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.

 Cudahy, Circuit Judge.

I.   Facts

 James Jackson, a male African-American, has been
employed with the Rockford Housing Authority
(RHA) since 1981, and currently serves as a
development manager. The RHA provides low-income
public housing. The Department of Housing and
Urban Development (HUD) subsidizes RHA and other
local housing authorities, and it regulates low-
income housing projects. In December 1985,
Jackson applied for the position of Senior
Housing Manager with the RHA. Steven Anderson, a
male Caucasian, also applied for the position.
Alfred Brewington, the Director of Management
Services for the RHA, interviewed both Jackson
and Anderson for the Senior Housing Manager
position. Don Johnson, RHA’s Executive Director,
made the ultimate hiring decision. In 1986, he
promoted Anderson to the job. Executive Director
Johnson is now deceased. Jackson claims that when
Brewington interviewed him, Brewington remarked
that Jackson and Anderson were equally qualified.
From the time RHA selected Anderson for the
position, until July 1995, Jackson never asked
Brewington or Johnson why he lost out on the
Senior Housing Manager position. Jackson was
never informed that his race stood in the way of
the promotion.

 Jackson now contends that he recently found out
he was better qualified than Anderson for the
Senior Housing Manager position and that RHA
discriminated against him by hiring an inferior
white candidate. The RHA position description
stated that the required education and experience
were:

 B.S. in business administration, public
administration, real estate or closely related
field, plus five years experience in business or
property management. Experience in assisted or
public housing preferred.

 Or

 High school diploma or equivalent plus ten
years experience in business or property
management. Experience in assisted or public
housing desired, totaling at least six years.
Incumbent must possess a Public Housing Manager’s
certificate from a HUD approved Certifying
Organization or capability of becoming certified.
Possession of a drivers license and own
transportation is a requirement, since an
incumbent must travel to perform duties.

See Record Vol. 1, Tab D (Plaintiff’s Documents
in Support of Rule 12(M) Statement).

 At the time Jackson and Anderson submitted
their applications, both worked as project
managers for the RHA and held college degrees;
however, neither held degrees in the desired
fields. Anderson had more than ten years
experience in property management, including six
years in assisted housing and three months
experience as a property manager for the RHA. He
did not possess a Public Housing Certificate.
Jackson had gained three years property
management experience with public housing, and he
did possess a Public Housing Certificate.

 In June or July of 1995 (the record is
inconsistent), Jackson learned that Anderson had
just recently received his Public Housing
Certificate, and calculated that Anderson had not
possessed the certificate at the time of their
interviews. On August 23, 1995, Jackson filed a
complaint with the Equal Employment Opportunity
Commission alleging discrimination. Following
receipt of his Notice of Right to Sue, Jackson
filed the present action on October 1, 1996,
alleging that the RHA, or its agents, in
violation of Title VII of the Civil Rights Act of
1964, failed to hire him due to his race despite
his greater qualifications, and concealed its
discrimination from 1986 to 1995.

 In the RHA’s answer to Jackson’s complaint, it
did not allege that the statute of limitations
had expired. On June 23, 1998, the RHA moved for
summary judgment, asserting that Jackson had
failed to make a prima facie case of
discrimination and that his charge of
discrimination with the EEOC was filed untimely.
Jackson responded that RHA had waived the statute
of limitations issue by failing to properly raise
it earlier, in its answer. The trial judge noted
that both parties’ briefs on the motion for
summary judgment addressed the statute of
limitations issue. After a status hearing and a
briefing period, the district court permitted RHA
to file an amended answer raising the affirmative
defense of untimeliness. The district court
eventually granted summary judgment to the RHA on
that basis.

 Jackson now appeals on two grounds. First, he
contends that the district court improperly
encouraged RHA to amend its response. Second, he
contends that the judge erred in granting summary
judgment on the statute of limitations ground
because the RHA should have been equitably
estopped to rely on the limitations period or the
period should have been equitably tolled.

II.   Analysis

 A.   Granting Leave to Amend the Complaint

 Only if the district court abused its
discretion in granting RHA leave to amend its
answer will this court reverse. See Orix Credit
Alliance, Inc. v. Taylor Machine Works, Inc., 125
F.3d 468, 480 (7th Cir. 1997). In this case,
Jackson filed his complaint some eight years
after Title VII’s 300-day statute of limitations
had expired. See 42 U.S.C. sec. 2000e-5(e).
Jackson’s complaint suggests he was well aware of
the potential defense against his claim. He
pleaded facts and drew conclusions that appeared
to be a preemptive foundation for an equitable
argument excusing his untimely complaint. For
instance, he pleaded that RHA stated "at the time
of selection" that he and Jackson were equally
qualified (thereby throwing Jackson off the scent
of discrimination). See Record Vol. 1 at Tab A,
page 2 (Complaint). He also pleaded that RHA
"conceal[ed] its discrimination against the
Plaintiff . . . [which caused its] discrimination
to be continuing and persistent." Id.

 In its answer, the RHA did not raise the
affirmative defense that Jackson had let the
statute of limitations expire. But in a
subsequent memorandum supporting its motion for
summary judgment, RHA did raise the issue. In his
response to RHA’s motion for summary judgment,
Jackson stated that RHA had waived the issue by
failing to raise it in the answer. See Record
Vol. 2 (Plaintiff’s Response to Defendant’s
Motion for Summary Judgment). Further, Jackson
argued that based on facts pleaded in his
complaint, he had no notice of his claims until
the summer of 1995. See id. at 2. He concluded
that "[t]he facts of this case demonstrate that
equitable estoppel and tolling of the statute of
limitations is applicable here." Id. at 3.

 The district judge scheduled a status hearing
to discuss the disparity between RHA’s answer and
its memorandum in support of summary judgment. At
that hearing, the judge asked RHA whether it was
moving orally for leave to amend the answer to
raise the statute of limitations defense. It
answered yes, and the judge gave it three days to
file a motion and supporting brief. The judge
gave Jackson four days to respond. See Record
Vol. 1 at Tab A, page 8. When the briefs were
filed, the district court granted leave to amend
the answer.

 Federal Rule of Civil Procedure 8(c) requires a
defendant to plead a statute of limitations
defense and any other affirmative defense in its
answer to the complaint. See Fed. R. Civ. P. 8(c).
On the other hand, the district court has the
discretion to allow an answer to be amended to
assert an affirmative defense not raised
initially. See Fed. R. Civ. P. 15(a). Rule 15(a)
states that "leave shall be freely given when
justice so requires." See id. As a rule, we have
allowed defendants to amend when the plaintiff
had adequate notice that a statute of limitations
defense was available, and had an adequate
opportunity to respond to it despite the
defendant’s tardy assertion. See, e.g., Venters
v. City of Delphi, 123 F.3d 956, 968 (7th Cir.
1997). The general rule that amendment is allowed
absent undue surprise or prejudice to the
plaintiff is widely adhered to by our sister
courts of appeals. See, e.g., Brinkley v. Harbour
Recreation Club, 180 F.3d 598, 612-13 (4th Cir.
1999) (collecting cases).

 In one illustrative case, a plaintiff filed her
First Amendment complaint about three months
after the statute of limitations had expired. The
defendant did not raise the statute of
limitations defense until one month before trial,
by which time "the parties had largely completed
an exhaustive discovery process." See id.
Further, the reply brief in which the defendant
raised the defense was filed on the eve of oral
argument before the district court, and the
plaintiff’s attorney did not receive a copy of
the document until the morning of argument.
Finally, the district court in Venters apparently
did not require the defendant to file a motion
for leave to amend the answer, did not permit the
plaintiff to file a surreply and gave the
plaintiff just one day in which to submit
evidentiary materials in opposition to the
defense. See Venters, 123 F.3d at 968-69. We
concluded that even though the plaintiff’s
knowledge of the timeline suggested that the
statute of limitations had expired, she was not
obliged to address the issue if the defendant had
not. By permitting the defendant to raise the
issue at the eleventh hour, and giving the
plaintiff virtually no time to respond, we
concluded that the district court had
"bushwhacked" the plaintiff. See id. at 969.

 We reached the opposite result in a similar
case because the plaintiff had missed the statute
of limitations deadline by more than two years
rather 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 the
defense in a motion to dismiss, thus giving the
plaintiff adequate time to reply and foreclosing
the possibility that he was unfairly surprised by
the development. See id. at 513.

 In the present case, there is no question that
Jackson knew his claims were stale. First, he
missed the statute of limitations deadline not by
a few months, but by several years. Second,
Jackson himself pleaded facts that could help him
evade the timeliness issue. Jackson’s description
of the RHA discrimination as a "continuing"
offense and his reference to RHA’s
"conceal[ment]" of its discrimination suggest
construction of a firewall against the statute of
limitations defense. Record Vol. 1 at Tab A, page
2 (Complaint).

 Further, there is no evidence that the district
court prejudiced Jackson by permitting RHA to
amend its answer. Indeed, unlike the court in
Venters, the district court here was scrupulous
in protecting Jackson’s rights. It did not, as in
Venters, accept a summary judgment motion at odds
with the answer. It forced RHA to request leave
to amend the complaint. It forced RHA to brief
that motion. It gave Jackson several days to
respond to RHA’s motion. And it gave Jackson the
opportunity to conduct additional discovery in
order to produce facts in support of his
opposition to the motion. See Record Vol. 1 at
Tab A, page 17 (Order granting summary judgment
motion). Finally, no trial date had been set. The
case was still in the formative stages. As in
Blaney, the court amply protected the plaintiff’s
procedural rights but determined that justice
required permitting the submission of an amended
answer. The district court did not abuse its
discretion, and we affirm.
 B. Equitable Avoidance of the Statute of
Limitations

 Jackson tries to duck the statute of
limitations by invoking equitable remedies in
response to RHA’s alleged "concealment" of its
discrimination. We review de novo grants of
summary judgment based on the statute of
limitations. Kuemmerlein v. Madison Metro. Sch.
Dist., 894 F.2d 257, 261 (7th Cir. 1990). Our
examination has two parts. First, in terms of
elapsed time, did the statute of limitations run?
Second, is there any genuine issue of material
fact regarding the time at which plaintiff’s
action accrued? See id. In this case, the parties
agree that as a matter of time elapsed, the
statute had run on the alleged hiring
discrimination. The only issue is whether, due to
RHA’s alleged dissembling, Jackson may be excused
for missing the statute of limitations.


i) Equitable Estoppel
 Equitable estoppel, also known as fraudulent
concealment, is available if the defendant "takes
active steps to prevent the plaintiff from suing
in time." See Hentosh v. Herman M. Finch Univ. of
Health Sciences/The Chicago Med. Sch., 167 F.3d
1170, 1174 (7th Cir. 1999) (citing Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir.
1990)). Active steps triggering equitable
estoppel include hiding evidence or promising not
to 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. ARCO
Durethene Plastics, Inc., 784 F.2d 284, 292 (7th
Cir. 1986). We have found equitable estoppel only
where the defendant, in addition to committing
the alleged wrong giving rise to the suit, has
also tried to prevent the plaintiff from suing in
time. See Cada, 920 F.2d at 451.

 For instance, we found equitable estoppel to
rescue a plaintiff who filed an untimely age
discrimination suit because his employer seemed
to lull him into delay. See Wheeldon v. Monon
Corp., 946 F.2d 533 (7th Cir. 1991). In Wheeldon,
the plaintiff alleged that he was the only one of
several disgruntled workers that had a military
pension. He contended that the company decided to
set an example by firing him because he would
suffer fewer economic consequences than other
workers. See id. at 535. In Wheeldon, the
plaintiff could have filed an age discrimination
claim, but first elected to pursue a
discrimination claim under the Vietnam Era
Veterans Readjustment Assistance Act. See id. In
order to pursue the veterans’ claim on the
plaintiff’s behalf, the appropriate government
agency asked the employer whether it had
government contracts that would support the
agency’s exercise of jurisdiction. See id. at
537. The employer did not have such contracts,
but withheld its response until one day after the
statute of limitations had run on the plaintiff’s
potential age discrimination suit. See id. We
held that there was no excuse for the tardy
response, and that given the injury inflicted on
the plaintiff, equitable estoppel was warranted.
See id.

 In contrast, we have refused to grant equitable
estoppel when the plaintiff retained the ability,
notwithstanding the defendant’s delay or
resistance, to obtain information necessary to
pursue his claim. In one such case, an employee
association seeking a favorable IRS ruling about
its retirement savings plan asked the IRS to turn
over any administrative comments filed regarding
the plan. See Flight Attendants Against UAL
Offset v. Commissioner of Internal Revenue, 165
F.3d 572 (7th Cir. 1999). The relevant statute
permitted the association to seek the comments
from the employer, but the association failed to
do so. The IRS did not respond quickly, and the
association claimed that the delay in receiving
crucial information caused it to miss the statute
of limitations. See id. at 575-76. We did not
apply equitable estoppel because the association
could--and by statute should--have asked the
employer rather than the IRS for the information.
See id. An even less persuasive case, Hentosh,
involved a female worker who filed a late suit
for sex discrimination. The plaintiff alleged
that the chairman of her medical school
department made unwanted sexual demands on
several of her coworkers, and then granted more
favorable employment terms to some of those
workers. 167 F.3d at 1172. The chairman
eventually resigned, some of the information
regarding his sexual demands came to light, and
the plaintiff sued. She argued that equitable
estoppel should apply because it was a
"reasonable inference" that the chairman tried to
conceal his advances. Id. at 1174-75. We rejected
this argument because the "secret" advances were
the cause of action; they were not propounded in
order to conceal the cause of action. See id.

 In the present case, Jackson argues that RHA
concealed its racial discrimination by telling
him that he and Anderson were equally well
qualified when, in his opinion, he outranked
Anderson by virtue of his PHC certification. But
Jackson claims the remark was made during the
interviewing process, before RHA hired Anderson.
It seems to us that the comment could not conceal
discrimination that had not yet taken place. Of
course, if Anderson’s hiring was a foregone
conclusion, then if RHA concealed Anderson’s
alleged inferiority at any point in the hiring
process, that could have been an effort to hide
the real considerations at play.

 For the sake of argument, we will examine
whether the offending statement actually
misrepresented Anderson as Jackson’s equal, and
thus may be construed as an effort to hide a
preference for the white candidate. As noted
above, the RHA sought candidates with college
degrees in business or public administration or
real estate. Neither Jackson nor Anderson held
such a degree, meaning that on this requirement
they were equals. The RHA also sought five years
experience in business or property management,
with experience in assisted or public housing
preferred. Anderson had ten years experience in
property management, with six years experience in
assisted housing, but just three months in public
housing. Jackson had just three years property
management experience but all in public housing.
So Anderson had more general management
experience, but Jackson had more public housing
management experience. On this score, neither
candidate was clearly superior. Finally, the RHA
required that the winning candidate have a Public
Housing Manager’s certificate "or capability of
becoming certified." Record Vol. 1, Tab D
(Documents in Support of Rule 12(M) Statement)
(emphasis added)./1 Jackson had a certificate;
Anderson did not. But Anderson needed only to be
capable of gaining certification. According to
the HUD Public Housing Manager Certification
Handbook, certification was designed to help
managers cope with "increasingly complex fiscal,
social and technical problems affecting [public
housing authorities] of all sizes in all parts of
the country." Id. at Tab H, page 2 (HUD
Certification Handbook). "The primary method by
which an individual may obtain certification is
a written examination administered by one of the
Approved Certifying Organizations." Id. at 4.
Given Anderson’s college degree and his extensive
experience in property management, the RHA would
certainly have been justified in thinking him
"capable of becoming certified." Thus, on this
count--and overall--the two were equally
qualified./2 We fail to see how telling Jackson
so amounted to concealment of racial
considerations. If, between two workers with
equal qualifications, the white worker is
promoted, the possibility of racial preference is
highlighted, not obscured. Had RHA wanted to hide
any purported racial motive in its hiring, it
would have been better off telling Jackson that
Anderson was more qualified. Then Jackson would
have thought that he lost on the merits, rather
than on race. Assured their qualifications were
similar, Jackson could reasonably have concluded
that race was a possible factor in the selection.

 Because the assessment that the two candidates
were equally qualified was not a misstatement and
was not likely to hide discrimination, it cannot
easily be taken as an effort to conceal foul
play. Therefore, we affirm the district court’s
denial of an equitable estoppel defense to the
statute of limitations.


ii)   Equitable Tolling

 Equitable tolling "permits a plaintiff to avoid
the bar of the statute of limitations if despite
all due diligence he is unable to obtain vital
information bearing on the existence of his
claim." Hentosh, 167 F.3d at 1174 (quoting Cada,
920 F.2d at 451). We have stated that to
determine whether a plaintiff in fact lacked
vital information, a court should ask whether a
"reasonable" person in the plaintiff’s position
would have been aware of the possibility that he
had suffered an adverse employment action because
of illegal discrimination. Chakonas v. City of
Chicago, 42 F.3d 1132, 1135 (7th Cir. 1994).

 Particularly in discrimination cases, which
often emerge as the result of deep-seated
suspicions held by those in protected classes, it
may be difficult to say when a "reasonable"
worker should be on notice that he has a
claim./3 Because subjective accounts of
workplace discrimination may be at odds, we have
focused on whether and when a plaintiff had
objective information suggesting that he was
treated differently than someone in an
unprotected class. For instance, in Cada, an age
discrimination plaintiff was advised he would be
terminated when a replacement was hired. A few
months later, the replacement came on board. The
plaintiff met her; he observed that she was much
younger than he was and had less relevant
experience. Nevertheless, the plaintiff waited
eight months after meeting her to file his
discrimination suit. Although there was some
dispute when the statute began to run, we
declined to toll. We reasoned that as soon as the
plaintiff met his replacement and assessed her
inferior qualifications, he had sufficient notice
he might have been the victim of age
discrimination. Subsequent delay in filing was in
the circumstances not to be excused. Similarly,
in Hentosh, the plaintiff tried to extend the
statute of limitations on her sex discrimination
claim by stating that she had not discovered that
her supervisor was sexually involved with several
colleagues until after the statute of limitations
deadline had passed. But the heart of the
plaintiff’s claim in that case was that her
supervisor sexually harassed her by creating a
hostile work environment. That she was in the
dark about her supervisor’s dalliances with
coworkers did not offset the fact that she had
the requisite objective knowledge that she was
being sexually harassed well before the statute
of limitations period expired. Finally, in
Chakonas, we held that as soon as a 63-year-old
police commander was forced to take early
retirement, he was on notice of possible age
discrimination. Notably, in Chakonas, we rejected
the plaintiff’s argument that as a law
enforcement officer he was reluctant to
"disrespect" the law by bringing an age
discrimination suit. The plaintiff’s "subjective
philosophy," we stated, was irrelevant to the
objective question whether a reasonable person
would have known of discrimination.

 Jackson argues that he did not want to race to
the courthouse merely because the RHA hired a
white candidate over him. His respect for the
gravity of filing a federal lawsuit is
commendable. But when Jackson learned that RHA
hired the white candidate, he knew that one
possible explanation was racial discrimination.
Jackson was not required to assume that this was
the RHA’s actual hiring motive. However, he was
required to undertake some inquiry to verify or
discard this theory. Jackson explains that he did
not want to "agitate," because he could have
endangered his job. We can understand his
concern. Scholars have documented that black
employees may be reluctant to complain about work
conditions for fear of being characterized as
"angry blacks." See Wilkens, 112 Harv. L. Rev. at
1965-66. But to honor this sort of excuse would
seem to effectively nullify the timeliness
requirement. And Chakonas does not allow us to
consider subjective explanations for failing to
file suit timely.

 Moreover, an objective look at the situation
suggests that Jackson could have met his burden
of inquiry in several fairly innocuous ways.
Jackson certainly could have probed the relative
merits of the two candidates by asking how he
could position himself better for the next
promotion. Indeed, some career consultants
recommend this as a path to future promotions./4
He also could have casually asked his colleagues
what they knew about Anderson. Indeed, he might
have phoned Anderson directly under the guise of
congratulating him. "Due diligence" does not
require Jackson to break into Anderson’s
personnel files, as Jackson seems to think.
Whatever many courses Jackson may have taken, the
bottom line is that equitable tolling does not
condone inaction. And given that tolling is an
equitable remedy that adjusts the rights of two
innocent parties, "the negligence of the party
invoking the doctrine can tip the balance against
its application." See Cada, 920 F.2d at 453.
However understandable Jackson’s inaction was, we
cannot toll the statute of limitations in this
case.

III.   Conclusion

 In sum, the district court did not err in
permitting the defendant to file an amended
answer to the complaint. Further, the district
court properly determined that Jackson failed to
file within the period prescribed by the statute
of limitations. Neither the doctrine of equitable
estoppel nor the doctrine of equitable tolling
are applicable in this case, and the dismissal of
this case as time-barred is AFFIRMED.

FOOTNOTES

/1 The RHA’s requirement of certification or
capability of certification was permissible. HUD
regulations state that "all persons employed by
[Public Housing Authorities] as Housing Managers
or Assistant Housing Managers responsible for 75
or more public housing units must have
certification from an Approved Certifying
Organization as a condition for payment of their
salaries out of PHA operating funds, unless
specifically exempt from this requirement under
pertinent provisions of the regulation and this
Handbook." Record Vol. 1 at Tab H, page 3 (HUD
Certification Handbook). The Public Housing
Manager Certification Program Handbook expressly
states that "[t]o provide latitude to retain or
hire an individual who may not immediately meet
the standards for certification at the time when
certification is first required," a certifying
organization may issue a probationary certificate
for a period of one year. Id. at 15-16.
Furthermore, the term of a probationary
certificate may be extended by one additional
year, enabling the applicant sufficient time to
obtain a permanent certificate. Id.

/2 It is irrelevant that Anderson delayed
certification for several years. At the time
Brewington told Jackson the two candidates were
equals, Anderson was capable of certification.

/3 See, e.g., David B. Wilkins, On Being Good and
Black, 112 Harv. L. Rev. 1924, 1963-65 (1999) (book
review) ("[T]he vast majority of Americans
believe that blacks and whites should have an
equal chance to compete for jobs. Notwithstanding
this strong and important consensus, however, old
attitudes and beliefs about race have proven hard
to shake. As study after study demonstrates, a
substantial number of whites continue to hold
negative stereotypical views about blacks. These
views frequently exist below the level of
consciousness . . . . individual blacks know that
they are in constant danger of being seen by
whites as automatically embodying these negative
traits." As a result, some black professionals
remain silent in the face of perceived racism in
order to make white workers feel comfortable that
they are not "one of ’those blacks’ who
constantly complain about racism.").

/4 See, e.g., Camille Wright Miller, Not Advancing?
Self Exam May Reveal Reasons, Roanoke Times & World
News, May 1, 1997, at B1 ("Q: I’ve applied for
several internally advertised openings. I haven’t
been given an interview for any of them. I’m very
angry; I’m not being given a chance. A: . . .
[M]eet with your supervisor and ask for an
evaluation of your strengths and potential
contribution to the company. Ask your supervisor
to identify areas viewed as weaknesses that might
prevent promotion.").
