United States District Court, N.D. Illinois, Eastern Division
August 2, 2005.
VINCENT A. AMORE, Plaintiff,
PFIZER, INC., a Delaware corp. Defendant.
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court is defendant's motion to dismiss Count I of
the amended complaint. For the following reasons, we grant the
On April 16, 1999, plaintiff, Vincent Amore, began his
employment as a healthcare representative with the defendant,
Pfizer, Inc. Amore's primary responsibility was to promote Pfizer
pharmaceuticals to doctors in his sales territory. To facilitate
sales, Pfizer provides its salespeople with free samples to give
to customer doctors. During the term of Amore's employment,
Pfizer generally distributed starter drug samples to the
plaintiff by delivering them to a storage locker at a Public
Storage facility in Schiller Park, Illinois.
On January 17, 2003, Amore received a message from a delivery
service indicating that a delivery of drug samples had been made
to his Public Storage locker. On January 21, 2003, Amore checked
his locker and noticed the samples had not been delivered. On
that day, Amore called the Pfizer district manager, David Knight,
to report the samples had not arrived. After alerting the
delivery service and Public Storage that the samples had not been
deposited in this locker, Amore spoke again with Knight, who told him the matter
would be investigated.
Between March and April 2003, Pfizer purported to investigate
the disappearance of the missing samples and put Michael Keenan,
a supervisor of corporate security, in charge. During the months
of March and April 2003, Keenan questioned Amore and, allegedly,
told Amore that he believed Amore was involved in the
disappearance of the drug samples. On May 5, 2003, after having
purported to conduct an investigation, Pfizer discharged Amore.
In the letter discharging plaintiff, Pfizer stated that "based on
our findings from the investigation we concluded that we were no
longer confident in your ability to properly administer and
maintain starters." (Compl. ¶ 45.)
On July 28, 2004, Public Storage contacted Amore to tell him
that the samples had been found in the locker adjacent to the one
Amore used while employed by Pfizer. In his complaint, Amore
maintains that Keenan lied to him when he told him earlier that
the adjacent lockers had been searched as part of the
investigation. Amore, an American of Italian origin, also alleges
in his complaint that, upon allegedly realizing he had been
presumed guilty by Keenan, he remembered that during the
investigation, Keenan had allegedly referred to and mocked
Amore's "Sopranos-esque" mannerisms and was questioned about his
ties to organized crime. (Id. ¶ 58.) Amore also complains that,
prior to the missing drug sample incident, his district manager,
Knight, had allegedly ridiculed his Sicilian heritage. He claims
that "[t]he significance of these statements were not
recognizable . . . until after July 28, 2004," which again is the
date the missing drugs were located by Public Storage. (Id. ¶
On August 31, 2004, Amore filed a charge of national origin
discrimination with the Equal Employment Opportunity Commission
("EEOC"). On November 16, 2004, the EEOC sent Amore a notice of his right to sue. On January 14, 2005,
Amore filed a two-count complaint in this Court and on May 6,
2005, he amended the complaint. In Count I of the amended
complaint, Amore alleges Pfizer "engaged in unequal and
discriminatory treatment of Mr. Amore on the basis of national
origin . . . in violation of 42 U.S.C. § 2000e, et seq., as
amended." (Id. ¶ 69.) In Count II, a defamation claim, he
alleges company officials made false statements that he had
stolen the missing drugs. Before the Court now is Pfizer's motion
to dismiss Count I.
STANDARD OF REVIEW
Defendant has filed its motion under Federal Rule of Civil
Procedure 12(b)(6), which permits dismissal of a complaint for
failure to state a claim upon which relief can be granted. In
ruling on a motion to dismiss, the Court must accept all factual
allegations in the complaint as true and draw all reasonable
inferences in favor of the plaintiffs. Szumny v. Am. Gen. Fin.,
Inc., 246 F.3d 1065, 1067 (7th Cir. 2001). A court will grant a
motion to dismiss only if it is impossible for the plaintiff to
prevail under any set of facts that could be proven consistent
with the allegations. Forseth v. Village of Sussex,
199 F.3d 363, 368 (7th Cir. 2000).
Amore was discharged from his employment at Pfizer on May 5,
2003 and filed a charge of national origin discrimination with
the EEOC over a year later on August 31, 2004. Under Title VII of
the Civil Rights Act of 1964, an EEOC charge "shall be filed
within one hundred and eighty days after the alleged unlawful
employment occurred . . . except that in a case of an unlawful
employment practice with respect to which the person aggrieved
has initially instituted proceedings with a State or local agency
with authority to grant or seek relief from such practice . . .
such charge shall be filed by or on behalf of the person
aggrieved within three hundred days after the alleged unlawful employment occurred. . . ."
42 U.S.C. § 2000e-5(e). In its motion to dismiss, Pfizer argues plaintiff
is time barred from bringing a Title VII claim under this statute
because a period of more than 300 days elapsed between
plaintiff's discharge and the filing of his EEOC charge.
The Seventh Circuit has determined that the statute of
limitations for the filing of an EEOC charge begins when a
plaintiff discovers he is injured. Bishop v. Gainer,
272 F.3d 1009, 1014 (7th Cir. 2001), cert. denied, 535 U.S. 1055 (2002).
In this case, by the time plaintiff was discharged on May 5,
2003, all facts alleged in the complaint regarding national
origin discrimination were known to the plaintiff. Accordingly,
the 300-day statute of limitations was triggered by his discharge
on May 5, 2003, making untimely the filing of his EEOC charge.
Amore agrees that the period for filing an EEOC charge began to
run on the day of his discharge. (Pl. Resp. at 3.) He argues,
however, that the limitations period was equitably tolled until
July 28, 2004, the day he was notified the drugs were found. He
concludes Pfizer failed to conduct a thorough investigation of
the missing drugs, revealing, according to plaintiff, that
Pfizer's real motive in discharging him was discrimination based
on his national origin.
Indeed, equitable tolling may delay the running of the statute
of limitations until the plaintiff has, by the exercise of due
diligence, realized he had a claim. Allen v. Chicago Transit
Authority, 317 F.3d 696, 698 (7th Cir. 2003). "Equitable tolling
permits a plaintiff to `avoid the bar of the statute of
limitations if despite all due diligence he is unable to obtain
vital information bearing on the existence of his claim.'"
Wochholz v. AARP, No. 02 C 5881, 2003 WL 548834, at *2 (N.D.
Ill. Feb. 24, 2003) (citing Cada v. Baxter Healthcare Corp.,
920 F.2d 446, 450-51 (7th Cir. 1990)). In this case, however, plaintiff was aware of the anti-Italian
comments that were purportedly made as of the date of his
discharge on May 5, 2003. The discovery on July 28, 2004 of the
missing drugs cannot be said to have informed plaintiff of
Pfizer's allegedly discriminatory intent any more than he was
informed of it as of the date of his discharge. If Amore believes
now that he was discharged for being Italian and not for losing
the drug samples, as the company stated in its letter to him, he
would have been able to draw the same conclusion within 300 days
of the date of his discharge. "A reasonable person in plaintiff's
position would have known that he was injured and had a potential
claim when he was discharged from a job . . . for allegedly
discriminatory reasons." Cebuhar v. Dept. of Alcoholism and
Substance Abuse, No. 96 C 7363, 1997 WL 222871, at *6 (N.D. Ill.
Apr. 24, 1997). We, therefore, conclude the doctrine of equitable
tolling does not apply in this case. As the Seventh Circuit has
noted: "It is, after all, an equitable doctrine. It gives the
plaintiff extra time if he needs it. If he does not need it,
there is no basis for depriving the defendant of the protection
of the statute of limitations." Cada, 920 F.2d at 452.
Because the doctrine of equitable tolling does not apply, the
300-day statute of limitations bars plaintiff's claim under Title
VII. Accordingly, we grant defendant's motion to dismiss. CONCLUSION
For the foregoing reasons, we grant defendant's motion to
dismiss Count I of the amended complaint [# 15-1, 2]. Defendant
is given 20 days from the date of the entry of this order to
answer Count II of the complaint. Defendant's motion to dismiss
the original complaint [# 9-1, 2] is denied as moot.
It is so ordered.
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