United States District Court, N.D. Illinois, Eastern Division
June 3, 2005.
BEATRICE FLEMING, Plaintiff,
AMALGAMATED TRANSIT UNION, and CHICAGO TRANSIT AUTHORITY, Defendants.
The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Beatrice Fleming brings this four-count Verified
Amended Consolidated Complaint ("Amended Complaint") alleging
race and gender discrimination in violation of Title VII,
42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, against
Amalgamated Transit Union ("Union") and the Chicago Transit
Authority ("CTA"). Before the Court are the CTA's and Union's
motions to dismiss Counts I, II, and III under Federal Rule of
Civil Procedure 12(b)(6). For the following reasons, the Court
grants Defendants' motions to dismiss.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the legal sufficiency of a complaint, not the merits of
the case. Triad Assoc., Inc. v. Chicago Hous. Auth.,
892 F.2d 583, 586 (7th Cir. 1989). The Court will only grant a motion
to dismiss if "it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief." Centers v. Centennial Mortgage, Inc.,
398 F.3d 930, 933 (7th Cir. 2005) (quoting Conley v. Gibson,
355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed.2d 80 (1957)). When determining a motion to dismiss, the Court is restricted to
reviewing the pleadings, which consist of the complaint, any
attached exhibits, and the supporting briefs. See Thompson v.
Illinois Dept. of Prof'l Regulation, 300 F.3d 750, 753 (7th
Cir. 2002). In making its determination, the Court must assume
the truth of the facts alleged in the pleadings, construe the
allegations liberally, and view them in the light most favorable
to the plaintiff. Centers, 398 F.3d at 333.
Fleming filed several discrimination claims with the EEOC from
approximately August 2002 through January 2004. (R. 14-1,
Verified Amended Consolidated Complaint, ¶ 10.) The EEOC issued
several right-to-sue letters, the most recent of which Fleming
believes is dated June 2004. (Id. ¶ 11.) Fleming, however,
cannot locate this particular right-to-sue letter. (Id.) On
August 12, 2004, Fleming filed five pro se complaints in federal
court. (R. 26-1, Defendant CTA Motion to Dismiss, Ex. A.)
Thereafter, the Court appointed an attorney and Fleming filed a
motion to consolidated all of her pro se complaints. (Id., Ex.
B at 6.) The Court then granted Fleming's motion to consolidate.
I. Counts I and II Title VII Claims of Race and Gender
First, Defendants contend that Fleming failed to file her
original complaint within 90 days of receiving her right-to-sue
letter from the EEOC, and thus she is precluded from bringing her
Title VII discrimination claims Counts I and II.*fn1 See
42 U.S.C. § 2000e-5(e); Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 270 (7th Cir.
2004). Specifically, Defendants assert that the EEOC issued its
most recent right-to-sue letter on March 23, 2004 and Fleming
filed her pro se complaints on August 12, 2004, which was after
the 90 day deadline. (R. 26-1, Defendant CTA Motion to Dismiss,
Fleming contends that the EEOC issued another right-to-sue
letter in June 2004. In support of this assertion, Fleming
provided her various EEOC files, including Charge No.
210-2004-02699, which remained open after March 23, 2004. (R.
30-1, Plaintiff's Response to CTA's Motion to Dismiss, Ex. B.)
Per the Court's request, Fleming's counsel has had recent
discussions with the Chicago EEOC office. An attorney with the
EEOC informed counsel that Charge No. 210-2004-02699 relates to
an inquiry that Fleming made concerning a potential, additional
charge, but that Fleming never filed a formal charge. Thus, the
EEOC never issued a right-to-sue letter concerning this inquiry.
(R. 36-1, Plaintiff's Response to Court's May 9, 2005, Docket
Nonetheless, Fleming argues that the Court should deny the
motion to dismiss even though this last inquiry did not give rise
to a formal charge because the facts demonstrate that as of March
23, 2004, the EEOC had not fully completed its investigation with
respect to each of Fleming's grievances. Fleming, however, fails
to develop this argument and thus has waived it. See Estate of
Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir. 2005)
("Perfunctory or undeveloped arguments are waived").
Further, Fleming contends that she is entitled to equitable
tolling of Title VII's 90 day period because during the time in
question, Fleming, who was then pro se, was physically
incapacitated and could not draft a complaint. "The timely filing
of an EEOC charge is not a jurisdictional prerequisite to filing a federal lawsuit, but
rather, is more akin to a statute of limitations and subject to
waiver, estoppel, and equitable tolling under appropriate
circumstances." Hentosh v. Herman M. Finch Univ. of Health
Sciences, 167 F.3d 1170, 1174 (7th Cir. 1999); see also
Dandy, 388 F.3d at 270. Equitable tolling is an exception to the
general rule and is restricted to extreme circumstances in which
the plaintiff has made a good faith error, such as filing a
timely complaint in the wrong court, or has been prevented in
some extraordinary way from filing a timely complaint.
Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850 (7th
Cir. 2001); see also United States v. Marcello, 212 F.3d 1005,
1010 (7th Cir. 2000) ("Extraordinary circumstances far beyond
the litigant's control must have prevented timely filing"). In
Marcello, the Seventh Circuit concluded that the litigant was
not prevented by extraordinary circumstances from filing a timely
complaint even though the litigant claimed that the law was
unclear, the delay was minimal, the other side was not
prejudiced, and counsel's father died two weeks before the
deadline. Id. at 1010. The Marcello court concluded, "the
threshold necessary to trigger equitable tolling is very high,
lest the exceptions swallow the rule." Id.; see also Clark v.
Resident's Journal, No. 02 C 7933, 2003 WL 21518553, at 3 (N.D.
Ill. July 2, 2003) (plaintiff's sudden illness did not meet high
threshold necessary to invoke doctrine of equitable tolling).
Here, Fleming alleges that her tardiness in filing her original
complaints was the result of extraordinary circumstances, namely,
that she was incapacitated due to illness. (Am. Compl. ¶ 41.)
Fleming filed an affidavit in support of her response to
Defendants' motions to dismiss and in further support of her
Amended Complaint. (R. 33-1.) In her affidavit, Fleming avers
that she experienced stress and anxiety during her employment
with the CTA, and therefore, sought medical treatment. (Id. ¶ 4.) She further avers that after her
medical treatment and a period of recovery, she was able to
return to her efforts of pursuing her discrimination claims.
(Id. ¶ 7.)
Although the Court empathizes with Fleming's stress and anxiety
over this matter, Fleming's need for medical attention and
recovery do not establish the high threshold required for
equitable tolling. See Marcello, 212 F.3d at 1010. As the
Seventh Circuit instructs, the "procedural requirements
established by Congress for gaining access to the federal courts
are not to be disregarded by courts out of a vague sympathy for
particular litigants." Threadgill, 269 F.3d at 851 (citation
omitted). Therefore, the Court dismisses Fleming's employment
discrimination claims in Counts I and II of her Amended Complaint
II. Count III Section 1981 Claim of Race
Under 42 U.S.C. § 1981, a plaintiff must bring a claim within
four years of the alleged discrimination. Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 1845 (2004);
Dandy, 388 F.3d at 268-69. Because Fleming brought her pro se
complaints within four years of the alleged race discrimination,
her original complaints were timely. Nevertheless, the CTA
contends the that Court should dismiss Count III of the Amended
Complaint because Fleming does not state a claim upon which
relief can be granted.
To bring an action against an agency of a municipal government
under Section 1981, Fleming must establish that the CTA had an
official policy or practice that was discriminatory. See Monell
v. Department of Soc. Servs. of New York, 436 U.S. 658, 690-91,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); McCormick v. City of
Chicago, 230 F.3d 319, 324 (7th Cir. 2000). To plead municipal liability, Fleming must allege that: (1) the CTA had an
express policy that, when enforced, caused a constitutional
deprivation; (2) the CTA had a widespread practice that, although
not authorized by law or municipal policy, was so permanent and
well-settled as to constitute a custom or usage within the force
of law; or (3) a person with final policymaking authority caused
her alleged constitutional injury. McCormick, 230 F.3d at 324.
In McCormick, the Seventh Circuit emphasized that federal
courts do not apply heightened pleading standards in civil rights
cases alleging municipal liability. Id. at 323-24.
Here, Fleming contends that her Amended Complaint satisfies
both the second and third tests under this standard. To this end,
Fleming asserts that under the second test, she alleged that she
was held to a stricter performance standard and was treated
differently than her non-minority and male colleagues. (Am.
Compl. ¶ 16.) She further alleges that her supervisors and the
Union did nothing to improve her situation after she notified
them that she was being treated unfairly. (Am. Compl. ¶ 17.)
Finally, Fleming alleges that her male supervisor, Antonio
McFadden, excessively disciplined and punished her and instructed
other supervisors to discipline her. (Am. Compl. ¶ 28.) Fleming
does not explain how these allegations support her theory that
the CTA had a widespread practice that was so permanent as to
constitute a custom or usage. See id. Instead, these
allegations reflect that she may have been treated differently
than her male and non-minority colleagues allegations that are
more akin to a disparate treatment claim, not a Monell claim.
See, e.g., Franklin v. City of Evanston, 384 F.3d 838, 847
(7th Cir. 2004).
Next, Fleming contends that she has sufficiently pled that a
person with final policymaking authority caused her
constitutional injury. Specifically, Fleming asserts that when
she alleged that the CTA's General Manager informed her that she
was terminated, she fulfilled the pleading requirements under the third test of the Monell
standard. (Am. Compl. ¶ 32.) Fleming, however, does not alleges
that someone with policymaking authority caused her injury.
Without more, Fleming has failed to allege facts or conclusions
that form the basis of a Monell claim. See McCormick,
230 F.3d at 325.
Although heightened pleading standards do not apply to Monell
actions, Fleming has nonetheless failed to allege a short and
plain statement consisting of facts necessary to put the CTA on
notice of her claim. See Lekas v. Briley, 405 F.3d 602, 606
(7th Cir. 2005). Thus, the Court grants the CTA's motion to
dismiss Count III without prejudice.
For these reasons, the Court grants Defendants' motions to
dismiss. The Court dismisses Counts I and II of the Verified
Amended Consolidated Complaint with prejudice and dismisses Count
III without prejudice.