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., 

(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., 

, 456 (7th Cir. 2010); Shah v. Inter-
Continental Hotel Chicago Operating Corp., 

,
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, 

, 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, 

, 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., 

, 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, 

, 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. 

(“[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., 

, 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, 

, 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, 

(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, 

, 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, 

, 931 (7th Cir. 2001);
Woods v. Indiana Univ.-Purdue at Indianapolis, 

, 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., 

, 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, 

, 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, 

, 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. 

(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, 

, 971-72 (7th Cir. 2011); Muzikowski v.
Paramount Pictures Corp., 

, 923 (7th Cir.
2003); Elmore v. Henderson, 

, 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. 

. 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 

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,

, 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., 

, 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, 

, 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., 

, 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, 

, 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, 

, 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, 

, 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, 

(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, 

, 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, 

,
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., 

, 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., 

, 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, 

, 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, 

(7th Cir. 2011), and Elmore v. Henderson, 

(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 

. 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, 

, 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,

, 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, 

, 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, 

, 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,

, 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,

, 94 (2007) (per curiam), even in the wake of
Bell Atlantic Corp. v. Twombly, 

(2007), and
26                                               No. 11-1917

Ashcroft v. Iqbal, 

(2009). See Arnett v. Webster,

, 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., 

, 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, 

(1973).
Swierkiewicz v. Sorema N.A., 

, 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.” 

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, 

, 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.” 

(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, 

(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, 

, 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., 

, 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 

(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., 

, 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., 

, 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., 

                                             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., 

, 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., 

, 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., 

, 482-83
(7th Cir. 1996) (collecting cases); Malhotra v. Cotter & Co.,

, 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