Poe v. University of Chicago Police Department

Filing 38

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 12/29/2011:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DEBRA A. POE,
Plaintiff,

Case No. 10 C 6811

v.
Hon. Harry D. Leinenweber
UNIVERSITY
DEPT.,

OF

CHICAGO

POLICE

Defendant.

MEMORANDUM OPINION AND ORDER
According to the Complaint, Plaintiff, an African-American
female, was employed by the University of Chicago Police Department
from 1987 until she was fired on August 11, 2009.

She contends

that in firing her the University subjected “her to disparate
treatment.”

She filed a charge of discrimination with the Equal

Employment Opportunity Commission (the “EEOC”) on October 22, 2009,
known as Charge No. 440-2010-00217.
letter on August 8, 2010.

She received a Right to Sue

Her Complaint was filed in this court on

March 29, 2011. The Defendant has filed a Motion to Dismiss the
Complaint.
I.
Plaintiff

did

not

BACKGROUND

attach

Discrimination to her Complaint.

a

copy

of

her

Charge

of

Since she referred to it in her

Complaint and it is central to her claim, the Court may consider it
for purposes of a Motion to Dismiss.

Venture Assocs. v. Zenith

Data System, 987 F.2d 429, 431 (7th Cir. 1993).

The Defendant

points out that the Charge of Discrimination referred to in her
Complaint is based solely on a claim that she was denied a
promotion and was discharge due to “retaliation” for engaging in
protected activity, viz., the filing of a previous EEOC charge in
March 2004, and a suit in 2005.

The Right to Sue letter, according

to Defendant, was therefore limited to her claim of retaliation.
Since

her

contended

Complaint
that

she

did
was

not

mention

subject

to

retaliation

race

and

but

national

instead
origin

discrimination, the Complaint must be dismissed because it was not
filed within ninety (90) days of the receipt of the Right to Sue
Letter.

Plaintiff responded to the Motion by moving to amend her

Complaint which the Court granted.
Complaint on September 21, 2011.

The Plaintiff filed an Amended
The Amended Complaint abandoned

the race and national origin claim and instead alleged only the
retaliation claim which she had set forth in the EEOC complaint.
II.
A

Complaint

may

be

LEGAL STANDARD
dismissed

under

Rule

12(b)(6)if

the

allegations in the complaint plainly show that the action is
untimely under the governing statute of limitations. United States
v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).
contention

that

the

Plaintiff

did

not

It is Defendant’s

file

her

claim

for

retaliation until she filed her Amended Complaint on September 21,
2011. The ninety-day limit expired on November 8, 2010. Plaintiff
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contends that she can avoid dismissal because her amendment relates
back to her original Complaint which was filed on October 22, 2010,
which was within the 90 day limit. She relies on Rule 15(c)(1)(B).
III.

DISCUSSION

Rule 15(c)(1)(B) provides that “[a]n amendment to a pleading
relates back to the date of the original pleading when:
* * *
(B)

the amendment asserts a claim or defense that arose
out of the conduct, transaction, or occurrence set
out-or attempted to be set out-in the original
pleading . . .,”

As explained in Wright, Miller, and Kane, Federal Practice and
Procedure,

Vol.

6A,

Section

1497,

“[a}though

not

expressly

mentioned in the rule, the courts also inquire into whether the
opposing party has been put on notice regarding the claim or
defense raised by the amended pleading.”

The key, therefore, is

notice and, again according to Wright, Miller, and Kane,
“[Cases] have held that it is sufficient if the opposing
party was made aware of the matters to be raised by the
amendment from sources other than the pleadings. This
position seems sound since it is unwise to place undue
emphasis on the particular way I which notice is
received.
Thus the better approach is to determine
whether the adverse party viewed as a reasonably prudent
person, ought to have been able to anticipate or should
have expected that the character of the originally
pleaded claim might be altered. . ..” Id. p. 111-112.
Therefore the issue is whether the Defendant was, or should
have been, on notice whether Plaintiff was claiming retaliation
even

though

her

Complaint

was

based

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on

discrimination.

The

Plaintiff

filed her

retaliation.

Complaint

with

the

EEOC based

solely

on

She, however, subsequently filed suit alleging race

and national origin discrimination.

Since a Complaint must be

based on the allegations contained in the EEOC charge, it is
obvious that the Complaint as it stood would have to be dismissed.
Schnellbaecher v. Baskin clothing Co., 887 F.2d 124, 127 (7th Cir.
1989).

The reason for thE rule that the complaint must be based on

the EEOC charge is that an employer is entitled to notice of the
charge and an opportunity to conciliate.

Id.

Here the Defendant

had been put on notice of Plaintiff’s claim of retaliation but not
of the claim for racial and national origin discrimination.

In

fact,

to

Defendant

filed

a

detailed

response

with

the

EEOC

Plaintiff’s allegation that Defendant had retaliated against her.
The Court has not found any case directly in point, but again the
key to relation back under Rule 15 is notice of the real claim.
Here the Defendant had notice and an opportunity to conciliate
before the EEOC the retaliation claim but not the race and national
origin claim. Thus, the original Complaint would not be allowed to
stand but the Amended Complaint can.

Also, the specific injury

complained of, the discharge, could be the focal point of a claim
for retaliation or discrimination.

The Court finds that the

Amended Complaint relates back under Rule 15(c)(1)(B).
The Plaintiff also pled claims under Section 1981 and the
Illinois Human Rights Act which the Defendant has also moved to

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dismiss.

Plaintiff did not respond to Defendant’s Motion to

Dismiss so the Motion is granted as to these claims.
IV.

CONCLUSION

For the reasons stated herein, Defendant’s Motion to Dismiss
is Denied as to the Title VII retaliation claim.

All other claims

are dismissed.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE: 12/29/2011

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