The opinion of the court was delivered by: Robert W. Gettleman United States District Judge
Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff, Susanne Ravenscraft ("Ravenscraft"), has brought a four-count complaint against her former employer, BNP Media, Inc. ("BNP"), alleging age and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (Counts I and II), failure to pay commission and bonus (Count III), and requesting an accounting (Count IV). Defendant has moved to dismiss all four counts under Fed. R. Civ. P. 12(b)(6) for failure to state a claim due to a contractual limitations period. For the reasons discussed below, because both parties rely on matters outside the pleadings, the 12(b)(6) motion to dismiss is converted to a Rule 56 motion for summary judgment and is granted.
Plaintiff worked for approximately eight years for defendant's predecessor, Stagnito Communications ("Stagnito"). During that time she received pay increases, additional responsibilities and was ultimately promoted to Vice President around 2002 or 2003. As a Vice President, with multiple responsibilities in multiple departments, plaintiff was compensated with a salary, commissions and bonuses.
Around September of 2007 defendant acquired Stagnito. When the acquisition was announced, the employees were informed that, with the exception of certain named officers, they would be retained. As a condition of employment with defendant, however, all employees were required to fill out and sign an employment application. This application contained a provision stating that an employee "shall not commence any action or other legal proceeding related to [her] employment or the termination thereof more than six months after the event complained of and agree[s] to waive any stature [sic] of limitations to the contrary[.]" Plaintiff signed and dated this application.
In the weeks surrounding the acquisition, defendant fired, did not retain, and/or pressured into resigning at least five women who were all older than 40, none of whom were offered severance. Plaintiff is 52. Despite the fact that it appeared plaintiff would be employed by defendant, many of her responsibilities were assigned to younger and less experienced employees and she was excluded from meetings involving her staff. On approximately September 21, 2007, in a meeting with Rita Foumia, defendant's Human Resources Director, and Christine Baloga, defendant's Audience Development Director, plaintiff was discharged and told that defendant did not have a place for her. Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on July, 14, 2008, and received her right to sue letter on July, 28, 2009.
Defendant BNP has moved to dismiss plaintiff's amended complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Such motions challenge the sufficiency of the complaint, not the merits, and should be granted only if plaintiff's allegations fail to raise a plausibility of success. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-64, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007). To state a claim upon which relief can be granted, a plaintiff must satisfy two conditions: (1) 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 (2) its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950, 173 L.Ed. 2d 868 (2009); Twombly, 550 U.S. at 555; E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007).
Defendant argues that all four counts of defendant's complaint are time-barred by the limitations provision contained in the employment application. That provision limited to six months the amount of time in which plaintiff could take legal action against defendant relating to her employment. Plaintiff did not take any legal action until 288 days after the event constituting discrimination when she filed a charge with the EEOC, and did not file her complaint until over two years after her termination. Therefore, defendant argues that all four counts of plaintiff's complaint are untimely.
The employment application that plaintiff signed after the acquisition, however, is neither attached to nor referenced in the complaint. Therefore, it cannot be considered on a Rule 12(b)(6) motion. Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). Under Rule 12(d), the court can convert the motion to a Rule 56 motion for summary judgment and give the parties an opportunity to present additional material pertinent to the motion. In the instant case, the parties have already briefed the legal effect of the employment application and have presented all the material they need. Indeed, plaintiff attaches a complete copy of the application to her brief in opposition, and agrees that she signed it as alleged by defendant. Accordingly, the court will view the motion as seeking summary judgment under Rule 56.
To avoid the consequences of the contractual limitations period, plaintiff argues that the provision is unenforceable because the employment application is not a valid employment agreement. Plaintiff also asserts that, even if the agreement is valid, her short period of employment would be inadequate consideration. As is true with all contracts, the contract here requires offer, acceptance and consideration. Sheller by Sheller v. Frank's Nursery & Carpets, Inc., 957 F. Supp. 150, 154 (N.D. Ill. 1997).
Plaintiff's exact argument was rejected in Sheller, in which the plaintiffs signed an employment application that provided: "any claim that I may wish to file against the Company...must be submitted for binding and final arbitration...." Id. at 152. The employment application also stated: "I understand that this is an application for employment and that no employment contract is being offered." Id. at 154. After they were fired, the plaintiffs sued the defendant for sex discrimination under Title VII. Id. at 152. The defendant moved to compel arbitration and the plaintiffs responded by arguing that because the arbitration clause was in the employment application, which by its own terms was not an employment contract, there was no contractual agreement to arbitrate. Id. at 154. The court rejected the plaintiffs' argument, holding that "[t]he issue...is not whether the employment application qualifies as an employment contract, but whether the application qualifies as a valid contract to arbitrate." Id. The court then concluded that offer, acceptance and consideration were present because the defendant agreed to consider the plaintiffs for employment if the plaintiffs, upon employment, agreed to abide by the company rules-- including the agreement to arbitrate all disputes. Id. Similarly, in the instant case defendant agreed to consider plaintiff for employment if plaintiff, upon employment, agreed to abide by the company rules-- including the agreement to shorten the limitations period.
Plaintiff's reliance on Mimica v. Area Interstate Trucking, Inc., 250 Ill.App.3d 1328 (Ill. App. Ct. 1 Dist. 1993), as evidence that the agreement was not supported by consideration, is also incorrect. In Mimica, in consideration for continued employment, the plaintiff had to assign all his substantive patent rights. Id. at 1330. Then, when terminated he was left without employment and without those substantive rights. Id. In the instant case, plaintiff was not giving up any substantive rights. Upon her termination, plaintiff retained her right to sue. She simply limited the period of time in which to exercise that substantive right. Given the fact that an individual can agree to give up the right to sue, such as by agreeing to arbitrate, then certainly an individual can agree to limit the period in which to sue. See Sheller,957 ...