that “the court shall dismiss the case at

any time” if, among other things, the action is frivolous

or malicious or “fails to state a claim on which relief may

be granted . . . .” 28 U.S.C. § 1915(e)(2).

If a district court’s sua sponte dismissal in such cases

were without leave to amend, we would face serious

questions about fair access to the courts. Without at least

an opportunity to amend or to respond to an order to

show cause, an IFP applicant’s case could be tossed out of

court without giving the applicant any timely notice or

opportunity to be heard to clarify, contest, or simply

request leave to amend. See Eades v. Thompson, 823 F.2d

1055, 1061-62 (7th Cir. 1987) (“Sua sponte dismissals with-

14 No. 11-1917

out prior notice or an opportunity to be heard on the

issues underlying the dismissal, however, generally may

be considered hazardous. . . . [S]ua sponte dismissals

may prejudice plaintiffs by depriving them of an oppor-

tunity to amend their complaints or to argue against

the dismissal.”) (internal quotations omitted); see also

Frey v. EPA, 270 F.3d 1129, 1131-32 (7th Cir. 2001) (in

case where plaintiffs paid the filing fee: “We have warned

that sua sponte dismissals without prior notice or oppor-

tunity to be heard are hazardous and that unless the defect

is clearly incurable a district court should grant the plain-

tiff leave to amend . . . .”) (internal quotations omitted).2

2

There is one potential difference between IFP applicants

and fee-paying plaintiffs that does not apply to this case. In

Williams-Guice v. Bd. of Educ. of City of Chicago, we considered

the situation in which a plaintiff applied for IFP status and

that status was denied because the plaintiff had the financial

wherewithal to pay the filing fee. 45 F.3d 161 (7th Cir. 1995).

We considered how long a plaintiff who was correctly denied

IFP status should have to pay the filing fee and then to serve

the opposing party to comply with the statute of limitations.

Here, however, the district court determined that Luevano

qualified for IFP status, meaning she was financially

incapable of paying the filing fee. Based on that determina-

tion, it screened her complaint pursuant to section 1915.

That step is not necessary when the court determines that the

plaintiff is ineligible for IFP status.

The district court in this case denied Luevano’s initial IFP

petition. It did so because it incorrectly determined that the

complaint failed to state a claim, not because Luevano could

(continued...)

No. 11-1917 15

Those hazards are especially great because of case law,

discussed further below, holding that dismissal of an

entire suit (not just a complaint) without prejudice

can mean that the applicable statute of limitations will

have run before the plaintiff can correct the problem.

For purposes of a statute of limitations, it is as if the

dismissed suit had never been filed. See Lee v. Cook

County, 635 F.3d 969, 971-72 (7th Cir. 2011); Muzikowski v.

Paramount Pictures Corp., 322 F.3d 918, 923 (7th Cir.

2003); Elmore v. Henderson, 227 F.3d 1009, 1011 (7th

(...continued)

afford to pay the filing fee. If the district court had correctly

denied Luevano’s initial IFP petition, then we might face

what Williams-Guice described as a “worst case” scenario, with

an IFP complaint filed shortly before the statute of limita-

tions was about to run out, which is often the case with em-

ployment discrimination cases. See 45 F.3d at 165. In that case,

we might have to consider whether to extend the “reasonable

time” that Williams-Guice sensibly suggested should be

allowed for an unsuccessful IFP applicant to pay the filing

fee, see id., to a case where the unsuccessful applicant

responded with a successful amendment to the complaint.

Because the district court erred in denying Luevano’s

original IFP application, though, our correction of that error

in this decision means that Luevano’s original complaint

should be deemed filed in a timely manner, as if the district

court had not made that error. Finally, note that a district court

can avoid the complications we face here by keeping an IFP

application under advisement, rather than denying it, while

the plaintiff is given a reasonable but finite time to try to

cure the problems the court finds with the complaint.

16 No. 11-1917

Cir. 2000). Under the reasoning of those cases, the condi-

tional suspension of the statute of limitations clock that

occurs upon filing the complaint not only comes to an

end but is actually undone retroactively. Thus, for exam-

ple, if the district court here had actually dismissed

the entire suit on July 9, the statute of limitations would

be deemed to have run in the meantime, on June 30.

This hazard is present in any type of case but is especially

great in cases subject to very short filing deadlines, such

as Title VII employment discrimination cases.

Focusing on Luevano’s IFP status, Wal-Mart implicitly

asks us to adopt a rule under which IFP plaintiffs do not

have leave to amend as a matter of right after a section

1915 sua sponte dismissal for failure to state a claim. We

reject that proposed rule. District courts must allow IFP

plaintiffs leave to amend at least once in all circum-

stances in which such leave would be granted to fee-

paying plaintiffs under Rule 15(a).

Under Rule 15(a), fee-paying plaintiffs enjoy leave to

amend whenever “justice so requires” and, as a matter of

course, almost always get an opportunity to amend

their complaint at least once. Alioto v. Town of Lisbon,

651 F.3d 715, 721 (7th Cir. 2011) (“[A] plaintiff

ordinarily retains the ability to amend his complaint once

as a matter of right, even after a court grants a motion

to dismiss.”); Bausch v. Stryker Corp., 630 F.3d 546, 562

(7th Cir. 2010) (“A plaintiff is entitled to amend the com-

plaint once as a matter of right, Fed. R. Civ. P. 15(a), and a

court should ‘freely give leave [to file an amended com-

plaint] when justice so requires.’ Fed. R. Civ. P. 15(a)(2).”)

No. 11-1917 17

(brackets in original); Foster v. DeLuca, 545 F.3d 582, 584

(7th Cir. 2008) (“[A]n order dismissing the original com-

plaint normally does not eliminate the plaintiff’s right to

amend once as a matter of right.”) (internal quotations

omitted).

This liberal pleading rule is consistent with the

directive in section 1915(e) that a court “shall” dismiss an

IFP case if the complaint fails to state a claim for relief.

The statute does not require that the dismissal be

with prejudice and without leave to amend. All but one

of the circuits that have decided the question have held

that IFP plaintiffs have the same right to amend that fee-

paying plaintiffs enjoy. These circuits have crafted a

sensible rule: IFP applicants whose complaints are dis-

missed pursuant to a section 1915 screening for failure to

state a claim should be granted leave to amend at least

once in all cases in which Rule 15(a) would permit

leave to amend.3

3

See, e.g., Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d

Cir. 2002) (holding that section “1915(e)(2) did not alter our

preexisting rule that in forma pauperis plaintiffs who file com-

plaints subject to dismissal under Rule 12(b)(6) should receive

leave to amend unless amendment would be inequitable or

futile”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en

banc) (holding that “[a] clearer expression of congressional

intent should be required before we discard 50 years of case

law” that plaintiffs, IFP or not, should be granted leave to

amend their complaints liberally pursuant to Rule 15(a));

Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 796 (2d Cir.

(continued...)

18 No. 11-1917

We agree with our colleagues in these other circuits.

Dismissals under section 1915(e) should be treated like

dismissals under Rule 12(b)(6).4 This approach also

(...continued)

1999) (per curiam) (“Although the language of § 1915 is man-

datory, stating that ‘the court shall dismiss the case’ in

the enumerated circumstances, we conclude that a pro se

plaintiff who is proceeding in forma pauperis should be

afforded the same opportunity as a pro se fee-paid plaintiff to

amend his complaint prior to its dismissal for failure to state a

claim, unless the court can rule out any possibility, however

unlikely it might be, that an amended complaint would

succeed in stating a claim.”). It appears that only the Sixth

and Eighth Circuits have come to opposite conclusions. See,

e.g., McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997)

(holding that under the PLRA “courts have no discretion in

permitting a plaintiff to amend a complaint to avoid a sua

sponte dismissal”), overruled on other grounds by Jones v.

Bock, 549 U.S. 199 (2007). The Sixth Circuit recently overruled

this approach, however, in LaFountain v. Harry, holding that

“under Rule 15(a) a district court can allow a plaintiff to

amend his complaint even when the complaint is subject to

dismissal under the PLRA.” No. 11-1496, 2013 WL 2221569, at *5

(6th Cir. May 22, 2013). This leaves in opposition only the

Eighth Circuit, which allows district courts to grant IFP plain-

tiffs leave to amend upon section 1915 dismissal but does not

require them to do so. See, e.g., Love v. Andrews, 8 Fed. Appx.

602, 603 (8th Cir. 2001) (per curiam).

4

We have indicated agreement on this point before, but in a

non-precedential order, and thus today elevate the point to

circuit precedent. See Timas v. Klaser, 23 Fed. Appx. 574, 578 (7th

(continued...)

No. 11-1917 19

enjoys support from the Supreme Court, which, when

considering the pleading rules that circuits developed to

ensure satisfaction of the Prison Litigation Reform

Act’s requirement to exhaust administrative remedies,

explained that “the PLRA’s screening requirement does

not — explicitly or implicitly — justify deviating from

the usual procedural practice beyond the departures

specified by the PLRA itself.” Jones v. Bock, 549 U.S. 199,

214 (2007). We therefore join the majority of other

circuits in interpreting section 1915(e) not only to permit

granting IFP plaintiffs leave to amend complaints dis-

missed for failure to state a claim but also to require

granting IFP plaintiffs leave to amend their complaints

at least once when Rule 15(a) would allow amendment

in the case of fee-paying litigants.5

(...continued)

Cir. 2001) (explaining that the “right to amend as a matter of

course survives a grant of a motion to dismiss, which is analo-

gous to a district court’s sua sponte dismissal for failure to

state a claim under 28 U.S.C. § 1915A,” but finding that pro-

posed amendments would be futile).

5

We have previously recognized an additional interpretive

question regarding section 1915’s use of the word “case,”

leaving as an open question whether or not section “1915(e)(2)’s

requirement that ‘the case’ be dismissed necessitates the

dismissal of the entire action or merely the complaint . . . .”

Furnace v. Bd. of Trustees of Southern Illinois Univ., 218 F.3d

666, 669 (7th Cir. 2000). Today we also resolve that issue:

Section 1915 requires the district court to dismiss only the

complaint, not the entire action, and the court should grant

(continued...)

20 No. 11-1917

Under Rule 15(a), Luevano would have been entitled

to leave to amend, so she was equally entitled to leave to

amend after the sua sponte dismissal in the July 9, 2010

order, which the district court properly allowed. As far

as we are concerned, then, there is no difference between

IFP and fee-paying litigants upon a dismissal without

prejudice. They are equally entitled to amend as a

matter of right, and an amended complaint within the

scope of Rule 15(a) relates back to an original, timely-filed

complaint. Here, all three of Luevano’s amended com-

plaints assert claims arising out of the conduct set out in

the original complaint: the alleged harassment by a co-

worker and her supervisor, and the ensuing retaliation

against her for complaining both internally and then to

the EEOC.

Relation back in Luevano’s situation is exactly what

Rule 15(c) intends. See, e.g., Anderson v. Montgomery Ward

& Co., 852 F.2d 1008, 1018 (7th Cir. 1988) (allowing

relation back of amendment to complaint for age discrimi-

nation to make action a representative action and thus

to allow some plaintiffs to take advantage of other plain-

tiffs’ filing of EEOC charges); Gordon v. Green, 602 F.2d

743, 747-48 (5th Cir. 1979) (where prolix complaint was

properly dismissed for failure to provide “a short and

plain” statement of the claims, amended complaint

would relate back to the original filing).

5

(...continued)

leave to amend in all cases in which a fee-paying plaintiff

would enjoy leave to amend under Rule 15(a).

No. 11-1917 21

C. Wal-Mart’s Remaining Arguments

To avoid this result and block consideration of the

merits of the July 9, 2010 order of dismissal, Wal-Mart

relies on two cases, Lee v. Cook County, 635 F.3d 969

(7th Cir. 2011), and Elmore v. Henderson, 227 F.3d 1009 (7th

Cir. 2000). Both cases held that the plaintiffs’ suits

were time-barred because earlier, timely suits had been

dismissed without prejudice.

As we explained in Elmore, “a suit dismissed without

prejudice is treated for statute of limitations purposes as

if it had never been filed,” and this rule is needed to

prevent nullification of statutes of limitations by

repeated filings and dismissals. 227 F.3d at 1011. Wal-Mart

contends that the July 9, 2010 order in this case had the

effect of dismissing Luevano’s suit without prejudice, so

that for purposes of the statute of limitations, it is as if her

original and timely complaint had never been filed.

The district court accepted this rationale in dismissing

Luevano’s suit after the filing of the third amended

complaint. Luevano, 2011 WL 1113401, at *2.

Lee and Elmore do not apply here for a simple reason. In

both, the earlier cases had been dismissed with final

judgments that dismissed the entire cases without preju-

dice. As we have explained, the July 9, 2010 order in

this case dismissed only the complaint, not the entire

case. The timely-filed case remained pending, and

plaintiff could amend her complaint to address the prob-

lems found by the district court. Lee and Elmore there-

fore do not undermine our conclusion that the July 9,

22 No. 11-1917

2010 order was not final and did not ripen into a final

judgment on July 14, 2010.6

Finally, Wal-Mart argues that we do not have jurisdic-

tion to consider the July 9, 2010 order in this appeal

because Luevano did not refer to that order in her notice

of appeal. Such a reference was not necessary. Federal

Rule of Appellate Procedure 3(c) specifies the required

contents of a notice of appeal: identify the parties taking

the appeal; the judgment, order, or part thereof being

appealed; and the name of the court to which appeal is

taken. Luevano’s pro se notice of appeal here has been

construed as appealing the district court’s final judg-

ment of dismissal issued March 24, 2011. Since the July 9,

2010 order is properly understood as an interlocutory

order, the notice of appeal from that final judgment

was sufficient to provide Wal-Mart notice of the consider-

ation of the interlocutory order. See Weiss v. Cooley,

230 F.3d 1027, 1031 (7th Cir. 2000) (“a notice of appeal

6

If Wal-Mart and the district court’s theory were correct, then

Luevano would not have had even the two days until July 14,

2010 to file an amended complaint. Under Lee and Elmore,

the dismissal of the suit without prejudice has the effect of

retroactively nullifying the tolling of the statute of limitations

that ordinarily occurs upon filing, so the statute of limita-

tions would have been deemed to have run on June 30, 2010,

more than a week before the district court issued its decision

dismissing the original complaint. This is the sort of pro-

cedural conundrum that can be avoided by ensuring that

the court’s initial screening under section 1915(e) results in

a decision dismissing only the complaint, not the entire suit.

No. 11-1917 23

from a final judgment . . . is adequate to bring up every-

thing that preceded it”); Kunik v. Racine County, 106 F.3d

168, 172 (7th Cir. 1997) (noting that Rule 3(c) does not

require that “every individual order in a case that

preceded final judgment . . . be separately designated in

order to be part of the appeal”). This argument

therefore provides no barrier to our consideration of

the July 9, 2010 order as the notice of appeal here is suf-

ficient.

To sum up our discussion of our jurisdiction to

consider the July 9, 2010 dismissal of the original com-

plaint, “[a] decision is appealable under 28 U.S.C. § 1291

as a final decision . . . only if the district court is finished

with the case. A dismissal without prejudice is an

appealable final order if it ends the suit so far as the

district court is concerned or if there is no amendment

a plaintiff could reasonably be expected to offer to save

the complaint, or if a new suit would be barred by

the statute of limitations. But a dismissal without

prejudice is not appealable if it amounts to merely

telling the plaintiff to patch up the complaint or take

some other easily accomplished step; in that event it is

no more reviewable than the resolution of a discovery

dispute or equivalent interlocutory ruling.” Taylor-

Holmes v. Office of Cook Cty. Public Guardian, 503 F.3d

607, 609-10 (7th Cir. 2007) (internal quotations and

citations omitted). This is as true for IFP plaintiffs as it

is for fee-paying plaintiffs. The July 9, 2010 order was

not final because the district court made it clear that it

was not done with the entire action. Luevano was

24 No. 11-1917

entitled to amend her complaint at least once as a matter

of right, as the district court properly allowed.7

III. The Merits of the July 9, 2010 Order

On the merits, we conclude that the district court

erred in dismissing Luevano’s original complaint for

failure to state a claim upon which relief may be

granted. We review dismissals under section 1915(e)(2)(B)

de novo and apply the same standards that apply to

Rule 12(b)(6) dismissals, “taking all well-pleaded allega-

tions of the complaint as true and viewing them in the

light most favorable to the plaintiff.” Arnett v. Webster,

658 F.3d 742, 751 (7th Cir. 2011).

Luevano used the four-page form complaint

provided by the Northern District of Illinois for employ-

ment discrimination claims. She checked the boxes for

sex discrimination as well as failure to stop harassment

and retaliation based on a protected activity. The

complaint form provides just six lines to state the “facts

supporting the plaintiff’s claims of discrimination,”

7

The district court here followed the correct procedure by

dismissing only the original complaint and allowing leave

to amend. The order did not include a specific time limit for

filing an amendment, though Luevano filed an amended

complaint promptly, within a few weeks. We believe the

better practice is to include a specific time limit in such

orders to avoid inordinate delay and to protect the rights of

defendants to receive timely notice in those cases that will

proceed.

No. 11-1917 25

implying that the statement should be concise. Instead of

filling in these six lines, Luevano’s original complaint

alleged in two attached pages of handwritten detail

that she had suffered harassment at the hands of her co-

worker for months, and despite repeated complaints to

her supervisor, her supervisor “made excuses for his

disorderly conduct and did nothing.”

She further alleged that “after asking my male

manager once again what was being done about my

complaints, he told me he understood my harasser

because he’s a male and that he wanted to help him and

related situation [sic] to his brother and himself both

males.” Luevano further alleged that after complaining

to the human resources district manager about her super-

visor’s unwillingness to stop her co-worker’s harass-

ment, she was “then subjected to intimidation by my

manager being watched on my breaks and ultimately

they cut my hours.” Luevano also alleged that “as a

result of the harassment I have suffered serious medical

issues and expenses.” She attached to her form com-

plaint her first EEOC charge and right-to-sue letter, an

electronic time sheet showing her reduction in hours, a

police report documenting a report she made against

the male co-worker, and a medical form requesting leave

of absence due to emotional and physical distress.

The original complaint stated claims for relief. As a

preliminary matter, the pleading standards for pro se

plaintiffs are considerably relaxed, Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam), even in the wake of

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

26 No. 11-1917

Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Arnett v. Webster,

658 F.3d 742, 751 (7th Cir. 2011) (reminding courts to

“construe pro se complaints liberally and hold them to

a less stringent standard than formal pleadings drafted

by lawyers”); see also Swanson v. Citibank, N.A., 614

F.3d 400, 404 (7th Cir. 2010) (explaining after Iqbal that

the plaintiff need only “give enough details about the

subject-matter of the case to present a story that holds

together”).

Furthermore, the Supreme Court has made clear that

the pleading standards in Title VII cases are different

from the evidentiary burden a plaintiff must subsequently

meet when using the method of indirect proof under

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (ex-

plaining that “we have rejected the argument that a

Title VII com plaint requires greater ‘particularity,’ because

this would ‘too narrowly constric[t] the role of

the pleadings’ ”) (internal quotations omitted) (brackets

in original). “In addition, under a notice pleading

system, it is not appropriate to require a plaintiff to

plead facts establishing a prima facie case because the

McDonnell Douglas framework does not apply in every

employment discrimination case.” Id.

While there is some unresolved tension between

Swierkiewicz and the Court’s later decisions in Twombly

and Iqbal, we have “affirmed our previous holdings that,

in order to prevent dismissal under Rule 12(b)(6), a com-

plaint alleging sex discrimination need only aver that

the employer instituted a (specified) adverse employ-

ment action against the plaintiff on the basis of her sex.”

No. 11-1917 27

Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008).

“In these types of cases, the complaint merely needs to

give the defendant sufficient notice to enable him to

begin to investigate and prepare a defense.” Id. at 1085

(plaintiff sufficiently pled violation of Title VII where

she alleged salary discrepancy and that “she ha[d] been

subjected to adverse employment actions by Defendants

on account of her gender”). Neither Iqbal nor Twombly

overruled Swierkiewicz, and it is our duty to apply

the Supreme Court’s precedents unless and until the

Supreme Court itself overrules them. E.g., State Oil Co. v.

Khan, 522 U.S. 3 (1997).

The district court found that Luevano did not plead

facts sufficient to show that her co-worker harassed

her because of her sex. Even if that was correct, the

district court failed to address Luevano’s viable claim

that her supervisor discriminated against her because of

her sex and her claim that her supervisor subjected her

to a hostile work environment.8 The court seemed to

construe the complaint as alleging that only the male co-

8

A plaintiff can prove a hostile environment claim without

proving that the serious hostile behavior is sexual in content

as long as it was motivated by the plaintiff’s sex. Thus, “a

plaintiff can proceed on a claim when the work environment

is hostile because it is sexist rather than sexual.” Passananti

v. Cook County, 689 F.3d 655, 664 (7th Cir. 2012) (internal

quotations omitted) (“To be actionable as sexual harassment,

the unwelcome treatment need not be based on unwelcome

sexual advances, requests for sexual favors or other verbal

or physical conduct of a sexual nature.”) (internal quotations

omitted).

28 No. 11-1917

worker was the harasser, so that Luevano had not

alleged that the harassment was motivated by a protected

characteristic, in this case her sex. When the supervisor

is the harasser, the employer is strictly liable, subject to

an affirmative defense if there was no tangible employ-

ment action. Williams v. Waste Mgmt. of Ill., Inc., 361

F.3d 1021, 1029 (7th Cir. 2004).9

Luevano’s first complaint pled facts consistent with

supervisor-based harassment that, under the lenient

pleading standards for pro se plaintiffs, were sufficient

to state a claim that her supervisor harassed her

because of her gender. She clearly pled that her super-

visor chose not to remedy the situation because her

supervisor and Luevano’s co-worker were both males

and her supervisor wanted to help him just as he helps

his brother. She also attached documents, not required

by the concise form provided by the Northern District

of Illinois, indicating that she suffered medical conse-

9

The Supreme Court recently affirmed this court’s approach to

who is a supervisor for purposes of hostile environment claims

under Title VII. Vance v. Ball State Univ., ___ U.S. ___ (June 24,

2013), aff’g 646 F.3d 461 (7th Cir. 2011). We need not consider yet

whether Luevano’s immediate supervisor qualified as

a supervisor under Vance, for her initial and amended com-

plaints alleged, among other things, that her hours were cut

in retaliation for her complaints. It is too early at this

pleading stage to figure out whether, if the immediate super-

visor was not a supervisor under Vance, Wal-Mart could be

held liable for harassment on the theory that it was negligent

in failing to stop the harassment.

No. 11-1917 29

quences as a result of the alleged intimidation and harass-

ment by her manager. Luevano thus sufficiently pled

the facts necessary to state a claim that she was harassed

by her supervisor.

Luevano’s original, timely complaint also included a

viable claim for retaliation. To plead a retaliation

claim under Title VII, a plaintiff must allege that she

engaged in statutorily protected activity and was

subjected to adverse employment action as a result of that

activity, though she need not use those terms, of course.

See McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 483

(7th Cir. 1996). Even at the summary judgment stage,

which requires more from the plaintiff than the

pleading stage, “[t]o establish a prima facie case of re-

taliation, an employee need not present proof of a

causal link between the protected expression in which

the plaintiff engaged (as by filing a complaint about an

unlawful act by his employer) and the adverse employ-

ment action of which he is complaining.” Johnson v. Cam-

bridge Industries, Inc., 325 F.3d 892, 897 (7th Cir. 2003)

(internal quotations omitted). Here the statutorily pro-

tected activity was the filing of the complaint against

Luevano’s supervisor. The materially adverse action

was reduction of assigned working hours. These were

sufficient to meet the first two requirements of a prima

facie claim, which is all Luevano needed to do at that stage.

Luevano thus sufficiently pled a claim for retaliation.

Furthermore, a plaintiff “need not succeed on her sexual

harassment claim to make out a prima facie case of retalia-

tory discharge.” Dey v. Colt Const. & Dev. Co., 28 F.3d

30 No. 11-1917

1446, 1458 (7th Cir. 1994). “In order for plaintiff’s expres-

sion to be protected by section 2000e-3(a), the challenged

practice need not actually violate Title VII. Instead, it is

sufficient if the plaintiff has a reasonable belief she is

challenging conduct in violation of Title VII.” Holland v.

Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1314 (7th Cir.

1989). The district court thus erred in finding that

Luevano’s first complaint failed to state a claim upon

which relief could be granted for both supervisor-based

harassment and retaliation.

Wal-Mart argues, and the district court found, that

Luevano’s third amended complaint could not relate

back to her second amended complaint because the

third amended complaint added a new claim under a

new EEOC right to sue letter, which was based on a

new EEOC charge alleging retaliation for having filed

the first EEOC charge. Luevano contends the second

amended complaint did refer to the second EEOC right

to sue letter. The parties’ briefs have focused on the

second right to sue letter and whether or not the third

amended complaint can relate back to the second

amended complaint because the second right to sue

letter started a new ninety-day statute of limitations.

Our course correction regarding the district court’s

handling of the original complaint, renders this debate

academic. Luevano’s first, second, and third amended

complaints should all be understood to relate back to

her first complaint if Luevano should find that advanta-

geous in crafting her claims when this case returns to

the district court. Furthermore, under Cheek v. Western &

No. 11-1917 31

Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994),

there need only be “a reasonable relationship between

the allegations in the charge and the claims in the com-

plaint, and the claim in the complaint can reasonably

be expected to grow out of an EEOC investigation of

the allegations in the charge.” We have held for

practical reasons, to avoid futile procedural tech-

nicalities and endless loops of charge/retaliation/

charge/retaliation, etc., that a plaintiff who alleges re-

taliation for having filed a charge with the EEOC need

not file a second EEOC charge to sue for that retaliation.

McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 482-83

(7th Cir. 1996) (collecting cases); Malhotra v. Cotter & Co.,

885 F.2d 1305, 1312 (7th Cir. 1989), superseded by

statute on other grounds. Luevano could add a claim

for the alleged further retaliation to an amended com-

plaint so long as the amendment would be permissible

under Rule 15(a).

The district court’s judgment dismissing the action

is R EVERSED and the case is R EMANDED for further pro-

ceedings consistent with this opinion.

7-16-13