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Bowman v. State Department of Healthcare and Family Services

United States District Court, Seventh Circuit

December 2, 2013

MARZELLA BOWMAN, Plaintiff,
v.
STATE OF ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES, Defendant.

OPINION AND ORDER

JOAN H. LEFKOW, District Judge.

Plaintiff Marzella Bowman filed a second amended complaint against defendant the State of Illinois Department of Healthcare and Family Services ("HFS") for age discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.§§ 621 et seq. (Dkt. #27.) HFS now moves to dismiss for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6).[1] (Dkt. #30.) For the reasons set forth herein, the motion will be granted in part and denied in part.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. 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 Rule 12(b)(6) motion, the court takes as true all facts in the complaint and draws all reasonable inferences in favor of the non-moving party. Dixon v. Page, 291 F.3d 485, 486-87 (7th Cir. 2002). 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 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). The allegations in the complaint must be "enough to raise a right of relief above the speculative level." Twombly, 550 U.S. at 555. At the same time, the plaintiff need not plead legal theories. Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 742-43 (7th Cir. 2010). Rather, it is the facts that count.

BACKGROUND[2]

Bowman has been employed by HFS since 1987.[3] At all relevant times she was over 40 years of age. In 2010, Bowman applied for an open position as a Child Support Specialist Trainee. On April 10, 2010, HFS awarded the position to an employee who was under 40 years of age with comparable qualifications to Bowman. On October 19, 2010, Bowman filed a charge of discrimination with the Illinois Department of Human Rights ("IDHR") (Charge No. 2011 CA 0723) ("October 2010 charge"), which was cross-filed with the United States Employment Opportunity Commission ("EEOC"), alleging that the State of Illinois Department of Child Support Services discriminated against her because of her age by failing to promote her to the position of Child Support Specialist Trainee. (2d Am. Compl. Ex. C.) Bowman voluntarily withdrew her charge on or about August 12, 2011, and an order of closure, dated August 25, 2011, closed IDHR's investigation and terminated the EEOC's processing of the charge. (Dkt. #41, Ex. 4.) Bowman subsequently received a dismissal and notice of right to sue from the EEOC regarding her charge of age discrimination but she declined to pursue her claim. (2d Am. Compl. ¶ 13.)[4]

Bowman continued to be employed by HFS and her annual employment report for the year 2011 stated that she met her employer's expectations. ( See 2d Am. Compl. Ex. D.) Between October 19, 2010 and April 6, 2012, Bowman applied for several open positions as a Child Support Specialist Trainee. On each occasion, Bowman was not awarded the position and instead an individual with "less seniority" was promoted to the job. ( Id. ¶ 13.)

On April 6, 2012, Bowman filed a charge of discrimination with the EEOC (Charge No. 440-2012-03083), which was cross-filed with the IDHR ("April 2012 charge"), alleging in relevant part as follows,

During my employment, I complained about discrimination and filed a Charge with the Illinois Department of Human Rights (Charge No. 21B-2010-02940). Subsequently, I applied for several Child Support Specialist Trainee positions, but have not been hired. I believe that I have been discriminated against in retaliation for engaging in protected activity, in violation of the Age Discrimination in Employment Act of 1967, as amended.

(2d Am. Compl. Ex. A.) When asked the basis of the alleged discrimination, Bowman checked the "retaliation" box on the charge.

On May 16, 2012, [5] Bowman received a dismissal and notice of right to sue from the EEOC. (2d Am. Compl. Ex. B.) On August 9, 2012, she filed a pro se complaint in this court alleging that HFS failed to promote her because of her age. (Dkt. #1.) HFS subsequently moved to dismiss and the court granted the motion without prejudice allowing Bowman an opportunity to cure a number of pleading deficits. (Dkt. #17.)[6] On January 17, 2013, Bowman, again acting pro se, filed an amended complaint that contained similar allegations. (Dkt. #19.) On January 31, 2013, the court appointed counsel for Bowman. (Dkt. #20.) On April 10, 2013, Bowman filed the instant two-count complaint alleging age discrimination and retaliation under the ADEA. (Dkt. #27.) HFS has now moved to dismiss this complaint arguing that Bowman has (1) failed to exhaust her administrative remedies as to her age discrimination claim; and (2) failed to timely file her retaliation claim. (Dkt. #30.)

ANALYSIS

I. Age Discrimination Claim

HFS argues that Bowman's age discrimination claim must be dismissed because (1) the October 2010 charge, in which Bowman alleged age discrimination, was withdrawn; and (2) the April 2012 charge alleged only retaliation. Prior to filing an age discrimination claim in federal court, a plaintiff must file an administrative charge of discrimination with the EEOC. See 29 U.S.C. § 626(d); Miller v. Am. Airlines, Inc., 525 F.3d 520, 525 (7th Cir. 2008). "This requirement is to ensure that the employer has notice about the particular challenged conduct and provides an opportunity for settlement of the dispute." Miller, 525 F.3d at 525. Because Illinois is a deferral state, meaning a state with an agency empowered to remedy age discrimination in employment, a plaintiff must file her administrative charge within 300 days of the alleged unlawful adverse action. See 29 U.S.C. § 626(d)(1)(B); Anderson v. Ill. Tool Works, Inc., 753 F.2d 622, 625 (7th Cir. 1985). A plaintiff must also file her charge with the appropriate state agency, and may not bring a federal lawsuit until at least 60 days after making such a filing. See 29 U.S.C. §§ 626(b) & 626(d)(1); Overgard v. Cambridge Book Co., 858 F.2d 371, 374 (7th Cir. 1988). If the EEOC notifies the complainant that it has dismissed her charge, she then has 90 days after receipt of such notice to file a civil action in federal court. See 29 U.S.C. § 626(e). To trigger this 90-day ...


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