United States District Court, N.D. Illinois, Eastern Division
May 17, 2005.
NICHOLAS OKAIJA THOMPSON, Plaintiff,
CHICAGO STATE UNIVERSITY, et al., Defendants.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants' motions to
dismiss and to strike portions of the complaint, pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the
reasons below, we grant the motion to dismiss in its entirety and
deny the motion to strike without prejudice.
Plaintiff Nicholas Okaija Thompson ("Thompson") alleges that he
was employed by Defendant Chicago State University ("CSU") and
that in a letter dated April 30, 2003, Defendant Slyvus Moore
("Moore") informed Thompson on behalf of CSU that his employment
was terminated. According to Thompson, the letter indicated that
his employment was terminated for violating Section 11.B4 of the CSU Board of Trustee Regulations that provides that an employee
may be terminated if he or she constitutes a threat of bodily
harm or a threat of harm to property or might impede operations.
Thompson alleges that the reason given for the termination was
false and that Moore terminated Thompson's employment because of
his age and national origin. Thompson alleges that he is of
African national origin and that at the time of his termination
he was 58 years old. (Compl. 3-4). Thompson also alleges that he
has been unable to secure new full-time employment due to the
alleged false reason given for his termination at CSU. Thompson,
proceeding pro se, brought the instant action and includes in
his complaint a claim alleging a violation of Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et
seq., and a claim alleging a violation of the Age Discrimination
in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.
In a ruling on a motion to dismiss brought pursuant to Federal
Rule of Civil Procedure 12(b)(6), the court must draw all
reasonable inferences that favor the plaintiff, construe the
allegations of the complaint in the light most favorable to the
plaintiff, and accept as true all well-pled facts and allegations
in the complaint. Thompson v. Illinois Dep't of Prof'l
Regulations, 300 F.3d 750, 752 (7th Cir. 2002); Perkins v.
Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The allegations
of a complaint should not be dismissed for a failure to state a claim
"unless it appears beyond 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).
Nonetheless, in order to withstand a motion to dismiss, a
complaint must allege the "operative facts" upon which each claim
is based. Kyle v. Morton High School, 144 F.3d 448, 445-55 (7th
Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir.
1992). Under current notice pleading standards in federal courts
a plaintiff need not "plead facts that, if true, establish each
element of a `cause of action'." See Sanjuan v. American Bd. of
Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)
(stating that "[a]t this stage the plaintiff receives the benefit
of imagination, so long as the hypotheses are consistent with the
complaint" and that "[m]atching facts against legal elements
comes later.") The plaintiff need not allege all of the facts
involved in the claim and can plead conclusions. Higgs v.
Carter, 286 F.3d 437, 439 (7th Cir. 2002); Kyle,
144 F.3d at 455. However, any conclusions pled must "provide the defendant
with at least minimal notice of the claim," Id., and the
plaintiff cannot satisfy federal pleading requirements merely "by
attaching bare legal conclusions to narrated facts which fail to
outline the bases of [his] claim." Perkins, 939 F.2d at 466-67.
Federal Rule of Civil Procedure 12(b)(1) requires a court to
dismiss an action when it lacks subject matter jurisdiction.
United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003). If the concern of the
court or party challenging subject matter jurisdiction is that
"subject matter jurisdiction is not evident on the face of the
complaint, the motion to dismiss pursuant to Rule 12(b)(1) would
be analyzed as any other motion to dismiss, by assuming for
purposes of the motion that the allegations in the complaint are
true." Id.; see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th
Cir. 1995) (stating that when reviewing a motion to dismiss
brought under Rule 12(b)(1), this court "must accept as true all
well-pleaded factual allegations, and draw reasonable inferences
in favor of the plaintiff."). However, if the complaint appears
on its face to indicate that the court has subject matter
jurisdiction, "but the contention is that there is in fact no
subject matter jurisdiction, the movant may use affidavits and
other material to support the motion." Id. For the purpose of
determining subject matter jurisdiction, this court "may properly
look beyond the jurisdictional allegations of the complaint and
view whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction exists."
Ezekiel, 66 F.3d at 897 (quoting Capitol Leasing Co. v.
Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir.
1993)). The burden of proof in regards to a Rule 12(b)(1) motion
is "on the party asserting jurisdiction." United Phosphorus,
Ltd., 322 F.3d at 946. A court is required to liberally construe
pleadings filed by a pro se party. McCormick v. City of
Chicago, 230 F. 3d 319, 325 (7th Cir. 2000). DISCUSSION
I. ADEA Claims
Defendants move to dismiss the ADEA claims. Defendants first
argue that the allegations of age discrimination were not
included within the charge that Thompson filed with the Equal
Employment Opportunity Commission ("EEOC"). Generally, a
plaintiff may not bring a claim in a court action that was not
included in his EEOC charge. Kersting v. Wal-Mart, Inc.,
250 F.3d 1109, 1118 (7th Cir. 2001). This rule, which prevents the
introduction of new discrimination claims in the court action,
provides "an opportunity for the EEOC to settle the dispute
between the employee and employer and put[s] the employer on
notice of the charges against it." Harper v. Godfrey Co.,
45 F.3d 143, 147 (7th Cir. 1995). A plaintiff can only pursue a
claim that is not specifically included in an EEOC charge if the
"allegations fall within the scope of the charges contained in
the EEOC complaint." Kersting, 250 F.3d at 1118. A claim falls
within the scope of the EEOC charge if the claim is "like or
reasonably related to" the allegations included in the EEOC
charge, and whether the new claim "reasonably can be expected to
grow out of" an investigation of the EEOC charges. Harper,
45 F.3d 147 (quoting Rush v. McDonald's Corp., 966 F.2d 1104, 1110
(7th Cir. 1992)). In making such a determination, the plaintiff
is required "at minimum" to show that the new claim and the EEOC
charge "describe the same conduct and implicate the same
individuals." Kersting, 250 F.3d at 1118 (quoting Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir.
In the instant action, Thompson states in his answer to the
motion to dismiss that he "admits that age discrimination [sic]
was not included in the EEOC notice of Charge of
Discrimination. . . ." (Ans. 1). Thompson does not provide any
argument in his answer as to how his age discrimination claim
falls within the scope of his EEOC claim of discrimination based
upon national origin. Thompson merely states that he made an oral
complaint to the EEOC about age discrimination. However, Thompson
signed the EEOC charge attached to his complaint that does not
contain an allegation of age discrimination and Thompson has not
shown that he ever requested that the charge be amended to include
the age discrimination allegations. Thompson's complaint includes
separate allegations of misconduct in regards to the alleged age
discrimination and the alleged national origin discrimination.
The claims are thus factually distinct. Also, it was not
reasonably expected that the age discrimination claim could arise
out of an investigation into the allegations regarding national
origin discrimination. The age discrimination is not reasonably
related to Thompson's EEOC charge, and he therefore cannot pursue
the age discrimination claim in this court.
In addition, the ADEA claims must be dismissed for another
reason as well. The Eleventh Amendment "precludes a citizen from
suing a state for money damages in federal court without the
state's consent. . . ." Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001); see also Kashani v. Purdue
University, 813 F.2d 843, 845 (7th Cir. 1987) (finding that
Purdue University was protected by sovereign immunity and stating
that, although each university is evaluated individually, it
would be an "unusual" circumstance when a state university was
not protected by the sovereign immunity). see also Miraki v.
Chicago State University, 259 F.Supp.2d 727, 730 (N.D. Ill.
2003) (finding that CSU was part of the state that is protected
by the 11th Amendment); 30 ILCS 5/1-7 (defining "State
agencies" as including universities). CSU is a state agency that
is protected by the Eleventh Amendment. Thompson argues that
Eleventh Amendment protection does not extend to entities like
CSU, and Thompson cites decisions from other circuits which are
not controlling precedent and which are not on point.
Based on all of the above analysis, we grant Defendants' motion
to dismiss the ADEA claim against CSU. The sovereign immunity bar
would also apply to the ADEA claims against Defendants Elnora
Daniel ("Daniel") and Moore in their official capacities. See
Kashani, 813 F.2d at 848 (stating that Eleventh Amendment bar
that applied to claim against the university applied to "the
damages claims against its officials in their official
capacities"). Therefore, we grant Defendants' motion to dismiss
all ADEA claims.
II. Title VII Claims Against Daniel and Moore Defendants argue that Title VII claims against Daniel and Moore
must be dismissed because individuals are not proper parties in
Title VII cases. Individuals do not fall within Title VII's
definition of employer. Williams v. Banning, 72 F.3d 552, 555
(7th Cir. 1995) (upholding dismissal of individual defendants
because, since individuals do not meet the definition of
employer, the plaintiff "can state no set of facts which would
enable her to recover under the statute.") The Seventh Circuit
has upheld dismissal of individual defendants in similar suits
against CSU. Bryson v. Chicago State University, 96 F.3d 912,
917 (7th Cir. 1996) (noting that the district court correctly
dismissed a defendant in his individual capacity early in the
proceedings in a suit alleging Title VII violations). Therefore,
we grant Defendants' motion to dismiss the Title VII claims
brought against Daniel and Moore.
III. Motion to Strike
Defendants move to strike Thompson's request in the complaint
for $2,000,000 in damages. Defendants argue that the statutory
maximum that Thompson can recover is $300,000. This motion is
premature and is denied without prejudice. CONCLUSION
Based on the foregoing analysis, we grant Defendants' motion to
dismiss in its entirety and deny Defendants' motion to strike
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