Dancy v. Jack&s Premium Car Wash And Oil Lube LLC

• Decision Date: 16 March 2011
• Docket Number: Case No. 09-cv-0965-MJR-DGW
• Parties: ANDRAE T. DANCY, Plaintiff, v. JACK'S PREMIUM CAR WASH AND OIL LUBE, LLC, Defendant.
• Court: U.S. District Court — Southern District of Illinois

ANDRAE T. DANCY, Plaintiff,

v.JACK'S PREMIUM CAR WASH AND OIL LUBE, LLC, Defendant.

Case No. 09-cv-0965-MJR-DGW

THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DATED: March 16, 2011

MEMORANDUM and ORDER

REAGAN, District Judge:

I. Introduction and Procedural Background

The Motion to Dismiss and Strike Plaintiff's Third Amended Complaint (Doc. 18) filed by defendant Jack's Premium Car Wash and Oil Lube, LLC ("Jack's") is before the Court. Plaintiff Andrae T. Dancy ("Dancy") has filed a response (Doc. 23). Jack's has filed a reply (Doc. 24). For the reasons discussed, the Court finds that Jack's motion should be denied in part and granted in part.

In November, 2009, Plaintiff Andrae T. Dancy, then proceeding pro se, filed suit in the District Court of the Southern District of Illinois, alleging employment discrimination due to race, in violation of Section 703(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (2006), and employment discrimination based on disability in violation of Section 102 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(a) (Doc. 1). On November 23, 2009, Dancy filed his First Amended Complaint requesting jury trial (Doc. 4). On April 27, 2010, withassistance of counsel, Dancy filed his Second Amended Complaint, adding claims based on: the Civil Rights Act of 1991, 42 U.S.C. § 1981(a), 42 U.S.C. § 1988; the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b); the Illinois Minimum Wage Law (IMWL), 820 ILSC 105/4(a)(1); and the Illinois Wage and Collection Act, 820 ILCS 115/ et seq. (Doc. 12). In response, Jack's filed a Motion to Dismiss and Strike Plaintiffs Second Amended Complaint (Doc. 15). On June 22, 2010, Dancy filed a Third Amended Complaint in lieu of filing a Reply to Jack's Motion to Dismiss and Strike (Doc. 17). Jack's then filed a Motion to Dismiss and Strike five of Dancy's seven counts pursuant to Federal Rule of Civil Procedure 12(b)(6) (Docs. 18 and 19).

The motion to dismiss has been fully briefed by the parties, and the Court now rules as follows.

II. Applicable Legal Standards

Dismissal is warranted under Rule 12(b)(6) if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). In making this assessment, the District Court accepts as true all well-pled factual allegations and draws all reasonable inferences in the plaintiffs favor. Tricontinental Industries, Inc., Ltd. v. Price Waterhouse Coopers, LLP, 475 F.3d 824, 833 (7th Cir. 2007); Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006). Although federal complaints need only plead claims (not facts), the pleading regime created by Bell Atlantic requires the complaint to allege a plausible theory of liability against the defendant. Sheridan v. Marathon Petroleum Co., LLC, 530 F.3d 590, 596 (7th Cir. 2008); see also Limestone Dev. Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803-804 (7th Cir. 2008).

In Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008), the Court of Appeals for the Seventh Circuit emphasized that even though Bell Atlantic "retooled federal pleading standards, " notice pleading is still all that is required. "A plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief." Id. Accord Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008) (the allegations "must be enough to raise a right to relief above the speculative level").

Under that minimal pleading standard, "in order to prevent dismissal under Rule 12(b)(6), a complaint alleging [employment] discrimination need only aver that the employer instituted a (specified) adverse employment action against the plaintiff on the basis of her [protected status]." Tamayo, 526 F.3d. at 1084. "[O]nce a plaintiff alleging illegal discrimination has clarified that it is on the basis of her [protected status], there is no further information that is both easy to provide and of clear critical importance to the claim." EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 782 (7th Cir. 2007).

III. Analysis

A. Plaintiff has Exhausted his A dministrative Remedies

Before a plaintiff may assert a claim under the Americans with Disabilities Act (ADA) or Title VII in federal court, he must file a timely charge with the EEOC detailing the discriminatory conduct and receive authorization from the EEOC to file a civil action (called a right-to-sue letter). 42 U.S.C. §§ 2000e-5(b), (f); Conner v. Ill. Dep't Nat. Res., 413 F.3d 675, 680 (7th Cir. 2005). Once the plaintiff files a timely charge with the EEOC, the statute provides that the EEOC "shall" investigate the charge and make a reasonable cause determination no laterthan 120 days from the filing of the charge. 42 U.S.C. § 2000e-5(b). The statute also directs the EEOC to issue the right-to-sue letter if it dismisses the charge or 180 days have elapsed from the filing of the charge and the EEOC has not entered into a conciliation agreement or filed a civil action. 42 U.S.C. § 2000e-5(f)(1). Once the right-to-sue notice is given, the aggrieved party has 90 days to institute suit. Id. In addition, the EEOC has promulgated a regulation that permits it to issue an early right-to-sue letter before 180 days has elapsed if: (1) the aggrieved party submits a written request for the early notice, and (2) an appropriate EEOC official determines "that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect." 29 C.F.R. § 1601.28(a)(2). Krause v. Turnberry Country Club, 571 F. Supp. 2d 851, 858 (N.D. Ill. 2008).

Dancy alleges that he was interviewed by an EEOC investigator on September 8, 2009 (Doc. 17, ¶ 6). After insisting upon filing a Charge of Discrimination, the investigator drafted a charge and then issued Dancy an immediate Dismissal and right-to-sue letter, which is dated September 18, 2009 (Doc. 17, ¶¶ 6-7; Doc. 1-1, p. 3). Dancy attached the right-to-sue letter to his Complaint pursuant to 29 C.F.R. § 1601.28(a)(2) (Doc. 1-1). Jack's provides two arguments in support of its position that Dancy failed to exhaust his administrative remedies for Counts I and II, the ADA and Title VII discrimination claims, before filing the current action (Doc. 19).

First, Jack's contends the issuance of a right-to-sue letter prior to the expiration of the 180 day period set forth in Section 2000e-5(f)(1) is invalid, as in conflict with Title VII and the ADA (Doc. 19). As discussed above, Title VII authorizes the EEOC to issue a right-to-sueletter when the EEOC either dismisses the charges filed or if, within 180 days from the filing of the charge, the EEOC has not filed a civil action or entered into a conciliation agreement. 42 U.S.C. § 2000e-5(f)(1). Moreover, the EEOC regulation permits an early right-to-sue notice to be issued before the expiration of the 180-day period if it is probable "that it will be unable to complete its processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect." 29 C.F.R. § 1601.28(a)(2).

Courts have engaged in considerable discussion regarding the validity of C.F.R. § 1601.28(a)(2). While the Seventh Circuit has not yet addressed the issue, three Circuits have upheld this regulation as consistent with statutory policy, and have permitted Title VII actions to go forward before the expiration of the 180-day period. See Walker v. United Parcel Serv., 240 F.3d 1268, 1277 (10th Cir. 2001); Sims v. Trus Joist MacMillan, 22 F.3d 1059 (11th Cir. 1994); Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726 (9th Cir. 1984). In contrast, one Circuit has taken the opposite position, finding the regulation violates Congress' intent that the EEOC retain primary jurisdiction over a claim for 180 days. Martini v. Federal National Mortgage Association, 178 F.3d 1336 (D.C. Cir. 1999).

Courts in the Northern District of Illinois have also had occasion to address the validity of 29 C.F.R. § 1601.28(a)(2) and early right-to-sue letters and have upheld the regulation. See Ravenscraft v. BNPMedia, Inc., No. 09 C 6617, 2010 WL 1541455, at *4 (N.D. Ill. 2010); Krause v. Turnberry Country Club, JMB, 571 F. Supp. 2d 851, 860 (N.D. Ill. 2008); Berry v. Delta Air Lines, Inc., 75 F. Supp. 2d 890, 890-93 (N.D. Ill. 1999); Baker v. Gardner, Carton & Douglas, No. 97 C 2649, 1997 WL 78712, at *1-2, (N.D. Ill. 1997); Martinez v. Labelmaster, No. 96 C 4189, 1996 WL 580893, *1-6 (N.D. Ill. 1996); Rolark v. Univ. of Chicago Hosp., 688F. Supp. 401, 402-04 (N.D. Ill. 1988); see also King v. Dunn Mem'l Hosp., 120 F. Supp. 2d 752, 755 (S.D. Ind. 2000) (finding EEOC could issue right to sue letter ten days after receipt of complaint alleging violation of the ADA). Following the weight of the Circuits and the reasoning presented in those cases, in addition to those provided within the Northern District of Illinois, this Court concludes that 29 C.F.R. § 1601.28(a)(2) is not invalid, as it does not conflict with Title VII or the ADA. Put succinctly, Section 2000e-5(f)(1) ties the 180-day period to inaction; 29 C.F.R. § 1601.28(a) merely offers a method for shortening a Commission-certified delay. Dancy has fulfilled the conditions precedent by receiving his EEOC right-to-sue letter and subsequently filing this lawsuit within 90 days of receipt. Therefore, the Court finds that dismissal on this ground is not proper.

Second, Jack's urges the Court to dismiss Counts I and II because Dancy failed to attach the written certification to his Third Amended Complaint pursuant to 29 C.F.R. § 1601.28(a)(2). As...