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Kathryn L. Mccauley v. Akal Security

June 17, 2011


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Plaintiff Kathryn McCauley ("McCauley") brought the instant employment discrimination lawsuit against Defendants Akal Security, Inc. ("Akal") and the United States Marshals Service ("the USMS"). Defendants move to dismiss pursuant to FED. R. CIV. P. 12(b)(6) on various grounds. For the reasons contained herein, Defendants' Motion is granted in part and denied in part. McCauley's discrimination claim is limited to the events surrounding her suspension and termination, and all other claims in her First Amended Complaint are dismissed. However, Defendants' Motion to Dismiss Plaintiff's Complaint as untimely is denied, as is the USMS's Motion to Dismiss for Failure to Exhaust Administrative Remedies.


The following facts are taken from McCauley's First Amended Complaint and her charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC").

McCauley was employed by Akal, a private security firm based in New Mexico. Akal contracted with the USMS to provide security services at the U.S. District Court for the Northern District of Illinois. McCauley began working as a Court Security Officer in the Northern District on March 22, 2001.

On June 24, 2009, she filed a Complaint of Discrimination with the EEOC, contending that she was discriminated against based on her gender when she was suspended on March 18, 2009, and fired on April 22, 2009. The EEOC Complaint names only Akal as Plaintiff's employer.

McCauley's one-count First Amended Complaint, alleging unlawful discrimination on the basis of sex, includes these incidents. Specifically, she alleges that she was working in the lobby of the Everett McKinley Dirksen United States Courthouse when she made a brief comment to another Court Security Officer stating that she could not believe that the defendant in an ongoing criminal trial had taken the stand. Unbeknownst to her, McCauley contends, a juror on that case overheard her comment and apparently believed McCauley was speaking to him. The man approached her and said, "I cannot talk to you." McCauley contends she did not know the man was a juror and did not direct the comment at him. Because of this comment, she was suspended and later fired. A male Court Security Officer who made a comment in the presence of the same juror was not disciplined, she contends.

McCauley's First Amended Complaint also includes allegations that Defendants refused to assign McCauley to certain positions because of her gender, maintained certain favorable positions for male security officers, subjected her to a hostile work environment, and treated her "badly" because of her gender. Pl's. Compl. ¶ 43. In particular, she alleges that after returning to work in January 2006 following an injury, she requested to be assigned to work in the control room, but was refused. Assignments in the control room and mail room were favored, and male security officers almost always received these assignments, she contends.

The EEOC dismissed Plaintiff's discrimination complaint and sent her a Right-to-Sue letter via certified mail on December 18, 2009. The certified letter went unclaimed, and the EEOC then sent a Notice of Dismissal via regular mail dated February 4, 2010. McCauley filed suit against Akal and the USMS on May 6, 2010.

Defendants moved to dismiss Plaintiff's complaint under FED. R. CIV. P. 12(b)(6). In separate motions, both allege that McCauley's Complaint is untimely. Additionally, Akal argues that McCauley failed to exhaust her administrative remedies in regard to certain alleged incidents of discrimination in the suit, and that certain of the incidents are barred by the statute of limitations.

The USMS adopts Akal's arguments and additionally argues that it should be dismissed from the suit McCauley failed to exhaust her administrative remedies with respect to her complaints against it.


In considering Defendants' Motions to Dismiss, the Court must accept as true all well-pled facts in McCauley's Complaint and view them in the light most favorable to her. Thompson v. Ill. Dep't. of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To survive a Motion to Dismiss under FED. R. CIV. P. 12(b)(6), a complaint must contain "sufficient factual material, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plaintiffs do not have to anticipate affirmative defenses, but dismissal is appropriate if the allegations in the complaint "set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations." United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).

Ordinarily, if a court in deciding a motion to dismiss considers documents not incorporated into the complaint, it must convert the motion to dismiss to a motion for summary judgment. Drebing v. Provo Group, Inc., 494 F.Supp.2d 910, 912 (N.D. Ill. 2007). However, an EEOC complaint is central to a ...

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