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Erica Mosby v. Liberty Mutual Insurance Co

January 17, 2012


The opinion of the court was delivered by: Rebecca R.PALLMEYER United States District Judge

Judge Rebecca R. Pallmeyer


Plaintiff Erica Mosby was employed by Defendant Liberty Mutual Insurance Company as a Senior Customer Claims Representative prior to her termination on April 13, 2007. (EEOC Charge [Doc. 1-6].*fn1 On December 30, 2010, she initiated this lawsuit by filing a five-page pro se complaint, together with more than 100 pages of exhibits. Defendant Liberty Mutual moved to dismiss that original complaint on a number of grounds [14], and Ms. Mosby responded by seeking leave to file an amended complaint [19]. She has also filed three motions for entry of a default order against Defendant [27, 33, 34]. For the reasons set forth here, Defendant's motion to dismiss is granted. The original complaint and amended complaint will be stricken, but Plaintiff will have leave to file a second amended complaint on certain of her claims. Defendant is not in default, and Plaintiff's motions for an order of default are denied.

Plaintiff's Original Complaint

Ms. Mosby's original complaint consists of a handwritten form complaint in which she has checked boxes for race discrimination and sex discrimination, and contends that Defendant terminated her and failed to promote her and that she was a victim of harassment and retaliation. [1-3.] The complaint is supported by a copy of a charge of discrimination that Ms. Mosby filed with EEOC on October 29, 2007. [1-7.] In that document, Plaintiff asserted that she was subjected to different terms and conditions of employment, harassment and discipline, and was discharged, on the basis of her race and in retaliation for "protected activity."

What follows the charge is a two-page memorandum describing Ms. Mosby's history with Liberty Mutual in a narrative. In this memo, evidently prepared on May 29, 2007, Ms. Mosby alleged that she is a "single black mother with two sons" who was employed by Liberty Mutual for eight years, beginning in 1999. [1-8.] She alleges that she was assigned to work in Naperville, Illinois, beginning in August 2006, and took a leave to care for one of her sons early on, but was nevertheless able to complete her training. Shortly after Plaintiff received a favorable performance evaluation and a bonus, the department in which she was working was restructured, and she was assigned to a new supervisor and manager. In February 2007, Ms. Mosby attended a four-day training and, when she returned, was "written up." On Friday, April 13, 2007, less than two months after being assigned to a new supervisor, Plaintiff was fired. She alleges, "I was fired for unfounded abuse of Aux Codes and phone usage. There is no evidence of this." Ms. Mosby's conclusion, set forth in the first paragraph of her memo, is that "Interference Retaliation of Family Medical Leave Act and Race Discrimination, were the reasons I was terminated from my job of approximately 8 years."

Rule 8 of the Federal Rules of Civil Procedure requires a plaintiff to set forth "a short and plain statement of the claim showing that [she] is entitled to relief." The court will assume that Ms. Mosby's original complaint, together with the May 29, 2007 memorandum, are sufficient to state claims that she suffered race discrimination and retaliation. (That conclusion is not free from doubt; Ms. Mosby has not explained how her August 2006 leave influenced the decision made by new managers to terminate her eight months later, nor has she explained why unfounded accusations regarding use of "Aux Codes" and the telephone reflected race discrimination.) She has also submitted a host of additional documents describing her claims in various ways. In a document titled "Summary of Evidence," she alleges that the computer and telephone system assigned to her did not work properly [1-19, 1-20, 1-22; 1-97; 1-99] and that, in addition to the leave she took for her son's injuries, she requested leave in March 19, 2007, for her own illness. [1-23, 1-127.] She asserts that she was denied a promotion in 2005 [1-23] but accepted a position in Naperville "that was set-up by Liberty Listens." [1-24; 1-79.] (Although Ms. Mosby has not explained this, the court understands that "Liberty Listens" is a program established by Defendant to facilitate communication between its employees and "Corporate Employee Relations." [1-86.] Following a restructuring, Ms. Mosby was the only person in her job assignment who was required to meet a quota. [1-24; 1-80; 1-110.] She was subjected to a an "uncomfortable close seating arrangement with Black male supervisor," amounting to a hostile work environment. [1-24; 1-110.]

Also attached to the original complaint are several other documents that may ultimately constitute evidence, including pages describing the functioning of computer and telephone equipment [1-27 through 1-35]; copies of e-mail messages and memoranda that Ms. Mosby exchanged with her managers and other workers [1-36 through 1-47; 1-56 through 1-78; 1-81 through 1-85; 1-91 through 1-95; 1-98; 1-102 through 1-108; 1-111 through 1-120; 1-125; 1-128 through 1-130]; Ms. Mosby's December 2005 performance evaluation [1-49 through 1-55]; a document titled "TIMELINE" [1-79 to 1-80; 1-127]; copies of communications between Ms. Mosby and Defendant's "compliance helpline" [1-87 through 1-90]; a description of Defendant's compensation policies [1-121 to 1-122]; work performance records for Ms. Mosby and others [1-123 to 1-124]; and records concerning Ms. Mosby's illness in April 2007 [1-131 through 140]. Defendant's Motion to Dismiss Defendant Liberty Mutual moved to dismiss Plaintiff's original complaint or, in the alternative, for an order requiring Plaintiff to make a more definite statement of her claim for relief [14]. In a memorandum in support of that motion [15], Defendant argued (1) that any claims under the Family and Medical Leave Act are time-barred; (2) that Plaintiff's sex discrimination and failure-to-promote claims must be dismissed because they were not included in Plaintiff's charge; (3) that any claims arising from events more than 300 days before the filing of Plaintiff's charge must be dismissed; (4) that Plaintiff's form complaint is insufficient under modern pleading standards; and (5) that Plaintiff's 144-page submission is "impossible to navigate." Plaintiff responded to these arguments with a memorandum [19] in which she also asked leave to file an amended complaint.

A. FMLA Claim

Ms. Mosby's memorandum appears to concede that her FMLA claims are time-barred [19-8], and the court agrees. The Family Medical Leave Act has a three-year statute of limitations for willful violations of the Act and a two-year statute of limitations for any violations that are not willful.

29 U.S.C. § 2617(c). Construing her allegations favorably, Ms. Mosby has alleged that Defendant terminated her in retaliation for her requests for leave. That termination occurred in April 2007, so even assuming that Defendant's FMLA violation was willful, the time for filing this lawsuit expired well before December 2010, when this lawsuit was filed. Plaintiff faults the EEOC for the slow pace of its investigation of her employment discrimination claims. The court agrees with her that the delay is regrettable, but Defendant was not responsible for it. The FMLA claims are dismissed.

B. Sex Discrimination Claim and Failure to Promote

Plaintiff objects to the dismissal of her sex discrimination claim. She argues that Defendant misinterpreted that claim. According to Plaintiff, she suffered discrimination as a result of her "status as a single mother, social class . . . [n]ot as sex discrimination within the context of men." Plaintiff notes, specifically, the hostile environment that resulted when she was seated too closely to her "Black male Supervisor." [19-8.] She claims, further that her manager, Joan Skinner, a white woman, "showed disrespect to Plaintiff because she is a single black mother" and that Kevin McLoughlin "wrote bogus warnings without any provocation."

As a general rule, a plaintiff may present, in a federal complaint, only those claims that were first presented in her underlying charge of discrimination. See Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). As described above, Ms. Mosby's underlying charge of discrimination, filed on October 29, 2007, alleged that she was subjected to different terms and conditions of employment, harassment and discipline, and was discharged, on the basis of her race and in retaliation for "protected activity." Her claim that she was subjected to a seating arrangement that created a hostile environment based on her sex does not appear to be like, or reasonably related to, the charges she presented to the EEOC. In any event, from the court's review of the voluminous materials Ms. Mosby has submitted, it appears ...

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