Jones v. State of Illinois et al
WRITTEN Opinion entered by the Honorable Amy J. St. Eve on 5/25/2011: Defendants' motion to dismiss Plaintiff's First Amended Complaint 24 is denied. Defendants must answer the First Amended Complaint on or before 6/13/11. Status hearing set for 7/28/11 is stricken and reset to 6/16/11 at 8:30 a.m. [For further details see minute order.] Mailed notice (kef, )
Order Form (01/2005)
United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge
Amy J. St. Eve
10 C 7200
Sitting Judge if Other
than Assigned Judge
Jones vs. State of Illinois et al
DOCKET ENTRY TEXT
Defendants’ motion to dismiss Plaintiff’s First Amended Complaint  is denied. Defendants must answer
the First Amended Complaint on or before 6/13/11. Status hearing set for 7/28/11 is stricken and reset to
6/16/11 at 8:30 a.m.
O[ For further details see text below.]
Notices mailed by Judicial staff.
Plaintiff Leslie James Jones, Sr. (“Jones” or (“Plaintiff”), has filed suit against Defendants the Illinois
Department of Human Services (“DHS”) and the Illinois Department of Central Management Services
(“DCMS” or “CMS”), alleging that his termination from DHS constituted a violation of the Age
Discrimination in Employment Act of 1967 (“the ADEA”). (R. 13.) On April 22, 2011, Defendants filed a
motion to dismiss, arguing that a prior settlement agreement between Plaintiff and DHS precludes the instant
proceedings. (R. 24.) In the alternative, Defendants argue that the Court should dismiss Plaintiff’s
Complaint as to CMS because Plaintiff and CMS never had an employer-employee relationship as required
by the ADEA and because Plaintiff failed to exhaust his administrative remedies by filing a charge as to
DCMS with the Equal Employment Opportunity Commission (“EEOC”). (Id.) For the reasons explained
below, the Court denies Defendants’ motion to dismiss Plaintiff’s First Amended Complaint (“the
10C7200 Jones vs. State of Illinois et al
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According to his Complaint, Plaintiff is a Chicago resident whom DHS employed from July 16, 2008,
through February 22, 2010. (R. 13 at 2.) DHS is an Illinois agency that provides Illinois residents a variety of
support services, including treatment for alcohol and drug abuse, emergency food and shelter, supplemental
nutritional assistance, and support for community mental-health programs. (Id.) DCMS is also an Illinois
agency, which provides services to other state agencies. (Id.) It provided personnel-managements services to
DHS, which included services pertaining to DHS’s hiring and subsequent firing of Plaintiff. (Id.)
Jones further alleges that he has attended and obtained credit toward a bachelor’s degree from Indiana
State University, Laney College, Merritt College, and Indiana University South Bend, and is merely three credit
hours short of obtaining such a degree from Indiana University South Bend. (Id. at 3-4.) In 2007, Jones
voluntarily resigned from his position with the Illinois Department of Children and Family Services when it
emerged that his employment application erroneously provided that Indiana University South Bend had awarded
him a baccalaureate degree. (Id.) DCMS advised him at the time that his resignation would preserve his
eligibility for future employment by the State of Illinois. (Id.) In 2008, “DHS and/or DCMS” invited him to
apply for a position with DHS.
Plaintiff alleges that he applied for the DHS position on May 25, 2008, accurately stating that his
bachelor’s degree from Indiana University South Bend was pending. (Id. at 4.) DHS subsequently hired him.
During his ensuing employment, Jones performed well. (Id. at 5.) DHS promoted him and gave him a certificate
of achievement. (Id.) Nevertheless, DHS terminated Plaintiff, then 53-years old, on February 22, 2010, on the
purported ground that he had falsified his application for DHS employment.
According to the Complaint, Defendants’ proffered reason for terminating Jones was a pretext for age
discrimination. (Id. at 6.) Jones alleges that he observed a pattern of age bias throughout his employment with
DHS, contending that people substantially younger than him most frequently obtained promotions, and that DHS
was less frequently disciplined younger employees for their poor employment performance. (Id. at 5.) The
Complaint contrasts Jones’s situation with that of one of his former, and younger, coworkers, whom DHS hired at
approximately the same time and who falsified his employment application by concealing a prior criminal
conviction for a violent offense. Jones alleges that Defendants allowed this younger coworker to “correct” his
application and to retain his employment.
On October 28, 2010, Jones filed a charge of discrimination with the EEOC, charging DHS with age
discrimination in violation of the ADEA. On November 9, 2010, the EEOC notified Jones that he had a right to
sue within 90 days. (R. 13-2 at 2.)
The Court received Plaintiff’s pro se lawsuit on November 8, 2010. (R. 1.) The Court thereafter
appointed counsel to represent Plaintiff. (R. 6.) He subsequently filed the Amended Complaint on January 21,
2011. (R. 13.) On April 22, 2011, Defendants filed the motion to dismiss that is presently before the Court. For
the reasons explained below, the Court denies the motion.
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which
relief may be granted.” Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). Pursuant to Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). As the Seventh Circuit recently explained, this
“[r]ule reflects a liberal notice pleading regime, which is intended to ‘focus litigation on the merits of a claim’
rather than on technicalities that might keep Relators out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir.
2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). This short and plain statement must
“give the defendant fair notice of what the claim is and the grounds upon which it rests .” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Under federal noticepleading standards, a plaintiff’s “factual allegations must be enough to raise a right to relief above the speculative
10C7200 Jones vs. State of Illinois et al
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level.” Twombly, 550 U.S. at 555. Put differently, a “complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 570); see also Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009) (holding that
the amount of factual allegations required to state a plausible claim for relief depends on the complexity of the
legal theory). “[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); Justice v. Town of Cicero,
577 F.3d 768, 771 (7th Cir. 2009) (holding that the court construes complaints in the light most favorable to the
plaintiff, drawing all reasonable inferences in the plaintiff’s favor).
In ruling on a motion to dismiss, “documents attached to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff’s complaint and are central to his claim.” McCready v. eBay, Inc.,
453 F.3d 882, 891 (7th Cir. 2006). The Court can consider them in ruling on a motion to dismiss without
converting that motion into one for summary judgment. See 188 L.L.C. v. Trinity Indus., Inc., 300 F.3d 730, 735
(7th Cir. 2002).
The Court Cannot Determine at this Stage of the Litigation Whether the Settlement Agreement
Between Plaintiff and DHS Bars this Lawsuit
Defendants’ principal argument is that Jones—through his union, the American Federation of State,
County and Municipal Employees—entered into a resolution prior to arbitration (“settlement agreement”)
concerning a grievance Jones had filed against DHS following his discharge. (R. 25 at 4-5.) Defendants attach
the grievance and settlement agreement to their motion. (R. 25-3; R. 25-4.) The latter provides, in relevant part,
The Union and the grievant, Leslie Jones, agree to refrain from initiating any grievance,
administrative or other judicial proceedings arising out of this discharge action or the
circumstances that led to the filing of charges of discharge.
(R. 25-4 at 2.) Based on this document, Defendants argue that “Plaintiff knowingly and voluntarily entered into
the Settlement Agreement through his Union representative and should not now be able to violate that
agreement.” (R. 25 at 5.) In making this argument, however, Defendants do not explain why this Court can
consider extrinsic documentary evidence at this stage of the litigation. Indeed, a “district court is confined to the
pleadings when considering a motion to dismiss.” See In re Wade, 969 F.2d 241, 249 (7th Cir. 1992); see also
Thompson v. Ill. Dep’t of Prof’l Reg., 300 F.3d 750, 754 (7th Cir. 2002) (“The district court properly considered
this as a motion to dismiss by relying only on the pleadings and not considering any documents outside the
Furthermore, the Complaint does not refer to either the settlement agreement or the grievance that Jones
filed against DHS. Accordingly, the Court cannot consider the documents relied upon by Defendants. Cf., e.g.,
Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009) (rejecting the argument that the district court erred in
considering documents attached to a motion to dismiss because the “district court . . . found that these were all
documents to which the Complaint had referred, that the documents were concededly authentic, and that they
were central to the plaintiffs’ claim”).
In addition, Plaintiff challenges whether she entered the settlement agreement knowingly and voluntarily.
This challenge raises an issue of fact inappropriate for resolution on a motion to dismiss.
10C7200 Jones vs. State of Illinois et al
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CMS’s Argument that Plaintiff Cannot Bring an ADEA Claim Against It on Account of Its Not
Being an Employer Fails
The ADEA provides that it shall be unlawful for an employer “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). CMS argues that Jones’s ADEA claim
fails because CMS never employed Jones. (R. 25 at 5-7.) CMS also observes that Jones never applied to work
with it. (Id. at 5.) It points out that the Complaint alleges that “Plaintiff was employed by DHS” and that
“Plaintiff performed his DHS duties.” (Id. at 6.)
Defendants further submit that “Plaintiff has made no attempt to argue that CMS was his actual employer,
and readily acknowledged that he was employed by DHS.” (R. 25 at 6.) The Complaint instead alleges that CMS
is an employer for the purposes of the ADEA because “it is an agent of DHS and/or is an ‘employment
agency[.]’” (R. 13 at 2.) Defendants argue that this allegation fails to state a claim because “CMS does not
procure any employees for DHS, and Plaintiff has not alleged that they [sic] do so.” (R. 25 at 7.)
The Complaint, however, alleges that, “[a]t all times material to this lawsuit, DCMS provided personnel
management services to DHS, including personnel services specifically relating to Plaintiff’s hiring and
terminations by DHS.” (R. 13 at 2.) It also alleges that, in 2007, DCMS “advised Plaintiff that termination of his
employment was under consideration,” which led Plaintiff to resign his position with the Illinois Department of
Children and Family Services. (Id. at 4.) The Complaint further provides that, in 2008, “DHS and/or DCMS”
contacted Plaintiff and “invited him to apply for a DHS position.” (Id.) In addition, Jones alleges that “DHS
and/or DCMS” interviewed and subsequently hired him.” (Id.) Finally, the Complaint states that Defendants
terminated Plaintiff on February 22, 2010. (Id. at 6.)
Accepting these well-pleaded facts as true, Plaintiff has plausibly alleged that DCMS, as an agent of DHS,
is an employer, as well as an employment agency, for the purposes of the ADEA. Subject to certain
qualifications, that Act defines an “employer” as “a person engaged in an industry affecting commerce who has
twenty or more employees for each working day in each of twenty or more calendar weeks in the current or
preceding calendar year[.]” 29 U.S.C. § 630(b). An agent of such a person, as well as any agency or
instrumentality of a State, also constitutes an “employer.” Id. Separately, an “employment agency” means “any
person regularly undertaking with or without compensation to procure employees for an employer and includes
an agent of such a person[.]” Id. at § 630(c). In light of the factual allegations of the Complaint, Plaintiff has
sufficiently alleged at this stage that DCMS constitutes an employer and an employment agency. As such, the
Court denies this aspect of the motion.
The Fact that Plaintiff Did Not Name CMS in his EEOC Charge Does Not Require the Court to
Dismiss the Complaint as to CMS
Defendants’ last argument is that Jones has failed to exhaust his administrative remedies with respect to
his discrimination claims against DCMS. (R. 25 at 7-8.) Defendants, attaching a copy of the charge of
discrimination that Jones filed with the EEOC,1 observe that he only named DHS, and not CMS, as a respondent.
(Id. at 7.) They observe that “a complainant must file a charge with the EEOC within 300 days of [an] allegedly
discriminatory act.” (Id. (quoting Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 396 (7th Cir. 1999).) They
also point out that a plaintiff cannot pursue a claim in court that he did not include in his charge to the EEOC,
The copy of the EEOC charge is properly part of the pleadings because (1) Defendants
attached it to their motion to dismiss, (2) it is central to Plaintiff’s claim, and (3) the Complaint
explicitly references the document. (R. 13 at 3.) The Court can therefore consider the document
without converting the instant motion into a motion for summary judgment. See Hecker, 556
F.3d at 582.
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unless the claim is “like or reasonably related” to the EEOC charge. (Id. at 8.) Defendants thus conclude that
“Plaintiff’s claims should be dismissed to the extent he did not include them in his EEOC charge.” (Id.)
It is well established that a plaintiff must file a charge with the EEOC before filing a complaint alleging a
violation of the ADEA in federal court. See, e.g., Spengler v. Worthington Cyclinders, 615 F.3d 481, 489 (6th
Cir. 2010); Ajayi v. Aramark Bus. Serv., Inc., 336 F.3d 520, 527 (7th Cir. 2003). To determine whether Jones
failed to exhaust his administrative remedy, courts typically apply the “expected scope of investigation test,”
which determines whether a plaintiff alleged sufficient facts in her EEOC complaint to put the EEOC on notice of
the other claim. Id. As the Seventh Circuit has framed the inquiry, the question is “whether the charge that was
timely filed was sufficiently broad to include the claims the plaintiff later raises in court.” Ajayi v. Aramark Bus.
Servs., Inc., 336 F.3d 520, 527 (7th Cir. 2003). To answer that question, the Seventh Circuit asks: “what EEOC
investigation could reasonably be expected to grow from the original complaint?” Id. (quoting Novitsky v. Am.
Consulting Eng’rs, L.L.C., 196 F.3d 699, 701 (7th Cir. 1999)). Where, as here, a pro se complainant filed the
relevant EEOC complaint, courts construe those complaints liberally, “so that courts may also consider claims
that are reasonably related to or grow out of the factual allegations in the EEOC charge.” Younis v. Pinnacle
Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010); see also Miller v. Am. Airlines, Inc., 525 F.3d 520, 525-26 (7th
Cir. 2008) (“Generally, we apply a liberal standard in determining if new claims are reasonably related to those
claims mentioned in the EEOC charge.”).
In the present case, Jones, proceeding pro se, filed a charge of discrimination with the EEOC to the effect
that “I began my employment with Respondent on or about July 16, 2008. My most recent position was Case
Worker. I was discharged on February 22, 2010, whereas a younger employee who falsified his application was
not discharged. I believe I was discriminated against because of my age, 53 (DOB: February 7, 1957), in
violation of the Age Discrimination in Employment Act of 1967, as amended.” (R. 25-2 at 4.)
Accepting the well-pleaded facts in the Complaint as true, which allege that DCMS was involved in the
hiring and termination of Plaintiff, it follows that one could reasonably expect that the EEOC investigation would
grow to encapsulate DCMS. The fact that Jones proceeded on a pro se basis before the EEOC bolsters this
conclusion. Furthermore, and as Plaintiff observes, “DCMS does not deny actual and timely knowledge of
Plaintiff’s EEOC charge.” (R. 26 at 12 (emphasis omitted).) Thus, although Jones did not name DCMS as a
respondent in the EEOC charge, he did not fail to exhaust his administrative remedies. See Tamayo v.
Blagojevich, 526 F.3d 1074, 1089 (7th Cir. 2008) (“Ordinarily, a party not named as the respondent in an EEOC
charge may not be sued . . . . The purpose of requiring the complaint to match the EEOC charge is to ‘give the
employer some warning of the conduct about which the employee is aggrieved and afford the EEOC and the
employer an opportunity to attempt conciliation without resort to the courts.’ Therefore, we have recognized an
exception to the rule ‘where an unnamed party has been provided with adequate notice of the charger, under
circumstances where the party has been given the opportunity to participate in conciliation proceedings.’”)
For the preceding reasons, the Court denies Defendants’ motion to dismiss.
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