The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Rodolfo D. Espinoza ("Plaintiff") has filed a complaint against
Immaculate Conception High School ("ICHS"), Catholic Archdiocese
of Joliet ("Archdiocese"), ("Defendant") and Brian
Andrewsyk*fn1 alleging violations of Title VII of the Civil
Rights Act of 1964, as amended and 42 U.S.C. § 1981(a),
28 U.S.C. § 1343(a), and 28 U.S.C. § 1658. Defendant has moved to dismiss
Plaintiff's complaint pursuant to Fed.R.Civ.P. Rule 12(b)(6) for
failure to state a claim. Defendant alternatively requests this
Court to grant its motion for summary judgment. For the following
reasons, Defendant's Rule 12(b)(6) motion is granted. Defendant's
motion for summary judgment is dismissed as moot. Facts
Plaintiff has alleged that he was employed with ICHS as a
part-time library media technical services assistant from
September 24, 2001 until January 23, 2002. (Pl.'s Comp. ¶¶ 7,8.)
Plaintiff was supervised by Brian Andrusyk. (Id. ¶ 10.) From
October 23, 2001 through December 20, 2001, Andrusyk sexually
harassed Plaintiff by making inappropriate and unwelcomed
gestures, noises and correspondence, as well as demanding sexual
favors. (Id. ¶¶ 12, 13, 14, 16, 17, 20, 21, 22, 23, 24.)
Plaintiff told his supervisor that his actions were inappropriate
and asked him to stop his behavior. (Id. ¶ 15.) After the
harassment persisted, Plaintiff wrote a confidential memorandum
to the principal regarding the harassment and requested a meeting
to resolve the matter. (Id. ¶ 18.) Plaintiff did not receive a
response to the memo and after the harassment continued,
Plaintiff again requested a meeting with the principal and parish
director. (Id. ¶¶ 19, 25.) This time his request for a meeting
was acknowledged, but the meeting was denied. Plaintiff then
filed a complaint with the Archdiocese, but he received no
response. (Id. ¶¶ 25, 26, 27.) Espinoza again informed Andrusyk
that he was not comfortable with his behavior and that it
interfered with his work. (Id. ¶ 28.) Andrusyk responded with
more sexually harassing statements. (Id. ¶¶ 29, 30.) Andrusyk
then "retaliated" by informing Plaintiff that his job performance
and unsatisfactory attendance may place his job in jeopardy.
(Id. ¶¶ 27, 31.) Espinoza claims his work was satisfactory and
that he was absent because of poor health, brought on in part by
the hostile work environment. (Id. ¶¶ 35, 36.) On January 17,
2002, a conference was held between Espinoza, Andrusyk, and the
principal to discuss Espinoza's job performance and attendance,
Plaintiff was told that if he did not resign he would be
terminated. (Id. ¶ 32.) (Id.) Five days later, Plaintiff told
his supervisor he would not resign, and he was terminated. (Id.
¶ 33.) Plaintiff asked the principal about his harassment claims and she said the investigation revealed no discrimination. (Id.
¶ 34.) Espinoza states that ICHS and the Archdiocese thus
"condoned" Andrusyk's actions by never taking remedial measures
to resolve the situation. (Id. ¶ 37.)
On a Rule 12(b)(6) motion to dismiss, the court accepts as true
all well-pleaded factual allegations of the complaint, drawing
all reasonable inferences in plaintiff's favor. Forseth v.
Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). 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,
73 (1984). Furthermore, any ambiguities or doubts concerning the
sufficiency of the claim must be resolved in favor of the
Defendants argue that Plaintiff's complaint should be dismissed
pursuant to Rule 12(b)(6) for failure to state a claim because
Plaintiff has not satisfied all conditions precedent to the
filing of the instant action. Namely, Plaintiff has failed to
comply with the statutory filing requirements by properly filing
a claim with either the Illinois Department of Human Rights
("IDHR") or the Equal employment Opportunity Commission ("EEOC").
It is an unlawful employment practice for an employer to
"discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment"
because of that person's gender. 42 U.S.C. § 2000e-2(a)(1). In
Illinois, under Title VII, a plaintiff must file an employment
discrimination charge with the EEOC within 180 days "after the
alleged unlawful employment practice occurred." § 2000e-5(e)(1). However, an
extension of that time period is provided if an employee alleging
discrimination first properly files with a state or local agency.
Id. (noting that the filing time is 180 days unless the
individual has filed with a state agency, extending the filing
time to 300 days from the date of injury); see also Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (discussing
the statutory time period within which a plaintiff must file a
charge with the EEOC and stating that to receive the extension
the state claim must be timely filed). If a charge is not timely
filed with the state agency, the extended filing period is not
triggered. Davis v. Fiber Bond Corp., No. 78 C 59, 1980 U.S.
Dist. LEXIS 10337, * 4 (N.D. Ill. Feb. 14, 1980); Despot v.
Combined Ins. Co., No. 03 C 7130, 2004 U.S. Dist. LEXIS 8368,
*3, (N.D. Ill. May 18, 2004) (stating that a prerequisite to
filing a Title VII claim is a proper filing with the IDHR). A
claim must be filed with a state agency, such as the IDHR,
"[w]ithin 180 days after the date that a civil rights violation
allegedly has been committed." 775 ILCS 5/7A-102(A) (2005). A
properly filed "charge [must be] in writing under oath or
affirmation [and] filed with the Department by an aggrieved party
or issued by the Department itself under the signature of the
Director. Id.; O'Young v. Hobart Corp., 579 F.Supp. 418,
420-21 (N.D.Ill. 1983) (stating that where a plaintiff did not
file a charge with IDHR within the 180 day state filing period
provided by this section, he was not entitled to the 300 day
filing period with the EEOC). This time period begins to run on
the date that the employee discovers the injury. Sellars v.
Perry, 80 F.3d 243, 245-46 (7th Cir. 1996). Failure to comply
with these statutory time periods will render a claim untimely.
Sharp v. United Airlines, 236 F.3d 368, 372 (7th Cir. 2001).
Normally, under Title VII, a plaintiff may not file with the
EEOC unless he has first filed with the state and either 60 days
elapsed or the state terminated its interest in the charge.
Marlowe v. Bottarelli, 938 F.2d 807, 809 (citing
42 U.S.C. § 2000e-5(c)). However, the EEOC and the IDHR have a worksharing
agreement that was implemented with the intent "to minimize
duplication of effort in the handling of deferred charges . . .
and to achieve maximum consistency of purpose and results."
Sofferin v. American Airlines, Inc., 923 F.2d 552, 554 (7th
Cir. 1991) (quoting Commercial Office Prods., 486 U.S. 107, 112
(May 16, 1988). Essentially, the agreement provides for direct
filing with the EEOC, allowing a party to bypass the initial
filing with the IDHR so the EEOC may take immediate action. Id.
In Illinois, the dual filing system allows for filing a Title VII
claim with the EEOC to be considered as an effective filing with
the corresponding state agency, and vice versa. Garcia v. Vill.
of Mt. Prospect, 360 F.3d 630, 643 (7th Cir. 2004). However,
courts have relied on the Seventh Circuit's conclusions that a
plaintiff's "untimely filing with the IDHR bars suit under Title
VII." Haag v. Bo. of Educ., 655 F. Supp. 1267, 1270 (N.D. Ill.
1987) (referring to Martinez v. United Auto., Aerospace & Agric.
Implement Workers of Am., Local 1373, 772 F.2d 348, 352 (7th
Here, Plaintiff must have filed his EEOC charge either 180 days
after the discrimination, or if a timely state claim was filed,
300 days after the discrimination. Plaintiff never filed an EEOC
charge. Instead he maintains that under Illinois workshare
program, his IDHR charge that was filed within the 300 day
extension time period effectively filed a timely charge with the
EEOC. Espinoza is mistaken. In order to be entitled to file an
EEOC within 300 days of the discrimination, a party must have
first filed a timely complaint with a state agency. Espinoza did
not do this. He filed with the IDHR on September 9, 2002, which
was 229 days after the alleged discrimination. For Plaintiff's
IDHR charge to have been considered an effective EEOC charge,
Plaintiff would have had to file a state charge by July 22, 2002,
or a charge directly with the EEOC by November 19, 2002. Espinoza failed to meet the statutory requirements that would
provide him with an extension to file with the EEOC. Thus,
Plaintiff's discrimination claims are time barred for failure to
comply with the statutory filing requirements.
However, Plaintiff argues that his claim may have accrued at a
later date under the discovery rule and equitable tolling
theories, thereby rendering his charges timely. Under the
discovery rule, the statute of limitations does not begin to run
until a plaintiff is aware of his injury, as opposed to the date
the injury occurred. Cada v. Baxter Healthcare Corp.,
920 F.2d 446, 450 (7th Cir. 1991). Under the doctrine of equitable
tolling, however, the statute of limitations immediately stops
from running even if it has already begun to expire. Id.
Equitable tolling often occurs when the defendant actively tries
to prevent the plaintiff from filing a timely suit by interfering
or knowingly misleading a plaintiff. Id. The doctrine of
equitable tolling is not appropriate where a plaintiff could have
been aware that it was possible that he was fired in violation of
the law. Chakonas v. City of Chicago, 42 F.3d 1132, 1135 (7th
Cir. 1994) (stating that "[e]quitable tolling is appropriate when
the plaintiff, despite all due diligence, is unable to obtain
vital information bearing on the existence of his claim.")
As illustrated throughout his complaint, Plaintiff was aware of
the improper nature of his supervisor's conduct. He alleges no
facts to indicate that there was any question as to whether he
was aware of his injuries or when they occurred. In fact, he
alleges that the injuries were continual up to and including his
termination on January 23, 2002. Furthermore, Plaintiff does not
allege any facts that show Defendant prevented him from filing
his charge by July 22, 2002, nor does he claim Defendant
knowingly misled him. Therefore, we believe the discovery rule
and the equitable tolling doctrine cannot be applied to the
instant case. Defendant also contends that the 42 U.S.C. 1981,
28 U.S.C. § 1658, and 28 U.S.C. § 1343 claims should be dismissed because
Plaintiff has not sufficiently alleged such claims. We need not
address whether the complaint sufficiently alleges racial
discrimination, or whether Plaintiff sufficiently establishes
that there was a civil action arising under an act of Congress or
that the injuries were caused by the United States or an entity
acting under of the color of any state law, as indicated by these
statutes. Based on our decision, any additional allegations in
Plaintiff's complaint will likewise be considered as untimely.
Based on the foregoing, Defendants Rule 12(b)(6) motion to
dismiss Plaintiff's complaint is granted. Defendant's alternative
motion for ...