United States District Court, C.D. Illinois, Peoria Division
OPINION & ORDER
BILLY McDADE United States Senior District Judge.
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.
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).
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. (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).
Motion to Proceed in forma pauperis
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
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.
U.S.C. § 1915 Screening
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.
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)).
Plaintiff's Title VII Claims
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. §
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 ...