United States District Court, N.D. Illinois, Eastern Division
JOSEPH B. LAHEY, Plaintiff,
ILLINOIS BELL TELEPHONE CO., Defendant.
MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, District Judge.
On January 16, 2014, Plaintiff Joseph Lahey ("Mr. Lahey") filed a two-count "First Amended Complaint" (Dkt. No. 7, "Am. Compl." or "Amended Complaint") against Illinois Bell Telephone Company ("Illinois Bell"), alleging violations of the Americans With Disabilities Act (the "ADA"), 42 U.S.C. 12101 et seq. and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. 2000e-(3). Mr. Lahey contends that Illinois Bell discriminated against him due to a disability (Count I), and retaliated against him for objecting to Illinois Bell's alleged unlawful personnel practices (Count II).
Before the court is Illinois Bell's "Mot. to Dismiss Plaintiff's Retaliation Claim" (Dkt. No. 11, "Def's Mot."). Illinois Bell seeks dismissal of Count II alone, because Mr. Lahey failed to include his retaliation claim in the charge that he filed with the Equal Employment Opportunity Commission ("EEOC"). ( Id. ) In response (Dkt. No. 18, "Pl's Resp."), Mr. Lahey argues his retaliation claim survives, because it is "like or reasonably related" to the discrimination claim in his EEOC charge. ( Id. at 1-4.)
For the reasons set forth below, this court denies Illinois Bell's motion to dismiss Count II of the Amended Complaint. (Dkt. No. 11).
Mr. Lahey worked at Illinois Bell from 1995 until June 26, 2012 as an installation and repair technician assigned to a facility in Schaumburg, Illinois. (Am. Compl. ¶ 8.) Mr. Lahey's principle job duties included installing telephone service and equipment to residential and commercial AT&T customers in the western suburbs of Chicago, Illinois. ( Id. ¶ 9.)
On or about April 13, 2011, Mr. Lahey alleges that he suffered a heart attack and underwent open heart surgery, including insertion of a pacemaker. ( Id. ¶ 10.) Following rehabilitation, Mr. Lahey subsequently was released to work in February 2012 with various restrictions, such as not lifting over fifty pounds, working near high power lines, and working on ladders. ( Id. ¶ 11.)
According to Mr. Lahey, from March 15, 2012 to June 17, 2012, he applied for numerous positions that he was qualified for, either with or without accommodation, but Mr. Lahey was not interviewed or placed into any of these vacant positions. ( Id. ¶¶ 12-15.) On or about June 26, 2012, Mr. Lahey alleges that he was terminated due to his physical disability, and he has not been afforded any subsequent employment opportunities with Illinois Bell. ( Id. ¶¶ 16-17.)
On December 21, 2012, Mr. Lahey filed a charge with the EEOC, Charge No. 440-2013-00994, explicitly alleging only disability discrimination. (Def's Mot., at Ex. A.) Under the heading "Circumstances of Alleged Discrimination", Mr. Lahey only checked the box for "Disability", leaving the box for "Retaliation" unchecked. ( Id. ) In addition, where the charge asks Mr. Lahey to provide "The Particulars" of his claim, he states the following:
I began my employment with Respondent on or about June 12, 1996. My most recent position was Installation and Repair Technician. Respondent was aware of my disability. During my tenure, I requested a reasonable accommodation, which was not provided. On or about June 26, 2012, I was discharged. I believe I have been discriminated against because of my disability, in violation of the Americans with Disabilities Act of 1990, as amended.
( Id. )
On September 6, 2013, the EEOC issued a Notice of Right-to-Sue, and Mr. Lahey brought his complaint, in this action, within 90 days of the issuance of this notice. (Am. Compl. ¶¶ 6-7, Ex. A.) Even though the EEOC charge omitted an explicit retaliation claim, Mr. Lahey brought a retaliation claim (Count II) against Illinois Bell in this action. (Am. Compl. ¶¶ 28-32.)
Failure to file a proper EEOC charge is properly raised in a motion to dismiss for failure to state a claim, not as a motion to dismiss for lack of subject matter jurisdiction. Wamack v. Windsor Park Manor, 836 F.Supp.2d 793, 797 (N.D. Ill. 2011) (Lefkow, J.) (citing Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)). Accordingly, the court ...