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June 3, 2005.

NISAR A. ALVI, Plaintiff,

The opinion of the court was delivered by: MARK FILIP, District Judge

Memorandum Opinion and Order

Nisar A. Alvi ("Plaintiff" or "Alvi"), is suing Defendant, the Metropolitan Water Reclamation District of Greater Chicago ("Defendant" or "MWRD"). In his operative complaint, Alvi alleges unlawful discrimination based on race, national origin, and age, and he also alleges unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended. The case is before the Court on Defendant's Motion to Dismiss ("Motion") the action pursuant to Federal Rule of Civil Procedure 12(b)(6). (D.E. 18.)*fn1 As explained below, Defendant's Motion is granted in part and denied in part.

I. Background*fn2

  The Plaintiff, Nisar A. Alvi, is a 55-year old man of Pakistani descent who resides in Lake County, Illinois. (Compl. ¶ 5.) On or about August 1, 1994, Alvi obtained employment with Defendant MWRD. (Id. ¶ 8.) On or about April 25, 2002, the Civil Service Board of the Metropolitan Water Reclamation District of Greater Chicago (CSB-MWRD) discharged Alvi from employment for allegedly not having a domicile within the MWRD's jurisdictional boundaries. (Id.) On October 21, 2002, Alvi filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") against the MWRD. (D.E. 1 (EEOC Charge attached to orig. compl.).) Alvi was granted a Right to Sue Letter by the EEOC (D.E. 1 (letter attached to orig. compl.)), and he filed his original complaint on September 14, 2004.

  II. Legal Standard

  The Court notes that various materials outside the Complaint have been appended to the briefs and referenced by the parties. The parties have not asked the Court to convert the Motion from one for dismissal under Federal Rule of Civil Procedure 12(b) to one for summary judgment under Federal Rule of Civil Procedure 56. See Fed.R.Civ.P. 12(b) ("If, on a motion . . . to dismiss for failure . . . to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of under Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."). The Court excludes the extraneous materials from consideration at this juncture, and decides the motion under the standards of Rule 12(b)(6).

  A Rule 12(b)(6) motion challenges the sufficiency of the complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6); accord Johnson v. Rivera, 272 F.3d 519, 520-21 (7th Cir. 2001). In ruling on such a motion, the court accepts all well-pleaded facts alleged in the complaint as true and draws all reasonable inferences from those facts in favor of the plaintiff. See McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 614 (7th Cir. 2001). The court need not accept legal conclusions or unsupported factual conclusions from the complaint as true. See, e.g., id. "[A] complaint should not be dismissed for 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); accord Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003).

  III. Discussion

  A. Defendant's Statute of Limitations Argument Fails, At Least Under Rule 12(b)(6)

  Defendant argues that Alvi's claims should be dismissed with prejudice because they are barred by the statute of limitations. (D.E. 18 at 3.) Both parties agree that Alvi had 300 days from the date of the alleged discrimination to file a charge with the EEOC. Defendant argues, however, that the statute of limitations period began upon the MWRD's filing of termination charges against Alvi, while Alvi argues that the period began when the CSB-MWRD terminated his employment. Defendant's argument fails, at least under a Rule 12(b)(6) analysis.

  The complaint contains no allegations of charges having been filed at a date earlier than the April 25, 2002, date of Alvi's termination. Even if the Court were to consider that Alvi's supervisor filed charges with the CSB-MWRD at an earlier date (D.E. 18, Ex. C), the allegations in the complaint do not support Defendant's reliance on Delaware State College v. Ricks, 449 U.S. 250 (1980), and its progeny. Ricks held that the statute of limitations period began at the time that a college board of trustees notified the plaintiff that it had decided not to offer him tenure, rather than on the date the college actually terminated his employment — which occurred a year later pursuant to the expiration of a typical one-year, terminal employment contract afforded to a professor denied tenure at the college in question. Id. at 257-28; see also id. ("It appears that termination of employment at Delaware State is a delayed, but inevitable, consequence of the denial of tenure."). The Court concluded that "the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the tenure decision was made and communicated to Ricks." Id. at 258. That was so "even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later." Id. (emphasis in original).

  Contrary to Defendant's arguments, it is not clear at this point in the litigation that the discriminatory action, if any, took place before the time that Alvi was actually terminated. (The complaint is quite opaque on the subject, a factor that cuts against Defendant, at least at this juncture). Similarly, there is nothing in the allegations which would lead the Court to believe either that Alvi's work or pay status was disrupted prior to his actual termination.*fn3 Compare, e.g., Myers v. Metro. Water Reclamation Distr., No. 04 C 6777, 2005 WL 991899, at *1 (N.D. Ill. April 11, 2005) (Kennelly, J.) (statue of limitations period began when plaintiff was suspended pending final termination by Civil Service Board); Rogers v. Metro. Water Reclamation Distr., No. 01 C 2271, 2001 WL 1835161, at *1 (N.D. Ill. Dec. 17, 2001) (Zagel, J.) (same). Nor is it clear from the pleadings that Alvi's "termination at a later date [was] an inevitable consequence of the discriminatory decision" by his supervisor to file a charge for termination with the CSB-MWRD. E.E.O.C. v. N. Gibson Sch. Corp., 266 F.3d 607, 618 (7th Cir. 2001). As best the Court can tell from the complaint (which is admittedly vague), this was not a case where the "operative decision" to terminate Alvi was made before April 25, 2005, with mere continuity of employment until execution of the decision was complete. Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (following Ricks). Thus, the Court cannot say that it is beyond doubt that any discriminatory action which occurred happened prior to Plaintiff's April 25, 2002 discharge. Defendant's argument that the case should be dismissed for failure to file within the applicable limitations period is not well-taken, at least as the case is presented for purposes of a Rule 12(b)(6) motion.

  B. Various Contentions Of The Plaintiff Are Dismissed Because They Are Beyond The Scope Of His EEOC Charge And Therefore Cannot Be Advanced In This Suit

  Defendant argues that certain allegations in Alvi's operative complaint should be dismissed because they are outside the scope of Alvi's EEOC charge. (D.E. 18 at 4.) "As a general rule, a . . . plaintiff [in an employment discrimination case] cannot bring claims in a lawsuit that were not included in her EEOC charge." Cheek v. W. & S. Life Ins. Co., 32 F.3d 497, 500 (7th Cir. 1994); accord, e.g., Sitar v. Ind. Dept. of Transp., 344 F.3d 720, 726 (7th Cir. 2003). Understanding that most EEOC complaints are filed by laypersons, the Seventh Circuit instructs that a plaintiff in an employment discrimination case "need not allege each and every fact that combines to form the basis of each claim in her complaint." Cheek, 31 F.3d at 500. Rather, to determine whether the allegations in the complaint fall within the scope of the earlier EEOC charge, the Court must look at "whether the allegations are like or reasonably related to those contained in the charge," Kersting v. Wal-Mart Stores, 250 F.3d 1109, 1118 (7th Cir. 2001) (internal quotations omitted), and also must assess whether a claim "reasonably could be expected to grow out of an EEOC investigation of the charge," Peters v. Renaissance Hotel Oper. Co., 307 F.3d 535, 550 (7th Cir. 2002) (internal quotations and ...

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