United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge
Clarence Waller has sued Axiom Properties, Inc. and Arbors
Apartments, LLC, as well as individuals Jerika Goike, Josh
Kennedy, and Barbara Ditzenberger. Waller alleges race
discrimination and a hostile work environment in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. (Count I), as well as race
discrimination in violation of the Illinois Human Rights Act
(IHRA), 775 Ill. Comp. Stat. 5/1 et seq. (Count II).
Defendants move to dismiss the complaint. For the reasons set
forth herein, Defendants' motion to dismiss is granted in
part and denied in part.
October 2013 to July 2015, Plaintiff Clarence Waller worked
as a leasing consultant at Arbors Apartments, LLC. Compl.
¶ 15, ECF No. 1. Arbors Apartments serves as a property
management company for Axiom Properties, Inc., which operates
and manages residential buildings throughout Illinois,
Wisconsin, and Indiana. Id. ¶¶ 7, 14. As a
leasing consultant, Waller's responsibilities included
showing apartment units to prospective tenants, assisting in
daily inspections, and maintaining reports. Id.
¶ 16. In general, Waller was scheduled to work six days
per week. Id. ¶ 20.
Waller's employment at Arbors Apartments, he was
supervised by Assistant Manager Jerika Goike. Id.
¶ 8. In turn, Goike's supervisor was Regional
Manager Josh Kennedy. Id. ¶ 9. Barbara
Ditzenberger was the Head of Human Resources at Axiom
Properties. Id. ¶ 10.
is African American. Id. ¶ 18. He alleges that
throughout his employment at Arbors Apartments, Goike
regularly made derogatory comments to Waller about his race.
Id. ¶¶ 31-35, 69. These comments were made
in front of both residential tenants and other employees at
Arbors Apartments. Id. ¶ 24. Waller repeatedly
asked Goike to stop making these comments, but Goike ignored
his requests. Id. ¶ 36. Waller also left
several voice messages with Kennedy to report Goike's
comments, but Kennedy did not return Waller's calls, and
Ditzenberger likewise did not respond when Waller raised his
concerns with her. Id. ¶¶ 39, 53-54. In
the meantime, Goike's derogatory racial comments
continued on a daily basis. Id. ¶¶ 31-35,
15, 2015, Ditzenberger terminated Waller from his employment.
Id. ¶ 60. Shortly before his termination,
Kennedy told Waller that he had broken company policy, but
Kennedy did not specify which policy Waller was accused of
having broken. Id. ¶ 59. Waller asserts that
his employment was terminated “without provocation,
” and that Defendants discriminated against him on
account of his race over the course of his employment.
Id. ¶¶ 68-69, 72.
survive a motion to dismiss pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(6), a complaint must
“state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). The complaint “need only provide a
short and plain statement of the claim showing that the
pleader is entitled to relief, sufficient to provide the
defendant with fair notice of the claim and its basis.”
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008); see also Fed. R. Civ. P. 8(a)(2). In
reviewing a motion to dismiss, a court must accept as true
all well-pleaded allegations in the complaint and must draw
inferences in the plaintiff's favor. See Tamayo,
526 F.3d at 1081.
raise two arguments in support of their motion to
dismiss. First, Defendants argue that Waller's
Title VII and IHRA claims must be dismissed because Waller
failed to timely file a charge with the Equal Employment
Opportunity Commission (EEOC). Mot. Dismiss at 4-7, ECF No.
42 U.S.C. § 2000e-5(e)(1), a charge of employment
discrimination in violation of Title VII must be filed with
the EEOC no more than 300 days after the alleged unlawful
employment practice. Roney v. Ill. Dep't of
Transp., 474 F.3d 455, 460 (7th Cir. 2007). Similarly,
under the IHRA, a charge must be filed with either the EEOC
or the Illinois Department of Human Rights (IDHR) no later
than 180 days after the alleged unlawful employment practice.
Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811
F.3d 866, 886 n.2 (7th Cir. 2016) (citing 775 Ill. Comp.
Stat. 5/7A-102(A)(1), (A-1)(1)).
to timely file an administrative charge with the EEOC is an
affirmative defense. Laouini v. CLM Freight Lines,
Inc., 586 F.3d 473, 475 (7th Cir. 2009). But it is well
established that “a plaintiff ordinarily need not
anticipate and attempt to plead around affirmative
defenses.” Hyson USA, Inc. v. Hyson 2U, Ltd.,
821 F.3d 935, 939 (7th Cir. 2016) (citing Chi. Bldg.
Design v. Mongolian House, Inc., 770 F.3d 610, 613 (7th
Cir. 2014)); Stuart v. Local 727, Int'l Bhd. of
Teamsters, 771 F.3d 1014, 1018 (7th Cir. 2014).
Accordingly, at the motion to dismiss stage, “[t]he
mere presence of a potential affirmative defense does not
render the claim for relief invalid, ” Brownmark
Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th
Cir. 2012). As such, dismissal based upon the affirmative
defense of failure to timely file a charge with the EEOC is
appropriate only when the allegations in the complaint
unambiguously establish the elements of the defense, such
that the plaintiff pleads himself out of court.
Stuart, 771 F.3d at 1018; Bibbs v. Sheriff of
Cook Cnty., 618 F. App'x 847, 849 (7th Cir. 2015).
Defendants assert that Waller's Title VII and IHRA claims
should be dismissed as time-barred because Waller did not
file a signed charge of race discrimination with the EEOC
until April 14, 2016. Mot. Dismiss at 2. Waller's
complaint, however, does not contain-and is not required to
contain-factual allegations regarding whether and when Waller
filed charges of race discrimination with the EEOC or IDHR.
See Stuart, 771 F.3d at 1018. Although Defendants