Scott v. City of Kewanee

Filing 12

ORDER entered by Judge Sara Darrow on March 28, 2014. Defendant City of Kewanee's 10 Motion for Leave to File Its Reply in Support of Dismissal is GRANTED. Defendant's 7 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Count I is dismissed. Count II is dismissed to the extent that it requests injunctive relief. Plaintiff Scott has until April 11, 2014, to amend his Complaint consistent with this Order if he so desires. (JD, ilcd)

E-FILED

Friday, 28 March, 2014 07:38:56 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
GARY SCOTT,

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Plaintiff,
v.
CITY OF KEWANEE,
a Municipal Corporation,

Case No. 1:13-cv-01292-SLD

Defendant.
ORDER
Plaintiff Gary Scott claims that by denying him employment as cemetery sexton in favor
of a younger worker, Defendant City of Kewanee, Illinois, (the “City”) engaged in age
discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§ 621 et seq., and the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101 et seq. Defendant
has moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Defendant’s Motion for Leave to File Its Reply in Support of Dismissal, ECF No. 10, is
GRANTED.

For the following reasons, Defendant’s Motion to Dismiss, ECF No. 7, is

GRANTED IN PART and DENIED IN PART.
BACKGROUND2
Scott, who was born in 1949, has worked for the City since 1989. Scott held the position
of Equipment Operator at the time he filed his Complaint, although he had occasionally
performed the job duties of cemetery sexton. Scott’s last written performance evaluation

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In deciding a motion to dismiss, all well-pleaded allegations in the Complaint are taken as true and viewed in the
light most favorable to the plaintiff. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir.
2012) (citation omitted). Accordingly, unless otherwise noted, the statement of facts in this section is based solely
on allegations in Scott’s Complaint and attachments thereto, ECF No. 1.
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occurred in April 2009; it indicated that he was performing at an adequate-or-above level. Scott
was generally in good standing with his employer.
In early August 2009, the City began accepting applications for the open position of
cemetery sexton. Four people, including Scott, applied for the position.

During Scott’s

interview, which lasted about 10 minutes, City personnel asked Scott when he intended to retire.
Scott replied, “About 66, when my wife turns 62.” The City also administered an aptitude test,
which Scott claims was biased against older individuals because it “asked several questions
authenticating the memory of the applicant.” On September 9, 2009, the City informed Scott
that Kevin Newton, rather than Scott, would receive the position.

Newton, who was

approximately 33 years old, was still a probationary employee in the sanitation department at the
time, as he had only been hired by the City in December 2008. Scott claims Newton “had no
known objective qualification superior to” his own and “had much less experience as a [City]
employee.” In the four years following Newton’s appointment, Scott still periodically performed
the duties of cemetery sexton. Scott claims he “remains ready, willing, and able” to do the job.
Scott filed a Charge of Discrimination against the City with the Equal Employment
Opportunity Commission (“EEOC”). The charge, EEOC Form 5, is signed and dated July 3,
2010, and stamped as received by the EEOC on July 12, 2010. Scott subsequently received
notice of right to sue from the EEOC dated May 28, 2013. Scott filed the instant lawsuit on June
28, 2013, claiming the City’s selection of Newton over himself for cemetery sexton represents
age-based employment discrimination in violation of the ADEA (Count I) and the IHRA (Count
II). Scott seeks relief including monetary damages and an injunction requiring the City to
promote Scott to cemetery sexton.

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DISCUSSION
The City has moved to dismiss the ADEA claim as time barred, the IHRA claim for
failure to exhaust state administrative remedies, and Scott’s request for injunctive relief as
insufficiently supported by his factual allegations. Def.’s Mot. Dismiss 1, ECF No. 7. The Court
will address each argument in turn.
I.

ADEA Claim
The City argues that, by pleading a filing date for his EEOC charge falling beyond the

300-day deadline, Scott has established that his ADEA claim is time barred, thereby pleading
himself out of court under Federal Rule of Civil Procedure 12(b)(6). Def.’s Mot. Dismiss, 1–2.
A. Legal Standard on Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), a complaint must state a claim to
relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). In evaluating a complaint’s sufficiency, legal conclusions are
not entitled to the assumption of truth granted to factual allegations. Id. The Seventh Circuit has
identified the practical requirements of Twombly and Iqbal for federal pleading:
First, a plaintiff must provide notice to defendants of her claims. Second, courts must
accept a plaintiff’s factual allegations as true, but some factual allegations will be so
sketchy or implausible that they fail to provide sufficient notice to defendants of the
plaintiff’s claim. Third, in considering the plaintiff’s factual allegations, courts should
not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). If a plaintiff provides unnecessary facts in
his complaint, the defendant may use those facts to show the plaintiff is not entitled to relief.
Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008) (citations omitted).
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A plaintiff

“pleads himself out of court when it would be necessary to contradict the complaint in order to
prevail on the merits.” Id. (quoting Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir.
2006)).
If matters outside the pleadings are considered by the Court on a motion to dismiss, the
motion instead must be treated as one for summary judgment. Fed. R. Civ. P. 12(d). However,
the Court may “consider documents attached to or referenced in the pleading if they are central
to the claim” without converting a motion to dismiss to one for summary judgment. Citadel Grp.
v. Wash. Reg’l Med. Ctr., 692 F.3d 580, 591 (7th Cir. 2012) (citing Brownmark Films, LLC v.
Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012)).
B. Statutory Framework
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §
623(a)(1). In order to sue under the ADEA in Illinois, an employee must file a charge of
discrimination with the EEOC within 300 days of the alleged unlawful employment practice.
Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 637 (7th Cir. 2004); see 29 U.S.C. §
626(d)(1)(B). The date of the unlawful practice “is when a ‘final, ultimate, [and] non-tentative’
decision was made for which the employee receives unequivocal notice.” Draper v. Martin, 664
F.3d 1110, 1113 (7th Cir. 2011) (quoting Flannery, 354 F.3d at 637). Failure to timely file a
charge with the EEOC will ordinarily bar an ADEA claim. Chakonas v. City of Chicago, 42
F.3d 1132, 1135 (7th Cir. 1994).
Before filing a formal charge, prospective ADEA plaintiffs may file an “Intake
Questionnaire,” whose purpose “is to facilitate pre-charge filing counseling and to enable the

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agency to determine whether it has jurisdiction over potential charges.” See Fed. Exp. Corp. v.
Holowecki, 552 U.S. 389, 405 (2008) (citation and internal quotation marks omitted). However,
such a filing may still be deemed to constitute a charge if, in addition to an allegation and the
names of the charged party, “the document reasonably can be construed to request agency action
and appropriate relief on the employee’s behalf.” Id. In Holowecki, an Intake Questionnaire
constituted a charge because it was submitted along with an affidavit by the employee requesting
that the EEOC “force Federal Express to end their age discrimination.” Id.
C. Analysis
Scott indicated on his EEOC charge that the City informed him on September 3, 2009,
that the City had declined to hire him as cemetery sexton. This unequivocal notice of the City’s
final and allegedly discriminatory hiring decision started the clock running on Scott’s 300 days
to file an EEOC charge. See Draper, 664 F.3d at 1113. Those 300 days elapsed on June 30,
2010, but Scott’s charge, which was signed and dated July 3, 2010, was not received by the
EEOC until July 12, 2010. Compl., Ex. 1 at 1, ECF No. 1-1. Even if Scott’s charge was deemed
filed on the signing date, or upon postmark assuming Scott mailed the charge the same day he
dated it,3 filing the charge occurred no earlier than July 3, 2010, according to Scott’s exhibit. Id.
Despite acknowledging the EEOC’s receipt of the charge on July 12, 2010, the Complaint does
not offer any excuse for, or even mention, missing the June 30, 2010 deadline. Compl. ¶ 5.
Scott would have to contradict the dates on his EEOC charge—attached to and thus part of the
Complaint—in order to state a timely ADEA claim. See Tamayo, 526 F.3d at 1086; see also
Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013) (“When an exhibit incontrovertibly
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With charges submitted by mail, the EEOC will consider a charge filed on the “(i) [d]ate of postmark, if legible,
(ii) [d]ate of letter, if postmark is illegible, [and] (iii) [d]ate of receipt by Commission, or its designated agent, if
postmark and letter date are illegible and/or cannot be accurately affixed.” 29 C.F.R. § 1626.7(b)(1)(i)–(iii). Written
charges filed in person are deemed filed on date of receipt. Id. § 1626.7(b)(2). The Complaint does not indicate
whether Scott personally delivered the charge or mailed it, and if the latter, gives no indication of date of postmark.
Compl. ¶ 5.
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contradicts the allegations in the complaint, the exhibit ordinarily controls, even when
considering a motion to dismiss.”). Because his pleadings establish, therefore, that his ADEA
claim is time barred, Scott has pleaded himself out of court.
Scott also argues that dismissal is inappropriate because the City’s claim that Scott’s
ADEA suit is time-barred is an affirmative defense, and therefore the Complaint need not
address it. Pl.’s Mem. in Opp’n Mot. Dismiss 3. In general, a complaint does not have to
anticipate affirmative defenses in order to survive a motion to dismiss. United States v. Lewis,
411 F.3d 838, 842 (7th Cir. 2005) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
However, the exception occurs where “the allegations of the complaint itself set forth everything
necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an
action is untimely under the governing statute of limitations.” Id. Here, Scott’s Complaint and
its attachments “plainly reveal” that he did not file his EEOC charge within the statutory filing
period; therefore, the pleadings provide “everything necessary” to establish that his ADEA claim
is time barred.
After the City filed its Motion to Dismiss, Scott submitted his Intake Questionnaire to the
Court. Scott. Aff. Ex. 1, ECF No. 9-1. The Supreme Court has indicated that, based on criteria
that Scott’s Questionnaire may satisfy, a Questionnaire may constitute an EEOC charge for
purposes of the filing deadline. See Holowecki, 552 U.S. at 405. The Court, however, cannot
determine whether Scott’s Questionnaire meets the Holowecki standard on this motion to
dismiss, because Scott neither attached the Questionnaire to his Complaint, nor references the
Questionnaire in his Complaint. See Citadel Grp., 692 F.3d at 591.4 The Court must decide this

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Scott cites Peckmann v. Thompson, 966 F.2d 295 (7th Cir. 1992) and Komorowski v. Townline Minimart, 162 F.3d
962 (7th Cir. 1998), claiming these cases support his claim that a court may consider affidavits and other evidentiary
material on a motion to dismiss. Pl.’s Mem. in Opp. Mot. Dismiss 2–3. In both cases, however, the Seventh Circuit
noted that the district court had, expressly or implicitly, converted a motion to dismiss into one for summary
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motion on the basis of the pleadings, which mention only Scott’s Form 5 EEOC charge and its
post-deadline filing.
Accordingly, Count I of the Complaint is dismissed without prejudice. Scott has until
April 11, 2014, to amend his Complaint as to Count I if he so desires.
II.

IHRA Claim
The City moves to dismiss Count II, Scott’s IHRA claim, for lack of jurisdiction due to

failure to exhaust state administrative remedies. Def.’s Mot. Dismiss 6–7.
A. Legal Framework
The IHRA prohibits employment discrimination based on age. 775 ILCS 5/1-103(Q), 2102(A).

The Illinois Supreme Court has held that the IHRA’s comprehensive scheme of

remedies and administrative procedures is the exclusive source for redress of alleged IHRA
violations. Mein v. Masonite Corp., 485 N.E.2d 312, 315 (Ill. 1985). Under an earlier version
of the IHRA, judicial review of an alleged IHRA violation was available only after the Illinois
Human Rights Commission (“IHRC”) issued a final order on the complaint. Flaherty v. Gas
Research Institute, 31 F.3d 451, 458 (7th Cir. 1994). The Illinois legislature amended the IHRA,
effective January 1, 2008, to grant original jurisdiction over IHRA claims to both the IHRC and
Illinois circuit courts. See Pub. Act 95-243; 775 ILCS 5/7A-102; De v. City of Chicago, 912 F.
Supp. 2d 709, 731 (N.D. Ill. 2012). Although the Seventh Circuit has not addressed the issue, an
“overwhelming majority” of district courts within this Circuit have held that federal courts may
now exercise original jurisdiction over IHRA claims pursuant to 28 U.S.C. § 1367(a). Id. (citing,
among other cases, Hoffman v. Bradley Univ., No. 11-1086, 2012 WL 4482173, at *1 (C.D. Ill.

judgment. See Peckmann, 966 F.2d at 297; Komorowski, 162 F.2d at 965. In neither case, therefore, did the
Seventh Circuit sanction consideration of affidavits filed outside of the pleadings in deciding a motion to dismiss.
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Sept. 27, 2012); Lawrence v. E. Cent. Illinois Area Agency on Aging, No. 10-cv-1240, 2011 WL
1044372, at *1 (C.D. Ill. Feb. 24, 2011)).
The IHRA still requires that IHRA claims be initiated by filing a charge with the Illinois
Human Rights Department (“IHRD”), which investigates the claim of discrimination.

See

Glemser v. Sugar Creek Realty, Inc., No. 09-3321, 2010 WL 375166, at *3 (C.D. Ill. Jan. 26,
2010)). Under the dual filing system, a charge filed with the EEOC is deemed filed with the
IHRD as well. Id. at *2 (citing Garcia v. Vill. of Mt. Prospect, 360 F.3d 630, 643 n.13 (7th Cir.
2004)). The charge must be filed with the IHRD within 180 days of the alleged civil rights
violation. Id. (citing 775 ILCS 5/7A-102(A)(1)). Courts may not hear IHRA claims until the
IHRD has made a determination as to whether there is substantial evidence of an IHRA violation
and either notified a complainant of her right to proceed or dismissed the claim. See 775 ILCS
5/7A-102(B), (C)(4), (D)(4); Glemser, 2010 WL 375166, at *3; Anderson v. Ctrs. For New
Horizons, Inc., 891 F. Supp. 2d 956, 960 (N.D. Ill. 2012). Failure to timely file with the IDHR
therefore constitutes a failure to exhaust administrative remedies. Glemser, 2010 WL 375166, at
*3; see also Anderson, 891 F. Supp. 2d at 960 (dismissing IHRA claim for failure to exhaust
administrative remedies where plaintiff withdrew charge from IDHR before obtaining a final
order). Failure to comply with the IHRA’s exhaustion requirements warrants dismissal of an
IHRA claim. Copeling v. Illinois State Toll Highway Auth., No. 12 C 10316, 2014 WL 540443,
at *4 (N.D. Ill. Feb. 11, 2014) (citing Garcia, 360 F.3d at 640).
Failure to exhaust administrative remedies is an affirmative defense. Massey v. Wheeler,
221 F.3d 1030, 1034 (7th Cir. 2000) (citations omitted). Granting a motion to dismiss under
Rule 12(b)(6) on the basis of an affirmative defense is inappropriate; the proper vehicle for
dismissal based on an affirmative defense is a Rule 12(c) motion for judgment on the pleadings.

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Carr v. Tillery, 591 F.3d 909, 912–13 (7th Cir. 2010); McCready v. eBay, Inc., 453 F.3d 882,
892 n.2 (7th Cir. 2006).
B. Analysis
Because Scott did not obtain a final order on his IHRA claim from the IHRC, see Pl.’s
Mem. in Opp’n. Mot. Dismiss 1–2, the City argues that the Court lacks jurisdiction to hear Count
II. This is no longer the law in Illinois. The City fails to acknowledge the 2008 IHRA
amendment and the consensus of courts holding that the IHRA now permits federal courts to
exercise original jurisdiction over IHRA claims in the absence of a final order from the IHRC.
The IHRA still contains an administrative exhaustion requirement—filing a charge and
obtaining a determination from the IHRD—which Scott’s Complaint fails to address. However,
failure to exhaust the IHRD remedy is an affirmative defense, whose merits are not properly
before the Court on the City’s Motion to Dismiss pursuant to Rule 12(b)(6). While courts
sometimes grant judgment on the pleadings when an affirmative defense has been improperly
raised on a motion to dismiss, neither party’s pleadings or briefings on this motion address
whether Scott filed a timely charge with and received a determination from the IHRD. 6 See
Carr, 591 F.3d at 913; McCready, 453 F.3d at 892 n.2. Therefore, the Court lacks sufficient
material to determine whether Scott failed to exhaust his IHRD administrative remedy, rendering
any judgment on the City’s defense inappropriate at this stage. See Carr, 591 F.3d at 913;
McCready, 453 F.3d at 892 n.2. The City’s Motion to Dismiss is denied as to Count II.

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Scott’s EEOC charge doubles as an IHRD charge, but even assuming it was filed as early as July 3, 2012, it would
still come far after the 180-day IHRD deadline. See Glemser, 2010 WL 375166, at *3. Scott does not mention
whether he separately filed with the IHRD; he states only that he did not obtain a final IHRC order. See Pl.’s Mem.
in Opp’n. Mot. Dismiss 1–2.
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III. Injunctive Relief
The City moves to dismiss Scott’s prayer for a mandatory injunction requiring the City to
hire him as cemetery sexton, on the grounds that Scott fails to plead facts supporting the requisite
elements for injunctive relief. Def.’s Mot. Dismiss 7–8.
A. Legal Framework
The ADEA provides that “[a]ny person aggrieved may bring a civil action in any court of
competent jurisdiction for such legal or equitable relief as will effectuate” the ADEA’s purposes.
29 U.S.C. § 626(c)(1). Even where a statute specifically authorizes injunctive relief, courts must
still undertake an equitable balancing of harms before awarding an injunction “so long as the
statute does not evidence congressional intent to deny courts their traditional equitable
discretion.” United States v. Bethlehem Steel Corp., 38 F.3d 862, 867 (7th Cir. 1994) (citing
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)). Before awarding injunctive
relief, courts generally must consider: (1) whether the plaintiff has suffered or will suffer
irreparable injury, (2) whether there are adequate remedies available at law to compensate for the
injury, (3) the balance of hardships, and (4) the public interest. Sierra Club v. Franklin Cnty.
Power of Illinois, LLC, 546 F.3d 918, 935 (7th Cir. 2008) (citations omitted) (finding that fourpart equitable analysis applied to a claim where statute authorized equitable relief). In order to
state a claim for injunctive relief, plaintiffs must plead sufficient allegations to support the
elements. See, e.g., United States ex rel. Walner v. NorthShore Univ. Healthsystem, 660 F. Supp.
2d 891, 899–900 (N.D. Ill. 2009); Vance v. Ball State Univ., No. 1:06-cv-1452, 2008 WL
474223, at *4 (S.D. Ind. Feb. 15, 2008), aff’d on other grounds, 646 F.3d 461 (7th Cir. 2011),
aff’d, 133 S. Ct. 2434 (2013); Randle v. City of Chicago, No. 00 C 299, 2000 WL 1536070, at *4
(N.D. Ill. Oct. 17, 2000).

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B. Analysis
Scott argues that the ADEA’s authority for equitable relief obviates the need to plead the
sufficient allegations to support award of injunctive relief.

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Pl.’s Mem. in Opp’n Mot.

Dismiss 4. However, 29 U.S.C. § 626(c) on its face evinces no congressional intent to deny
courts their traditional discretion in awarding equitable relief, and Scott points to no courts
holding otherwise. See Bethlehem Steel Corp., 38 F.3d at 867. Accordingly, Scott is not
relieved from the plaintiff’s usual burden of sufficiently alleging the grounds for injunctive
relief. See, e.g., Walner, 660 F. Supp. 2d at 899–900.
Scott correctly notes that, because he does not request interim relief but only a permanent
injunction, he need not plead likelihood of success on the merits, as the City claims. Pl.’s Mem.
in Opp’n Mot. Dismiss 5; Def.’s Mot. Dismiss 7. Even assuming without determining that (1)
Scott’s allegations of age discrimination are sufficient to establish irreparable injury, see Pl.’s
Mem. in Opp’n Mot. Dismiss 5 n. 2 (citing Duke v. Uniroyal, Inc., 777 F. Supp. 428, 433
(E.D.N.C. 1991), and (2) his claims that he was more experienced to serve the City as cemetery
sexton than Newton give rise to the reasonable inference that both the balance of hardships and
the public interest favors the injunction, however, Scott makes no factual allegations even
remotely related to (3) the absence of an adequate remedy at law. See Sierra Club, 546 F.3d at
935. Accordingly, Scott’s claims are dismissed without prejudice to the extent they request
injunctive relief. Scott has until April 11, 2104, to amend his Complaint as to its request for
injunctive relief if he so desires.

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The Complaint does not indicate whether Scott requests the injunction as a remedy for violation of the ADEA or
the IHRA. Scott’s argument that injunctive relief is authorized by statute references the ADEA, but makes no
mention of the IHRA. See Pl.’s Mem. in Opp’n Mot. Dismiss 4–5. Accordingly, the Court addresses this argument
only as it pertains to injunctive relief pursuant to the ADEA, 29 U.S.C. § 626(c)(1).
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CONCLUSION
Defendant City of Kewanee’s Motion for Leave to File Its Reply in Support of Dismissal,
ECF No. 10, is GRANTED. Defendant’s Motion to Dismiss, ECF No. 7, is GRANTED IN
PART and DENIED IN PART. Count I is dismissed. Count II is dismissed to the extent that it
requests injunctive relief. Plaintiff Scott has until April 11, 2014, to amend his Complaint
consistent with this Order if he so desires.

Entered this 28th day of March, 2014.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

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