Patricia Clark v. Law Office of Terrence Kennedy

Filing

Filed Nonprecedential Disposition PER CURIAM. The dismissal of Clark's amended complaint is VACATED and the case is REMANDED for proceedings on Clark's age-discrimination and retaliation claims. Michael S. Kanne, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and David F. Hamilton, Circuit Judge. [6870742-1] [6870742] [16-4277]

Case: 16-4277

Document: 27
Filed: 09/21/2017
Pages: 4
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 20, 2017*
Decided September 21, 2017
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-4277
PATRICIA CLARK,
Plaintiff-Appellant,

Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.

v.
No. 15 C 11890
LAW OFFICE OF
TERRENCE KENNEDY, JR.,
Defendant-Appellee.

Charles R. Norgle,
Judge.
ORDER

Patricia Clark, a former legal assistant, appeals the decision to dismiss her
employment-discrimination suit against her previous employer, a law firm, for failure
to state a claim. She alleges that the firm treated her differently and fired her because of
her age and her previous complaints of age discrimination. In addition she raises
allegations of defamation, which the court dismissed as untimely and insufficient.
Because Clark adequately states claims of discrimination and retaliation, we vacate the
dismissal but leave intact the dismissal of her defamation claim.

We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
*

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We accept as true the allegations in Clark’s amended complaint and its
attachments, which include her previously filed administrative charges, see FED. R. CIV.
P. 10(c); Arnett v. Webster, 658 F.3d 742, 751–52 (7th Cir. 2011). Clark was a legal assistant
at the Law Office of Terrence Kennedy from 2006 until she was fired in 2013. She asserts
that beginning in 2011, when she was 51, the firm began to treat “similarly situated
legal assistants . . . who are significantly younger than [her] and who possess levels of
seniority, discipline and work performance similar to [hers]” differently than her.
Supervisors excluded her from meetings, removed her from work assignments and
receptionist duties, issued her a poor performance evaluation that “contained false
information,” and suspended her. After she filed charges asserting that her age
motivated this treatment, and eight days after a fact-finding conference investigating
those charges, the law firm fired her “because of [her] age” and “in retaliation for filing
discrimination charges.” She adds that the firm twice defamed her during that
investigation: first through statements it made at the fact-finding conference, and
second when the firm supplied the agency’s investigator with a personnel file that she
says contained lies about her.
The law firm moved to dismiss the amended complaint, raising three arguments
that the district court accepted. The firm argued first that the age claim failed because it
was not plausible. According to the firm, for an allegation of age discrimination to be
plausible, the plaintiff must allege more facts, including (for the discharge claim) that
the employer replaced the plaintiff with a younger person. The firm argued next that
the retaliation claim failed because, without more facts, it too was not plausible. Finally
her defamation allegations, the law firm contended, were untimely and legally
inadequate. Clark proposed a second amended complaint, which repeated the
allegations recounted above, but the district court denied leave to file it. Clark
submitted it days after the court-ordered deadline, the court observed, and she failed to
allege an “essential element” of her claim: the Age Discrimination in Employment Act,
the district court observed, applies to only those employing 20 people or more, and in
the court’s view Clark had not plausibly alleged that the company employed more than
17. The court terminated the suit, precipitating this appeal.
On appeal the parties principally focus on the proposed second amended
complaint. We conclude that some of those claims, which Clark asserted also in her
amended complaint that she now asks us to “reinstate,” are legally sufficient, so the
district court should not have dismissed them. We begin with age discrimination. The
pleading requirement for employment-discrimination claims is minimal. A plaintiff
need only identify the type of discrimination, when it occurred, and by whom. See Tate

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v. SCR Med. Transp., 809 F.3d 343, 346 (7th Cir. 2015) (sex discrimination); Huri v. Office
of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 833 (7th Cir. 2015)
(national origin and religion); Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (age);
see also Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514–15 (2002) (clarifying the pleading
standard for discrimination cases); Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.
2010) (concluding that Swierkiewicz survived Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
Under this standard Clark adequately alleged age discrimination in her
discharge, suspension, and work duties. She asserts that her employer fired her
“because of [her] age” in June 2013. Before that, from 2011 to 2013, Clark’s age allegedly
led the firm to exclude her from meetings, take away her assignments and duties, lie
about her performance, and suspend her from work, while it spared comparable,
younger coworkers these adversities. The law firm responds that Clark needed to allege
more details to make it plausible that age motivated this treatment. But the plausibility
standard of Rule 8 of the Federal Rules of Civil Procedure “is not akin to a probability
requirement.” Iqbal, 556 U.S. at 678; see also Swierkiewicz, 534 U.S. at 510–11; Carlson
v. CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014). “Litigants are entitled to discovery
before being put to their proof, [because] treating the allegations of the complaint as a
statement of the party’s proof leads to windy complaints and defeats the function of
Rule 8.” Bennett, 153 F.3d 519. The firm also argues that some of Clark’s allegations do
not amount to discrimination. But “[t]he fact that [a discrimination plaintiff] included
other, largely extraneous facts in her complaint does not undermine the soundness of
her pleading.” Swanson, 615 F.3d at 405.
We disagree with the district court’s ruling that Clark needed to allege that the
law firm employed at least 20 employees. It is true that the ADEA applies only to
employers with 20 or more employees. 29 U.S.C. §§ 623(a), 630(b). But this threshold is a
non-jurisdictional defense to liability under the ADEA. See Arbaugh v. Y & H Corp.,
546 U.S. 500, 504 (2006) (holding ADEA’s employee threshold is non-jurisdictional);
Papa v. Katy Indus., Inc., 166 F.3d 937, 940 (7th Cir. 1999) (explaining threshold as a “tiny
employer exemption” from antidiscrimination laws). A complaint states a claim
“whether or not some defense is potentially available,” Barry Aviation Inc. v. Land
O'Lakes Mun. Airport Comm'n, 377 F.3d 682, 688 (7th Cir. 2004) (quotation and citation
omitted), and plaintiffs need not, and should not, attempt to plead in anticipation of
defenses, Gomez v. Toledo, 446 U.S. 635, 640–41 (1980) (holding that defendant bears
burden of pleading defenses); Davis v. Ind. State Police, 541 F.3d 760, 763 (7th Cir. 2008).

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We recognize that litigants may plead themselves out of court by alleging facts
that establish a defense, Bennett, 153 F.3d at 517, but Clark does not allege that the law
firm employed fewer than 20 people. To the contrary, she attached to her briefing in the
district court an employee list that names more than 20 people, and we may consider
that filing. See Gutierrez v. Peters, 111 F.3d 1364, 1367 n.2 (7th Cir. 1997)(“[F]acts alleged
in a brief in opposition to a motion to dismiss . . . as well as factual allegations contained
in other court filings of a pro se plaintiff may be considered when evaluating the
sufficiency of a complaint so long as they are consistent with the allegations of the
complaint.”); see also Smith v. Dart, 803 F.3d 304, 311 (7th Cir. 2015) (concluding that
district court erred by failing to consider factual assertions written in letter that pro se
plaintiff attached to brief on motion to dismiss).
The amended complaint stated a plausible retaliation claim as well. To plead a
claim of retaliation for filing a charge of age discrimination, a plaintiff need only allege
that her employer subjected her to adverse employment action because she filed that
charge. See Alamo v. Bliss, 864 F.3d 541, 555 (7th Cir. 2017) (Title VII); Luevano, 722 F.3d
at 1029 (same). Clark met this standard. She alleges that the firm fired her in 2013
because she had filed age-discrimination charges with an administrative agency the
year before. The plausibility of her claim is enhanced by her additional allegation that
just eight days after a fact-finding conference on her charge, the law firm fired her.
Clark may not, however, proceed on her claim that the firm defamed her. Illinois
defamation actions have a one-year statute of limitations, running from the date of
publication. 735 ILCS 5/13–201; see also Hukic v. Aurora Loan Servs., 588 F.3d 420, 435
(7th Cir. 2009). Because the fact-finding conference at which the firm allegedly defamed
her occurred in May 2014, and Clark filed this suit in December 2015, her claim about
that conference is six months late. Her related claim that the firm defamed her by giving
her personnel file to an administrative investigator also fails. In Illinois statements
“necessarily preliminary” to “quasi-judicial” proceedings are privileged and not
defamatory. Layne v. Builders Plumbing Supply Co., 569 N.E.2d 1104, 1106 (Ill. App. Ct.
1991). This privilege applies to information supplied to an agency investigating alleged
legal violations. Parrillo, Weiss & Moss v. Cashion, 537 N.E.2d 851, 856 (Ill. App. Ct. 1989).
So the firm’s release of Clark’s personnel file to an investigator exploring Clark’s
discrimination allegations cannot give rise to defamation.
We VACATE the dismissal of Clark's amended complaint and REMAND for
proceedings on Clark’s age-discrimination and retaliation claims.