United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE.
matter is before the Court on the Motion to Dismiss filed by
Defendant Alton & Southern Railway Company
(“Alton”) (Doc. 8). For the following reasons,
the motion is denied.
and Procedural Background
Michael Schmierbach was employed by Alton for approximately
nine and a half years when he was terminated in April 2017
(Doc. 1, pp. 3 & 5). In 2012, Schmierbach's wife was
diagnosed with cancer, and he took medical leave to care for
her (Id. at p. 5). In late 2016 or early 2017,
Schmierbach's managers began verbally harassing him
because they were dissatisfied with his attendance
(Id.). In January 2017, Schmierbach took medical
leave for over one week because his wife underwent surgery
(Id.). On March 2, 2017, Alton removed Schmierbach
from service, pending investigation, and on April 11, 2017,
Schmierbach was terminated (Id.).
September 4, 2018, Schmierbach filed a five-count complaint
in this Court (Doc. 1). He alleges federal claims under the
Americans with Disabilities Act, 42 U.S.C. § 12101,
et seq., the Family Medical Leave Act, 29 U.S.C.
§ 2601 et seq., and the Federal Rail Safety
Act, 49 U.S.C. § 20101, et seq. Schmierbach
also alleges a state claim under the Illinois Human Rights
Act, 740 ILCS 174/1, et seq. (“IHRA”).
The Court has subject matter jurisdiction over the federal
claims pursuant to 28 U.S.C. § 1331, and supplemental
jurisdiction over the IHRA claim pursuant to 28 U.S.C. §
November 5, 2018, Alton filed a Motion to Dismiss under
Federal Rule of Civil Procedure 12(b)(6), arguing the IHRA
claim must be dismissed because Schmierbach failed to exhaust
his administrative remedies before filing this suit (Doc. 8).
purpose of a Rule 12(b)(6) motion is to decide the adequacy
of the complaint, not to determine the merits of the case or
decide whether a plaintiff will ultimately prevail.
Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th
Cir. 1990). Claims filed within the federal courts are
governed by the Federal Rule of Civil Procedure 8(a)(2) which
requires only “a short and plaint statement of the
claim showing that the pleader is entitled to relief.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). For a claim to survive a Rule 12(b)(6) motion to
dismiss, the claim must sufficiently “state a claim to
relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “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”
Id. A plaintiff need not plead detailed factual
allegations, but must provide “more than labels and
conclusions, and a formulaic recitation of the
elements.” Bell Atlantic Corp v. Twombly, 550
U.S. 544, 570 (2007). “A plaintiff still must provide
only enough detail to give the defendant fair notice of what
the claim is and the grounds upon which it rests, and,
through his allegations, show that it is plausible, rather
than merely speculative, that he is entitled to
relief.” Lang v. TCF Nat. Bank, 249 Fed.Appx.
464, 466 (7th Cir. 2007) (citing Bell Atlantic, 550
U.S. 544, 555 (2007)). For purposes of a motion to dismiss
under Rule 12(b)(6), the Court must accept all well-pleaded
facts as true and draw all possible inferences in favor of
the plaintiff. McReynolds v. Merrill Lynch & Co.,
Inc., 694 F.3d 873, 879 (7th Cir. 2012).
IHRA provides for a comprehensive procedure for redressing
human rights violations, under which a complainant must
exhaust his or her administrative remedies before bringing a
civil suit. An individual who alleges a violation under the
IHRA must file a charge with the Illinois Department of Human
Rights (“Department”) within 300 days of the
alleged violation. 775 ILCS 5/7A-102. Only until the
complainant receives a final report from the Department, or
the Department fails to issue a report within 365 days after
the charge is filed, may a complainant commence a civil suit.
775 ILCS 5/7A-102(D), (G)(2).
procedure becomes more convoluted when a complainant files a
charge with the Department and the Equal Employment
Opportunity Commission (“EEOC”). In the case of
dual filings, the Department “shall take no action
until the EEOC makes a determination on the charge and after
the complainant notifies the Department of the EEOC's
determination.” 775 ILCS 5/7A-102(A-1). The one-year
IHRA investigation period is tolled “from the date on
which the charge is filed with the EEOC to the date on which
the EEOC issues its determination.” Id. When
the EEOC does not issue a determination, but issues the
complainant a notice of a right to sue, and the complainant
timely notifies the Department, “the Department shall
notify the parties . . . that the Department will adopt the
EEOC's determination as a dismissal for lack of
substantial evidence . . .” Id.
Schmierbach alleges he timely filed charges with the
Department and the EEOC, and he received a notice of a right
to sue (“RTS”) from the EEOC on June 21, 2018
(Doc. 1, p. 4; Doc. 1, Ex. 1). But the complaint does not
allege Schmierbach received a final report from the
Department before commencing this suit. And Alton points out
that an RTS from the EEOC is not a substitute for a final
report from the Department. Anderson v. Centers for New
Horizons, Inc., 891 F.Supp.2d 956, 960 (N.D. Ill. 2012)
(“[A] right to sue letter from the EEOC does not serve
as a substitute for a final order from the Illinois
Department of Human Rights.”).
response to Alton's motion to dismiss, Schmierbach
attaches a notice of dismissal he received from the
Department on November 15, 2018, which authorizes him to
bring suit (Doc. 14, Ex. 1). But Schmierbach filed his
complaint in this Court on September 4, 2018-over two months
before he received the Department's notice. Thus, Alton
argues the case should be dismissed as premature, suggesting
that the IHRA's exhaustion requirements are
IHRA traditionally provided that the Department had exclusive
jurisdiction over claims arising under the Act. 775 ILCS
5/8-111(D) (“Except as otherwise provided by law, no
court of this state shall have jurisdiction over the subject
of an alleged civil rights violation other than as set forth
in this Act.”). Accordingly, courts could only review
final orders of the Illinois Human Rights Commission and
would sustain the Commission's findings unless they were
“contrary to the manifest weight of the
evidence.” Id. at § 5/8-111(B)(2). But in
2008, the IHRA was amended and many courts now believe that
the IHRA authorizes Illinois courts to assert original
jurisdiction over IHRA claims. Laurie v. BeDell, No.
16-759-DRH-RJD, 2017 WL 1076940, at *3 (S.D. Ill. Mar. 22,
2017). Even if exhaustion is not jurisdictional, however, the
IHRA still plainly requires a complainant to exhaust his or
her administrative remedies before commencing a civil suit.
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