The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant LG Electronics U.S.A., Inc.'s ("LG") motion to dismiss. For the reasons stated below, we grant in part and deny in part the motion to dismiss.
Plaintiff Gabriel Othon ("Othon") alleges that he was employed by LG and that LG terminated his employment on the basis of a disability. Othon claims that his employment was terminated after he had voiced "escalating concerns of discrimination. . . ." (Compl. 1). Othon also alleges that LG failed to promote him even though he had the certificates and background necessary to receive such promotions.
Othon brought the instant action on February 11, 2008, and includes in his amended complaint a claim for discrimination on the basis of a disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), a claim for discrimination on the basis of his national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and 42 U.S.C. § 1981 ("Section 1981"), a Title VII race discrimination claim, a Section 1981 race discrimination claim, and a Title VII gender discrimination claim. LG has moved to dismiss all claims.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dept. of Prof. Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level' and 'if they do not, the plaintiff pleads itself out of court.'" E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)). Under the current notice pleading standard in federal courts, a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "'provide the defendant with at least minimal notice of the claim,'" Kyle, 144 F.3d at 455 (quoting Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995)), and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").
At the outset, this court notes that Othon is a pro se plaintiff. The Seventh Circuit has stated that the pleadings of a pro se plaintiff should be construed liberally. See McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000)(stating that "[i]t is the well-settled law of this circuit that pro se complaints are to be liberally construed and not held to the stringent standards expected of pleadings drafted by lawyers"). However, even a pro se plaintiff may plead himself out of court if he "alleges facts that establish that a defendant is entitled to prevail on a motion to dismiss." Id.
LG argues that Othon's Title VII national origin, race, and gender claims should be dismissed since Othon's charge of discrimination ("EEOC Charge") with the Equal Employment Opportunity Commission ("EEOC") and the Illinois Department of Human Rights ("IDHR") "complained only of alleged discrimination based on his alleged mental handicap of Schizophrenia." (Mot. 2). Othon filed his discrimination charge with the EEOC and the IDHR on October 6, 2006. Othon's EEOC Charge included allegations of harassment, failure to promote, and wrongful discharge on the basis of Othon's alleged disability of schizophrenia. The EEOC issued Othon a Notice of Right to Sue ("Notice") on January 8, 2008.
LG is correct in asserting that certain "claims brought in judicial proceedings must be within the scope of the charges filed with the EEOC." Conner v. Ill. Dep't of Natural Res., 413 F.3d 675, 680 (7th Cir. 2005); see also Green v. Nat'l Steel Corp., 197 F.3d 894, 898 (7th Cir. 1999)(setting forth the EEOC and state agency filing requirement in the context of an ADA claim). The Seventh Circuit has stated that "'[a]n aggrieved employee may not complain to the EEOC of only certain instances of discrimination, and then seek judicial relief for different instances of discrimination.'" Conner, 413 F.3d at 680 (quoting Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992)). The Seventh Circuit has also stated that "[f]iling a timely charge with the EEOC is not a jurisdictional prerequisite to suit in federal court; rather, it is an affirmative defense akin to administrative exhaustion." Salas v. Wisc. Dep't of Corr., 493 F.3d 913, 921 (7th Cir. 2007). In general, "a complaint need not anticipate or overcome affirmative defenses . . . [and] does not fail to state a claim simply because it omits facts that would defeat a[n] [affirmative] defense." Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006); see also United States v. Lewis,411 F.3d 838, 842 (7th Cir. 2005)(stating that "complaints do not have to anticipate affirmative defenses to survive a motion to dismiss"). A Rule 12(b)(6) dismissal on the basis of an affirmative defense is only appropriate "when the plaintiff effectively pleads h[imself] out of court by alleging facts that are sufficient to establish the defense." Hollander, 457 F.3d at 691 n.1.
In this case, Othon included his EEOC Charge as an attachment to his complaint. When a document is appended to a plaintiff's complaint, that document can be considered on a motion to dismiss. Fed. R. Civ. P. 10(c)(stating that "[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes"); see also Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 454 (7th Cir. 1998)(indicating that when a document attached to a complaint contradicts the allegations in the complaint, the document "trumps the allegations").
Othon's EEOC Charge unequivocally asserts a charge of harassment on the basis of a mental handicap and a charge of failure to promote on the basis of a mental handicap. Othon's EEOC Charge clearly does not include any claims based on national origin, race, or gender. Before a plaintiff can bring a Title VII suit in federal court, he must first file a timely charge of discrimination with the EEOC, alleging the same claims as those alleged in the complaint. Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985)(stating that "[a] plaintiff must file a timely charge with the EEOC encompassing the acts complained of as a prerequisite to filing suit in federal court" and that "this requirement of timely filing a charge does not relate to subject matter jurisdiction."). The purpose of this requirement is to provide the employer with notice of the claim and to give the parties the opportunity to settle the issue without resorting to litigation. Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992)(stating that "[f]irst, the party must file a charge with the EEOC within the period of time allotted by the statute" and "[s]econd, the Commission must issue a right to sue letter"). Accordingly, only claims that are "'like or reasonably related to the allegations of the charge and growing out of such allegations'" may be brought in the federal court complaint. Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)(quoting Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976)). A claim in a complaint is "like or reasonably related" to an EEOC charge if there is a ...