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Thompson v. Heartland Health Care

United States District Court, C.D. Illinois, Peoria Division

November 7, 2016

KANISHA THOMPSON, Plaintiff,
v.
HEARTLAND HEALTH CARE, Defendant.

          OPINION & ORDER

          JOE BILLY McDADE United States Senior District Judge.

         The matter before the Court is Plaintiffs Amended Complaint (Doc. 4), Motion for Leave to Proceed in forma pauperis (Doc. 2), and Motion to Request Counsel (Doc. 3). Plaintiffs Motion for Leave to Proceed in forma pauperis is granted. Because plaintiff is proceeding in forma pauperis, her complaint must be screened pursuant to 28 U.S.C. § 1915. Plaintiffs Title VII claims are dismissed because they are untimely. Plaintiff has sufficiently stated a claim of racial discrimination, in violation of 42 U.S.C. § 1981. Lastly, Plaintiffs Motion to Request Counsel is denied because Plaintiff has not sought to find her own representation without court assistance.

         I. Background

         Around June 2015, while Plaintiff was working for Heartland Health Care, she began experiencing workplace harassment and racial prejudice by a third party visitor. (Doc. 4-1). Plaintiff reported the problem to an employee hotline. Id. The harassment continued until the third-party individual pushed her fingers into Plaintiffs face and told her to stop reporting her. Id. Plaintiff reported the harassment, physical threats, and racial slurs to her administrator, who told her not to take offense to it. Id. Plaintiff then reported the harassment to the police. Id. Plaintiffs administrator then suspended her while the administrator investigated the situation. Id. Plaintiff was discharged on July 27, 2015 after filing her report with the police. Id.; see also (Doc. 4 at 4).

         Plaintiff filed charges of racial discrimination, work place harassment, and retaliation with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission (EEOC). (Doc. 4-1). Plaintiff received her Notice of Right to Sue from the EEOC on February 17, 2016.[1] (Doc. 4 at 3). Plaintiff filed this Complaint on August 29, 2016. (Doc. 1). Plaintiff filed an Amended Complaint on September 28, 2016. (Doc. 4). Plaintiff alleges that Defendant discriminated against her because of her color and her race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and in violation of 42 U.S.C. § 1981. (Doc 4 at 2).

         II. Motion to Proceed in forma pauperis

         The Court grants Plaintiffs Motion to Proceed in forma pauperis. A court may allow a civil suit to proceed without the prepayment of fees when a plaintiff submits an affidavit that includes a statement of all their assets, and shows that they are unable to pay filing fees or provide security for the payment of a filing fee. 28 U.S.C. § 1915(a)(1). The affidavit must "state the nature of the action . . . and affiant's belief that the person is entitled to redress." Id. However, the "privilege to proceed without [paying] costs and fees is reserved to the many truly impoverished litigants who, within a district court's discretion, would remain without legal remedy if such privileges were not afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).

         In support of her Motion, Plaintiff states under penalty of perjury that she has an income of $1, 144 per month and expenses of $1, 100 per month. (Doc. 2). Additionally, she states that she has assets and savings of only $25. Id. Based on Plaintiffs submission, the Court concludes that she is entitled to proceed in forma pauperis.

         III. 28 U.S.C. § 1915 Screening

         Under 28 U.S.C. § 1915(e)(2), the court must screen complaints proceeding in forma pauperis. The court must then dismiss a complaint if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Because Plaintiff alleges two distinct theories of discrimination, the claims will be screened separately. Plaintiffs Title VII claims are dismissed without prejudice because Plaintiff failed to bring her complaint within the statutorily required ninety day period. Based on its initial screening, the Court cannot find that Plaintiffs § 1981 claim should be dismissed.

         When evaluating whether a pro se plaintiff has stated a claim under § 1915(e)(2)(B) de novo, courts use the same standards as that which apply to Rule 12(b)(6) dismissals. Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). Therefore, the court will take "all well-pleaded allegations of the complaint as true and view[] them in the light most favorable to the plaintiff. Id. (citing Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). A plaintiff need only give '"fair notice of what the ... claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 733, 776-77 (7th Cir. 2007) (quoting Bell Ml. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, a pro se complaint is to be construed liberally and held to "less stringent standards than a formal pleadings by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         A. Plaintiff's Title VII Claims

         The Plaintiff did not file her Title VII claims within ninety days of the date she states she received her Notice of Right to Sue Letter; therefore, her Title VII claims are time-barred. Title VII of the Civil Rights Act of 1964 requires that a plaintiff first file her complaint with the Equal Employment Opportunity Commission. 42 U.S.C. § 2000e-5. After a plaintiff has received permission, via a Notice of a Right to Sue Letter, a plaintiff has ninety days to bring her claims in the federal courts. 42 U.S.C. § 2000e-5.

         In her amended complaint, Plaintiff stated that she received her Notice of a Right to Sue letter on February 17, 2016. (Doc. 4). Ninety days after that date was May 17, 2016. However, Plaintiff did not file her original complaint until August 29, 2016, which is well-past her ninety day deadline. The issue of timeliness is an affirmative defense, rather than a jurisdictional requirement. Zipes v. TWA, 455 U.S. 385, 393 (1982). Therefore, the court does not typically address it while screening a complaint, but rather, waits for the defendant to raise timeliness as an affirmative defense. Calvin v. Sub-Zero Freezer Co., No. 16-cv-552-JDP, 2016 U.S. Dist. LEXIS 108995, at *5 (W.D. Wis. Aug. 17, 2016) (citing E.E.O.C. v. Watkins Motor Lines, Inc., 553 F.3d 593, 596 (7th Cir. 2009)). However, the United States Court of Appeals for the Seventh Circuit has instructed district courts to invoke affirmative defenses on behalf of defendants, who have not had the chance to do so, only ...


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