Bridgeford v. The Salvation Army et al

Filing 15

OPINION: For the reasons stated, Defendants' Rule 12(b)(6) Motion to Dismiss the Complaint (d/e 11) is GRANTED IN PART and DENIED IN PART. The individual Defendants are dismissed without prejudice. The Title VII and ADEA claims remain pending ag ainst The Salvation Army. The Salvation Army shall file an Answer on or before January 24, 2018. In addition, the Court RECONSIDERS Plaintiff's request for the appointment of counsel. The Court will attempt to recruit counsel to represent Plaintiff. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 1/10/2018. (GL, ilcd)

E-FILED

Wednesday, 10 January, 2018 12:36:39 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ALLEN BRIDGEFORD JR.,
Plaintiff,
v.
THE SALVATION ARMY, JOHN
VAN ZEE, ELMER GAMBLE, and
DEANNA RIFE,
Defendants.

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No. 3:17-CV-03180

OPINION
This cause is before the Court on the Rule 12(b)(6) Motion to
Dismiss the Complaint (d/e 11) filed by Defendants The Salvation
Army, John Van Zee, Elmer Gamble, and Deanna Rife. The Motion
is GRANTED IN PART and DENIED IN PART. The individual
Defendants are dismissed without prejudice. The claims remain
pending against The Salvation Army. In addition, the Court
RECONSIDERS Plaintiff’s request for the appointment of counsel.
The Court will attempt to recruit counsel to represent Plaintiff.

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I. BACKGROUND
In August 2017, Plaintiff Allen Bridgeford Jr., proceeding pro
se, filed a Complaint alleging that Defendants discharged him from
his employment in violation of Title VII of the Civil Rights Act of
1964 (Title VII) and the Age Discrimination in Employment Act of
1967 (ADEA). The Court found Plaintiff indigent and granted him
leave to proceed in forma pauperis. The Complaint and
attachments contain the following allegations and information.
Defendant terminated Plaintiff from his employment as a
truck driver on August 9, 2016. Van Zee was Plaintiff’s immediate
supervisor. Plaintiff identifies Gamble as an administrator and
Rife as a store supervisor.
On August 10, 2016, Plaintiff filed a Charge of Discrimination
against The Salvation Army with the Illinois Department of Human
Rights (Department) under Charge No. 2017SA0247 (the Charge).
The Charge was cross-filed with the Equal Employment
Opportunity Commission (EEOC) under Charge No. 21BA61924.
Plaintiff alleged he was discriminated against on the basis of his
age (56) and his race (Black).

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On May 16, 2017, the Department issued a Notice of
Dismissal for Lack of Substantial Evidence.1 The Notice advised
Plaintiff that, if he disagreed with the decision, he could seek
review before the Illinois Human Rights Commission (Commission)
or commence a civil action in the appropriate state circuit court
within 90 days after receipt of the Notice.
On August 17, 2017, Plaintiff filed a Request for Review of the
Notice of Dismissal. On August 18, 2017, Plaintiff filed this
lawsuit alleging that he was discharged in violation of Title VII and
the ADEA.
In October 2017, Defendants filed their Rule 12(b)(6) Motion
to Dismiss the Complaint. Plaintiff has not filed a response.
II. LEGAL STANDARD
A motion under Rule 12(b)(6) challenges the sufficiency of the
complaint. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458
(7th Cir. 2007). To state a claim for relief, a plaintiff need only

Defendants provided the Court with a copy of the Notice. A court may take judicial
notice of documents in the public record when ruling on a motion to dismiss
under Rule 12(b)(6). Olson v. Champaign Cnty., Ill., 784 F.3d 1093, 1097 n.1
(7th Cir. 2015); Anderson v. Ctrs. For New Horizons, Inc., 891 F. Supp. 2d
956, 959 (N.D. Ill. 2012) (taking judicial notice of Illinois Department of
Human Rights records submitted by the parties).
1

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provide a short and plain statement of the claim showing she is
entitled to relief and giving the defendants fair notice of the claims.
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
When considering a motion to dismiss under Rule 12(b)(6),
the Court construes the complaint in the light most favorable to
the plaintiff, accepting all well-pleaded allegations as true and
construing all reasonable inferences in plaintiff’s favor. Id.
However, the complaint must set forth facts that plausibly
demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 547 (2007). A plausible claim is one that alleges factual
content from which the Court can reasonably infer that the
defendants are liable for the misconduct alleged. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
III. ANALYSIS
Defendants assert that the Complaint must be dismissed
because (1) Plaintiff’s claims are barred by 775 ILCS 5/7A102(D)(3) because Plaintiff chose to pursue his claims in the
Commission when he filed a request for review; (2) Plaintiff failed to
exhaust his administrative remedies before the EEOC and,
therefore, the lawsuit is premature; and (3) the individual
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Defendants cannot be held personally liable for alleged violations of
the ADEA or Title VII. Plaintiff has not filed a response.
A. State Law Does Not Deprive This Court of Jurisdiction
The Illinois Human Rights Act provides that a party who has
received a notice of dismissal from the Department may either seek
review of the dismissal order with the Commission or file a civil
action in circuit court. 775 ILCS 5/7A-102(D)(3) (West 2016). If
the complainant files a request for review with the Commission, he
cannot later commence a civil action in a circuit court. Id.
Defendants argue that, because Plaintiff elected to proceed before
the Commission, his federal claims are barred by Section 5/7A102(D)(3). Def. Mot. at 5. Defendants cite Aberman v. Bd. of
Educ. of City of Chi., No. 12-cv-10181, 2013 WL 5290048 (N.D. Ill.
Sept. 17, 2013) in support thereof.
In Aberman, the plaintiff filed a charge with the Department
alleging age and disability discrimination. 2013 WL 5290048, at
*1. The Department issued a Notification of Dismissal for Lack of
Substantial Evidence, and the plaintiff filed a request for review
with the Commission. Id. She also filed a suit in the state circuit
court, alleging violations of the Illinois Human Rights Act, the
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Americans with Disabilities Act (ADA), the Family Medical Leave
Act, and the ADEA. Id. The defendant removed the case to
federal court. Id. The district court dismissed the federal and
state discrimination claims, finding that Section 7A-102(D)(3) of
the Illinois Human Rights Act foreclosed the plaintiff’s ability to
pursue her discrimination claims in two separate actions. Id. at
*4.
The Aberman case was distinguished in Morales v. Goodwill
Indus. of Se. Wis., Inc., No. 14 CV 2370, 2014 WL 4914255 (N.D.
Ill. Sept. 30, 2014). In Morales, the plaintiff filed a charge of
discrimination before the Department. The Department found
substantial evidence supporting two of the plaintiff’s charges. Id.
at *2. The plaintiff asked the Department to file a complaint on
her behalf with the Commission, but the plaintiff subsequently
moved to voluntarily dismiss the administrative case. The
administrative case was dismissed with prejudice. Id.
The plaintiff then filed a complaint in federal court alleging
violations of the ADA. The defendant moved to dismiss the
plaintiff’s discrimination claim asserting that the claim was barred
by the Act. Specifically, the defendant argued that the plaintiff had
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the right to adjudicate her claim before the Commission or the
circuit court, but not both. Id. at *5.
The district court noted that the Act provided that a
complainant whose discrimination charge is found to lack
substantial evidence and who chooses to adjudicate with the
Commission cannot commence a civil action in a circuit court.
Morales, 2014 WL 4914255, at *5 (citing 775 ILCS 5/7A-102(d)(3)(4)). The court found it unnecessary to determine whether the
statute also bars a civil action in circuit court for a claimant whose
discrimination charge is found to be supported by substantial
evidence and chooses to adjudicate the claim before the
Commission. Instead, the court found that “Illinois law does not
control whether plaintiff can maintain the federal discrimination
claim she brought in federal court.” Id. at *5. The Morales court
distinguished Aberman on the ground that the suit in Aberman
was removed from state court to federal court. By “commencing”
the suit in state court, the Aberman plaintiff ran afoul of Section
7A-102(D)(3). In contrast, the Morales plaintiff filed her suit in
federal court. The district court did not “read the Illinois statute to

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limit a federal court’s original jurisdiction over federal
discrimination claims,” and, therefore, Aberman did not apply. Id.
The Court finds Morales persuasive, even though it is
distinguishable on its facts.2 In this case, Plaintiff is bringing
federal discrimination claims in federal court. Defendants do not
indicate how a state statute limits this Court’s jurisdiction over
federal claims. While other doctrines may warrant abstention or a
stay of this case, the Court will not dismiss Plaintiff’s complaint on
the ground that 775 ILCS 5/7A-102(D)(3) bars the claims.
B.

The Court Will Not Dismiss the Complaint Pursuant to
Rule 12(b)(6) Based on Defendants’ Affirmative Defense
Defendants next argue that Plaintiff failed to exhaust his

administrative remedies before the EEOC and, therefore, the
lawsuit is premature. Specifically, Defendants assert that Plaintiff
failed to receive a right-to-sue letter from the EEOC.
While receipt of a right-to-sue letter is a prerequisite to filing
a Title VII lawsuit, receipt of the letter is not a prerequisite to filing
an ADEA lawsuit. See 29 U.S.C. § 626(d) (only requiring that the
The facts are distinguishable because the Department found substantial
evidence supporting two of the Morales plaintiff’s charges and because the
Morales plaintiff voluntarily moved to voluntarily dismiss the administrative
case, which the administrative law judge granted.
2

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charge filed with the EEOC be on file for 60 days before the
complainant files suit in court); Rittmeyer v. Advance Bancorp,
Inc., 868 F. Supp. 1017, 1021 n.3 (N.D.Ill.1994) (“ADEA cases may
be filed without the issuance of a Right to Sue letter so long as the
complaint is filed at least 60 days after the filing of a charge with
the EEOC. If, and only if, the charges are terminated or dropped by
the EEOC, then the complainant must file his federal complaint
within 90 days of receiving notice of such termination.”) (internal
citations omitted). In addition, the failure to receive a right-to-sue
letter is an affirmative defense. Krause v. Turnberry Country Club,
571 F. Supp. 2d 851, 858 (N.D. Ill. 2008); see also Worth v. Tyer,
276 F.3d 249, 259 (7th Cir. 2001) (receipt of a right-to-sue letter is
not a jurisdictional requirement but may constitute a defense). A
plaintiff is not required to anticipate and plead around affirmative
defenses. O’Gorman v. City of Chi., 777 F. 3d 885, 889 (7th Cir.
2015). Nonetheless, when a plaintiff alleges facts sufficient to
establish an affirmative defense, the Court may dismiss the
complaint on that ground. Id.
Here, Plaintiff does not allege facts sufficient to establish the
affirmative defense. Plaintiff left blank the portion of the
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Complaint asking whether he had or had not received a right-tosue letter. Therefore, the Court will not dismiss the Title VII claim
at this time.
C.

The Claims Against the Individual Defendants Are
Dismissed
Plaintiff brings the Title VII and ADEA claims against The

Salvation Army and the individual Defendants. Plaintiff alleges
that Van Zee was a supervisor, Gamble was an administrator, and
Rife was a store supervisor. The individual Defendants move to
dismiss the claims against them, arguing that they cannot be held
individually liable under the ADEA or Title VII.
Title VII and the ADEA use virtually the same definition of
“employer.” That is, an “employer” is a “person engaged in an
industry affecting commerce who has twenty or more employees”
(15 or more under Title VII) and also includes “any agent of such a
person.” 29 U.S.C. § 630(b) (ADEA); see also 42 U.S.C. § 2000e(b)
(Title VII) (defining “employer” to include “a person engaged in an
industry affecting commerce who has fifteen or more employees”
and also includes “any agent of such a person”). The reference to
“any agent of such person” imposes respondeat superior liability
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on employers for the acts of their agents but is not a basis on
which to impose personal liability on an individual who does not
otherwise meet the definition of “employer.” EEOC v. AIC Sec.
Investigations, Ltd., 55 F. 3d 1276, 1281, 1282 n. 10 (7th Cir.
1995) (specifically applying to the ADA but noting that the holding
“obviously affects the resolution of the very similar questions
under Title VII and the ADEA”); see also Boss v. Castro, 816 F.3d
910, 914 n.1 (7th Cir. 2016) (“Title VII authorizes suits against the
employer as an entity, not against individual agents of the
employer.”).
Plaintiff has not alleged a plausible claim that the individual
Defendants are “employers” under Title VII and the ADEA.
Therefore, the claims against the individual Defendants are
dismissed without prejudice.
D.

The Court Reconsiders Plaintiff’s Request for Counsel and
Will Recruit Pro Bono Counsel
Plaintiff has twice requested that the Court appoint counsel

to represent him. Civil litigants do not have a right to appointed
counsel. Zarnes v. Rhodes, 64 F. 3d 285, 288 (7th Cir. 1995). The
Court may, however, request an attorney to represent an indigent
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litigant under 28 U.S.C. § 1915(e)(1). The decision to recruit pro
bono counsel is within the Court’s discretion, and the Court
should consider whether (1) the plaintiff has made reasonable
attempts to obtain counsel, and (2) given the complexity of the
case, the plaintiff appears competent to litigate the case himself.
Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).
The Court, in its discretion, finds that Plaintiff qualifies for
the appointment of counsel. Plaintiff asserts that he has
attempted to obtain counsel but that each attorney contacted
stated he or she had a conflict of interest because he or she or a
member of the firm are on the Board of Directors for the Salvation
Army. Moreover, given the complexity of the case, Plaintiff, who
has a 10th grade education, does not appear competent to litigate
the case on his own.
IV. CONCLUSION
For the reasons stated, Defendants’ Rule 12(b)(6) Motion to
Dismiss the Complaint (d/e 11) is GRANTED IN PART and DENIED
IN PART. The individual Defendants are dismissed without
prejudice. The Title VII and ADEA claims remain pending against
The Salvation Army. The Salvation Army shall file an Answer on or
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before January 24, 2018. In addition, the Court RECONSIDERS
Plaintiff’s request for the appointment of counsel. The Court will
attempt to recruit counsel to represent Plaintiff.
ENTERED: January 10, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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