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Scott v. City of Kewanee

United States District Court, C.D. Illinois, Rock Island Division

March 28, 2014

GARY SCOTT, Plaintiff,
CITY OF KEWANEE, a Municipal Corporation, Defendant.


SARA DARROW, District Judge.

Plaintiff Gary Scott claims that by denying him employment as cemetery sexton in favor of a younger worker, Defendant City of Kewanee, Illinois, (the "City") engaged in age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. ยง 621 et seq., and the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101 et seq. Defendant has moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant's Motion for Leave to File Its Reply in Support of Dismissal, ECF No. 10, is GRANTED. For the following reasons, Defendant's Motion to Dismiss, ECF No. 7, is GRANTED IN PART and DENIED IN PART.


Scott, who was born in 1949, has worked for the City since 1989. Scott held the position of Equipment Operator at the time he filed his Complaint, although he had occasionally performed the job duties of cemetery sexton. Scott's last written performance evaluation occurred in April 2009; it indicated that he was performing at an adequate-or-above level. Scott was generally in good standing with his employer.

In early August 2009, the City began accepting applications for the open position of cemetery sexton. Four people, including Scott, applied for the position. During Scott's interview, which lasted about 10 minutes, City personnel asked Scott when he intended to retire. Scott replied, "About 66, when my wife turns 62." The City also administered an aptitude test, which Scott claims was biased against older individuals because it "asked several questions authenticating the memory of the applicant." On September 9, 2009, the City informed Scott that Kevin Newton, rather than Scott, would receive the position. Newton, who was approximately 33 years old, was still a probationary employee in the sanitation department at the time, as he had only been hired by the City in December 2008. Scott claims Newton "had no known objective qualification superior to" his own and "had much less experience as a [City] employee." In the four years following Newton's appointment, Scott still periodically performed the duties of cemetery sexton. Scott claims he "remains ready, willing, and able" to do the job.

Scott filed a Charge of Discrimination against the City with the Equal Employment Opportunity Commission ("EEOC"). The charge, EEOC Form 5, is signed and dated July 3, 2010, and stamped as received by the EEOC on July 12, 2010. Scott subsequently received notice of right to sue from the EEOC dated May 28, 2013. Scott filed the instant lawsuit on June 28, 2013, claiming the City's selection of Newton over himself for cemetery sexton represents age-based employment discrimination in violation of the ADEA (Count I) and the IHRA (Count II). Scott seeks relief including monetary damages and an injunction requiring the City to promote Scott to cemetery sexton.


The City has moved to dismiss the ADEA claim as time barred, the IHRA claim for failure to exhaust state administrative remedies, and Scott's request for injunctive relief as insufficiently supported by his factual allegations. Def.'s Mot. Dismiss 1, ECF No. 7. The Court will address each argument in turn.

I. ADEA Claim

The City argues that, by pleading a filing date for his EEOC charge falling beyond the 300-day deadline, Scott has established that his ADEA claim is time barred, thereby pleading himself out of court under Federal Rule of Civil Procedure 12(b)(6). Def.'s Mot. Dismiss, 1-2.

A. Legal Standard on Motion to Dismiss

To survive a motion to dismiss under Rule 12(b)(6), a complaint must state a claim to relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim "has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In evaluating a complaint's sufficiency, legal conclusions are not entitled to the assumption of truth granted to factual allegations. Id. The Seventh Circuit has identified the practical requirements of Twombly and Iqbal for federal pleading:

First, a plaintiff must provide notice to defendants of her claims. Second, courts must accept a plaintiff's factual allegations as true, but some factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiff's claim. Third, in considering the plaintiff's factual allegations, courts should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). If a plaintiff provides unnecessary facts in his complaint, the defendant may use those facts to show the plaintiff is not entitled to relief. Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008) (citations omitted). A plaintiff "pleads himself out of court when it would be necessary to contradict the complaint in order to ...

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