The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Hyo C. Lee brought this action against Defendant Gas
Technology Institute ("GTI") for alleged violations of the Age
Discrimination in Employment Act, 29 U.S.C. § 626 ("ADEA"), Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq.
("Title VII"), and 42 U.S.C. § 1981 ("section 1981"). Before this
court is Defendant's Rule 12(b)(6) Motion to Dismiss.
On October 22, 2003, plaintiff filed a charge of employment
discrimination with the Equal Employment Opportunity Commission,
which was automatically cross-filed with the Illinois Department
of Human Rights, alleging that GTI discriminated against him
based on his age. On July 29, 2004, the EEOC issued a right to
sue letter to plaintiff. Plaintiff filed this complaint on
October 20, 2004, alleging that Defendant discriminated and
retaliated against him on the basis of his age and national
origin. Defendant contends that plaintiff's complaint must be
dismissed for failure to state a claim because it adds claims
that were not raised in his EEOC charge of discrimination (namely, national origin discrimination
and retaliation), and raises additional alleged discriminatory
acts that were not included in the EEOC charge.
The purpose of a motion to dismiss is to test the sufficiency
of a complaint. Conley v. Gibson, 355 U.S. 41 (1957). On a Rule
12(b)(6) motion to dismiss, the court will accept as true all
well-pleaded factual allegations in the complaint and will draw
all reasonable inferences in plaintiff's favor. Williams v.
Seniff, 342 F.3d 774, 781 (7th Cir. 2003). No claim will be
dismissed unless "it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations." Hishon v. King & Spalding, 467 U.S. 69 (1984).
A. Timeliness of EEOC or Discrimination Complaint
Before bringing an ADEA or Title VII complaint, an employee
must first file a charge of discrimination with the EEOC within
three hundred days of the alleged "unlawful employment practice."
Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 637
(7th Cir. 2004). In this lawsuit, Lee filed his EEOC charge
on October 22, 2003. Thus, any alleged discriminatory acts that
occurred before December 26, 2002 (300 days prior to his EEOC
charge of discrimination) are time barred.
GTI asserts that Lee's allegation of age discrimination is
time-barred because his complaint included new facts (e.g., facts
that were not included in his EEOC charge of discrimination)
about alleged discriminatory acts that occurred outside the
three-hundred day statute of limitations for EEOC charges. Lee
admits that the facts in his complaint relating to "Job
Interview" and "GTI Hiring" are time-barred. This Court finds
that these facts must be barred and will therefore disregard them for the purposes of
deciding Defendant's motion to dismiss. However, Lee was
terminated by GTI on October 3, 2003, and filed his EEOC charge
on October 22, 2003, well within the three-hundred day time
limit. Therefore, Lee's age discrimination claim is not
B. Scope of EEOC Complaint
As a general rule, a plaintiff may only raise claims in his
judicial complaint that were previously included in the EEOC
charge of discrimination. Cheek v. W. & S. Life Ins. Co.,
31 F.3d 497, 500 (7th Cir. 1994). This rule serves to put the
employer on notice of the alleged discrimination and to give the
EEOC and the employer an opportunity to settle the dispute. Id.
EEOC charges of discrimination are frequently completed by
laypersons, often without the assistance of an attorney. For that
reason, a plaintiff sometimes may include in his judicial
complaint charges that he did not assert in his original EEOC
charge. A two-part test is used to determine whether a plaintiff
may bring a claim that is not identified in the EEOC charge. The
charge must be 1) "like or reasonably related to the allegations
of the charge"; and 2) "growing out of such allegations."
McKenzie v. Illinois Department of Transportation, 92 F.3d 473,
781 (7th Cir. 1996). Both elements of the test must be met in
order to permit a plaintiff to bring a claim that was not
included in the original charge. A claim is "alike or reasonably
related" if "there is a factual relationship between them,"
meaning that "the EEOC charge and the complaint must, at minimum,
describe the same conduct and implicate the same
individuals." Cheek, 31 F.3d at 501 (citing Rush v.
McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992)).
GTI contends that Lee's allegations of national origin
discrimination and retaliation are barred because they were not
included in his EEOC charge. Lee, however, asserts that he raised national origin discrimination and retaliation in his initial
conversation with EEOC staff members on October 22, 2003, when he
went to file his charge of discrimination. According to Lee, an
EEOC staff person told him that EEOC staff list only the "major"
type of alleged discrimination on a charge of discrimination.
Further, Lee alleges that he submitted additional written
documentation regarding his discrimination charge to the EEOC
between the date of his charge of discrimination and the date on
which he received his right to sue letter. This documentation,
which Lee attached as Exhibits A and B to his Response to
Defendant's Motion to Dismiss, appears to attempt to provide
supplemental allegations of discrimination on the basis of age
and national origin and retaliation. (See Pl.'s Resp. Br. Exs.
A and B.) Finally, Lee states that he spoke with "an EEOC
supervisor" about "the same issues," which this Court interprets
in this context to mean the fact that Lee's Charge of
Discrimination lists only discrimination on the basis of age. Lee
alleges that the EEOC supervisor said Lee could either request to
reopen his EEOC case or "attest? at Federal Court for further
scrutinizes." (Pl.'s Resp. Br. at 2.) This Court interprets the
latter option to mean that Lee was told he could seek to raise
national origin discrimination and retaliation in his federal
court complaint. This is a mischaracterization of the law.
After examining Lee's complaint, including his factual
allegations supporting his claims and his EEOC charge of
discrimination, this Court determines that Lee's claim of
national origin discrimination is outside the scope of his EEOC
charge of discrimination. Lee's EEOC charge references only
discrimination on the basis of age. It is true that courts may
generously interpret such charges of discrimination, particularly
when a pro se plaintiff is involved. But Lee fails to mention
national origin discrimination, or facts that would support such
a claim, anywhere in Item 13 of his complaint. (Pl.'s Compl. Ex. A ("The facts
supporting the plaintiff's claim of discrimination are as
follows").) Discrimination on the basis of national origin, in