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Giwa v. Copmea

June 25, 2010


The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge


This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) and Memorandum in support. (Docs. 8 & 9). Plaintiff filed his timely response in opposition to the Motion (Docs. 11 & 12). For the reasons stated below, the Motion to Dismiss is denied.


"In ruling on Rule 12(b)(6) motions, the court must treat all well-pleaded allegations as true and draw all inferences in favor of the non-moving party." In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir. 2009) (citing Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)). To survive a motion to dismiss under 12(b)(6), a plaintiff's complaint must "plead some facts that suggest a right to relief that is beyond the 'speculative level.'" EEOC v. Concentra Health Svcs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560-63 (2007)). Though detailed factual allegations are not needed, a "formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 547. "The complaint must contain 'enough facts to state a claim to relief that is plausible on its face.'" Bissessur v. Indiana University Bd. of Trustees, 581 F.3d 599, 602 (7th Cir. 2009) (quoting Twombly, 550 U.S. at 557; Tamayo, 526 F.3d at 1084). "A claim has facial plausibility 'when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)).

On the other hand, "complaints need not anticipate and attempt to plead around defenses." U.S. v. Northern Trust Co., 372 F.3d 886, 888 (7th Cir. 2004) (citing Gomez v. Toledo, 446 U.S. 635 (1980); United States Gypsum Co. v. Indiana Gas Co., 350 F.3d 623 (7th Cir. 2003)). Dismissal on statute of limitations grounds should only be granted where the "plaintiff pleads himself out of court by alleging facts sufficient to establish the complaint's tardiness." Cancer Foundation, Inc. v. Cerberus Capital Management, LP, 559 F.3d 671, 674-75 (7th Cir. 2009) (citing Hollander v. Brown, 457 F.3d 688, 691 fn. 1 (7th Cir. 2006) ("a federal complaint does not fail to state a claim simply because it omits facts that would defeat a statute of limitations defense")).


This matter, along with another, simultaneously-filed, case in this District, before Judge Mihm, relates to Plaintiff's employment with the City of Peoria, which was terminated on March 6 or 8, 2008, and his representation by Defendant as a member of AFSCME Local 3464 ("Union"). (Doc. 11 at 1; Case No. 09-1306, Doc. 3 at 9).*fn1 Plaintiff worked for the City for fourteen years, and alleges in the case before Judge Mihm that his supervisor discriminated against him on the basis of his race, national origin, and age between 2004 and 2008. (Case No. 09-1306, Doc. 3 at 9-16).

In an attachment to Plaintiff's form Complaint in this Court, he explains that he believes the Union failed to properly press his grievances against the City because of the Union's animus against his race and national origin. On November 15, 2006, the Union allegedly failed to properly handle the appeal of Plaintiff's three-day disciplinary suspension, including by delaying a hearing on the matter until June 22, 2007 and by failing to call witnesses for the hearing. The Union then settled the dispute by agreeing with the City that the three-day suspension would be removed if Plaintiff had no more disciplinary problems until November 2007. In addition, the Union apparently delayed grieving Plaintiff's March 8, 2008 termination until over a year later, after being contacted by the EEOC following Plaintiff's charge of discrimination. Plaintiff also alleges that, at an unspecified time, the Union failed to "prevent [his] supervisor from violating [his] federal rights and reprimanding [him]," and was "unable to sway [the supervisor's] decision to give [him] a verbal reprimand, written, one day suspension, three days suspension, five days suspension and termination," or to "stop her from violating [his] rights, insulting and ridiculing [him] in [the Union representatives'] presence."*fn2 As evidence for his contention that the Union was motivated by Plaintiff's race and national origin, Plaintiff alleges that the Union president implied that he was somehow less of a United States citizen than others because of his race and national origin, and that his "lesser" citizenship was somehow relevant to a decision made in handling one of his grievances. In addition, he alleges generally that he was treated differently from other Union members because of his race and national origin. (Doc. 4 at 10-11).

On February 2, 2009, Plaintiff filed a charge of discrimination against the Union with the Illinois Department of Human Rights and the EEOC; he alleged race discrimination, national origin discrimination, age discrimination, and retaliation. (Doc. 4 at 13). On June 18, 2009, the EEOC issued a right to sue letter to Plaintiff on this charge.*fn3 (Doc. 11 at 5). On September 11, 2009, Plaintiff filed his Complaint against Defendant, along with a Motion to Proceed in forma pauperis in this Court. (Doc. 1). On September 21, 2009, the Court denied Plaintiff's Motion to Proceed in forma pauperis; Plaintiff paid his filing fee on October 27, 2009, and the Complaint was docketed. (Docs. 2 & 4).


Defendant argues in its Motion to Dismiss that Plaintiff's Complaint fails to state a claim upon which relief can be granted, both procedurally and substantively: that it is untimely and that it fails to allege facts stating a claim under Title VII.

I. Title VII Limitations Period

Defendant argues that Plaintiff's Complaint must be dismissed for failure to state a claim upon which relief can be granted, as the claim is untimely under Title VII.*fn4 (Doc. 9 at 2-4). Defendant cites to two ways in which it alleges that Plaintiff's claims are time-barred: "Plaintiff has not shown that he brought suit within 90 days of his receipt of an EEOC right-to-sue letter," and "all of the alleged acts of discrimination.occurred more than 300 days prior to the filing of his EEOC charge." (Doc. 9 at 2-3).

Defendant's first argument is clearly without merit. A plaintiff has 90 days after receiving a right-to-sue letter from the EEOC in which to file a suit for discrimination. 42 U.S.C. § 2000e-5(f)(1); Reschny v. Elk Grove Plating Co., 414 F.3d 821, 823 (7th Cir. 2005). As the EEOC issued the right to sue letter on June 18, 2009, Plaintiff's September 11, ...

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