The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Yolanda Hill ("Plaintiff") brings an amended complaint against John Stroger Hospital of Cook County ("Defendant") for religious discrimination in violation of Title VII and 42 U.S.C. § 1983, and for discrimination on the basis of her disability in violation of the Americans with Disabilities Act ("ADA"). Defendant moves to dismiss Plaintiff's Amended Complaint for improper service and for failure to state a claim. For the reasons stated herein, Defendant's motion is denied. Facts
When considering a motion to dismiss, the Court must accept the allegations set forth in Plaintiff's complaint as true, and draw all reasonable inferences in favor of Plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The following facts are taken from Plaintiff's Amended Complaint (hereafter "Am. Compl. at ¶ _"). Plaintiff was employed by Defendant as an elevator operator for over twenty years. Am. Compl. at Pg. 1 ¶ 3*fn1. In December 2002, the old hospital building closed, eliminating the need for manual elevator operators. Id. Plaintiff received a new assignment as a transporter of patients within the new hospital building. Id. Prior to the transfer in 2002, Plaintiff had received no discipline reports. Id.
At the time of the transfer, Plaintiff was disabled due to epilepsy. Id. Also at the time of transfer, Plaintiff practiced the "Children of God" religion, and did not work on Saturday, the Sabbath. Id. at Pg. 2 ¶ 3. Plaintiff told her supervisors about her scheduling needs, but Defendant refused to accommodate. Id. Plaintiff did not appear at work on Saturdays, for which she received repeated discipline, at least one suspension, and ultimately threat of discharge. Id. To avoid discharge, Plaintiff took disability leave, and applied for other positions with Defendant for which she would be qualified. Id. at Pg. 2 ¶ 3, 5. Plaintiff did not receive any of the positions for which she applied because she could not perform them "without restriction." Id. at ¶ 5. Plaintiff believed she faced imminent discharge, at which point she would lose her pension benefits. Id. So, she resigned from Defendant's employment in order to keep her pension. Id. at ¶ 8.
Plaintiff alleges that Defendant has a policy and practice of refusing jobs to people who could not perform those jobs "without restriction." Plaintiff alleges that she was discriminated against on the basis of her religion and her disability, both of which placed restrictions on her schedule.
Defendant has moved to dismiss the amended complaint both on grounds of improper service (untimely, and incomplete) pursuant to Federal Rule of Civil Procedure 12(b)(4) (hereafter "Rule __"), and on grounds of failure to state a claim pursuant to Rule 12(b)(6).
Failure to Properly and Timely Serve
Defendant argues that the entire Amended Complaint should be dismissed for Plaintiff's failure to serve Defendant properly within the appropriate time. Plaintiff filed her Complaint pro se in February 2005. She obtained a Summons from the Clerk's office of this Court, but did not get the appropriate signature of the Clerk as required by Rule 4(a). She then served a copy of the complaint herself on her supervisor, one of Defendant's employees. This violates the technical requirements of Rules 4(c) and (j), because the Plaintiff served the complaint herself, and because she served it on her supervisor rather than the Chief Operating Officer of the hospital, a government agency. Defendant argues that these failures warrant dismissal pursuant to Rule 4(m), because the 120-day minimum period for service of a complaint has long passed.
The Court has discretion to extend the time for service beyond the 120 days provided for in Rule 4(m). The Court must extend the time for service if "the plaintiff shows good cause for the failure," and may extend the time for service in its discretion in cases of excusable neglect. Fed. R. Civ. P. 4(m); Coleman v. Milwaukee Bd. of School Directors, 290 F.3d 932, 933-34 (7th Cir. 2002). In this case, Plaintiff filed her complaint pro se and delivered a copy to one of her supervisors in Defendant's employ. While this service is not technically proper, the Plaintiff attempted proper service, and did so promptly after filing the Complaint. The Plaintiff thought she had executed service properly, given that she filed a motion for default judgment in September 2005, citing Defendant's failure to respond to the service of February 2005.
The Court*fn2 gave Plaintiff no indication that her case was not proceeding; to the contrary, the Court considered her motion for appointment of counsel in June 2005, and accepted (but did not rule) on her letter requesting default judgment in September 2005. Courts also traditionally exercise leniency with technical service requirements when Defendants have suffered no prejudice. See Coleman, 290 F.3d at 934. Like in Coleman, Defendant has not been prejudiced by the delay caused by the service, and a dismissal without prejudice at this date would be equivalent to a dismissal with prejudice because statute of limitations on her Title VII claim has passed. Therefore, considering Plaintiff's efforts and the balance of hardships by a dismissal, the Court exercises its discretion to permit an extension of time for Plaintiff.
Defendant also moves to dismiss the complaint for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6). A complaint will not be dismissed for failure to state a claim 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). This Court must take all allegations in the complaint as true, and draw all reasonable inferences in the light most favorable to the plaintiff. Pickrel v. City of Springfield, 45 F.3d 1115, 1117 (7th Cir. 1995). To survive a motion to dismiss, a plaintiff "need not plead particular legal theories or particular facts in order to state a claim." DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000). The plaintiff need only give a short and plain statement of the nature of the claim so as to provide notice to the defendants. Id.
Defendant moves to dismiss two of the three claims pled by Plaintiff.*fn3 First, Defendant argues that Plaintiff failed to allege a viable claim of religious discrimination because she did not allege that Defendant has a "policy" that violates equal protection. Def. Mot. Dismiss at 4. As Defendant itself states, however, a government agency may be liable under § 1983 in one of three ways: (i) through an express policy; (ii) through a widespread practice or custom, or (iii) through an injury caused by a person in the agency "with final policymaking authority." Kujawski v. Board of Comm's, 183 F.3d 734, 737 (7th Cir. 1999). Plaintiff in her response to the Motion to Dismiss has limited herself to proving her case under the third prong. See Pl. Resp. at 7. Defendant may address whether the facts of this case support liability under that third prong at the summary judgment ...