                          NONPRECEDENTIAL DISPOSITION
                           To be cited only in accordance with
                                    Fed. R. App. P. 32.1



                 United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                  Submitted May 7, 2014*
                                   Decided May 7, 2014

                                           Before

                             DIANE P. WOOD, Chief Judge

                             WILLIAM J. BAUER, Circuit Judge

                             ILANA DIAMOND ROVNER, Circuit Judge

No. 13-1339

STANLEY SMITH,                                   Appeal from the United States District
    Plaintiff-Appellant,                         Court for the Northern District of Illinois,
                                                 Eastern Division.
       v.
                                                 No. 11 C 986
UNION PACIFIC RAILROAD, CO.,
    Defendant-Appellee.                          Robert M. Dow, Jr.,
                                                 Judge.

                                         ORDER

       This successive appeal requires us to review for the second time the dismissal of
Stanley Smith’s complaint in his employment-discrimination lawsuit. Our recent
decision in Luevano v. Wal-mart Stores, Inc., 722 F.3d 1014 (7th Cir. 2013), compels the
opposite conclusion reached by the district court, and thus we vacate and remand.


       *
       This appeal is successive to case no. 11-2750 and is being decided under Operating
Procedure 6(b) by the same panel. After examining the parties’ briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs
and the record. See FED. R. APP. P. 34(a)(2)(C)
No. 13-1339                                                                         Page 2


        In his initial complaint, Smith alleged that his former employer, Union Pacific
Railroad (for whom he worked as an engineer), discriminated against him in violation
of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., because of his
alcoholism. Smith alleged that in 1999 he entered treatment for alcoholism—sponsored
by Union Pacific—and then returned to work after completing the program. In 2005 he
entered an outpatient treatment program for alcoholism, and during that time Union
Pacific did not allow him to work. He completed the program in 2006 but, he alleged,
Union Pacific refused to reinstate him only because of his alcoholism. In 2009 he filed
charges with the EEOC and, 85 days after the right-to-sue letter was issued, he brought
this suit in federal court against Union Pacific, alleging disability discrimination based
on a record of impairment and for being regarded as having an impairment.

      Union Pacific moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6), asserting that Smith’s complaint was untimely because his claims
accrued in 2006, but he did not file his charge with the EEOC until 2009, well after the
300-day deadline for filing a charge. The district court agreed with Union Pacific and
dismissed the complaint with prejudice.

       On appeal we vacated the district court’s order in part because the dismissal
should have been without prejudice. Smith v. Union Pacific R.R. Co., 474 F. App’x 478 (7th
Cir. 2012). Although the dismissal was proper, we remanded the case so that Smith
could be given an opportunity to amend his complaint by pleading facts that he
asserted in his response brief opposing the motion to dismiss. See id. at *3.

       On remand Smith amended his complaint to allege that he did not become aware
of Union Pacific’s unlawful employment practice until 2009. Union Pacific moved to
dismiss the complaint again on untimeliness grounds, arguing that Smith filed the
amended complaint beyond 90 days permitted after receiving his right-to-sue letter.
See 42 U.S.C. § 2000e–5(f)(1), incorporated by 42 U.S.C. § 12117(a).

       The district court agreed with Union Pacific that the amended complaint was
untimely and dismissed the complaint with prejudice. The court followed cases stating
that “a dismissal without prejudice is treated for statute of limitations purposes as if it
had never been filed,” and Smith’s amended complaint—filed May 31, 2012—was filed
well beyond 90 days after the EEOC’s issuance of the right-to-sue letter on November
18, 2010. The court, citing our decision in Elmore v. Henderson, 227 F.3d 1009 (7th Cir.
2000), acknowledged that this rule was harsh, but explained that a “premium” had been
No. 13-1339                                                                           Page 3

placed on stating a claim “right out of the box in an ADA case like this one.” And “once
Plaintiff elected to stand on his initial complaint in the face of a motion to dismiss, the
die was cast in regard to Plaintiff’s claim; if the complaint was dismissed, even without
prejudice, any effort to file an amended complaint would be too late.” The court also
rejected Smith’s argument that the amended complaint was timely because it “relates
back” to his original complaint, see Fed. R. Civ. P. 15(c); if Smith’s amended complaint
were to relate back to his original complaint, the court wrote, “it would undermine the
rule discussed in Elmore.” Lastly, the court concluded that there was “no reason” to
equitably toll the statute of limitations.

       Smith appeals, contending that the district court’s conclusion is inconsistent with
our remand order, which, he says, presumed that any amended complaint he filed
would be timely. He urges that the statute of limitations should have been equitably
tolled and argues that his diligence and timeliness in amending his complaint
distinguishes his case from Elmore, in which the plaintiff waited four months to refile his
complaint.

       Five months after the district court’s ruling, we issued Luevano, which considered
a factual scenario similar to this one, but reached a contrary result. 722 F.3d 1014. In that
employment-discrimination lawsuit, the plaintiff, like Smith, filed a complaint days
before the statute of limitations expired. See id. at 1018. The district court dismissed the
complaint without prejudice for failing to state a claim for relief. Id. The plaintiff
amended her complaint, but the district court dismissed it with prejudice as untimely
because it was filed more than 90 days after she received her right-to-sue letter. Id. at
1018–19. We concluded, however, that the rule recited in Elmore did not apply because
the entire suit in that case had been dismissed and Luevano involved only the dismissal
of a complaint. See id. at 1025–26. Thus we concluded that

       [i]f 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, transaction, or occurrence set out—or attempted
       to be set out—in the original pleading.”

Id. at 1022 (quoting FED. R. CIV. P. 15(c)(1)(B)).

     Luevano controls this appeal. As with the plaintiff in that case, Smith’s amended
complaint asserted a claim arising out of the defendant’s conduct set out in the original
No. 13-1339                                                                            Page 4

pleading and relates back to his timely filed original complaint. The judgment must be
vacated and the case remanded for further proceedings.

       Lastly, Union Pacific urges as an alternative basis for affirmance in part that
Smith failed to exhaust administrative remedies by failing to bring a charge alleging
disability discrimination based on a record of impairment, including any treatment for
alcoholism before 2006. But we decline to address this matter in the first instance.
See Midwest Cmty. Health Serv., Inc. v. America United Life Ins. Co., 255 F.3d 374, 379 (7th
Cir. 2001). Union Pacific is free to raise this issue before the district court on remand.

      Accordingly, we VACATE and REMAND for proceedings consistent with this
opinion.
