The opinion of the court was delivered by: Judge Joan H. Lefkow
Stacey A. Coleman ("Coleman") filed a four count discrimination complaint against her former employer, the Illinois Department of Human Services ("IDHS"), as well as her former supervisors, Michael Jankowski ("Jankowski"), Christine Hammond ("Hammond"), and Jeri Gulli ("Gulli") (collectively, "defendants").*fn1 Counts I and II of Coleman's first amended complaint allege that defendants singled out Coleman for disparate treatment, discipline, suspension, and termination based on Coleman's race, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and42 U.S.C. § 1981. Count III alleges that defendants deprived Coleman of equal protection under the law in violation of 42 U.S.C. § 1983. Count IV alleges that defendants violated the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., by interfering with and retaliating against Coleman when she attempted to take leave under the act. Before the court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion [#40] is granted in part and denied in part.
The following facts are taken from the first amended complaint and are presumed to be true for the purpose of resolving the pending motion.
Coleman, who is African-American, began working for the IDHS in 1998 as a support service worker at the Howe Development Center in Tinley Park, Illinois. Amend. Compl. ¶ 11. In 2006, Coleman's daughter became seriously ill. Id. ¶ 12. As a result, Coleman was absent from or late to work a number of times. Id. IDHS held a pre-disciplinary hearing with Coleman about her absences and tardiness, during which Hammond explained the FMLA to Coleman and Coleman informed Hammond that she would need FMLA leave to care for her daughter. Id. ¶¶ 13-14. Hammond further explained to Coleman that once she turned in the necessary paperwork, her prior absences and tardiness would be excused by back-dating them as FMLA leave, and all future FMLA leave would be approved. Id. ¶ 15. Coleman submitted the required FMLA paperwork to Gulli, but Gulli took approximately one month to approve her leave. Id. ¶ 18. Gulli routinely approved Caucasian employees' paperwork in a few days. Id. Furthermore, IDHS required Coleman to bring in documentation proving her need for FMLA leave, which it did not require of Caucasian employees. Id. ¶ 20. Later, IDHS reversed some of Coleman's approved absences and tardiness, causing them to be listed on her employment record. Id. ¶¶ 21. IDHS regularly reversed approved absences and tardiness of African-American employees but did not engage in this practice with respect to Caucasian employees. Id. ¶ 22.
On another occasion in 2006, Coleman missed work because her mother was hospitalized and subsequently required at-home care. Id. ¶ 23. Coleman verbally informed Hammond that she would need to take FMLA leave, and he assured her that any prior absences would be back-dated as approved FMLA leave. Id. ¶¶ 24-25. Coleman submitted the necessary paperwork on September 12, 2006, Gulli approved the leave approximately two months later, and the absences were back-dated. Id. ¶¶ 26-27. Again, IDHS required documentary proof from Coleman and later reversed some of the approved absences and tardiness, causing them to appear on her employment record. Id. ¶¶ 30-31.
Between February and April 2007, Coleman took approximately nine days of FMLA leave to care for her own medical conditions. Id. ¶¶ 33-35. She verbally notified Hammond in February of her intention to take FMLA leave, and Hammond told her that she could file her paperwork later and that her absences would be back-dated and approved. Id. ¶ 34. Accordingly, Coleman did not file the necessary paperwork at that time. Id. ¶¶ 33-39. On April 10, 2007, IDHS held a pre-disciplinary hearing with Hammond regarding her unexcused absences between February and April. Id. ¶ 37. After the hearing in April, Coleman filed the FMLA paperwork. Id. ¶ 42. As before, IDHS required Coleman to document her need for FMLA leave. Id. ¶ 44. Gulli failed to process Coleman's paperwork and back-date her absences but did process Caucasian employees' paperwork. Id. ¶¶ 43, 46.
On May 21, 2007, IDHS suspended Coleman for abuse of time. Id. ¶ 45. On June 20, IDHS fired her. Id. ¶ 47. At a July 16 grievance resolution hearing, IDHS offered to purge Coleman's personal file if she agreed to resign. Id. ¶ 48.
Coleman filed a discrimination charge on October 2, 2007 with the Illinois Department of Human Rights, which was cross-filed with the Equal Employment Opportunity Commission ("EEOC"). Id. ¶ 50-51. On April 6, 2010, the Illinois Department of Human Rights dismissed the charge for lack of substantial evidence. Id. ¶ 52. The EEOC issued a notice of right to sue on May 6, 2010. Id. ¶ 53. The original pro se complaint in this suit was filed June 15, 2009.
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). 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, 586 (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. Corp. 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.
Defendants' motion to dismiss challenges the following allegations: Title VII claims against Gulli, Hammond, and Jankowski as individuals, Title VII claims against IDHS regarding events that took place in 2006, §§ 1981 and 1983 claims against IDHS, and §§ 1981 and 1983 claims against Gulli, Hammond, and Jankowski involving violations that took place before June 15, 2007.*fn2
Coleman concedes that dismissal is appropriate for all claims challenged in the motion, except for her §§ 1981 and 1983 claims against the individual defendants that relate to the events that occurred prior to June 15, 2007. Pl.'s Resp. at 1. Defendants assert that these claims should be dismissed because they are time-barred under a two year statute of limitations. Def.'s Mot. to Dismiss at 6. Coleman argues that the continuing violation doctrine links the acts that took place prior to June 15, 2007 to those acts that give rise to a claim within the statute of limitations. Pl.'s Resp. at 2. Therefore the ...