United States District Court, S.D. Illinois
EVELYN K. HENDERSON, Plaintiff,
PARKS AVIATION HOLDINGS LLC d/b/a Ideal Aviation, Defendant.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on the motion of defendant
Parks Aviation Holdings LLC d/b/a Ideal Aviation
(“Ideal”) to dismiss this case pursuant to
Federal Rule of Civil Procedure 12(b)(6) and for judgment on
the pleading pursuant to Federal Rule of Civil Procedure
12(c) (Doc. 10). Plaintiff Evelyn K. Henderson has responded
to the motion (Doc. 15), and Ideal has replied to that
response (Doc. 16).
case, Henderson alleges that she was an employee of Ideal and
that Ideal terminated her because of her age in violation of
the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.,
and the Illinois Human Rights Act (“IHRA”), 775
ILCS 5/1-101 et seq. She alleges she was given
notice on February 24, 2015, that she would be terminated and
would be replaced by a computer that would be operated by a
much younger employee. She was terminated on March 6, 2015.
She filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on
August 31, 2015. After receiving a right to sue letter from
the EEOC, she filed this lawsuit alleging one cause of action
under the ADEA (Count I) and one under the IHRA (Count II).
Number of Employees
asks the Court to dismiss both counts under Rule 12(b)(6)
because Henderson has not alleged that Ideal has enough
employees to subject it to either statute - 20 for the ADEA
and 15 for the IHRA. Henderson asserts that the statement in
her EEOC charge that Ideal employed “15-100”
employees is sufficient.
reviewing a Rule 12(b)(6) motion to dismiss, the Court
accepts as true all allegations in the complaint.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To avoid dismissal under Rule 12(b)(6) for failure
to state a claim, 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). This
requirement is satisfied if the complaint (1) describes the
claim in sufficient detail to give the defendant fair notice
of what the claim is and the grounds upon which it rests and
(2) plausibly suggests that the plaintiff has a right to
relief above a speculative level. Bell Atl., 550
U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); EEOC v. Concentra Health Servs., 496
F.3d 773, 776 (7th Cir. 2007). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Bell Atl.,
550 U.S. at 556). “Determining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
Bell Atlantic, the Supreme Court rejected the more
expansive interpretation of Rule 8(a)(2) that “a
complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief, ” Conley v. Gibson, 355
U.S. 41, 45-46 (1957). Bell Atlantic, 550 U.S. at
561-63; Concentra Health Servs., 496 F.3d at 777.
Now “it is not enough for a complaint to avoid
foreclosing possible bases for relief; it must actually
suggest that the plaintiff has a right to relief . . . by
providing allegations that ‘raise a right to relief
above the speculative level.'” Concentra Health
Servs., 496 F.3d at 777 (quoting Bell Atl., 550
U.S. at 555).
Bell Atlantic did not do away with the liberal
federal notice pleading standard. Airborne Beepers &
Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667
(7th Cir. 2007). A complaint still need not contain detailed
factual allegations, Bell Atl., 550 U.S. at 555, and
it remains true that “[a]ny district judge (for that
matter, any defendant) tempted to write ‘this complaint
is deficient because it does not contain . . .' should
stop and think: What rule of law requires a
complaint to contain that allegation?” Doe v.
Smith, 429 F.3d 706, 708 (7th Cir. 2005) (emphasis in
remains remarkably easy to plead an employment discrimination
cause of action even after Bell Atlantic. To plead a
simple discrimination claim, a plaintiff need only allege the
specific adverse employment action and that it was on the
basis of an impermissible factor. See Tamayo v.
Blagojevich, 526 F.3d 1074, 1082-84 (7th Cir. 2008);
Concentra Health Servs., 496 F.3d at 782; see
also Clark v. Law Office of Terrence Kennedy, Jr., No.
16-4277, 2017 WL 4176285, at *2 (7th Cir. Sept. 21, 2017)
(“The pleading requirement for
employment-discrimination claims is minimal. A plaintiff need
only identify the type of discrimination, when it occurred,
and by whom.”). “[T]here is no further
information that is both easy to provide and of clear
critical importance to the claim.” Concentra Health
Servs., 496 F.3d at 782. Thus, it remains true that
“in order to prevent dismissal under Rule 12(b)(6), a
complaint alleging sex discrimination need only aver that the
employer instituted a (specified) adverse employment action
against the plaintiff on the basis of her sex.”
Tamayo, 526 F.3d at 1084 (citing Concentra,
496 F.3d at 781-82). This principle is true for age
discrimination pleading as well.
has adequately pled her claims. It is true that the ADEA
applies only to employers with at least 20 employees, 29
U.S.C. § 630(b), and that the IHRA applies only to
employers with at least 15 employees, 775 ILCS
5/2-101(B)(1)(a). It is also true that Henderson did not
allege in her pleading any facts showing Ideal qualifies as
an employer covered by the ADEA or the IHRA. However, under
liberal federal notice pleading rules, she need not make any
such allegations. The threshold issue of whether the
defendant qualifies as an employer for the purposes of the
ADEA and the IHRA is a non-jurisdictional defense to
liability. See Arbaugh v. Y & H Corp., 546 U.S.
500, 504 (2006). Thus, as long as Henderson's complaint
identifies “the type of discrimination, when it
occurred, and by whom, ” Clark, 2017 WL
4176285, at *2, she has adequately pled her causes of action
regardless of whether a “tiny employer” defense
may exist. Henderson has pled the essentials, so the Court
cannot dismiss her claims on the basis of inadequate
pleading. That being said, if Ideal did not, in fact, employ
a sufficient number of individuals to subject it to the ADEA
and the IHRA at the time of Henderson's termination, the
Court encourages it to file a motion for summary judgment on
the issue as soon as possible.
Timeliness of Charge
also asks the Court for judgment on the pleadings under Rule
12(c) on Henderson's IHRA claim because Henderson failed
to file a timely charge of discrimination. She filed her
charge 188 days after she received notice of her termination
on February 24, 2015. Henderson argues she had 300 days to
file a charge or, in the alternative, that her charge was
timely because she filed less than 180 days after her March
6, 2015, termination.
preliminary matter, Rule 12(c) is not the appropriate vehicle
for Ideal's request. By its very terms, Rule 12(c)
provides motions may be filed “[a]fter the pleadings
are closed, ” that is, after an answer to the complaint
is filed (if there are not counterclaim, cross-claims,
etc.), see Fed. R. Civ. P. 7(a), but Ideal
has not yet filed an answer in this case. Under Rule 12(c),
the Court considers the complaint, answer and any written
instruments attached to those pleadings, accepts all
well-pleaded allegations in the complaint as true and draws
all inferences in favor of the plaintiff. See Pisciotta
v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir.
2007); Forseth v. Village of Sussex, 199 F.3d 363,
368 (7th Cir. 2000). However, where there is no answer, the
Court only has the complaint to consider, the motion is
really just a Rule 12(b)(6) motion to dismiss based on the
sufficiency of the complaint, and the Court will consider it
as such. See 5C Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 1367
(3d ed.) (“The mere fact that [Rule 12(b)(6)]
procedural defects are raised in the guise of a Rule 12(c)
motion should not affect the manner by which the court
determines what essentially are Rule 12(b) matters.”).
Ideal's failure to identify the proper subsection of Rule
12 is not fatal to its motion because the standards applied
are essentially the same, Adams v. City of
Indianapolis, 742 F.3d 720, 727-28 (7th Cir. 2014)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)), so its arguments remain appropriate.
12(b)(6) motion is proper even where the defendant relies on
a defense in its motion, for under Rule 12(b)(6) the
defendant is entitled to dismissal if the plaintiff pleads
facts establishing that the defendant is entitled to prevail
on that defense. Bennett v. Schmidt, 153 F.3d 516,
519 (7th Cir. 1998); Soo Line R.R. Co. v. St. Louis S.W.
Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997); see
Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir.
2009) (dismissal appropriate ...