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Izaguirre v. Crown Energy Services, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 23, 2019



          John Z. Lee United States District Judge.

         Plaintiff 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.

         Factual and Procedural Background[1]

         Izaguirre has worked for Able since September 2013 and is currently employed as an Operating Engineer. Compl. at 9, ECF No. 1.[2] 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.

         Izaguirre 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Izaguirre has been treated differently than his white co-workers, including having his time-off requests rejected or rescinded and being forced to perform duties outside of his job description.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.

         The 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. ¶ 4.

         Legal Standard

         Under 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.

         To 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).


         Able 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.

         As to 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).

         This is 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 4”).

         Izaguirre's 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 and ...

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