United States District Court, N.D. Illinois
May 28, 2004.
JEFF W. NOBLES, Plaintiff
DISCOVER FINANCIAL SERVICES, INC., Defendant
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Jeff Nobles, filed suit against Defendant, Discover Card
Financial Services, Inc., alleging that Defendant discriminated against
him in violation of Title VII. Specifically, Plaintiff alleges that he
suffered racial discrimination, gender discrimination, and sexual
harassment. Presently before the Court is Defendant's Motion to Dismiss
Complaint. For the following reasons, Defendant's Motion to Dismiss
Complaint is granted in part and denied in part.
In reviewing a motion to dismiss, the court reviews all facts alleged
in the complaint and any reasonable inferences drawn therefrom in the
light most favorable to the plaintiff. See Marshall-Mosby v. Corporate
Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). A plaintiff is not
required to plead the facts or elements of a claim, with the exceptions
found in Federal Rule of Civil Procedure 9, not here applicable. See
Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002); Walker v. Thompson,
288 F.3d 1005, 1007 (7th Cir. 2002). Dismissal is warranted only if "it appears beyond a doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957). The "suit should not be dismissed
if it is possible to hypothesize facts, consistent with the complaint,
that would make out a claim." Graehling v. Village of Lombard, Ill.,
58 F.3d 295, 297 (7th Cir. 1995).
The facts, for the purposes of this motion, are as follows. Plaintiff
is a black male who worked for Defendant. Defendant is a New York
corporation that does business in the state of Illinois.
Plaintiff's Complaint states that Defendant violated Title VII by:
(a) Subjecting Jeff Nobles to different standards
of review, specifically, requiring that he test
higher than his non-black colleagues or females
during performance reviews;
(b) Failing to promote Jeff Nobles to a position
in which only females occupied because he is a
(c) Creating a hostile work environment by sexually
harassing Jeff Nobles;
(d) Terminating Jeff Nobles while not terminating
similarly situated, less Qualified non-black
colleagues or females.
Pl.'s Compl., ¶ 5. The effect of these practices "has been to deprive
Jeff Nobles of equal employment opportunities and otherwise affecting his
status as an employee, because of his race and gender." Pl.'s Compl., ¶
Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC"). Plaintiff checked the boxes for sex
discrimination and retaliation. His charge also included a narrative
which stated that: I am a Stager and began my employment with [Defendant]
on April 10, 2000. On March 15, 2001, I was sexually
harassed by a co-worker. A few weeks later I
complained about sex harassment to the Administrator.
On May 31, 2001 I was placed on administrative leave
and subsequently discharged.
I believe I was discriminated against and retaliated
against because of my sex, male, in violation of Title
VII of the Civil Rights Act of 1964, as amended.
On December 18, 2001, Plaintiff received his "Dismissal and Notice of
Rights" from the EEOC, otherwise known as a "right-to-sue letter." On
April 4, 2002, Plaintiff filed his Complaint in this action.
Defendant argues that Plaintiff's Complaint should be dismissed for
three reasons. First, Defendant asserts that Plaintiff's Complaint was
filed more than ninety-days after he received his right-to-sue letter. In
the alternative, Defendant contends that Plaintiff admitted he was not
discharged and, thus, cannot establish an actionable constructive
discharge claim. Defendant also argues that Plaintiff's claims for racial
discrimination and gender discrimination were not properly asserted in
Plaintiff's charge before the EEOC, and Plaintiff thus failed to exhaust
his administrative remedies with respect to those claims.
In response, Plaintiff argues that Defendant has waived its right to
assert affirmative defenses concerning Plaintiff's failures to comply
with the ninety-day filing requirement and to exhaust his administrative
remedies before the EEOC. Plaintiff claims that Defendant responded to
the Complaint by filing a summary judgment motion, which made no mention
of the statute of limitations or the failure to exhaust administrative
remedies. Furthermore, Plaintiff contends that Defendant issued written
discovery; but none of the discovery touched on these issues. Federal Rule of Civil Procedure 8(c) requires that affirmative
defenses, such as the statute of limitations or "any other matter
constituting an avoidance or affirmative defense," be pled in a
responsive pleading. Federal Rule of Civil Procedure 7 "clarifies that
the use of the word `pleading' in Rule 8 includes the answer, but not
other motions." Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir. 2000)
(Perry). Therefore, an affirmative defense is not waived simply because
it is filed after a Rule 12(b)(6) motion. Perry, 207 F.3d at 383.
Here, Defendant filed a motion for summary judgment before it filed an
answer. Motions for summary judgment may be filed "at any time."
Fed.R.Civ.P. 56(b). Therefore, just like in Perry, Defendant did not
waive its affirmative defenses by filing a motion for summary judgment.
Defendant next argues Plaintiff's Complaint is time-barred. A complaint
which alleges Title VII violations is time-barred unless he files a
complaint within ninety-days from the time he receives his right-to-sue
letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Grayson v. O'Neill,
308 F.3d 808, 817 (7th Cir. 2002). "[T]he time limit is not flexible,
even for pro se litigants, and a one-day delay is fatal." Wilson v. N.E.
Commuter R.R. Corp., 2003 U.S. Dist. LEXIS 21149, at *3 (N.D. Ill. Nov.
20, 2003) (Wilson). Typically, it is presumed that a mailing is received
threedays after it is sent. Fed.R.Civ.P. 6(e); Baldwin v. County Welcome
Ctr., 466 U.S. 147, 148 n.l (1984), However, other evidence must be
presented demonstrating that the EEOC actually mailed the right-to-sue
letter upon its issuance. Wilson, 2003 U.S. Dist. LEXIS 21149, at *4.
Here, Defendant argues that the right-to-sue letter was received by
Plaintiff three days after it was issued, on December 21, 2001. Defendant
relies upon an affidavit of a person who reviewed the EEOC files and EEOC operating procedures in its attempt to
prove this fact. Therefore, when Plaintiff received his right-to-sue
letter is a question of fact not proper to resolve on a motion to
Next, reading the Complaint liberally, Plaintiff alleges that he was
constructively discharged because of the sexual harassment he endured.
Defendant contends that in an affidavit for an earlier motion for summary
judgment, Plaintiff admitted that he chose to accept a severance package
and that, therefore, he was not discharged.
However, that affidavit is not proper to consider on a Rule 12(b)(6)
motion to dismiss. Although Defendant's Motion to Dismiss Complaint could
be converted to a motion for summary judgment Fed.R.Civ.P. 12(b)(6);
Marques v. Federal Reserve Bank of Chicago, 286 F.3d 1014, 1017 (7th
Cir. 2002) (Marques) other facts may exist which show Plaintiff was
unlawfully discharged. See Henn v. Nat'l Geographic Soc'y, 831 F.2d 824,
829-31 (7th Cir. 1987). Accordingly, Defendant's motion to dismiss with
respect to his sexual harassment claim is denied on this basis.
Defendant further argues that Plaintiff failed to exhaust his
administrative remedies with respect to his claims for gender
discrimination. "A plaintiff may pursue a claim not explicitly included
in an EEOC complaint only if her allegations fall within the scope of the
charges contained in the EEOC complaint." A two-part test is used to
determine if the allegations fall within the scope of the charges in the
EEOC complaint. First, the allegations must be like or reasonably related
to those in the EEOC complaint. If those allegations are related, "the
court asks whether the current claim reasonably could have developed from
the EEOC's investigation of the charges before it." Cheek v. Peabody Coal
Co., 97 F.3d 200, 202 (7th Cir. 1996). Generally, allegations of gender discrimination are not like or
reasonably related to claims of sexual harassment or retaliatory
discharge. E.g., Sitar v. Indiana Dep't of Transp., 344 F.3d 720, 726-27
(7th Cir. 2003).
Plaintiff, though, argues that his EEOC charge, which states Plaintiff
believed he was discriminated because he was a male, sufficiently
satisfies the two-part test. The "like or reasonably related" standard
should be applied liberally to serve the remedial purpose of Title VII.
See, e.g., Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164,
167-68 (7th Cir. 1976) (en banc).
Here, the plain language of Plaintiff's EEOC charge states that
Plaintiff believed he was discriminated against because of his gender,
thus satisfying the like or reasonably related standard. Plaintiff also
checked the box for sex discrimination on his EEOC charge. Moreover,
reading these statements liberally and particularly in combination,
Plaintiff sufficiently alleged in his EEOC charge that he suffered gender
discrimination to enable the EEOC to develop Plaintiff's current claim
for gender discrimination. Therefore, Plaintiff has properly exhausted
his gender discrimination claim before the EEOC.
Lastly, Defendant contends that Plaintiff failed to exhaust his
administrative remedies with respect to his claims for racial
discrimination, as well. Allegations of racial discrimination are not
"like or reasonably related" to gender discrimination, retaliation, or
sexual harassment. Crawford v. Bank of Am., 986 F. Supp. 506, 508-09
(N.D. Ill. 1997).
Here, Plaintiff's charge does not list racial discrimination; and
nothing in Plaintiff's narrative of the underlying events mentions racial
discrimination. Therefore, Defendant's motion to dismiss with respect to
Plaintiff's racial discrimination claims is granted. CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss Complaint is
granted in part and denied in part.
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