United States District Court, N.D. Illinois, Western Division
Mark E. Potts, Plaintiff,
Nippon Sharyo Manufacturing, LLC, et al., Defendants.
G. Reinhard, Judge
reasons stated below, defendants' motion to dismiss 
is granted in part and denied in part. The motion is granted
as to the dismissal of defendants Nippon Sharyo U.S.A., Inc.
and Nippon Sharyo USA Group for failure to name them as
respondents in the EEOC charge. Nippon Sharyo U.S.A., Inc.
and Nippon Sharyo USA Group are dismissed without prejudice.
Otherwise, the motion is denied. Plaintiff is granted leave
to file an amended complaint containing the necessary
allegations against Nippon Sharyo U.S.A., Inc. and Nippon
Sharyo USA Group on or before October 5, 2016.
Defendants' motion to strike  (contained in their
reply brief) is denied.
Mark E. Potts, brought this action in the Circuit Court for
the 17th Judicial Circuit, Winnebago County,
Illinois, against defendants, Nippon Sharyo Manufacturing,
LLC, Nippon Sharyo U.S.A., Inc. and Nippon Sharyo USA Group
alleging a violation of the Age Discrimination in Employment
Act (“ADEA”), 49 U.S.C. § 621(a) et seq.
Defendants removed to this court based on federal question
jurisdiction. 28 U.S.C. § 1331. Defendants move  to
dismiss for failure to state a claim upon which relief can be
given. Fed.R.Civ.P. 12(b)(6).
alleges in his complaint that at all pertinent times he was
over the age of 40 and a protected person within the meaning
of the ADEA. He was employed by defendants beginning on
October 8, 2012 and discharged by them on February 14, 2014.
Plaintiff alleges he timely filed a charge of discrimination
with the EEOC and that he later filed suit “no later
than ninety (90) days after receipt of a Notice of Right to
Sue from the EEOC.” He alleges a “true and
correct copy of the Charge of Discrimination and the Notice
of Right to Sue” are attached to his complaint.
attached right-to-sue letter shows a date mailed of
“6-24-15.” Plaintiff filed suit on April 21,
2016. Defendants move to dismiss arguing that the action is
untimely as it was brought more than 90 days after the date
on which the right-to-sue letter would be presumed to have
been received by plaintiff- June 29, 2015- five days after
the date the notice indicated it was mailed. Defendants argue
plaintiff pled himself out of court by attaching the
right-to-sue letter showing a June 24, 2015 mailing date.
noted above, plaintiff pled in his complaint that he filed
suit no later than 90 days after receipt of the right-to-sue
letter. In response to defendants' motion, plaintiff
argues he did not receive the right-to-sue letter until it
was sent via email to plaintiff's counsel on March 9,
2016. Plaintiff attaches to his response his affidavit and
the affidavit of his counsel. His counsel's affidavit
states on or about January 21, 2016 she sent a letter to the
EEOC asking the EEOC to expedite its investigation because,
other than an EEOC officer, William Hubbartt, taking
plaintiff's statement over the phone on June 22, 2015, no
other action had been taken on the charge. On March 4, 2016,
plaintiff's counsel received a telephone call from
Hubbartt advising her the EEOC charge had been dismissed. On
March 9, 2016 via email attachment and on March 14, 2016 via
regular mail, counsel received a copy of the right-to-sue
letter from the EEOC. In plaintiff's affidavit, he states
that other than his phone interview on June 22, 2015, he
never received any other communication of any kind from the
EEOC. It was not until on or about March 7, 2016, when
advised so by his attorney, that he learned his EEOC charge
had been dismissed.
in their reply brief, argue the court must strike the
affidavits of plaintiff and his counsel because affidavits
cannot be considered on a 12(b)(6) motion. They argue that by
attaching the right-to-sue letter to his complaint, plaintiff
is bound by the presumption it was received within five days
of the mailing date appearing on the face of the letter. They
argue that plaintiff's only recourse when faced with the
motion to dismiss was to correct his pleading deficiencies by
amending the complaint within 21 days of defendants'
motion. Fed.R.Civ.P. 15(a)(1)(B).
to sue within 90 days is an affirmative defense so defendants
have the burden of showing plaintiff's “complaint
was filed more than 90 days after [he] received sufficient
notice of [his] right to sue.” DeTata v. Rollprint
Packaging Products, Inc., 632 F.3d 962, 970
(7th Cir. 2011). The 90-day period does not start
running until the claimant or his agent actually receives the
right-to-sue letter from the EEOC. Id., at 967.
need not anticipate defenses and attempt to defeat
them.” Richards v. Mitcheff, 696 F.3d 635, 637
(7th Cir. 2012). “A plaintiff whose
allegations show that there is an airtight defense has
pleaded himself out of court, and the judge may dismiss the
suit on the pleadings under Rule 12(c).” But, it has to
be airtight. A dismissal on statute of limitations grounds is
only appropriate “if the claim is indisputably
time-barred.” Rosado v. Gonzalez, No. 15-3155,
2016 WL 4207961, *1 (7th Cir. Aug. 10, 2016).
Defendants have failed to show plaintiff's claim is
Seventh Circuit Court of Appeals has said concerning receipt
of notice of an adverse determination by a Social Security
disability benefit applicant that “unless proven
otherwise, the receipt date is presumed to be five days from
the mailing date.” Loyd v. Sullivan, 882 F.2d
218 (7th Cir. 1989). Defendants take this
presumption and contend that because the right-to-sue letter
here was attached to plaintiff's complaint and bears a
notation indicating it was mailed “6-24-15" that
the court must conclusively presume the right-to-sue letter
was received five days later on June 29, 2015. To reach this
conclusion, defendants argue that when the “plaintiff
attaches his notice of right to sue to his complaint, the
actual document will ‘override inconsistent
descriptions of those documents alleged in the body of the
complaint.'” They contend that because the
complaint alleges the attached right-to-sue letter is a
“true and correct copy” that it overrides
plaintiff's allegations that he filed the complaint no
later than 90 days after plaintiff received the right-to-sue
letter - because - the attached document says it was mailed
on June 24, 2015 and therefore, must be presumed to have been
received on June 29, 2015.
simply read out the “unless proven otherwise”
language from Loyd. In fact, they argue plaintiff is
precluded from proving otherwise contending that affidavits
cannot be considered on a motion to dismiss. DeTata,
discussed above, which was cited by plaintiff, belies
DeTata, the EEOC dismissed DeTata's claim and
issued a right-to-sue letter on March 2, 2009. Instead of
sending the letter to DeTata, the EEOC sent the letter to a
person, Bracko, who may or may not have been acting as
DeTata's attorney. DeTata contended Bracko never received
the letter and DeTata did not receive any notice of the
dismissal or the issuance of the right-to-sue letter.
Subsequently (in May 2009 according to a declaration filed by
an EEOC employee), DeTata called the EEOC and learned her
case had been dismissed and a right-to-sue letter had been
issued. She ultimately received a copy of the right-to-sue
letter a few days after the EEOC re-sent it on June 18, 2009.
After she filed her lawsuit, the defendant, Rollprint, moved
to dismiss for untimeliness. The suit had been filed 170 days
after the EEOC initially issued the right-to-sue letter. The
district court conducted a hearing and ultimately dismissed
the case. The Seventh Circuit vacated the judgment and
remanded the case for further proceedings. In discussing the
right-to-sue letter being sent to Bracko, the court observed
“[m]ore evidence would be necessary before we knew
whether Bracko never received the letter, or if he just
refused or failed to acknowledge receipt.”
DeTata, 632 F.3d at 965. The court observed
“even if Bracko was acting as DeTata's agent for
notice purposes, Rollprint over looks the fact that Bracko
may never have received the right-to-sue letter.”
Id., at 970. In remanding the court stated “it
will be up to the parties on remand to develop any further
evidence that may be relevant to a better understanding of
Bracko's role in the case.” Id.
DeTata shows, evidence, including declarations, is
allowable - and often required - on a motion to dismiss based
on untimeliness, to resolve the issue when a right-to-sue
letter was received. Plaintiff was free to bring in his
counsel's affidavit as well as his own to refute
defendants' five-day presumption argument. This is not a
case like Stevenson v. Unichema North America, No.
94 C 6544, 1995 WL 453001, *1 (N.D. Ill. July 27, 1995),
cited by defendants, where the plaintiff pled himself out of
court by attaching to the complaint a copy of the notice of
right to sue which bore a receipt stamp showing
“plaintiff's attorney received the notice of right
to sue more than 90 days before the complaint was
filed.” The attached right-to-sue letter here does not
contain any markings on it to indicate it was ever received
by anyone. Any presumption that plaintiff received the
right-to-sue letter by June 29, 2015 has been rebutted by the
affidavits submitted by plaintiff in response to