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), ...