United States District Court, N.D. Illinois, Eastern Division
SAMUEL DER-YEGHIAYAN, District Judge.
This matter is before the court on Defendant Commonwealth Edison Company's (ComEd) partial motion to dismiss. For the reasons stated below, the partial motion to dismiss is granted.
In 2008, Plaintiff Steve Nawa (Nawa) allegedly began working for ComEd in a Meter Reading Manager position. Nawa claims that in late 2010 and early 2011 he discovered certain billing errors relating to certain ComEd customers. In September 2011, Nawa allegedly requested a meeting with Senior Vice President Fidel Marquez (Marquez) and with President Anne Pramaggiore to discuss the billing irregularities that Nawa claimed to have discovered. Nawa claims that within a week of requesting the meeting with Marquez, Nawa was informed that his employment was going to be terminated. ComEd then allegedly decided instead to transfer Nawa to a Weekly Planning Manager position in Rockford.
Nawa indicates that he was not content in his new position in Rockford and that one day a co-worker made an objectionable comment to Nawa. Nawa allegedly complained to ComEd management about the comment and called a hotline to report the comment. Nawa was allegedly subsequently placed on paid suspension, and then his employment was terminated. Nawa includes in his complaint a state law retaliation claim brought under the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101 et seq. (Count I), and a state law retaliatory discharge claim (Count II). ComEd now moves to dismiss the IHRA retaliation claim.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level'" and "if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that "[t]o survive a motion to dismiss, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, " and that "[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")(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations omitted).
ComEd contends that the IHRA retaliation claim is untimely and that the tolling doctrines are not applicable.
I. Timeliness of Filing
ComEd contends that Nawa's charge of retaliation was not filed within the limitations period for an IHRA claim. An IHRA charge must be filed with the Equal Employment Opportunity Commission (EEOC) or with the Illinois Department of Human Rights (IDHR) within 180 days of the discriminatory action. 775 ILCS 5/7A-102; see also Bagwe v. Sedgwick Claims Management Services, Inc., 2014 WL 4413768, at * 6 (N.D. Ill. 2014)(stating that "IHRA claims must be filed with the EEOC or the Illinois Human Rights Department within 180 days of the discriminatory act"); Scott v. City of Kewanee, 2014 WL 1302025, at *4 (C.D. Ill. 2014)(stating that "[t]he charge must be filed with the IHRD within 180 days of the alleged civil rights violation").
In the instant action, Nawa alleges ComEd retaliated against him in violation of the IHRA when it decided to terminate his employment. (Compl. Par. 21). Nawa further alleges that the decision to discharge him was made in May 2012. (Compl. Par. 21). When making inferences in favor of Nawa, the non-movant, the latest that the decision to terminate his employment could have been made would have been May 31, 2012. In order for Nawa to have filed the Charge in a timely manner within 180 days, Nawa would have had to file the Charge by November 27, 2012. Nawa has attached to his complaint the Notice of Dismissal from the IDHR. (Compl. Ex. 1). Such exhibit can be considered as part of Nawa's pleading. Fed.R.Civ.P. 10(c). The Notice of Dismissal makes reference to Nawa's retaliation charge (Charge) filed with the IDHR. (Compl. Ex. 1). Nawa also specifically references the Charge in his complaint. (Compl. Par. 5). ComEd has attached a copy of the Charge to its motion to dismiss, which can be considered for the purposes of ruling on the instant motion. Yassan v. J.P. Morgan Chase and Co., 708 F.3d 963, 975 (7th Cir. 2013)(stating that "[a]t the dismissal stage, the court is typically confined to the pleadings alone, but [i]t is... well-settled in this circuit that documents attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim")(internal quotations omitted)(quoting 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002)). The Charge reflects that it was signed by Nawa on August 5, 2013, and dated by the IDHR on August 7, 2013, over eight months after the statutory deadline for filing the Charge. Thus, the Charge was untimely and Nawa is barred from bringing the IHRA retaliation claim in this action. See Copeling v. Illinois State Toll Highway Authority, 2014 WL 540443, at *4 (N.D. Ill. 2014)(stating that "[f]ailure to comply with the IHRA's exhaustion requirements warrants dismissal of an IHRA claim"); Weatherly v. Illinois Human Rights Com'n, 788 N.E.2d 1175, 1178-79 (Ill.App.Ct. 2003)(stating that since the IHRA "creates a remedy which was unknown at common law and also sets the time within which a charge may be filed with the [IDHR], compliance with the statutory time limit is a condition precedent to the right to seek a remedy").
II. Tolling Doctrines
Nawa argues that even if his IHRA retaliation claim is untimely, the court should find that the tolling doctrines are applicable in this case and enable him to pursue his claim. The "two principal tolling doctrines" are equitable estoppel and equitable tolling. Clarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013). The equitable estoppel doctrine is applicable when "the defendant takes active steps to prevent the plaintiff from suing in time, as by promising not to plead the statute of limitations as a defense." Id. (internal quotations omitted)(quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir. 1990)). The equitable tolling doctrine is applicable when " despite all due diligence " the plaintiff ...