Indemnification Tips the Scale: Seventh Circuit Holds Indiana Prosecutor’s Offices Are Arms of the State for Employment Decisions; Title VII’s 90-Day Clock Starts Upon Notice of Right-to-Sue Letter

Introduction

In Susan Kinder v. Marion County Prosecutor’s Office, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment against a county employee who alleged racial discrimination under Title VII and the Equal Protection Clause. The court resolved two important questions:

When does the 90-day filing period for a Title VII action begin when the Equal Employment Opportunity Commission (EEOC) delivers right-to-sue notices through an online portal?
Is an Indiana county prosecutor’s office a suable “person” under 42 U.S.C. § 1983 for claims challenging its employment practices?

The Seventh Circuit held that the Title VII 90-day limitations clock begins to run when the plaintiff is on notice that the right-to-sue letter has issued—not when the document is actually viewed. On the constitutional claim, the court concluded the Marion County Prosecutor’s Office (MCPO) functions as an arm of the State of Indiana in the employment context and is therefore not a “person” subject to suit under § 1983. Central to the court’s state-actor analysis was Indiana’s broad indemnification statute that obligates the state treasury to pay litigation expenses—including judgments and settlements—for actions taken within the scope of a prosecutor’s employment.

Summary of the Opinion

The Seventh Circuit affirmed summary judgment for the MCPO on both claims.

Title VII timeliness: The court, applying its earlier decision in Lax v. Mayorkas, held that Kinder’s 90-day filing window began at least when her counsel was notified (June 15, 2022) that the EEOC had closed the charge and that the right-to-sue letter was available in the portal. Even under a more stringent approach reflected in the Eighth Circuit’s McDonald v. St. Louis University, the clock would have begun earlier (April 28, 2022), when the EEOC posted the letter to the portal. Kinder filed on October 4, 2022, which was untimely under either date. The court rejected reliance on the right-to-sue letter’s generic statement that “receipt generally occurs” when the document is viewed. Equitable tolling was not considered because Kinder did not raise it below or in her opening brief, and, in any event, the record did not show the requisite due diligence.
Section 1983 “person”hood: Although prior Seventh Circuit precedent (Jones v. Cummings) held an Indiana county prosecutor is a state official when prosecuting criminal cases, the court clarified that the arm-of-the-state inquiry is function-specific. Examining the employment function, the court concluded the MCPO is an arm of the State of Indiana. Two pillars supported this conclusion:
- County funding of office staff does not confer county control, especially where state law compels “necessary” funding and limits county discretion;
- Indiana’s indemnification statute (Ind. Code § 33-39-9-4) obligates the state to pay litigation expenses—including judgments and settlements—for actions within the scope of a prosecutor’s office, which, according to the court and prior district authority (Bibbs v. Newman), includes employment decisions.
Because a money judgment would draw on the state treasury, the office is not a suable “person” under § 1983 for the employment claim.

The court emphasized that Congress has abrogated state sovereign immunity under Title VII, leaving that statute as the principal vehicle for employment discrimination claims against prosecutor’s offices—subject, however, to timely filing.

Factual and Procedural Background

Susan Kinder, a white woman, worked as an advocate in the MCPO. After conflicts with a Black colleague, Lydia Richardson, including allegations by Richardson that Kinder made racially insensitive remarks, the MCPO’s chief counsel investigated and found the animosity “went both ways” and that complaints were unsubstantiated. The elected prosecutor, Ryan Mears, wanted to terminate both employees but accepted a reassignment solution. Kinder viewed her new role as a demotion (fewer positive duties, reduced victim interaction), while Richardson “enjoyed” her new position.

Kinder filed an EEOC charge. On April 28, 2022, the EEOC uploaded a right-to-sue notice to its portal, and counsel received an email that “a new document was added.” Counsel could not access the document and, on June 15, the EEOC informed him the “charge was closed” on April 28 and that he needed to view the notice in the portal. After further difficulty, the EEOC emailed the letter on July 6; it retained the April 28 date. Kinder filed suit on October 4—159 days after April 28, 111 days after June 15, and exactly 90 days after July 6. The district court granted summary judgment to MCPO on timeliness (Title VII) and on sovereign immunity/“person”hood (Equal Protection via § 1983). Kinder appealed.

Analysis

Precedents Cited and Their Influence

Lax v. Mayorkas, 20 F.4th 1178 (7th Cir. 2021): The anchor precedent for the Title VII limitations issue. Lax holds the 90-day period starts when the plaintiff is on notice of the right-to-sue determination, not when the letter is actually opened or read. The Kinder panel applied Lax to digital notifications that give notice a letter has issued or the case has closed.
McDonald v. St. Louis University, 109 F.4th 1068 (8th Cir. 2024): Factually similar. The Eighth Circuit treated the clock as starting when the EEOC sent an email that “a new document was added” to the portal—before explicit notice of final agency action. The Kinder panel did not adopt McDonald wholesale but noted Kinder’s suit was untimely even under the Seventh Circuit’s own, slightly narrower Lax framework.
Threadgill v. Moore U.S.A., Inc., 269 F.3d 848 (7th Cir. 2001); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990); Menominee Indian Tribe v. United States, 577 U.S. 250 (2016); Lombardo v. United States, 860 F.3d 547 (7th Cir. 2017): The equitable tolling canon. They together require extraordinary external obstacles and due diligence. The court in Kinder refused to entertain tolling because it was not raised below or in the opening brief, and the record failed to show diligence.
Jones v. Cummings, 998 F.3d 782 (7th Cir. 2021): Held that an Indiana county prosecutor is a state official when prosecuting criminal cases, and thus not a “person” under § 1983 in that function. Kinder extends the analysis to employment functions of the prosecutor’s office.
McMillian v. Monroe County, 520 U.S. 781 (1997): The Supreme Court’s function-specific framework for determining whether a local officer acts on behalf of the state. It rejects categorical labels and requires attention to state law, structural features, and fiscal realities.
Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989); Kentucky v. Graham, 473 U.S. 159 (1985): Establish that states and state officials (in official capacity) are not “persons” under § 1983, and that official-capacity suits are suits against the entity itself.
Regents of the University of California v. Doe, 519 U.S. 425 (1997); Parker v. Franklin County Community School Corp., 667 F.3d 910 (7th Cir. 2012): Emphasize the significance of whether a money judgment would be paid from the state treasury when assessing arm-of-the-state status.
Pellitteri v. Prine, 776 F.3d 777 (11th Cir. 2015); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003): Supporting authority indicating that a state-treasury drain can be dispositive in the arm-of-the-state analysis, especially in employment disputes involving sheriffs—cited to reinforce the weight of indemnification.
State ex rel. Neeriemer v. Daviess Circuit Court, 142 N.E.2d 626 (Ind. 1957); Foster v. Pearcy, 387 N.E.2d 446 (Ind. 1979): Indiana authorities on the status of prosecutors as constitutional officers exercising sovereign powers.
Brown v. State ex rel. Brune, 359 N.E.2d 608 (Ind. Ct. App. 1977): Indiana law compelling counties to provide “necessary” funds to prosecutor offices, limiting county control.
Lake County Board of Commissioners v. State, 181 N.E.3d 960 (Ind. 2022): Indiana Supreme Court case noting probation officers are state employees despite county funding, reinforcing that payment source is not dispositive.
Bibbs v. Newman, 997 F. Supp. 1174 (S.D. Ind. 1998): Persuasive district authority interpreting Indiana’s indemnification statute to cover employment-related suits against prosecutors, a key point adopted in Kinder’s analysis.
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976): Confirms Congress’s power to abrogate Eleventh Amendment immunity under Title VII, ensuring an avenue for discrimination claims against state entities provided procedural requirements are met.

Legal Reasoning

1) Title VII Timeliness: Notice, Not Viewing, Starts the Clock

The EEOC issued Kinder’s right-to-sue letter on April 28, 2022, and counsel was notified that a new document had been added to the portal. On June 15, the EEOC expressly told counsel that the charge was closed on April 28 and the right-to-sue letter could be viewed in the portal. Kinder did not file until October 4, 2022.

Applying Lax v. Mayorkas, the court reiterated that the 90-day limitations period commences when the plaintiff is on notice of the issuance of the right-to-sue letter or the agency’s final action—not when the plaintiff opens or reads the notice. The court treated the June 15 communication as the “operative notice date” under Lax and, alternatively, observed that the Eighth Circuit’s McDonald approach would start the clock even earlier, on April 28, when the portal posting occurred. Kinder missed both deadlines.

The court rejected Kinder’s reliance on the right-to-sue letter’s boilerplate sentence that “receipt generally occurs” when the document is viewed. That generic language did not displace Lax’s rule, and McDonald had similarly refused to allow such boilerplate to control the accrual date.

As for equitable tolling, the panel declined to consider it because Kinder did not raise tolling in the district court or in her opening brief on appeal. Even if considered, the record did not show the required diligence: counsel did not clarify with the EEOC which date controlled, and after finally obtaining the letter on July 6, there remained roughly three weeks to file within 90 days of April 28—but no filing occurred until October 4.

2) Section 1983 and Arm-of-the-State Status in the Employment Function

Kinder attempted to distinguish Jones v. Cummings—which addressed prosecutorial functions—by suing the “office” rather than the prosecutor in his official capacity and by targeting employment decisions rather than criminal prosecutions. The court explained that suits against officials in their official capacity are suits against the entity itself, and the McMillian framework requires a function-specific analysis anchored in state law and fiscal realities.

Two features of Indiana law were determinative:

Compelled county funding does not confer control: Although counties pay salaries of many prosecutor’s office employees, Indiana law compels counties to provide “necessary” funds for the prosecutor’s statutory duties. That compelled funding regime limits county discretion and control (Brown v. Brune). The Supreme Court’s McMillian decision likewise rejected payment source as dispositive where the county lacks the power to refuse necessary funding. Indiana’s high court has also recognized state-employee status despite county payrolls (Lake County Board v. State).
State indemnification creates a state-treasury drain: Under Ind. Code § 33-39-9-4, the State of Indiana must pay litigation expenses—including attorney’s fees, judgments, and settlements—for actions arising from the performance of prosecutorial office duties. As district precedent (Bibbs v. Newman) has observed, this indemnification “draws no distinction” between suits based on prosecutions and those based on employment decisions. The Supreme Court’s Regents decision, and Seventh Circuit cases following it (Parker), assign “considerable importance” to whether a monetary judgment would be enforceable against the state. Here, it would be, making the prosecutor’s office an arm of the state.

Against this backdrop—and considering the constitutional stature of prosecutors in Indiana (State ex rel. Neeriemer; Foster v. Pearcy)—the court concluded that the MCPO is not a suable “person” under § 1983 for Kinder’s employment discrimination claim. The court was careful to cabin its holding to the presence of Indiana’s unusually broad indemnification scheme and expressly left open what the result might be absent that indemnification.

Finally, the court addressed a remedial concern: this holding does not render prosecutors’ offices untouchable for employment discrimination; Title VII remains available because Congress has abrogated Eleventh Amendment immunity in that statute (Fitzpatrick v. Bitzer)—but claimants must meet Title VII’s procedural deadlines.

Impact and Implications

A. Title VII Filing Practice in the Seventh Circuit

Portal-era notice rule reaffirmed: Litigants should treat the 90-day clock as starting upon notice that a right-to-sue letter has issued or that the charge has closed, even if the letter cannot immediately be viewed or downloaded.
Boilerplate “receipt when viewed” language is not controlling: Generic language in EEOC notices does not override circuit precedent on accrual.
Equitable tolling requires diligence and preservation: Tolling arguments must be raised in the district court and in opening appellate briefing. Counsel should document efforts to access notices, correspond promptly with the EEOC, and, when in doubt, move to file within the earliest plausible deadline.

B. Section 1983 Employment Claims Against Indiana Prosecutor’s Offices

New Seventh Circuit extension: The decision meaningfully extends Jones by holding that, in the employment context, Indiana county prosecutor’s offices are arms of the state for § 1983 purposes, primarily because state indemnification exposes the state treasury to judgments and settlements.
Practical litigation consequence: Plaintiffs cannot bring Equal Protection or § 1981 claims against the MCPO via § 1983 predicated on employment decisions. Since § 1981 claims against state actors must be pursued through § 1983, those claims are likewise foreclosed against the office.
Reliance on Title VII: Plaintiffs must largely channel employment discrimination claims against prosecutor’s offices through Title VII (and potentially state administrative schemes), underscoring the importance of timely EEOC practice.
Scope and limits: The panel emphasized that Indiana’s indemnification statute is unusually broad. The opinion does not decide whether a different indemnification regime—or its absence—would alter the arm-of-the-state conclusion for employment claims against prosecutors in Indiana or elsewhere.

C. Governmental Structure and Risk Allocation

State fiscal responsibility drives immunity: When a state undertakes to pay litigation expenses for a local officer’s employment actions, it strengthens the case for Eleventh Amendment immunity and § 1983 non-personhood.
County funding remains non-dispositive: Even where counties pay salaries and office expenses, compelled funding requirements and indemnification can defeat characterizations of prosecutor offices as municipal entities for § 1983 purposes.

Complex Concepts Simplified

Right-to-sue letter: The EEOC’s final notice that authorizes a charging party to file a civil lawsuit under Title VII. Once issued, the claimant has 90 days to file in federal court.
When does the 90-day clock start? In the Seventh Circuit, the clock begins when the claimant is on notice that the letter has issued (e.g., via email stating the charge is closed or that a right-to-sue letter is available), not necessarily when the claimant opens the document.
Equitable tolling: A doctrine that, in extraordinary circumstances outside the plaintiff’s control, can extend deadlines. To invoke it, a plaintiff must show diligence and an external obstacle preventing timely filing—and must raise the issue in the trial court and preserve it on appeal.
“Person” under § 1983: Only “persons” can be sued under § 1983. States and state officials sued in their official capacities are not “persons.” Municipalities are “persons” but enjoy qualified protections under Monell’s standards (not at issue here because the MCPO was deemed an arm of the state).
Arm-of-the-state test: A function-specific inquiry into whether, for the challenged conduct, an entity acts on behalf of the state. Courts consider state law defining the office, its duties, who pays judgments, and who controls the function.
Indemnification and the state treasury: If state law obligates the state to pay judgments and settlements for a given office’s actions, that obligation weighs heavily in favor of classifying the office as an arm of the state (and thus immune under the Eleventh Amendment and non-suable under § 1983).

Practice Pointers

Track the earliest notice: In EEOC portal cases, docket the 90-day deadline from the first date you or your client is told the charge is closed or a right-to-sue letter is available. Do not assume the clock starts when the PDF is opened.
Act with documented diligence: If portal access fails, promptly contact the EEOC, request emailed copies, and memorialize communications. If timing is tight, file protective suits to avoid time bars.
Preserve tolling arguments: Plead and brief equitable tolling in the district court if extraordinary circumstances arise, and renew the argument in the opening appellate brief if appealed.
Choose the right defendant and theory: In Indiana, employment discrimination claims against prosecutor’s offices should proceed under Title VII rather than § 1983, given this opinion’s arm-of-the-state holding in the employment context.

Open Questions

Scope beyond Indiana’s indemnification statute: The court highlighted the unusual breadth of Indiana’s indemnification scheme and expressly declined to opine on cases lacking such indemnification.
Portal notice accrual beyond the Seventh Circuit: While Kinder aligns with Lax, the court did not fully adopt the Eighth Circuit’s McDonald approach that potentially triggers accrual even earlier. Future Seventh Circuit cases may refine the precise accrual point for different types of EEOC portal notifications.

Conclusion

Kinder sets two practical and doctrinal guideposts. First, for Title VII litigants in the Seventh Circuit, the 90-day filing period begins upon notice that a right-to-sue letter has issued, not upon the claimant’s successful viewing of the document. Generic letter language about “receipt” does not displace that rule, and equitable tolling must be timely raised and supported by diligence and extraordinary circumstances.

Second, the Seventh Circuit extends arm-of-the-state treatment to an Indiana county prosecutor’s office when it acts as an employer, holding the office is not a suable “person” under § 1983. The linchpin is Indiana’s statutory indemnification of prosecutors for actions within the scope of their office—including employment decisions—creating a direct state-treasury exposure that carries “considerable importance” under Regents. The court cabins its holding to the presence of that indemnification regime, but the immediate effect is clear: equal protection employment claims against Indiana prosecutor’s offices must proceed under Title VII, where Congress has abrogated immunity, and must be filed on time.

In short, Kinder is a cautionary tale about Title VII deadlines in the digital-notice era and a noteworthy refinement of arm-of-the-state doctrine that turns on the financial realities of state indemnification.