United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE
Rodney Howell claims he was discriminated against by his
employer, Local 773 Laborers International Union of North
America (“Local 773”) on account of his age and
disability, in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621,
et seq., and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq.
Now before the Court is Defendant Local 773's Motion to
Dismiss (Doc. 9) and Howell's response (Doc. 13). For the
following reasons, the Motion is GRANTED in part and
DENIED in part.
to the Complaint (Doc. 1), Howell was employed as a labor
organizer until the termination of his employment on February
4, 2018. The next day, he filed a Charge of Discrimination
with the EEOC (numbered 440-2018-02879) alleging retaliation
and disability discrimination because his employment was
terminated after he took medical leave due to a disability
(Doc. 11, p. 5). He was issued a Notice of Right to Sue by
the EEOC on February 14, 2018 (“2879 Notice”)
(Doc. 11, p. 2).
then filed a Charge of Discrimination with the Illinois
Department of Human Rights (“IDHR”) (numbered
2018SA2435) on August 16, 2018, alleging disability and age
discrimination (“IDHR Charge”). (Doc. 11, pp.
7-8). He withdrew the IDHR Charge and the claim was closed on
November 13, 2018 (Doc. 11, p. 10).
December 14, 2018, the EEOC issued another Notice of Right to
Sue indicating that more than 180 days had passed since the
filing of the associated Charge numbered 21B-2018-01280
(“1280 Notice”) (Doc. 11, p. 13). The Notice
further informed Howell that he had 90 days to file a lawsuit
pursuant to the ADA and the ADEA. Howell filed the instant
lawsuit on March 11, 2019 asserting two counts; age
discrimination (Count I) and disability discrimination (Count
773 seeks dismissal of Counts I and II pursuant to Federal
Rule of Civil Procedure 12(b)(1), arguing this Court lacks
subject matter jurisdiction because the Complaint is
untimely. In the alternative, Local 773 seeks dismissal of
Count I pursuant to Rule 12(b)(6) for failure to state a
claim, contending it is not an “employer” under
12(b)(1) requires dismissal if the Court lacks subject matter
jurisdiction. See Fed. R. Civ. P. 12(b)(1). When a
defendant makes a 12(b)(1) challenge, the plaintiff bears the
burden of establishing jurisdiction. Scanlan v.
Eisenberg, 669 F.3d 838, 841-2 (7th Cir. 2012).
“[A] district court must accept as true all
well-pleaded factual allegations and draw all reasonable
inferences in favor of the plaintiff.” St.
John's United Church of Christ v. City of Chi., 502
F.3d 616, 625 (7th Cir. 2007). The Court may receive and
weigh evidence outside allegations in the Complaint to
determine if it has subject matter over the case. See
773 argues this Court lacks subject matter jurisdiction
because the Complaint was filed more than 90 days after
Howell received the first Notice of Right to Sue from the
EEOC. The filing of a timely charge of discrimination and
subsequent lawsuit are not jurisdictional prerequisites -
they are like statute of limitations and are subject to
equitable considerations. Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982); see also Gibson v.
West, 201 F.3d 990, 993 (7th Cir. 2000). As such, Local
773's argument that this Court lacks subject matter
jurisdiction is not determinative.
ADA claim is nevertheless subject to dismissal under Rule
12(b)(6). As is true under Rule 12(b)(1), when
considering a motion to dismiss under Rule 12(b)(6), the
Court accepts as true all facts alleged in the Complaint and
construes all reasonable inferences in favor of the
plaintiff. Savory v. Lyons, 469 F.3d 667, 670 (7th
Cir. 2006). To state a claim upon which relief can be
granted, a Complaint must contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). “Detailed
factual allegations” are not required, but the
plaintiff must allege facts that when “accepted as
true...state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007). “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.”
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
a general rule, on a Rule 12(b)(6) motion, the court may
consider only the plaintiff's complaint.”
Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661
(7th Cir. 2002). However, there is an exception which permits
a court to treat as part of the pleadings, documents that are
“referred to in the plaintiff's complaint and are
central to [the plaintiff's] claim.” 188 LLC v.
Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002).
Howell's Charge of Discrimination and related documents
are central to his claim and will be considered.
alleges his employment was terminated on February 4, 2018.
Both the ADEA and the ADA require Howell to file a charge of
discrimination within 300 days of the discriminatory act and
any subsequent lawsuit must be filed within 90 days of
receipt of a Notice of Right to Sue from the EEOC.
See 29 U.S.C. 626(d)(1)(B) and (e) and 42 U.S.C.
§§ 2000e-5(e) and 12117(a) (adopting the exhaustion
and filing requirements of Title VII for ADA claims). A
Notice of Right to Sue is a prerequisite for filing a lawsuit
and claims made in the lawsuit must be within the scope of
the Charge of Discrimination filed with the EEOC. Conner
v. Illinois Dept. of Natural Resources, 413 F.3d 675,
680 (7th Cir. 2005). Howell timely filed a Charge alleging
disability discrimination and retaliation. However, he did
not file this lawsuit within 90 days of receiving the 2879
Notice. As such, his ADA disability claim is time-barred and
will be dismissed Howell asserted age discrimination for the
first time in his Charge of Discrimination filed with the
IDHR on August 16, 2018. Local 773 argues that this Charge is
untimely because it was filed more than 180 days after
February 4, 2018. Local 773 also argues that the Charge
associated with the 1280 Notice is identical to the IDHR
Charge but has not provided the Court with a copy of that
Charge. In any event, the 1280 Notice states that it has been
more than 180 days since the filing of “this
charge.” 180 days prior to December 14, 2018 is
February 17, 2018. Therefore, the 1280 Notice cannot refer to
the IDHR Charge filed on August 16, 2018. Without a copy of
the Charge referenced in the 1280 Notice, it is unclear
whether Howell failed to exhaust his administrative remedies
as to his ADEA claim.
773 argues in the alternative that Howell's ADEA claims
must be dismissed because it is not an “employer”
within the meaning of the act. To support this argument, it
has attached the Affidavit of Cindy Marlow. This affidavit
and the information contained therein are not a part of the
record and will not be considered within the context of ...