Labor & Employment Law Daily Wrap Up, PROCEDURE—7th Cir.: Employee in county prosecutor’s office barred from advancing discrimination, Section 1983 claims, (Mar 27, 2025)

By Todd Harrison, J.D.

Her counsel was initially unable to access the EEOC’s right-to-sue letter and did not file suit until 159 days after its issuance.

Affirming a district court’s grant of summary judgment against a county prosecutor employee’s Title VII race discrimination and Section 1983 claims, the Seventh Circuit found that her statutory claim was untimely and that the prosecutor’s office was not a suable “person” under 42 U.S.C. § 1983. Her counsel could not initially access the EEOC’s right-to-sue letter, and the employee’s Title VII claim proved to be untimely as it ended up being filed outside of the 90-day statutory window. As to the Section 1983 claim, the court concluded that, given the many laws creating the prosecutor’s office as well as the financial interdependence between the office and the state, the office is an arm of the state and is not a suable “person” under the statute (Kinder v. Marion County Prosecutor’s Office, No. 24-1952 (7th Cir. Mar. 26, 2025)).

The plaintiff in this case is a white woman who is employed by the Marion County Prosecutor’s Office. She was initially hired as a receptionist and was later promoted to an advocate position wherein she worked closely with children impacted by crime. She performed the same responsibilities as two other advocates who were Black women.

Animosity. The employee had repeated run-ins with one of the other advocates who had voiced multiple complaints about the employee to her managers. Specifically, the advocate alleged that the employee had made racially insensitive comments. The office’s chief counsel investigated the complaints but found them to be unsubstantiated.

Reassignment. When the chief counsel discussed these issues with the elected Marion County Prosecutor, the prosecutor made it known that he would like to fire both employees as their “petty disagreements” were distracting from the office’s mission. Ultimately, he agreed to the chief counsel’s suggestion that the two be reassigned to different roles.

According to the employee, this reassignment constituted a demotion to a receptionist role. The role that the advocate was reassigned to still allowed her to interact with victims. Based on this alleged differential treatment, the employee filed a racial discrimination claim with the EEOC.

Right-to-sue letter. After investigating the employee’s claim, the EEOC decided not to pursue a civil action and issued a right-to-sue letter on April 28, 2022, uploading the document to its portal and notifying the employee that she had 90 days from receipt of the letter to file suit.

The employee’s counsel received an email that same day telling him a “new document was added” to the portal, but he could not access the document himself. He called the EEOC multiple times to ask about the document, to no avail. On June 15, he received an email from the agency informing him that the charge was closed. After subsequent attempts to access the document were unsuccessful, he mailed a letter to the EEOC requesting that it send him the right-to-sue letter. He eventually received the right-to-sue letter via email on July 6. The letter was still dated April 28.

Lawsuit. On October 4, 2022, the employee’s counsel filed this complaint in the Southern District of Indiana. This was 159 days after April 28, 111 days after June 15, and 90 days after July 6. The prosecutor’s office moved for summary judgment, arguing the employee’s Title VII claim was untimely, and that the office was an arm of the state and not a “person” for Section 1983 purposes. The district court agreed, granting the motion for summary judgment against both claims. This appeal followed.

Lax. According to the Seventh Circuit’s holding in Lax v. Mayorkas, 20 F.4th 1178 (7th Cir. 2021), the 90-day Title VII clock begins ticking not when a plaintiff reads a right-to-sue letter, but as soon as they are put on notice that the letter has issued. There, the court found that it was irrelevant that the plaintiff “was unable—rather than simply unwilling—to read the notice on the day he received it.”

Here, there was no dispute that, on June 15, the employee’s counsel was notified that the charge was closed with the EEOC and that he knew the right-to-sue letter was available in the portal. Under Lax, this was enough, said the court, rejecting the employee’s argument that the clock starts to run only when the document is actually viewed.

If, continued the court, unusual circumstances prevent a plaintiff from reading a letter, the question arises whether the deadline should be equitably tolled. However, no such arguments were raised in this instance and thus the court could not consider the question. Accordingly, the district court was correct in granting summary judgment against the employee’s Title VII claim.

Jones. Turning to the employee’s Section 1983 claim, the court had held in Jones v. Cummings, 998 F.3d 782 (7th Cir. 2021), that an Indiana county prosecutor served as a state official, and thus was not a “person” under Section 1983 when prosecuting criminal cases. However, the court noted that Jones did not necessarily resolve the question before it, which was whether the prosecutor’s office in its employment function was also an arm of the state.

Answering this question in the affirmative, the court explained that Jones dealt extensively with Indiana laws creating the prosecutor’s office, and that local prosecutors, similar to the attorney general, exercise certain sovereign powers.

Financial interdependence. Although no state laws govern the employment decisions of the prosecutor’s office per se, Indiana law does contain a requirement for counties to finance prosecutors’ offices as to employment. In evaluating financial interdependence, courts must consider whether any money judgment would be enforceable against the state.

Here, Indiana law provides that the state will “pay the expenses incurred by” a prosecutor 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.” These “expenses” include all costs related to litigation, observed the court, and such an indemnification obligation makes no distinction between suits based on the prosecution of a criminal case and those based on employment decisions.

After considering the many laws creating the prosecutor’s office, as well as the financial interdependence between that office and the state, the court concluded that the prosecutor’s office was an arm of the state and was not a suable “person” for Section 1983 purposes. As such, the district court’s grant of summary judgment to this claim was also affirmed.

The case is No. 24-1952.

Judge. Brennan, M.

Attorneys: Thomas B. Roberts (Law Offices of Thomas B. Roberts) for Susan Kinder. Brandyn L. Arnold, Office of the Attorney General, for Marion County Prosecutor's Office.

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