The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Amanda Gross brought a three-count amended complaint against her former employer, The Gap, Inc. Count I alleges that she was first denied a promotion and then terminated due to her gender and pregnancy in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq ("Title VII"). Count II alleges that defendant refused to honor doctor-recommended accommodations and denied her a promotion due to her pregnancy in violation of the Americans with Disabilities Act, 42 U.S.C.A. § 12112(a) et seq ("ADA"). Count III alleges that defendant terminated plaintiff due to her son's disability in violation of the ADA. Defendant has moved to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, defendant's motion is denied with respect to Counts I and III and granted as to Count II.
Plaintiff, was employed by defendant from May 2002 until November 2004 as a shipping and receiving manager. Between February 2004 and June 25, 2004, plaintiff notified her supervisors that she was pregnant with twins and that her doctor imposed restrictions that limited her work hours and the weight that she should lift. Plaintiff alleges that defendant did not accommodate these restrictions.
In May 2004, plaintiff learned that an assistant manager position was open, was told that it was hers if she wanted it, and was instructed to speak with the district manager regarding the position. It is unclear from the pleadings whether plaintiff conversed with the district manager about her interest in the open position. Ultimately, the position was given to a Caucasian male. Plaintiff had a conversation with the district manager about the position being given to someone else. The district manager told plaintiff that she was not given the position because her maternity leave would fall during the holiday season and defendant could not have a manager on leave during that time.
On June 25, 2004, plaintiff went into premature labor while lifting a box at work. Plaintiff's twins were born fourteen weeks early. As a result of the premature births, one child died and the other had serious health complications. In July 2004, the store manager told plaintiff that her job would be held open until February 1, 2005. Plaintiff was terminated by defendant in November 2004. Plaintiff alleges that after her termination, defendant cancelled plaintiff's health insurance and returned some COBRA payments.
Plaintiff filed a complaint with the U.S. Equal Employment Opportunity Commission ("EEOC") on March 14, 2005, alleging gender and disability discrimination and retaliation. The EEOC was unable to determine from its investigation whether any statutes were violated and issued a right to sue letter on March 24, 2006.
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), plaintiff need only provide defendant with fair notice of the basis of her claims. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002). "[A] plaintiff is free, in defending against a motion to dismiss, to allege without evidentiary support any facts he pleases that are consistent with the complaint, in order to show that there is a state of facts within the scope of the complaint that if proved (a matter for trial) would entitle him to judgment.[H]e doesn't.have to plead those facts." Early v. Bankers Life and Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992). All inferences are drawn in favor of the plaintiff when assessing a motion to dismiss. Simpson v. Nickel, 450 F.3d 303, 306 (7th Cir. 2006). Specifically in the employment discrimination context the Supreme Court has held that "under a notice pleading system, it is not appropriate to require plaintiff to plead facts establishing a prima facie case." Swierkiewicz, 534 U.S. at 510.
Count I: Discrimination based on Gender and Pregnancy
In Count I, plaintiff alleges that defendant violated Title VII by denying her a promotion and then terminating her because she was pregnant. Defendant argues that plaintiff fails to state a claim because: (1) it is untimely; (2) plaintiff fails to allege that she actually applied for an open position; and (3) plaintiff fails to state that she was terminated based on her gender.
Defendant first challenges plaintiff's Title VII discrimination claim as being untimely because the complaint does not allege a particular date of the offense. In addressing the sufficiency of a complaint in regards to its timeliness, the Seventh Circuit has held that "[t]he plaintiff can plead a conclusion -- that the charge of discrimination was timely -- and then if the conclusion is questioned in a motion or a brief[,] hypothesized facts that if proved would establish it." Early v. Bankers Life and Casualty Co., 959 F.2d at 78. If a defendant wants to establish a fact or a date they must present it as evidence. A motion to dismiss would fall under Fed. R. C. P. 56(e); plaintiff would no longer be able to rest on the pleadings or hypothesized facts. Id.
In the instant case, plaintiff alleges that defendant discriminated against her by failing to promote her in May of 2004 due to her gender and pregnancy. For plaintiff's claim to be timely, she had to file a charge of discrimination with the EEOC within 300 days of the alleged unlawful employment action. See 42 U.S.C. § 12117(a); 42 U.S.C.A. § 2000e-5(e); Stepney v. Naperville School Dist. 203, 392 F.3d 236, 239 (7th Cir. 2004). Plaintiff filed her charge of discrimination with the EEOC on March 14, 2005; thus, the discriminatory event, plaintiff's notification that she did not receive the promotion, had to take place on or after May 18, 2004, for the charge to be timely. See Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001). The court may infer for the purposes of this motion that the discriminatory event took place between May 18, and May 31, 2004.*fn2 Plaintiff has therefore alleged facts consistent with the complaint that can be construed to show that she has stated a timely cognizable claim. See Early, 959 F.2d at 79. Defendant's motion to dismiss plaintiff's Title VII claim as untimely is denied.
Second, defendant asserts that plaintiff failed to state a failure to promote claim because she did not allege all the elements of a Title VII claim. The Supreme Court has held that under the notice pleading regime of federal court, a plaintiff is not required to plead facts that establish a prima facie case; plaintiff must merely provide the defendant with fair notice of the basis for the claim. Swierkiewicz, 534 U.S. at 510-14. The Seventh Circuit clarified that fact pleading is unnecessary because when addressing a motion to dismiss, a plaintiff does not ...