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Kummer v. Illinois Central Railroad Co.

United States District Court, N.D. Illinois, Eastern Division

October 27, 2014

ILLINOIS CENTRAL RAILROAD COMPANY, an Illinois corporation, Defendant.



Plaintiff Michael Kummer ("Kummer") filed his First Amended Complaint against Defendant Illinois Central Railroad Company ("IC"), alleging discrimination, retaliation, and interference in violation of the Americans with Disabilities Act of 1990 ("ADA") and the Family and Medical Leave Act of 1993 ("FMLA").


The following facts are taken from the complaint and are assumed to be true for purposes of this motion. The complaint arises out of Kummer's former employment as Rail Operations Coordinator with IC, a wholly-owned subsidiary of Grand Truck Corporation ("GTC"), which in turn is a wholly-owned subsidiary of Canadian National Railway Company ("CN"). Kummer alleges that IC violated the ADA and the FMLA when IC refused Kummer's request for an accommodation of working a day shift due to his medical condition. Kummer resigned from his position at IC on May 30, 2012, after a series of communications with his supervisors at IC. However, Kummer alleges that IC constructively discharged him when supervisors stated that they were "holding him out of service" and that Kummer was not to come on CN property, and by doing so, he would be trespassing.

Following his departure from IC, on October 11, 2012, Kummer filed with the Equal Employment Opportunity Commission ("EEOC") a charge of discrimination against CN, naming CN as his employer. During the EEOC investigation, Duane Spears, Senior Human Resources Manager at CN, submitted to the EEOC a "Position Statement" on CN letterhead disputing Kummer's allegations. The "Position Statement" indicated that Spears was submitting it on behalf of IC. The letter also contained a footnote that stated, "... Kummer's employer and the proper Respondent in this matter is Illinois Central Railroad Company."

On April 25, 2013, the EEOC issued a "Dismissal and Right to Sue" letter to Kummer. On July 24, 2013, Kummer filed his original complaint in this action, naming GTC and CN as co-defendants. On August 29, 2014, GTC and CN sent a letter to Kummer, advising him that he named the wrong companies in his complaint, noting that Kummer was an employee of their subsidiary, IC.

Kummer filed an amended complaint on January 21, 2014, moving to dismiss GTC and CN from the complaint and substituting IC as the defendant. IC moves to dismiss Counts I and II of Kummer's amended complaint, arguing that Kummer's amended complaint naming the proper defendant was not filed within 90 days of receiving the "Right to Sue" letter.


To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain factual allegations to state a claim of relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Although Rule 8 does not require a plaintiff to plead particularized facts, the complaint must allege factual "allegations that raise a right to relief above the speculative level." Arnett v. Webster, 658 F.3d 742, 751-52 (7th Cir. 2011); quoting Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., 536 F.3d 663, 668 (7th Cir.2008) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir.2008)). When ruling on a motion to dismiss, a court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007).


IC argues in its motion to dismiss that Kummer's First Amended Complaint is time-barred and does not relate back to the filing of his original complaint. The ADA requires a plaintiff to file suit within 90 days of receiving his "Right to Sue" letter from the EEOC. See 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(f)(1).

Rule 15(c) governs when an amended complaint relates back to the date of filing of the original complaint. IC does not dispute that the claim arose out of the conduct, transaction or occurrence set out in the original complaint, as required by Rule 15(c)(1(B). Rule 15(c)(1) provides, in relevant part, that amended pleadings may relate back when:

"[T]he amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within [120 days as] provided by Rule 4(m)..., the party to be brought in by amendment (1) received notice of the action so that it will not be prejudiced in defending on the merits; and (2) knew or should have known the action would have been brought against it, but for a mistake concerning the proper party's identity." Fed.R.Civ.P. 15(c)(1)(C)(ii). The Supreme Court has held that "relation back under Rule 15(c)(1)(C) depends on what

the party to be added knew or should have known, not on the amending party's knowledge or its timeliness in seeking to amend the pleading." Krupski v. Costa Croceire, S.p.A., 560 U.S. 538, 541 (2010). Whether a plaintiff knows that the correct defendant exists does not preclude a court from finding the plaintiff was mistaken in naming the initial, incorrect defendant because the ...

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