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June 3, 2005.


The opinion of the court was delivered by: AMY J. ST. EVE, District Judge


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. (R. 13-1.)


  I. Counts I and II — Title VII Claims of Race and Gender Discrimination

  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, Ex. D.)

  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 Entry).

  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). ...

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