The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge
Margaret Hartley ("Hartley") filed this pro se complaint of employment discrimination against Villa Scalabrini Nursing and Rehabilitation Center ("Villa Scalabrini") and "Resurrection"*fn1 (together, Villa Scalabrini, or defendant) along with an application to proceed in forma pauperis ("IFP") and a motion for appointment of counsel. She alleges discrimination on the basis of race and retaliation under Title VII of the Civil Rights Act of 1964 and 42 U.S.C § 1981. Villa Scalabrini contends that the complaint must be dismissed under 28 U.S.C. § 1915(e)(2)(A) because Hartley made false statements in the financial affidavit supporting her IFP application. It also seeks summary judgment (1) as to Resurrection because Resurrection was not Hartley's employer and was not named in the underlying Equal Employment Opportunity Commission charge ("EEOC charge"); (2) as to all claims because Hartley's wrongful discharge complaint filed in state court arising from the same core of operative facts was dismissed, making the present complaint barred by res judicata; and (3) because plaintiff's claim alleging a pattern and practice of race discrimination was not included in the EEOC charge. The motion for summary judgment will be granted based on Villa Scalabrini's second argument.
This case arises from Hartley's employment and subsequent termination by Villa Scalabrini. Hartley began her employment at facilities run by Resurrection Senior Services, Inc., or its predecessor entity in 1988. She began working at Resurrection Health Care's Villa Scalabrini facility on June 26, 2005 as a certified nurse's assistant. Hartley alleges a pattern and practice of racial harassment and discrimination against her and complains that she was fired after she asserted her federally protected rights. Hartley was discharged on April 25, 2007. She concedes that she was fired after an "incident involving a patient" but alleges that a "non-Black" employee in a similar situation was not fired.
Hartley filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on April 29, 2007. On May 15, 2008, the EEOC sent her a Notice of Right to Sue, advising her that she had 90 days within which to file a Title VII suit in federal or state court. On or about June 2, 2008, Hartley filed a pro se complaint against Villa Scalabrini in the Circuit Court of Cook County ("the state court action") alleging that she was "wrongfully fired" based on false accusations of wrongdoing. She filed her federal complaint on July 3, 2008. Villa Scalabrini moved to dismiss the state court action for failure to state a cause of action, arguing that Hartley, as an admittedly at will employee, had no claim for wrongful discharge under Illinois law.*fn2 The motion was granted on July 21, 2008.
In the IFP application accompanying the complaint, Hartley listed her monthly income as $164. She marked that she was not married and provided no information regarding a spouse. Hartley listed three other sources of income for herself and others living in her residence over the previous twelve months: ABBA Home Health, paying $97.02 biweekly, Almighty Home Health, paying $62.97 biweekly (both former employers), and her son's part-time job paying $8.40 per hour. Hartley reported that she received unemployment benefits of $3,133 in the previous twelve months but did not check the box in the same question signifying that someone living at her residence was receiving Social Security benefits. Hartley reported that no one in her household owned a vehicle worth more than $1,000. She signed the IFP application on June 19, 2008 under penalty of perjury, asserting that she understood that "pursuant to 28 U.S.C. § 1915(e)(2)(A), the court shall dismiss this case at any time if the court determines my allegation of poverty is untrue."
On September 5, 2008, Hartley jointly with Edward L. Henderson filed a chapter 13 petition in bankruptcy in the United States Bankruptcy Court for the Northern District of Illinois (Case No. 08-23503). Both debtors listed the same address and are referred to as husband and wife within the petition and schedules. In their Amended Statement of Financial Affairs, signed under penalty of perjury on October 14, 2008, Hartley reported income for 2007 as $21,277 and for 2008 to that date as $30,494. Henderson listed receiving Social Security benefits of $9,331.20 in 2007 and $6,220.80 for 2008 to date. Finally, the couple owned a 2003 Chevrolet Impala valued at $10,125 until August 2008. The document reported that the debtors' home was in foreclosure. Hartley's confirmed Modified Chapter 13 Plan disclosed $4,470.98, total monthly household expenses (including a mortgage payment of $1,735.00) as $3,880.00, leaving $590.98 available for plan payments. Bankr. Dkt. No. 18.
Hartley has a variety of excuses for the inaccurate information in the IFP Application. She states that she was separated from Henderson when she filed the IFP application but that the two reconciled "shortly after" it was filed; however, she admits that Henderson continued to receive mail at her house, presumably including his Social Security checks. She attempts to explain the disparity between the claimed monthly income figure of $164 on July 3, 2008 and $30,494 total income for the year to date*fn3 by stating that after filing the IFP application, she was employed by four companies, "which paid a lot more money including $500.00 bonuses for referrals of clients." She claims that she made "an honest mistake" because she was "working for so many agencies" and it was "hard to keep track." She admits that she failed to list the car because it was in her husband's possession at the time of the IFP Application, but she also admits that she owned the car.
28 U.S.C. § 1915 allows a federal court to authorize commencement of an action in forma pauperis, that is, without prepayment of fees or security therefor, when a litigant has submitted an affidavit including a statement of all assets possessed by that person demonstrating that he or she is unable to pay the relevant fees. 28 U.S.C. § 1915(a)(1). Filing in forma pauperis is a privilege, and an IFP application should be filled out carefully and comprehensively. See Chung v. Dushane, No. 03 C 5955, 2003 U.S. Dist. LEXIS 22061, at *6 (N.D. Ill. Dec. 9, 2003) (citing Denton v. Hernandez, 504 U.S. 25, 27, 112 S.Ct. 1728, 118 L.Ed. 2d 340 (1992)) ("The opportunity to proceed in forma pauperis is a privilege provided for the benefit of indigent persons and the court system depends upon the honesty and forthrightness of applicants to ensure that the privilege is not abused."). A court shall dismiss the case at any time if it determines that the allegation of poverty is untrue. 28 U.S.C. § 1915(e)(2)(A). Where an "allegation of poverty [i]s false, the suit ha[s] to be dismissed"; "the judge ha[s] no choice." Thomas v. Gen. Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002).
Defendants argue that Hartley's complaint must be dismissed because her allegation of poverty was false. Hartley concedes that she failed to provide information on her IFP Application in response to multiple questions, including that she is married, that she owns a car, and that her husband receives Social Security benefits. Hartley also admits that she failed to properly account for her income, as disclosed in the Amended Statement of Financial Affairs she prepared a few months later for the bankruptcy proceeding. At the least, plaintiff's IFP Application suggests lack of respect for the privilege she hoped to claim. But the court is not obligated to dismiss the case where, as here, the record in the bankruptcy court shows that had Hartley fully disclosed her and her husband's financial situation, they would have been sufficiently poor to merit the opportunity to proceed IFP. In other words, the allegation of poverty was not untrue. The confirmed Chapter 13 plan reflects that Hartley and her husband are currently obligated to pay all of their disposable income to creditors. Despite the carelessness, errors and omissions, Hartley was not hiding resources that if revealed would have demonstrated her ability to pay the filing fee. Compare, e.g., Thomas, 288 F.3d 305 (plaintiff failed to disclose $58,990, which was a lump sum from ...