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