United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
suit against his employer, Hotel Grand Sheraton, Jose Lopez
alleges violations of the Age Discrimination in Employment
Act of 1967 (“ADEA”), 29 U.S.C. § 621 et
seq., Title VII of the Civil Rights Act of 1964, 42
U.S.C § 2000e et seq., and 42 U.S.C. §
1981. Doc. 11. Sheraton moves to dismiss the complaint under
Civil Rule 12(b)(6). Doc. 17. The motion is granted as to the
ADEA and Title VII claims and denied as to the § 1981
resolving a Rule 12(b)(6) motion, the court assumes the truth
of the operative complaint's well-pleaded factual
allegations, but not its legal conclusions. See Zahn v.
N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th
Cir. 2016). The court must also consider “documents
attached to the complaint, documents that are critical to the
complaint and referred to in it, and information that is
subject to proper judicial notice, ” along with
additional facts set forth in Lopez's brief opposing
dismissal, so long as those additional facts “are
consistent with the pleadings.” Phillips v.
Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th
Cir. 2013) (internal quotation marks omitted). The facts are
set forth as favorably to Lopez as those materials permit.
See Domanus v. Locke Lord, LLP, 847 F.3d 469, 478-79
(7th Cir. 2017). In setting forth the facts at this stage,
the court does not vouch for their accuracy. See Goldberg
v. United States, 881 F.3d 529, 531 (7th Cir. 2018).
works as a banquet server at Sheraton. Doc. 11 at 2, 9. On
November 8, 2018, he filed a charge of discrimination with
the U.S. Equal Employment Opportunity Commission
(“EEOC”). Id. at 9. The charge alleged
that Lopez suffered discrimination based on his Hispanic
national origin and age in that Sheraton did not provide him
with access to a scheduling application that would have
allowed him to obtain work assignments. Ibid.
November 29, 2018, the EEOC issued Lopez a right-to-sue
letter, which he received that day. Id. at 3, 8. The
letter explained that if Lopez chose to bring a lawsuit, it
“must be filed WITHIN 90 DAYS of your
receipt of this notice.” Id. at 8.
Lopez filed this suit on April 22, 2019, Doc. 1, more than
140 days after he received his right-to-sue letter.
contends that Lopez's claims should be dismissed on
statute of limitations grounds. Doc. 17 at 3-5. A plaintiff
must file a Title VII or ADEA claim within ninety days of
receiving a right-to-sue letter. See 42 U.S.C.
§ 2000e-5(f)(1); 29 U.S.C. § 626(e); see also
Lee v. Cook Cnty., 635 F.3d 969, 971 (7th Cir. 2011)
(Title VII); Grzanecki v. Bravo Cucina Italiana, 408
Fed.Appx. 993, 995 (7th Cir. 2011) (ADEA); Houston v.
Sidley & Austin, 185 F.3d 837, 838-39 (7th Cir.
1999) (Title VII and ADEA). As noted, Lopez received his
right-to-sue letter on November 29, 2018, and did not file
this suit until April 22, 2019, more than 140 days later. His
Title VII and ADEA claims accordingly are dismissed on
limitations grounds, and because repleading cannot save those
claims, the dismissal is with prejudice. See Conover v.
Lein, 87 F.3d 905, 908 (7th Cir. 1996) (noting that
untimely claims should be dismissed with prejudice).
holding, the court acknowledges that “[d]ismissing a
complaint as untimely at the pleading stage is an unusual
step, since a complaint need not anticipate and overcome
affirmative defenses, such as the statute of
limitations.” Sidney Hillman Health Ctr. of
Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928 (7th
Cir. 2015) (internal quotation marks omitted). That said,
“dismissal under Rule 12(b)(6) … is appropriate
if the complaint contains everything necessary to establish
that the claim is untimely.” Tobey v.
Chibucos, 890 F.3d 634, 645 (7th Cir. 2018) (internal
quotation marks omitted). Thus, to warrant dismissal on
limitations grounds, “the plaintiff must affirmatively
plead himself out of court; the complaint must plainly reveal
that the action is untimely.” Chi. Bldg. Design,
P.C. v. Mongolian House, Inc., 770 F.3d 610, 614 (7th
Cir. 2014) (alterations and internal quotation marks
omitted); see also Hyson USA, Inc. v. Hyson 2U,
Ltd., 821 F.3d 935, 939 (7th Cir. 2016)
(“[B]ecause affirmative defenses frequently turn on
facts not before the court at the pleading stage, dismissal
is appropriate only when the factual allegations in
the complaint unambiguously establish all the elements of the
defense.”) (alteration, citations, and internal
quotation marks omitted). Here, Lopez has “pleaded
himself out of court by pleading facts that showed he did not
file his complaint within 90 days of … the date he
reported receiving notice of the EEOC's decision.”
Avila v. Ill. Dep't of Human Servs., 678
Fed.Appx. 433, 434 (7th Cir. 2017).
explanation that he “did not notice the 90 days
deadline, ” Doc. 23 at 1, does not save his Title VII
and ADEA claims. As the Seventh Circuit has held,
“reasonable mistakes of law are not a basis for
equitable tolling” of a limitations period, even if the
plaintiff is pro se. Williams v. Sims, 390
F.3d 958, 963 (7th Cir. 2004); see also Lombardo v.
United States, 860 F.3d 547, 553 (7th Cir. 2017)
(“Equitable tolling is granted sparingly, where
extraordinary circumstances beyond the litigant's control
prevented timely filing; a mistaken understanding about the
deadline for filing is not grounds for equitable
tolling.”) (internal quotation marks omitted);
Schmidt v. Wis. Div. of Vocational Rehab., 502
Fed.Appx. 612, 614 (7th Cir. 2013) (“[A]lthough Schmidt
did not have legal representation, mistakes of law (even by
plaintiffs proceeding pro se) generally do not excuse
compliance with deadlines or warrant tolling a statute of
§ 1981 claim is not subject to an exhaustion requirement
and thus is not subject to the ninety-day statute of
limitations governing his Title VII and ADEA claims. See
Gray-Brock v. Ill. Am. Water Co., 609 Fed.Appx. 867, 870
(7th Cir. 2015); Randolph v. IMBS, Inc., 368 F.3d
726, 732 (7th Cir. 2004). Sheraton provides no other basis
for dismissing the § 1981 claim, which accordingly may
motion to dismiss is granted in part and denied in part.
Lopez's Title VII and ADEA claims are dismissed with
prejudice. Sheraton shall answer the ...