The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, David Howell, commenced an action, pro se, against
Defendant, National Waste Service, alleging his employment was terminated
in violation of the American with Disabilities Act and failure of his
employer to accommodate his religion. Before this Court is Defendant's
Motion to Dismiss. Howell did not file a response to Defendant's motion.
In reviewing a motion to dismiss, the court reviews all facts alleged
in the complaint and any inferences reasonably drawn therefrom in the
light most favorable to the plaintiff. Marshall-Mosby v. Corporate
Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). Dismissal is
warranted only if "it appears beyond a doubt that the plaintiff can prove
no set of facts in support of its claims that would entitle it to
relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
A reading of Howell's Complaint and Charge of Discrimination with the
Equal Employment Opportunity Commission supports the following summary of
the alleged conduct of the parties.
On October 10, 2002, Howell filed a Charge of Discrimination with the
EEOC. Howell alleged that he began working as a truck driver for the
Defendant on March 25, 2000. On September 26, 2001, Howell sustained a
work-related injury that resulted in his becoming disabled. Howell was
released back to work on June 8, 2002. At that time, Defendant informed
he had been terminated, effective October 16, 2001, for failing to call
or show up at work. Howell alleged that he believed he had been
discriminated against on the basis of his disability in violation of the
ADA. In his EEOC charge, Howell checked the box for disability
discrimination; he did not check any other box, including the box for
discrimination based on religion. On May 16, 2003, Howell received a
Dismissal and Notice of Right to Sue from the EEOC.
On September 12, 2003, Howell filed a pro se Complaint of Employment
Discrimination in which he indicated that he was discriminated against
because of his disability. In this Complaint, Howell did not check the
box alleging discrimination based on his religion; but he did check the
box indicating that the Defendant failed to accommodate his religion, In
the section for facts supporting his claim, Howell stated, "When (sic) I
damage[d] my right shoulder, the boss Kevin said David [is] no good to
the company with one arm."
Defendant argues that Howell's claims are time barred because he failed
to timely file his Complaint within ninety days of receiving his
Dismissal and Notice of Right to Sue notification.
Claims for discrimination must be filed within ninety days after the
receipt of a Dismissal and Notice of Right to Sue from EEOC. If a
plaintiff fails to file suit within this time frame, his claims are
time-barred and must be dismissed with prejudice. See Houston v.
Sidley & Austin, 185 F.3d 837, 838-39 (7th Cir. 1999).
Here, Howell received his Dismissal and Notice of Right to Sue from the
EEOC on May 16, 2003. Accordingly, he was required to file suit on or
before August 16, 2003. Howell did not file suit until September 12,
2003. Accordingly, his claims are time-barred.
Furthermore, Howell's discrimination claim would also be dismissed
because Howell failed to exhaust his administrative remedies for this
Title VH plaintiffs must initially bring a charge with the appropriate
administrative body, i.e., EEOC, EEO, before pursuing a claim in federal
court; and, thus, Title VII claims cannot be brought if they were not
included in the plaintiffs EEOC complaint. Babrocky v. Jewel Food Co.,
773 F.2d 857, 864 (7th Cir. 1985) (Babrocky). An exception to this
general rule, which allows a claim not included in the EEOC complaint to
be pursued in federal court, exists when that subsequent claim is
"reasonably related" to the claim that was included in the EEOC charge.
Babrocky, 773 F.2d at 864, To be reasonably related, a factual
relationship must exist between both claims; specifically, a claim in a
Title VII plaintiffs complaint and an EEOC charge are reasonably related
when the subsequent claim can be reasonably expected to be developed from
an investigation of the allegations in the EEOC charge. Cheek v. Western
and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994).
Courts will give Title VII pro se plaintiffs leeway in regards to the
administrative specificity requirement in EEOC complaints. The basis for
this liberal construction is to give pro se plaintiffs leeway by
construing their allegations in light of the strongest arguments that
they may suggest when deciding whether the claims in the complaint are
encompassed by the EEOC charge. Hudson v. McHugh, 148 F.3d 859, 864 (7th
Here, however, Howell only alleged that his employment was terminated
because of his disability. There is no discussion or even mention of
religion within the EEOC charge, and a claim for religious discrimination
cannot be reasonably expected to be developed ...