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Menken v. The Board of Trustees of Illinois State University

United States District Court, C.D. Illinois, Peoria Division

July 24, 2019

RICHARD C. MENKEN, Plaintiff,
v.
THE BOARD OF TRUSTEES OF ILLINOIS STATE UNIVERSITY, Defendant.

          ORDER AND OPINION

          James E. Shadid, United States District Judge

         Now 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 doing so.

         BACKGROUND[1]

         Plaintiff 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. (“IHRA”). Id.

         Plaintiff 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.

         On 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. 9.

         On 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 follows.

         1. Events related to Count I

         Plaintiff 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.

         On May 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, p. 2.

         2. Events related to Count II

         Throughout 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.

         On 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.

         LEGAL ...


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