United States District Court, C.D. Illinois, Peoria Division
RICHARD C. MENKEN, Plaintiff,
THE BOARD OF TRUSTEES OF ILLINOIS STATE UNIVERSITY, Defendant.
ORDER AND OPINION
E. Shadid, United States District Judge
before the Court is Defendant's Motion to Dismiss
Plaintiff's Complaint for Failure to State a Claim
Pursuant to Rule 12(b)(6). Doc. 4. Defendant simultaneously
filed a Memorandum in Support of its Motion to Dismiss
Plaintiff's Complaint for Failure to State a Claim. Doc.
5. Plaintiff filed a timely Response on March 15, 2019. Doc.
6. On April 8, 2019, Plaintiff provided to the Court as a
supplement a Right to Sue letter postmarked March 20, 2019.
Doc. 9. For the reasons that follow, Defendant's Motion
is GRANTED. Plaintiff is granted to leave to file an amended
complaint within 30 days if he has a good-faith basis for
is a 59-year-old white male who was employed by Illinois
State University as a plumber. Doc. 1, pp. 2-3. In his
two-count retaliation complaint against the Illinois State
University Board of Trustees, he claims Illinois State
University discriminated against and harassed him on account
of his age, and retaliated against him after he reported the
discriminatory conduct. Id. at 3. The two counts of
his complaint relate to two separate time periods: from
October 2015 through August 2016, and from May 2017 through
October 2017, respectively. Plaintiff brings his claims under
the Age Discrimination and Employment Act, 29 U.S.C. §
621 et seq. (“ADEA”) and the Illinois
Human Rights Act, 755 ILCS 5/1-1101 et seq.
reported the discriminatory conduct occurring from October
2015 through August 2016 to Illinois State University, the
Illinois Department of Human Rights (“IDHR”)
(Charge No. 2017 SA 0592), and the EEOC (Charge No. 21
BA62237). Id. He received an EEOC Right to Sue
letter for these allegations around March 29, 2018, which
stated that he had until around June 29, 2018 to file suit in
Federal Court. Doc. 5, p. 2.
November 6, 2017, Plaintiff again filed a charge with the
IDHR (Charge No. 2018 SF 1469), which was cross-filed with
the EEOC (Charge No. 21 BA 80641), for discrimination,
harassment, and retaliation occurring from May 2017 through
October 2017. Doc. 6, p. 5. Plaintiff subsequently received a
Right to Sue letter postmarked March 20, 2019, which he
provided to the Court as a supplement on April 8, 2019. Doc.
December 11, 2018, Plaintiff filed the initial complaint in
this case. Doc. 1. Defendant filed a motion to dismiss for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) on
March 1, 2019, to which Plaintiff responded on March 15,
2019. Defendant bases its motion on two grounds: failure to
adequately allege how Plaintiff has exhausted his
administrative remedies, and failure to state a claim for
retaliation against Defendant. Doc. 4, p. 2. This Order
Events related to Count I
was employed by Defendant as a plumber at all times relevant
to his complaint. Doc. 5, p. 1. Beginning in October 2015
throughout August 2016, Plaintiff was harassed and
discriminated against on account of his age, although he does
not specify how. Doc. 1, p. 3. He reported the alleged
discriminatory conduct to Illinois State University and filed
charges with the IDHR (Charge No. 2017 SA 0592) and the EEOC
(Charge No. 21 BA62237). Id. Plaintiff states he was
then retaliated against for his complaints and opposition,
although, again, he does not provide further detail.
Id. On or around March 29, 2018, Plaintiff received
an EEOC Right to Sue letter for these allegations taking
place from October 2015 through August 2016. Doc. 5, p. 2.
The Right to Sue letter stated that Plaintiff had until
around June 29, 2018 to file suit in federal court.
Id. There is no indication that Plaintiff proceeded
with a lawsuit related to these charges.
2, 2017, Plaintiff received verbal discipline from James
Ganieany, the Illinois State University Superintendent. Doc.
1, p. 2. Plaintiff does not offer any context as to what the
discipline was for or how it occurred. He believes this
alleged discipline was in retaliation for his IDHR and EEOC
charges with regard to harassment and age discrimination, as
Defendant had full knowledge that Plaintiff had reported the
alleged violations. Id., at 4. On May 8, 2017,
Plaintiff spoke to Steve Lancaster, the Illinois State
University Assistant Director of Facilities Management.
Plaintiff allegedly asked, “if this harassment and
discipline is necessary, ” to which Lancaster replied,
“Yes, so long as something is pending.” Doc. 5,
Events related to Count II
May 2017 and until October 2017, Plaintiff was routinely
assigned less desirable, more physically demanding and
increasingly dangerous work, which he alleges effectively
forced him to retire early. He does not describe the work or
how it differed from his past responsibilities. Plaintiff
submitted retirement paperwork in September 2017, although he
continued to work pending its processing. On October 16,
2017, Plaintiff was given a high priority work order dated
October 13, 2017, which required him to clean up feces in an
unsafe and unsanitary condition. Plaintiff does not go into
further detail about how or why the work he performed was
unsafe or unsanitary. He claims this job entailed extremely
physical manual labor which caused him injury, and that he
was assigned this work order because someone else refused to
do it. Plaintiff neglects to explain how he was injured. The
plumbing foreman allegedly assigned the work order to
Plaintiff with full knowledge of his pending EEOC charge.
Plaintiff believes this was in retaliation for engaging in
statutorily protected activity and filing formal charges.
Doc. 5, p. 2.
November 6, 2017, Plaintiff again filed a complaint with the
IDHR (Charge No. 2018 SF 1469) which was cross-filed with the
EEOC (Charge No. 21 BA 80641) for the conduct occurring from
May 2017 through October 2017. Doc. 6, p. 5. Plaintiff
received a Right to Sue letter dated March 20, 2019,
indicating that the investigation was completed on September
12, 2018. Id. at 2.