The opinion of the court was delivered by: Gilbert, District Judge
This matter comes before the Court on defendant United States Steel Corporation's (U.S. Steel) motion to dismiss (Doc. 11), to which plaintiff Wanda Heard (Heard) has responded (Doc.26) and U.S. Steel replied (Doc. 28). For the following reasons, U.S. Steel's motion will be GRANTED in part and DENIED in part.
The Court draws the following facts from the well-pleaded allegations in 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).
Heard, a black woman, started working for U.S. Steel's predecessor, National Steel, in March of 1988. From the outset, her co-workers and supervisors harassed her. Among other things, they ridiculed her, called her a "cunt," hit her on the head with a notebook, hung a banana peel from the coat hook in her locker and transferred her from a desk job to a hard labor job. After she started to complain in 1993, the discrimination got worse. U.S. Steel terminated Heard's employment on June 11, 2004, when it converted a five-day suspension she received on June 9, 2004 to an outright discharge.
Heard filed a charge with the Equal Employment Opportunity Commission (EEOC) on August 31, 2005, claiming U.S. Steel discriminated against her because she is black, a woman and disabled. The EEOC issued a right to sue letter on March 24, 2006. She filed the instant action, brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., in state court on June 22, 2006 and U.S. Steel removed this case on August 7, 2006. Though Heard's complaint is not entirely clear, it appears that she has attempted to state claims for sex- and gender-based harassment and retaliation (she believes the increased harassment and her termination were retaliation for her internal complaints). Elsewhere in her complaint, however, she alleges that her "ultimate termination [was] motivated by [her] sex and race."
U.S. Steel, pursuant to Federal Rule of Civil Procedure 12(b)(6), claims this case must be dismissed because Heard filed her charge with the EEOC too late and failed to exhaust her administrative remedies. Heard claims the August 31, 2005 charge relates back to her January 12, 2004 intake questionnaire regarding an incident which took place on October 7, 2003 (apparently referring to the notebook incident). She did not address U.S. Steel's arguments on exhaustion in her response to the motion to dismiss.
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 her 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).
The statute of limitations and exhaustion are affirmative defenses. Dandy v. United Parcel Serv., 388 F.3d 263, 270 (7th Cir. 2004); Gibson v. West, 201 F.3d 990, 993 (7th Cir. 2000). As such, dismissal for those reasons on a motion to dismiss is normally inappropriate. See Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003). Nevertheless, dismissal in these circumstances is proper 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.
I. Statute of Limitations
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, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). Before an employee can sue under this provision, she 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).
The parties acknowledge that the last act of discrimination occurred in this case on June 11, 2004. As Heard did not file her charge with the EEOC until August 31, 2005, 446 days after the last discriminatory act, U.S. Steel contends that her claim is time-barred. It believes Heard cannot rely on her intake questionnaire because she failed to attach a copy of it to her complaint.
Though Heard's relation back theory is sound as a general proposition, see, e.g., Edelman v. Lynchburg Coll., 535 U.S. 106, 116-19 (2002); Philbin v. Gen. Elec. Capital Auto Lease, Inc., 929 F.2d 321, 323-24 (7th Cir 1991), given the Court's findings below, its application seems unlikely here. This is especially so given the lapse of almost 600 days (January 12, 2004 to August 31, 2005) before the filing of her charge. U.S. Steel has let these deficiencies lie. Instead, it relies exclusively on Nolen v. City of Chicago, No. 97-C-6608, 1998 WL 111675, at *2 (N.D. Ill. Mar. 4, 1998), in its opposition to the theory. U.S. Steel contends that under Nolan, Heard's failure to attach the intake questionnaire bars her from ...