Lopez v. Inland Die Casting Company

Filing 21

WRITTEN Opinion entered by the Honorable George M. Marovich on 4/24/2012: The Court grants in part and denies in part defendant's motion 15 to dismiss. Count II is dismissed with prejudice. Plaintiff's counsel is reminded that, pursuant to Local Rule 5.2(f), a paper copy of each electronically-filed document is to be delivered to chambers within one business day of filing. (For further detail see written opinion.) Mailed notice (ma,)

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

George M. Marovich

CASE NUMBER

11 C 6703

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

4/24/2012

Lopez v. Inland Die Casting Co.

DOCKET ENTRY TEXT:

The Court grants in part and denies in part defendant’s motion [15] to dismiss. Count II is dismissed with
prejudice. Plaintiff’s counsel is reminded that, pursuant to Local Rule 5.2(f), a paper copy of each
electronically-filed document is to be delivered to chambers within one business day of filing.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff David Tercero Lopez (“Lopez”) filed a two-count complaint against defendant Inland Die
Casting Co. (“Inland Die”). In Count I, Lopez claims that Inland Die discriminated against him on the basis
of his national origin in violation of Title VII of the Civil Rights Act of 1964. In Count II, Lopez claims that
Inland Die retaliated against him in violation of Title VII.
Defendant Inland Die moves to dismiss Count II on the grounds that Lopez failed to exhaust his
administrative remedies with respect to the retaliation claim. A court may review only “those charges
‘included in [the] EEOC charge ... or reasonably related to the allegations of the charge and growing out of
such allegations.’” Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 270 (7th Cir. 2004) (quoting Haugerud
v. Amery Sch. Dist., 259 F.3d 678, 689 (7th Cir. 2001)). Failure to exhaust is an affirmative defense, and
plaintiff need not plead around an affirmative defense. United States Gypsum Co. v. Indiana Gas Co., 350
F.3d 623, 626 (7th Cir. 2003). Still, a plaintiff “may plead himself out of court by alleging (and thus
admitting) the ingredients of a defense.” Id. In this case, Lopez checked the box for national origin
discrimination, but he did not check the box for retaliation. He did not mention retaliation in his short
description of the discrimination, either. It is also clear from Lopez’s complaint that the alleged retaliation
occurred before he filed his charge of discrimination. Accordingly, the claims are not reasonably related, and
Lopez has failed to exhaust his administrative remedies with respect to his retaliation claim. See
Swearingen-El v. Cook Cty. Sheriff’s Dep’t, 602 F.3d 852, 865-66 (7th Cir. 2010) (“Normally, retaliation and
discrimination claims are not considered ‘like or reasonably related’ to one another.”). Count II is dismissed
with prejudice.
In addition, defendant seeks to dismiss portions of Count I. First, defendant argues that Lopez’s
claim that he was “not promoted” is outside of the scope of his charge of discrimination. Although it is clear
that Lopez did not specifically mention a failure to promote in his charge, Lopez does not say enough, in his
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STATEMENT
complaint, about not being promoted to make it clear that such claim is not reasonably related to his charge.
Therefore, Lopez has not admitted the elements of the affirmative defense of failure to exhaust with respect
to his failure to promote allegations.
Finally, defendant argues that portions of plaintiff’s Count I are time-barred, because they occurred
more than 300 days before Lopez filed his charge of discrimination. While it is true that Lopez cannot
recover for any discrete acts that occurred more than 300 days before he filed his charge (National RR
Passenger Corp. v. Morgan, 536 U.S. 101 (2002)), Lopez has not alleged that any discrete acts occurred
before then. Thus, Lopez had not admitted the elements of the affirmative defense. The Court declines to
dismiss portions of Count I at this time.

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