The opinion of the court was delivered by: Gilbert, District Judge
This matter is before the Court on the Village of Cambria's (Cambria) motion to dismiss (Doc. 9), to which Mark Mason (Mason) has responded (Doc. 16) and Cambria has replied (Doc. 17). Mason moved for an extension of time to file his memorandum in opposition (Doc. 15) and filed it before the Court ruled on his motion. The Court hereby GRANTS the motion for extension of time; it will treat the motion as timely filed. For the following reasons, Cambria's motion to dismiss will be GRANTED.
The Court draws the following facts from the complaint, which it accepts as true for purposes of this motion. Pitts v. City of Kankakee, 267 F.3d 592, 593 (7th Cir. 2001). Mason, a black man, began working as a police officer for Cambria in 1987. He continued working for Cambria until sometime in 1995, when he became ill and took extended sick leave. In July 1998, he spoke to the Commissioner of the Cambria Police, Les Higgins (Higgins), and told him that he was ready to return to work. Higgins told Mason that he did not have any shifts open, but that he could return to active status if he submitted a physician's note clearing him for duty. Mason sent Higgins the requested note on September 11, 1998 with a letter requesting clarification of his employment status. After he did not receive a response, Mason mailed a second copy of the letter on October 13, 1998. Mason did not receive a response to his second letter. Mason made other similar requests (at times unknown) that also went unanswered. On December 16, 2004, Mason's attorney sent another letter to Higgins requesting Mason's employment status, which, like the others, went unanswered.
Mason claims Cambria has failed to respond to his inquiries "due to racially based bias or prejudice." (Doc. 1 at 3). As support for his belief that Cambria officials are racist, Mason recounts an incident that happened sometime in 1994, where he wrote a speeding ticket to Cambria Village Board member David Brown. In his unhappiness at receiving the ticket, Brown became abusive and called Mason "boy." Cambria has not refused to communicate with white employees who took leave.
Mason brings two claims in this action. In Count I, Mason claims Cambria's refusal to communicate with him constitutes disparate treatment race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(1), (2). Mason presented this claim to the Equal Employment Opportunity Commission (EEOC) on May 24, 2005. On October 13, the EEOC issued its right to sue letter. It found that his claim was untimely and declined to pursue his case. In Count II, Mason claims Cambria's actions have deprived him of his right to make and enforce contracts, on account of his race, in violation of 42 U.S.C. § 1981. Cambria contends that both Mason's claims are time-barred and moves for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts all allegations as true and draws all reasonable inferences in favor of the plaintiff. Brown v. Budz, 398 F.3d 904, 908 (7th Cir. 2005). The Court should not grant a motion to dismiss unless it appears beyond doubt that the plaintiff cannot prove his claim under any set of facts consistent with the complaint. Holman v. Indiana, 211 F.3d 399, 405 (7th Cir. 2000). "[I]f it is possible to hypothesize a set of facts, consistent with the complaint, that would entitle the plaintiff to relief, dismissal under Rule 12(b)(6) is inappropriate." Brown, 398 F.3d at 909 (internal quotations omitted).
As the statute of limitations is an affirmative defense, dismissal of a case on that basis, on a motion to dismiss, is normally inappropriate. See Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003). Nevertheless, a court may do so when "the validity of the defense [is] apparent from the complaint itself, and unmistakable, so that the suit is fairly describable as frivolous." Walker v. Thompson,288 F.3d 1005, 1009 (7th Cir. 2002) (internal citations omitted). With this in mind, the Court will proceed to address the parties' arguments.
Title VII forbids employers from discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race."
42 U.S.C. § 2000e-2(a)(1). Before an employee can sue under this provision, he must timely file a charge with, and receive a "right to sue letter" from, the EEOC. 42 U.S.C. § 2000e-5(b), (e) and (f); Zugay v. Progressive Care, S.C., 180 F.3d 901, 902 (7th Cir. 1999). A claim is time-barred under Title VII in this state if a plaintiff fails to file a charge with the EEOC within 300 days of the alleged "unlawful employment practice." 42 U.S.C. § 2000e-5(e)(1); Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 677 (7th Cir. 2005).
Mason filed his charge with the EEOC on May 24, 2005, which was within 300 days of December 16, 2004, when his attorney sent Cambria the last letter. The question presented here is whether the 300 days started to run from December 16, 2004, or from some earlier date. Though Cambria is skeptical that a claim for relief for "deliberate and intentional refusal to communicate" exists, to the extent it does, it contends it arose in 1998.
Mason summarizes his position as follows: "The gravaman of the Complaint is that [Cambria] has mysteriously but consistently, on an ongoing basis, refused to answer [Mason's] elementary request to inform him of his employment status." (Doc. 16 at 4). As this statement suggests, Mason believes the key inquiry on the accrual issue is "at what point can it be stated that [Mason] knew that he was not being asked to return to work." (Doc. 16 at 2). He posits a violation that started with Higgins's first refusal to respond in September 1998, that has continued to this day -- he still does not know, officially, whether he is employed by Cambria. Cambria rejects Mason's formulation of the issue; it believes the relevant inquiry is, "whether Mason had reason to believe 300 days before May 24, 2005 . . . that ...