The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant City of Chicago's motion to dismiss in part Plaintiff's first amended complaint and to stay answer , filed on February 29, 2008. For the following reasons, the Court grants in part and denies in part Defendant's motion to dismiss.
Plaintiff Donnell Harris began working for the City of Chicago Department of Streets and Sanitation as a "seasonal employee" on December 18, 1996. In 1998, Plaintiff became a full-time street sweeper until the City terminated his employment on December 12, 2006. On February 16, 2007, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") against the City of Chicago, alleging that his discharge constituted race discrimination in violation of Title VII of the Civil Rights Act. Plaintiff also appealed his discharge to the City's Human Resources Board. On August 21, 2007, after an evidentiary hearing, the Board upheld Plaintiff's termination.
On July 16, 2007, Plaintiff filed a twenty-two page pro se complaint against the City of Chicago, alleging that the City discriminated against him because of his age, under the Age Discrimination Employment Act ("ADEA"), and his race, in violation of Title VII of the Civil Rights Act. He also purported to set forth federal causes of action for violations of his Due Process and First Amendment rights and state law causes of action for retaliation, wrongful termination, breach of contract, breach of the collective bargaining agreement (CBA), abuse of power, fraud, negligent misrepresentation, and recklessness. Two months later, on September 6, 2007, Plaintiff filed an action for a writ of certiorari in the Circuit Court of Cook County, challenging the decision of Defendant's Human Resources Board upholding his termination.
On September 18, 2007, the judge previously assigned to this case appointed counsel for Plaintiff. On January 8, 2008, Plaintiff, with the assistance of counsel, filed an amended complaint comprised of seventeen counts alleging a variety of state torts, breach of contract claims, and violations of federal statutes. Specifically, Plaintiff alleges First Amendment retaliatory discharge (Count I); violation of due process (Counts II -IV); violation of equal protection (Count V); conspiracy in violation of 42 U.S.C. § 1983 (Count VI); Title VII race discrimination (Count VII); age discrimination in violation of the ADEA (Count VIII); breach of the CBA between the City of Chicago and State and Municipal Chauffeurs and Helpers Union Local 726 (Counts IX - XI and XIII); declaratory judgment that the City violated the CBA (Count XII); retaliatory discharge (Count XIV); intentional infliction of emotional distress ("IIED") (Count XV); gross negligence (Count XVI); and negligence (Count XVII). On April 14, 2008, Plaintiff sought leave to amend his complaint a second time to add his common law writ of certiorari claim, which the Court granted on May 21, 2008. Plaintiff's common law writ of certiorari claim is not the subject of Defendant's motion to dismiss.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint and not the merits of the suit.See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atlantic, 127 S.Ct. at 1965, 1973 n.14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic, 127 S.Ct. at 1969. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).
B. State Law Claims -- Counts IX-XIII and XV-XVII
Defendant argues that Plaintiff's breach of contract claims (Counts IX through XIII), his IIED claim (Count XV), and his negligence claims (Counts XVI and XVII) are time barred under the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"). 745 ILCS 10/8-101. Illinois local governmental entities and their employees benefit from a one-year statute of limitations for "civil actions" against them. 745 ILCS 10/8-101 ("No civil action * * * may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued"). Defendant argues that Plaintiff's state law claims accrued no later than December 12, 2006 (the date on which Plaintiff was fired). Plaintiff filed his amended complaint, explicitly pleading the state law claims, on January 8, 2008. Thus, Defendant argues that the one-year statute of limitations had lapsed and Plaintiff's state law claims should be dismissed as time barred.
Although the statute of limitations is an affirmative defense, and a plaintiff is not required to negate an affirmative defense in his complaint, "if a plaintiff pleads facts that show its suit barred by a statute of limitations, it may plead itself out of court under a Rule 12(b)(6) analysis." Whirlpool Financial Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995); see also Tregenza v. Great Am. Communications Co., 12 F.3d 717, 718 (7th Cir. 1993) ("if [a plaintiff] pleads facts that show that his suit is time-barred or otherwise without merit, he has pleaded himself out of court"). When the face of the complaint affirmatively indicates that the time limit for bringing the claim has passed, the plaintiff may not escape the statute of limitations by saying nothing. See, e.g., Kathaur SDN BHD v. Sternberg, 149 F.3d 659, 670 n.14 (7th Cir. 1998) (citing LRL Properties v. Portage Metro Housing Auth., 55 F.3d 1097, 1107 n.6 (6th Cir. 1995)).
Rule 15(c) provides that "[a]n amendment to a pleading relates back to the date of the original pleading when * * * the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out -- or attempted to be set out -- in the original pleading * * *." Relation back is allowed "where an amended complaint asserts a new claim on the basis of the same core of facts, but involving a different substantive legal theory than that advanced in the original pleading." Bularz v. Prudential Ins. Co. of America, 93 F.3d 372, 379 (7th Cir. 1996). Thus, a new substantive claim that otherwise would be time barred relates back to the date of the original pleading if the new claim stems from the same "conduct, transaction, or occurrence" that was alleged in the original complaint. Id. For relation back to apply, there is no additional requirement that the claim be based on an identical theory of recovery. See, e.g., Donnelly v. Yellow Freight System, Inc., 874 F.2d 402, 410 (7th Cir. 1989).
The relation back rule rests on the notion that a defendant should have fair notice of a claim. See Buie v. Woolway, 2000 WL 528645, at *2 (N.D. Ill. Mar. 27, 2000). "Fair notice, however, does not mean that a plaintiff must furnish a complete list of each theory of recovery at the inception of the action." Id. Instead, it requires that the defendant be given notice of the facts underlying a plaintiff's claims. "The central underlying question which a court must decide * * * is whether the defendant had such notice of the added claim at the time the action was commenced that relation back of the added claim will not cause defendant undue prejudice." Paskuly v. Marshall Field & Co., 494 F. Supp. 687, 688 (N.D. Ill. 1980) (rejecting defendant's statute of limitations arguments where defendant had not convincingly asserted any specific prejudice that it would suffer if the court permitted plaintiff's claims to relate back). Accordingly, "where an amendment changes the theory on which relief is sought or corrects a pleading after the statute of limitations has run, and the amendment ...