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Tracey M. Gragg v. Wenzak

April 6, 2011

TRACEY M. GRAGG, PLAINTIFF,
v.
WENZAK, INC., DEFENDANT.



The opinion of the court was delivered by: Sue E. Myerscough, United States District Judge.

E-FILED

Wednesday, 06 April, 2011 12:54:18 PM

Clerk, U.S. District Court, ILCD

ORDER

This cause is before the Court on the Motion to Dismiss filed by Defendant Wenzak, Inc. (d/e 7). Defendant argues the Amended Complaint should be dismissed because Plaintiff Tracy M. Gragg did not: (1) timely file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC); or (2) receive a Notice of Right to Sue (also called a right-to-sue letter) from the EEOC. Because Plaintiff specifically alleged she did not receive a Notice of Right to Sue from the EEOC, this cause is DISMISSED WITHOUT PREJUDICE with leave to refile within 90 days of Plaintiff's receipt of a Notice of Right to Sue from the EEOC.

I. BACKGROUND

In October 2010, Plaintiff filed, pro se, a Complaint against Defendant alleging Defendant violated the Americans With Disabilities Act (ADA) (42 U.S.C. §12111, et seq.). In November 2010, Plaintiff filed an Amended Complaint. The Amended Complaint consisted of: (1) a preprinted form on which Plaintiff wrote in the information requested; and (2) a narrative by Plaintiff containing the facts of her claim. In the narrative, Plaintiff alleged that in August 2008, she applied for a job with Defendant ("Wendy's Wenzak, Inc."). Plaintiff told the general manager she had a learning disability and that while she could work as fast as anyone else, it would take her longer to learn the job. Plaintiff was hired. According to Plaintiff, during her employment, she was frequently assigned different tasks and not trained properly for some of the tasks. After approximately one and one-half weeks of employment, Plaintiff was fired. Plaintiff was told she was fired because she was "damn slow at learning." Plaintiff further alleged the following:

"And that's when we went to Human Rights & filed a Charge of discrimination[.] [A]t first they had no investigators[.] [T]hen they said we can dismiss this case without prejudice & go to the Human Rights Commission across the street & they might pick it up. And that is what we did."

In the preprinted portion of the Amended Complaint, Plaintiff indicated she filed a charge before the EEOC in July 2010 but the charge was never assigned a case number. Plaintiff marked "NO" to the question asking whether the EEOC had "written [her] a right-to-sue letter." In response to the question asking whether she had begun other legal proceedings in state or local courts or agencies, Plaintiff wrote that a case filed in September 2009 was still pending before the Illinois Human Rights Commission (IHRC).

In March 2011, Defendant filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant asserted that Plaintiff's Amended Complaint failed to state a claim because Plaintiff did not timely pursue her remedies under the ADA or receive a Notice of Right to Sue.

In her response, Plaintiff asserted, in part, as follows:

"I understand that it has been over 2 years but when I filed this they told me I had to wait until my Human Rights case was completed[.] [W]e are in our last stage[.] [W]e are supposed to have a hearing May 24,@10:30 AM at the Stratton Building."

Plaintiff further disagreed that a statute of limitations should play a role in any decision to ...


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