Mojapelo v. Avis Car Rental
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 3/2/2018: IT IS ORDERED that Defendant's Motion to Dismiss (Doc. 6 ) is DENIED and Plaintiff's Motion for Extension of Time to File Response/Reply (Doc. 9 ) is DENIED as MOOT.(SEE FULL WRITTEN ORDER & OPINION.) (MA, ilcd)
E-FILED
Friday, 02 March, 2018 04:44:15 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CHARLES MOJAPELO,
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Plaintiff,
v.
AVIS CAR RENTAL,
Respondent.
Case No. 1:18-cv-01029-JBM-JEH
ORDER & OPINION
The matter is before the Court on a Motion to Dismiss filed by Defendant Avis
Car Rental. (Doc. 6). For the reasons stated below, the motion is DENIED.
BACKGROUND
For a brief period, Plaintiff Charles Mojapelo was employed by Defendant Avis
Car Rental (“Avis”) to maintain and prepare Avis’s cars for rental. On July 31, 2017,
Mojapelo filed a lawsuit in the Eleventh Judicial Circuit Court, McLean County,
Illinois, for withheld wages. (Doc. 1-1, Exh. 1). Mojapelo later amended his complaint
to assert claims for age discrimination under Title VII, national origin discrimination
under Title VII and the Illinois Constitution, and violations of the Fair Credit
Reporting Act, 15 U.S.C. § 1681 et seq. (Docs. 1-3, Exh. 3; 1-4, Exh. 4). On January
25, 2018, Avis removed the case to federal court based on federal question and
diversity jurisdiction. (Doc. 1).
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On February 7, 2018, Avis filed the instant motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). Avis argues that Plaintiff’s age and national origin
discrimination claims under Title VII and the Illinois Constitution must be dismissed
for failure to exhaust administrative remedies. (Doc. 6). Plaintiff failed to timely
respond to Defendant’s motion, though he filed a motion for extension of time to file
a response a week after his response deadline lapsed. (Doc. 9). It is irrelevant,
however, whether the motion is deemed opposed or unopposed 1 because as explained
below, Avis’s motion to dismiss is denied.
LEGAL STANDARD
In ruling on a motion to dismiss for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6), “the court must treat all well-pleaded allegations as
true and draw all inferences in favor of the non-moving party.” In re marchFIRST
Inc., 589 F.3d 901, 904 (7th Cir. 2009). The 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).
To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient
detail to give defendant notice of the claim, and the allegations must “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level.’” EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th
Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The
plausibility standard requires enough facts to “present a story that holds together,”
See Gilliam v. Joint Logistics Managers, Inc., No. 16-4077, 2017 WL 758459 (C.D. Ill. Feb. 27, 2017)
(citing L.R. 7.1(B)(2) which deems a motion unopposed if the responding party fails to respond).
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but does not require a determination of probability. Swanson v. Citibank, N.A., 614
F.3d 400, 404 (7th Cir. 2010). Though detailed factual allegations are not needed, a
“formulaic recitation of the elements of a cause of action will not do.” Twombly, 550
U.S. at 555.
DISCUSSION
Plaintiff has brought claims for age and national origin discrimination under
Title VII and Article 1, Section 17, of the Illinois Constitution. The Illinois
Constitution does not authorize a private right of action to enforce Article 1, Section
17; rather, the Illinois Human Rights Act (“IHRA”) provides the exclusive remedy for
discrimination claims. Curtis v. Continental Ill. Nat. Bank, 568 F.Supp. 740, 742
(N.D. Ill. 1983). The IHRA limits this Court's jurisdiction to claims that have first
been raised through the administrative procedures set forth in the statute. See 775
ILL. COMP. STAT. 5/8–111(D) (“[e]xcept as otherwise provided by law, no court of this
state shall have jurisdiction over the subject of an alleged civil rights violation other
than as set forth in this Act”). Thus, a discrimination lawsuit under the IHRA cannot
be brought in state or federal court before plaintiff files an administrative charge with
the Illinois Department of Human Rights (“IDHR”). See McQueen v. City of Chi., 803
F.Supp.2d 892, 902 (N.D. Ill. 2011); Miller v. Am. Airlines, Inc., 525 F.3d 520, 525
(7th Cir.2008); Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir.1985); Kalush
v. Ill. Dep't of Human Rights Chief Legal Counsel, 700 N.E.2d 132, 140 (1998); see
also Zaderaka v. Ill. Human Rights Comm'n, 545 N.E.2d 684, 687–88 (1989)
(adopting Title VII framework for IHRA cases). Likewise, as a general rule, before
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bringing a lawsuit under Title VII, a plaintiff is required to file a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”).
Laouini v. CLM Freight Lines, Inc., 586 F.3d 473 (7th Cir. 2009); Cheek v. W. & S.
Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). 2
However, a party's failure to exhaust his administrative remedies is an
affirmative defense. Salas v. Wis. Dep't of Corr., 493 F.3d 913, 921-22 (7th Cir.2007).
A failure to exhaust administrative remedies is not a jurisdictional flaw. Gibson v.
West, 201 F.3d 990, 993 (7th Cir. 2000). Consequently, a complaint may not be
dismissed for merely failing to rebut an affirmative defense; dismissal is only
appropriate if a “litigant [ ] pleads [himself] out of court by alleging (and thus
admitting) the ingredients of a defense.” Weiler v. Vill. of Oak Lawn, 86 F.Supp.3d
874, 881 (N.D. Ill. 2015) (quoting U.S. Gypsum Co. v. Ind. Gas Co., 350 F.3d 623, 626
(7th Cir. 2003)); see Krause v. Turnberry Country Club, 571 F. Supp. 2d 851, 858 (N.D.
Ill. 2008). In other words, in order to state a claim for discrimination under Title VII
or the IHRA, a plaintiff is not required to plead facts showing that he exhausted his
administrative remedies. It is not clear from Mojapelo’s second amended complaint
that the affirmative defense of failure to exhaust is satisfied. See Bibbs v. Sheriff of
Cook County, 618 F.App’x 847 (7th Cir. July 2, 2015) (reversing 12(b)(6) dismissal in
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Although, the administrative remedy procedure requires that IHRA claims be initiated with a charge filed with the
IDHR, 775 ILCS 5/7A-102(A), or with the EEOC, in which case the charge will be deemed to have been filed with
the IDHR, 775 ILCS 5/7A-102(A-1). The charge must be filed within 180 days of the date of the alleged civil rights
violation. 775 ILCS 5/7A-102(A)(1); 775 ILCS 5/7A-102(A-1)(1). This is shorter than the 300-day time period
for filing a charge to exhaust administrative remedies prior to a federal discrimination claim in a “deferral state” like
Illinois.
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Title VII case for failure to exhaust because the third amended complaint did not
show that the affirmative defense was satisfied).
CONCLUSION
For the reasons stated, Avis’s motion to dismiss (Doc. 6) is DENIED. Plaintiff’s
Motion for Extension of Time to File a Response (Doc. 9) is DENIED as MOOT.
Entered this 2nd day of March, 2018.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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