The opinion of the court was delivered by: Judge Joan H. Lefkow
Tannia Vindel ("Vindel") filed her first amended complaint, pro se, against Medline Industries, Inc. ("Medline") on March 13, 2010. Vindel's first amended complaint asserts claims for employment discrimination on the basis of national origin and race under Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1981 (42 U.S.C. § 1981), retaliation because Vindel asserted her rights protected by the aforementioned statutes, and discrimination on the basis of her assertion of rights under the Family and Medical Leave Act ("FMLA").*fn1
Before this court is Medline's motion to dismiss Vindel's national origin and race discrimination claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).*fn2 For the following reasons, Medline's motion will be granted in part and denied in part.
The following facts are taken from the first amended complaint and are presumed true for the purpose of resolving the pending motion.
Medline hired Vindel as an assembly line worker in January of 2000. During her tenure at Medline, Vindel filed five Equal Employment Opportunity Commission ("EEOC") charges against the company. She filed her first two EEOC charges in 2001 and 2004 and filed her third charge, which alleged retaliation, in 2007.*fn3 After Vindel filed her third EEOC charge, she was harassed by her co-workers at Medline. Vindel complained about the harassment to her supervisors but her supervisors "did nothing." Vindel's supervisors then forced her to "work all over the factory" and ordered her to drive a forklift while other non-Honduran employees were not required to do so.
On January 15, 2009, Vindel filed a fourth EEOC charge, again alleging retaliation.*fn4 The particulars of the charge are as follows:
I began my employment with Respondent in January 2000. I am employed as an Assembly Worker. In October 2007, I filed an EEOC charge . . . . Subsequently, I have been subjected to discipline and threats of discharge. I believe that I have been retaliated against for engaging in a protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended.
The EEOC issued a notice of right to sue on April 20, 2009.
In February 2009, Vindel took a leave of absence from Medline to have surgery, as allowed under the FMLA. Vindel returned to work on February 23, 2009 and was fired on February 25, 2009 in retaliation for having requested and taken FMLA leave.
On February 26, 2009, Vindel filed another EEOC charge alleging discrimination based on retaliation. The particulars of the charge state that Vindel was discharged subsequent to having filed a "charge of discrimination" in January 2009. The charge states, in relevant part: "Similarly situated employees who did not file EEOC charges of discrimination were not discharged. I believe that I have been retaliated against in violation of Title VII of the Civil Rights Act of 1964, as Amended." The EEOC issued a notice of right to sue on April 20, 2009.
Failure to file the proper EEOC charge is properly raised in a motion to dismiss for failure to state a claim, not as a motion to dismiss for lack of subject matter jurisdiction. See Cheek v. W. & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). Because Medline's motion asserts that Vindel's claims should be dismissed solely because she failed to exhaust administrative remedies, the court will consider Medline's motion according to the legal standard for a Rule 12(b)(6) motion to dismiss.
A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In ruling on a 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). In order to survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of the claim's basis, but must also establish that the requested relief is plausible on its face. Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009); see also Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007). At the same time, the plaintiff need not plead legal theories. Hatmaker v. Mem'l Med. Ctr., --- F.3d ----, 2010 WL 3385191, at *1 (7th Cir. Aug. 30, 2010). Rather, it is the facts that count. In addition, complaints filed by ...