The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Defendant Board of Trustees of Illinois Community College District No. 508 d/b/a/ City Colleges of Chicago ("City Colleges") have moved to dismiss plaintiff Jacqueline Hucko-Hass' ("Hucko-Haas") amended complaint alleging employment discrimination. Specifically, Hucko-Haas claims disparate treatment and impact discrimination by City Colleges in violation of the Americans with Disabilities Act of 1990 (the "ADA") (Counts I and II); failure by City Colleges to make reasonable accommodation in violation of the ADA (Count III); and retaliation in violation of the ADA (Count IV). City Colleges has moved to dismiss Counts I-III under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted; and Count IV under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. For the reasons set forth below, City Colleges' motion to dismiss is denied.
In 1989, Hucko-Haas suffered a ruptured cerebral aneurysm, resulting in significant impairments and multiple disabilities, including impaired mobility and dexterity, as well as other neural impairments. Amend. Compl. ¶ 8. Hucko-Haas was subsequently employed as a tenure-track member of the faculty at Kennedy-King College ("Kennedy-King") (a campus of City Colleges), with the rank of assistant professor, beginning in 1996. Amend. Compl. ¶ 9. City Colleges' Board Rule 3.7 requires all employees, including members of the faculty, of City Colleges (including Kennedy-King), to reside within Chicago city limits. Amend. Compl. ¶ 13. Hucko-Haas, however, resides in her family home, which is located outside city limits, and she has allegedly incurred significant expenses in modifying the house to accommodate her disabilities. Amend. Compl. ¶ 14. While she was a member of the Kennedy-King faculty, Hucko-Haas requested, and was granted, a waiver of the Board Rule 3.7 residency requirement, in consideration of the expensive modifications made to her home. Amend. Compl. ¶¶ 15, 16.
In May 2001 Hucko-Haas was terminated as a member of the Kennedy-King faculty for allegedly failing to complete her tenure project in a timely manner. Amend. Compl. ¶ 17. Consequently, in February 2003, Hucko-Haas filed suit (the "prior suit") against City Colleges alleging employment discrimination under the ADA. Amend. Compl. ¶ 18; Haas v. Bd. of Tr. of Cmty. Coll. Dist. No. 508, No. 03 C 1152 (N.D. Ill. filed Feb. 14, 2003). The parties settled that suit, and under the terms of the settlement agreement (the "Agreement"), Hucko-Haas was reinstated as a first-year, tenure-track member of the faculty of City Colleges, but at its Truman College campus, which is located at a greater distance from her home than Kennedy-King. Amend. Compl. ¶ 19. Additionally, the Agreement awarded Hucko-Haas $20,000 in damages and $58,000 in attorneys' fees and costs. Settlement Agreement ¶ 3. Further, City Colleges agreed to a one-year waiver of the Board Rule 3.7 residency requirement, commencing on her first year of re-employment. Amend. Compl. ¶ 20. Finally, the Agreement contained a waiver and release provision in which Hucko-Haas agreed to waive all "claims, demands, damages, grievances, causes of action or suits, including claims for attorneys' fees . arising from or in any way connected with any action or inaction by City Colleges including . her employment with City Colleges and the employment decisions referenced in [her lawsuit]." Settlement Agreement ¶ 5. The clause further stated that: "[T]his Agreement solves and subsumes all claims based on any conduct by City Colleges through the date of this [A]greement.." Id.
During the 2004-2005 academic year, Hucko-Haas allegedly made repeated requests that she be exempted from the Board Rule 3.7 residency requirement in accommodation of her disabilities. Amend. Compl. ¶ 21. Hucko-Haas contacted, at one time or another, Linda Ford ("Ford"); Dr. Marguerite Boyd ("Boyd"), President of Truman; Dr. Wayne Watson ("Watson"), Chancellor of City Colleges; James Tyree ("Tyree"), Chairman of the City Colleges Board of Trustees; and Gayle Shines ("Shines"), Inspector General for City Colleges. Id. Hucko-Haas claims that there were no responses to her inquiries. Amend. Compl. ¶¶ 22-25. Hucko-Haas also claims that although she made reasonable inquiries into properties within the city limits in the region of Truman College, the property values there were beyond her means to purchase. Amend. Compl. ¶ 27.
In August 2005, Boyd sent Hucko-Haas a letter scheduling an August 26, 2005 pre-disciplinary hearing to address Huck-Haas' failure to comply with Board Rule 3.7's residency requirement. Amend. Compl. ¶ 28. Hucko-Hass replied via a memorandum in which she again requested a waiver of the residency requirement and further requested an interactive accommodation process. Amend. Compl. ¶ 29. The hearing, at which Hucko-Haas was represented by counsel, limited itself to inquiring whether Hucko-Haas resided within Chicago city limits: Hucko-Haas' counsel was allegedly precluded from asking questions or presenting evidence of Hucko-Haas' attempts to obtain an accommodation. Amend. Compl. ¶ 30. That same day, Boyd sent Hucko-Haas a letter placing Hucko-Haas on administrative leave and informing her that Boyd would recommend her termination to the City Colleges Board of Trustees. Amend. Compl. ¶ 31.
On September 8, 2005, the Board of Trustees met. Hucko-Haas' counsel was also present at the meeting, but Hucko-Haas' termination was allegedly not discussed in either open or executive session of the meeting, nor is it reflected in the minutes of the meeting. Amend. Compl. ¶¶ 32, 33. Nevertheless, on September 13, 2005, the Vice Chancellor of Human Resources and Staff Development of City Colleges sent Hucko-Haas a letter, informing her that the Board had adopted Boyd's recommendation to terminate her employment as of September 8, 2005. Amend. Compl. ¶ 34. Attached to the letter was a set of allegedly modified minutes indicating that the Board had made such an adoption. A letter from Hucko-Haas to Tyree, requesting reconsideration, was responded to with a refusal. Amend. Compl. ¶¶ 34-37.
Consequently, on June 30, 2006 Hucko-Haas timely filed a discrimination charge against City Colleges with the Equal Employment Opportunity Commission ("EEOC").
The EEOC sent Hucko-Haas, via certified mail, a "right to sue" letter that arrived at her local post office on October 20, 2006. Pl.'s Decl. ¶ 13. On that date, Hucko-Haas alleges, she was out of state and her mail carrier signed for the certified letter, despite the fact that he was not authorized to do so. Id. Hucko-Haas claims that she did not receive the letter until at least October 30 when she returned from her trip to Missouri, where she was helping to care for an ailing relative. Pl.'s Decl. ¶ 17. During the ten days she was gone, Hucko-Haas claims that her mail was being held for her by the Evergreen Park Post Office. Pl.'s Decl. ¶ 11. Hucko-Haas subsequently filed the instant case with the court on January 25, 2007. Presently before the court is City Colleges' motion to dismiss Hucko-Hass' claims.
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "the complaint need only contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Equal Opportunity Comm'n v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2)). The complaint "must describe the claim in sufficient detail to give the defendant 'fair notice of what the . claim is and the grounds upon which it rests' . [and] its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'; if they do not, the plaintiff pleads itself out of court." Concentra, 496 F.3d at 776 (quoting Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1964, 1973 n.14 (2007)).
When considering a dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). In considering such a motion, the district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists. Id.; St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007).
City Colleges advances three arguments in support of its motion to dismiss Hucko-Haas' suit: (1) Hucko-Haas' suit is barred by the statutory 90-day limitation period; (2) Hucko-Haas waived her right to claim a violation of the ADA with respect to the residency requirement; and (3) Count IV (retaliation in violation of the ADA) should be dismissed under Federal Rule of Civil Procedure ...