United States District Court, N.D. Illinois, Eastern Division
JOHN J. IZAGUIRRE, Plaintiff,
CROWN ENERGY SERVICES, INC., d/b/a ABLE ENGINEERING SERVICES, Defendant.
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge.
John J. Izaguirre, who is proceeding pro se, sued
his employer, Defendant Crown Energy Services, Inc., d/b/a
Able Engineering Services (“Able”), alleging that
Able has discriminated against him on the basis of color,
national origin, race, age, and disability. Able has moved to
dismiss Izaguirre's complaint pursuant to Federal Rules
of Civil Procedure 12(b)(5) and 12(b)(6). For the reasons
stated herein, Able's motion is granted.
and Procedural Background
has worked for Able since September 2013 and is currently
employed as an Operating Engineer. Compl. at 9, ECF No.
According to documentation from the EEOC, Izaguirre filed a
charge of national-origin discrimination against Able on
August 10, 2018. Id. The charge states that Able
failed to contribute to Izaguirre's pension from January
2014 to February 2015.
then filed an amended charge of national-origin
discrimination and retaliation on December 12, 2018.
Id. at 8. The amended charge reiterates that Able
failed to contribute to Izaguirre's pension from January
2014 through February 2015, and adds that Able also failed to
provide him with health insurance for the same period.
Id. Additionally, the charge states that Izaguirre
was subjected to harassment, falsely accused of criminal
conduct, and suspended twice. Id. It further
indicates that Izaguirre has been treated differently than
his white co-workers, including having his time-off requests
rejected or rescinded and being forced to perform duties
outside of his job description. Id. Finally, it
states that Able failed to step in when a co-worker hacked
Izaguirre's social media account. Id. at 8.
EEOC issued Izaguirre a notice of right to sue on December
13, 2018. Id. at 7. This lawsuit followed on
February 28, 2019. Id. at 1. Izaguirre's
complaint indicates that Able failed to accommodate his
disabilities, failed to stop harassment, retaliated against
him, “suspended [him] for [an] alleged murder
conspiracy, ” and suspended him in December 2017 in
retaliation for complaining about harassment by a coworker
who “accu[sed] [Izaguirre] of plotting to murder
him.” Id. at 4-5. Based on this conduct,
Izaguirre brings claims for discrimination on the basis of
color, national origin, and race, in violation of Title VII
of the Civil Rights Act of 1964 and 42 U.S.C. § 1981;
discrimination on the basis of age, in violation of the Age
Discrimination in Employment Act (“ADEA”); and
discrimination on the basis of disability, in violation of
the Americans with Disabilities Act (“ADA”) and
the Rehabilitation Act (“RA”). Id.
Federal Rule of Civil Procedure 12(b)(5), a complaint may be
dismissed for insufficient service of process. “The
plaintiff bears the burden to demonstrate that the district
court has jurisdiction over each defendant through effective
service.” Cardenas v. City of Chi., 646 F.3d
1001, 1005 (7th Cir. 2011). Where the plaintiff has not met
his burden “and lacks good cause for not perfecting
service, the district court must either dismiss the suit or
specify a time within which the plaintiff must serve the
defendant.” Id. “[T]he decision of
whether to dismiss or extend the period for service is
inherently discretionary.” Id.
survive a motion to dismiss pursuant to 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 at 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. Documents filed
by a pro se party are “to be liberally
construed [and] a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (internal quotations
and citations omitted).
moves to dismiss pursuant to Rule 12(b)(5), arguing that it
was not served with process in accordance with Rule 4. In
addition, Able contends, Izaguirre's complaint should be
dismissed pursuant to Rule 12(b)(6) because (1) he did not
file a timely charge with the EEOC; and (2) he failed to
exhaust his administrative remedies with regards to age,
color, disability, and race discrimination.
the issue of service, Able provides the declaration of
Russell Hale, a Senior Human Resources Business Partner at
Able. See Def.'s Mem. Supp. Mot. Dismiss, Ex. A
(“Hale Decl.”), ECF No. 15-1. Hale states that
Izaguirre visited Able's office on February 28, 2019, and
handed a copy of the complaint and summons to Lucy Wasson, an
administrative assistant. Id. ¶¶ 5-6.
Accordingly, Able contends, Izaguirre's attempt at
service violates Rules 4(c)(2) and 4(h).
correct. Rule 4(c)(2) requires that a summons be served by an
individual who is “not a party” to the
litigation. Fed.R.Civ.P. 4(c)(2). Here, because Izaguirre is
a party, he cannot personally serve Able. This requirement
applies with equal force to pro se plaintiffs.
See Gharb v. Rockwell Automation, No. 11-cv-405,
2011 WL 5373989, at *3 (N.D. Ill. Nov. 4, 2011) (explaining
that plaintiff's pro se status “does not
excuse failure to properly serve process under Rule
attempt at service is improper for the additional reason that
it violates Rule 4(h), which requires that a corporation be
served via delivery of the complaint and summons to “an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process” on behalf of that corporation. Fed.R.Civ.P.
4(h). Here, Izaguirre hand-delivered a copy of the complaint