Myers v. Joliet Twp. High Sch. Dist. No. 204
| Decision Date | 26 July 2013 |
| Docket Number | No. 12 C 1866,12 C 1866 |
| Parties | CLEVELAND MYERS, Plaintiff, v. JOLIET TOWNSHIP HIGH SCHOOL DISTRICT NO. 204 and RICHARD S. PAGLIARO, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
OPINION AND ORDER
Cleveland Myers filed a five-count second amended complaint against his former employer, Joliet Township High School District #204 ("the Board"), and his former supervisor, Richard S. Pagliaro (collectively "defendants").1 Before the court is defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion is granted in part and denied in part.
Myers began working as a custodian for Joliet Township High School in September of 1985. Myers was eventually promoted to heating operator. The terms of his employment were set out in a collective bargaining agreement between the Board and Myers's union. In 2000, Myers filed a lawsuit alleging race discrimination in this court against the District and his supervisor. The lawsuit was ultimately settled. See Meyers v. Bd. of Educ. of Joliet Township High Sch. Dist. No. 204, 00 C 01336. In addition, sometime prior to 2010, Myers filedapproximately four charges of discrimination with the United States Equal Employment Commission ("EEOC") regarding several of the Board's staff members, whom he alleged conspired to retaliate against Myers for his opposition to unlawful employment practices.
On February 2, 2009, Myers slipped on ice in the school parking lot. Myers missed an extended period of work, requiring him to use sick days, vacation days, and his FMLA (Family and Medical Leave Act) unpaid leave while awaiting and recovering from knee replacement surgery.
On January 25, 2010, Pagliaro, the Assistant Superintendent of Joliet Township High School, issued a return to work notice to Myers. The notice indicated that Myers had exhausted all of his vacation allocation, sick leave, personal leave, and FMLA leave. The notice further indicated that Myers had been released to return to work on April 2, 2009, and on April 15, 2009, Myers's personal physician released him to return to work on light duty. Myers returned to work for 23 minutes on April 15, 2009; however, he left and has not been able to work since that day.
When Myers explained that he could not return to work due to his health issues, Pagliaro on January 28, 2010 recommended Myers's termination, stating that Myers was unable to perform his job functions and had exhausted all available sick, personal, vacation and FMLA leave. When notified of the situation, Myers's union president, Timothy Healy, presented Myers with a list of seven Caucasian individuals who had previously received or were receiving workers' compensation without any disciplinary repercussions. Healy also presented the list to the Board at their meeting on February 16, 2010.
On February 18, 2010, the Board officially terminated Myers's employment. Healy resubmitted his letter to the Board contending that Myers should be treated like other membersof his union who took disability leave. Myers contends that the termination was in response to his previous grievances filed with the EEOC against the Board for violating the terms of the collective bargaining agreement and trying to remove him from his previously held position.
Myers filed a charge with the EEOC on July 7, 2010 alleging race discrimination. On November 30, 2010, Myers filed an amended charge with the EEOC alleging race discrimination and retaliation. On September 12, 2011, the EEOC sent Myers a right-to-sue letter, which UPS unsuccessfully attempted to deliver twice before returning the letter to its facility as unclaimed. Sometime thereafter, Myers contacted the EEOC and notified them that he never received his right-to-sue letter. The EEOC then sent a right-to-sue letter, which Myers received on December 15, 2011. On March 14, 2012, Myers filed a complaint against the Board and Pagliaro. Myers filed the current five-count second amended complaint on August 20, 2012.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997). In ruling on a Rule 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir.2002). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis, but must also establish that the requested relief is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). At the same time, the plaintiff need not plead legal theories. Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). Rather, it is the facts thatcount. In addition, complaints filed by pro se litigants "are to be liberally construed and not held to the stringent standards expected of pleadings drafted by lawyers." McCormick v. Chicago, 230 F.3d 319, 325 (7th Cir.2000); see also Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007).
Defendants contend that Myers's claims for race discrimination (count I) and retaliation (count II) under Title VII are barred because he failed to bring suit within 90 days of receiving his right-to-sue letter.
A party seeking redress under Title VII must first exhaust administrative remedies by filing a charge of discrimination with the EEOC and file suit within 90 days of receiving a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1); Conner v. Ill. Dep't of Natural Res., 413 F.3d 675, 680 (7th Cir. 2005) (internal citations omitted); see also Davis v. Browner, 113 F. Supp. 2d 1223, 1226 (N.D. Ill. 2000) () (internal quotation omitted). The 90-day time limit begins to run upon the plaintiff's actual notice of the right to sue. See Houston v. Sidley & Austin, 185 F.3d 837, 839 (7th Cir. 1999) (internal citations omitted). While a claimant should not be penalized when they do not receive a right to sue letter through no fault of their own, see Archie v. Chicago Truck Drivers Union, 585 F.2d 210, 216 (7th Cir. 1978), a claimant must take "reasonable steps" to ensure receipt of the right-to-sue letter. See St. Louis v. Alverno Coll., 744 F.2d 1314, 1317 (7th Cir. 1984). When a right-to-sue letter is sent via certified mail and the plaintiff fails to retrieve the letter before it is returned to the EEOC, the actual notice rule does not apply unless the plaintiff delineates a reason explaining why he did not timely retrieve the letter. See Houston,185 F.3d at 839; Jones v. Motorola, Inc., No. 00 C 6439, 2001 WL 864273, at *5 (N.D. Ill. July 30, 2001) (internal citation omitted).
Defendants argue that on September 13, 2011, the EEOC sent a right-to-sue letter to Myers dated September 12, 2011, via UPS and UPS attempted to deliver the package containing the letter to Myers on September 15, 2011, and again on September 20, 2011, leaving notices at Myers's residence both times. Myers, however, never received the correspondence, which was ultimately returned to the UPS facility as unclaimed on October 11, 2011.
Myers argues that he first received the right-to-sue letter dated September 10, 2011 two months later on December 15, 2011. Defendants, however, contend that the UPS tracking numbers demonstrate that Myers failed to take reasonable steps after UPS attempted to deliver his right-to-sue letter in September 2011 and that Myers should be deemed to have received the right-to-sue letter in September 2011. When Myers actually received the right-to-sue letter and whether he failed to take reasonable steps after UPS attempted to deliver the letter are questions of fact that are not properly considered on a motion to dismiss. See, e.g., Sawyer v. Columbia Coll., No. 09-cv-6962, 2010 WL 3081260, at *3 (N.D. Ill. August 5, 2010) () (citing Rosenblum v. Travelbyus.com, Ltd., 299 F.3d 657, 661 (7th Cir. 2002)).3 Accordingly, defendants' motion to dismiss Counts I and II is denied.
Defendants contend that Myers's intentional infliction of emotional distress claim (count V) should be dismissed because it is barred by the statute of limitations in the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"). While the statute of limitations is an affirmative defense that need not be anticipated in the complaint to survive a motion to dismiss, see United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005), a plaintiff may "plead [himself] out of court by pleading facts that establish an impenetrable defense to its claims." Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008) (internal citation omitted). Where "the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense" the court may dismiss a claim in a Rule 12(b)(6) motion if the claim is precluded by the applicable statute of limitations. Lewis, 411 F.3d at 842; see Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (...
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