United States District Court, N.D. Illinois, Western Division
John H. Cover, Jr., Plaintiff,
OSF Healthcare Systems, Defendant.
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge
Court dismissed John Cover's pro se employment
discrimination complaint as untimely based on the date of the
charge he filed with the EEOC. See R. 23. Cover
moved to reconsider, arguing that the intake questionnaire he
filed with the EEOC prior to filing his charge served as
timely notice of his claims. See R. 25. The Court
ordered supplemental briefing on this issue, because the
Supreme Court's decision in Federal Express
Corporation v. Holowecki, 552 U.S. 389 (2008), plausibly
supports Cover's argument. See R. 26.
supplemental brief, Cover argued that a “brief”
he attached to his EEOC intake questionnaire satisfied the
Holowecki standard. See R. 33. The Court
noted that Cover had neglected to file that
“brief” with the Court and ordered him to do so.
See R. 34. The Court then asked the parties to
address whether the brief Cover attached to his EEOC intake
questionnaire satisfied the Holowecki standard.
See R. 36. Cover and defendant OSF filed briefs on
the Holowecki issue, and OSF, in the alternative,
reasserted its argument that Cover failed to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6), which
it had made in its original motion to dismiss, see
R. 37. For the following reasons, Cover's motion to
reconsider is denied in part and granted in part.
to Holowecki, an intake questionnaire can suffice as
a “charge” if it can be “reasonably
construed as a request for the agency to take remedial action
to protect the employee's rights or otherwise settle a
dispute between the employer and the employee.” 552
U.S. at 402; see also E.E.O.C. v. Watkins Motor Lines,
Inc., 553 F.3d 593, 597-98 (7th Cir. 2009) (“We
know from [Holowecki], that a document may be a
‘charge' even if it lacks an appropriate caption
and charging language. A piece of paper that alleges
discrimination and asks the agency to take remedial action
suffices.”). The regulation that informed the
Holowecki decision requires a “charge”
to include a “clear concise statement of the facts . .
. constituting the alleged unlawful employment
practices.” 29 C.F.R. § 1626.8(a)(3).
“brief” Cover attached to his intake
questionnaire relates the events, dates, and individuals
involved in what Cover alleges to be discriminatory conduct
by defendant OSF. OSF argues that “no discrimination,
harassment, or retaliation is alleged” in the brief. R.
37 at 6. But that is a legal argument regarding whether Cover
has stated a claim, which is not relevant to determining
whether his complaint is timely. Holowecki does not
require a plaintiff to state a plausible claim of
discrimination in his charge or intake questionnaire. Rather,
Holowecki holds that a plaintiff's
discrimination claim in federal court is timely as long as he
timely gave administrative notice of the factual
circumstances he believed to violate the law, whether
presented in the EEOC charge itself, or in documents filed
with the intake questionnaire. Cover did that, so his
complaint is timely.
also argues that the Court should deny Cover's motion for
reconsideration because he fails to meet the high standards
of review under Federal Rules of Civil Procedure 59(e) or
60(b). But the Court's initial order dismissing the case
as untimely, see R. 23, was based on an error of law
that satisfies Rule 59. In that order, the Court held that
the complaint was untimely because the date of Cover's
EEOC charge was more than 300 days after OSF's allegedly
discriminatory actions. This was an error of law because
Holowecki permits other earlier-filed
documents-i.e., the EEOC intake forms-to satisfy the
deadline. Further, timeliness is an affirmative defense Cover
is not required to plead. Cover's failure to raise
Holowecki in his initial opposition to the motion to
dismiss is forgiven in light of his pro se status.
also moved to dismiss Cover's complaint for failure to
state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). A Rule 12(b)(6) motion challenges the
“sufficiency of the complaint.” Berger v.
Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th
Cir. 2016). A complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim
and the basis for it. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). This standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). While “detailed factual allegations”
are not required, “labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. The
complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570).
“‘A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Boucher v. Fin.
Sys. of Green Bay, Inc., 880 F.3d 362, 366 (7th Cir.
2018) (quoting Iqbal, 556 U.S. at 678). In applying
this standard, the Court accepts all well-pleaded facts as
true and draws all reasonable inferences in favor of the
non-moving party. Tobey v. Chibucos, 890 F.3d 634,
646 (7th Cir. 2018).
claims OSF: (1) discriminated against him based on his age
and sex; and (2) retaliated against him. As an initial
matter, any claim of sex discrimination is dismissed because
Cover did not first present such a claim to the EEOC. Neither
Cover's EEOC charge nor his EEOC intake questionnaire
indicated a claim of sex discrimination, whether by checking
the box for sex discrimination, or by describing conduct
related to his sex. Since Cover didn't raise a claim of
sex discrimination with the EEOC, he can't “raise
it for the first time in federal court.” See Hamzah
v. Woodman's Food Mkt., Inc., 693 Fed.Appx. 455, 458
(7th Cir. 2017) (“In that charge, Hamzah marked the
check-boxes for discrimination on the basis of race,
retaliation, and age, but not sex. In the narrative section
of the charge, he did not include any factual allegations
related to his sexual orientation.”). Cover's sex
discrimination claim is dismissed for that reason.
state a claim of age discrimination, Cover must simply allege
that he suffered an adverse employment action because of his
age. See Samovsky v. Nordstrom, Inc., 619 Fed.
App'x 547, 548 (7th Cir. 2015) (citing Tamayo v.
Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008));
see also Tate v. SCR Med. Transp., 809 F.3d 343, 346
(7th Cir. 2015) (“In order to prevent dismissal under
Rule 12(b)(6), a complaint alleging sex discrimination need
only aver that the employer instituted a (specified) adverse
employment action against the plaintiff on the basis of her
sex.”). In his complaint, Cover describes a series of
unpleasant experiences he had at work. He alleges that he
“was subjected to ridicule, [foul] language, name
calling, etc. by the supervisor.” R. 1 at 5. He says
that after he reported his supervisor's conduct to
“management, ” he was “subjected to more
intense, harassing treatment including discipline for his
alleged work performance and other subjective things.”
Id. at 6. Cover alleges that he was subjected to
unwarranted “write-ups” related to his
performance, which prevented him from transferring to another
department. Id. at 6-8. Cover eventually resigned
rather than continue to work in this environment.
Id. at 9-10.
or not Cover's allegations rise to the level of a hostile
work environment, he never alleges that he suffered this
alleged discrimination because of his age. See McCurry v.
Kenco Logistics Servs., LLC, 942 F.3d 783, 789 (7th Cir.
2019) (“The ADEA prohibits an employer from refusing to
hire a person who is 40 or older because of his
age.”) (emphasis added); see also McDaniel v.
Progress Rail Locomotive, Inc., 940 F.3d 360, 367 (7th
Cir. 2019) (“[I]t's not enough to show that age was
a motivating factor. The plaintiff must prove that, but for
his age, the adverse action would not have occurred.”).
Cover never even mentions his age in his complaint. Further,
there is nothing about Cover's allegations that would
allow the Court to plausibly infer that his age caused the
allegedly hostile actions. Indeed, Cover alleges that his
experience was simply one example of “serious personnel
problems” that exist generally in his ...