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May 28, 2004.

JEFF W. NOBLES, Plaintiff

The opinion of the court was delivered by: JOHN W. DARRAH, District Judge


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 black male;
(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., ¶ 6.

  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), ...

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