United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE.
Davis sued his former employer Palos Community Hospital (PCH)
alleging it discriminated against him because of his race and
age, then retaliated against him when he complained about it.
(Dkt. 1-1.) The Court previously dismissed Davis's
complaint because it failed to state a claim. (Dkt. 34.)
Davis amended his complaint asserting his four original
claims and adding factual content that he presumably believes
makes his claims plausible. (Dkt. 35.)
again moved to dismiss arguing Davis failed to cure the
deficiencies the Court identified in his original complaint.
(Dkt. 39.) In his response, Davis voluntarily withdrew his
intentional infliction of emotional distress
(“IIED”) claim (Count III) and his request for
certain damages associated with his Age Discrimination in
Employment Act (ADEA) claim. (Dkt. 47 at 5.) Because
Davis's complaint was untimely, and his claims are still
facially implausible, the Court grants PCH's motion to
dismiss (Dkt. 39) with prejudice because any amendment would
Court assumes the parties' familiarity with the relevant
facts as recounted in the first opinion dismissing
Davis's complaint. See Davis v. Palos Health,
No. 18 C 4345, 2019 WL 214916, at *1 (N.D. Ill. Jan. 16,
2019). Davis states three claims against PCH: age
discrimination in violation of Title VII and the ADEA (Count
I); race discrimination in violation of Title VII and Section
1981 (Count II); and retaliation in violation of Title VII
(Count IV, incorrectly styled as Count VI).
a few preliminary matters at the top should streamline the
legal analysis. First, Davis insinuates several times in his
complaint that PCH discriminated against him based on
gender-Davis is a man. (Dkt. 35 ¶¶ 5, 33-34.) But
those allegations amount to conclusory statements, so they do
not suffice. See Hernandez v. Nieves, 762 Fed.Appx.
325, 326 (7th Cir. 2019). What is more, Davis did not assert
sex discrimination in his Equal Employment Opportunity
Commission (EEOC) charge; he did not style one of his counts
as sex discrimination in violation of Title VII in his
complaint; and he never alleged facts that suggest PCH
terminated him- and then decided not to rehire him-because he
is a man.
same goes for any disability (Dkt. 35 ¶¶ 15, 20)
and Family and Medical Leave Act (FMLA) (Dkt. 35 ¶ 25)
discrimination that Davis mentions in passing but does not
develop beyond speculation. Those are discrete forms of
discrimination that several federal statutes protect against.
Davis cannot continue to leave PCH and the Court guessing as
to the basic reasons for his lawsuit. Davis did not state
Title VII (based on sex), FMLA, or Americans with
Disabilities Act (ADA) claims, so the Court need not rule on
Davis purports to allege an age discrimination claim under
Title VII in Count I. (Dkt. 35 at 9.) That was a technical
error, though Davis need not plead law. To clarify the issue,
Title VII does not proscribe age discrimination; the ADEA
does. Compare 42 U.S.C. § 2000e-2 (prohibiting
discrimination based on “race, color, religion, sex, or
national origin”), with 29 U.S.C. § 621
(banning discrimination based on “age”); see
Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402, 408
(7th Cir. 1989), aff'd, 494 U.S. 820 (1990);
Jennings v. Sallie Mae, Inc., 358 Fed.Appx. 719, 721
(7th Cir. 2009); Greer v. Bd. of Trustees of Univ. of
D.C., 113 F.Supp.3d 297, 304-05 (D.D.C. 2015).
happens, Congress considered and rejected adding age to Title
VII's list of protected classes when it was deliberating
the enactment of the Civil Rights Act of 1964. See Smith
v. City of Jackson, Miss., 544 U.S. 228, 232-33 (2005)
(discussing the legislative history of Title VII and the
ADEA). Of course, three years later, Congress passed the
ADEA. See id.; see also Kleber v. CareFusion
Corp., 914 F.3d 480, 496 (7th Cir. 2019) (en banc)
(Hamilton, J., dissenting) (addressing the remarkable
similarity of the two statutes). The Court will accordingly
resolve PCH's motion to dismiss Count I under the ADEA.
to the merits, PCH once again argues in its motion to dismiss
that: (1) Davis's complaint was untimely; (2) certain
allegations are outside the statutes of limitations; and (3)
the discrimination claims are ...