Coburn v. Land and Lakes
Filing
7
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 11/29/2011.(kj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LUTHER J. COBURN,
Plaintiff,
v.
LAND & LAKES, RIVER BEND
PRAIRIE RECYCLING & TRANSFER
FACILITY,
Defendant.
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No.
11 C 8308
MEMORANDUM ORDER
Luther Coburn (“Coburn”) has employed the form of Complaint
of Employment Discrimination provided by this District Court’s
Clerk’s Office for use by pro se plaintiffs to charge his exemployer Land and Lakes Company, River Bend Prairie Recycling &
Transfer Facility (“Land and Lakes”) with discrimination based on
his race (black), age (61 years) and disability (unidentified)
and with having retaliated against him.
Coburn has accompanied
his Complaint with two other Clerk’s-Office-supplied forms:
an
In Forma Pauperis Application (“Application”) and a Motion for
Appointment of Counsel (“Motion”).
Although Coburn would appear to qualify for in forma
pauperis status from a purely financial perspective, our Court of
Appeals teaches that he must also demonstrate the existence of a
claim that is nonfrivolous (in the legal sense of that term).
is that last hurdle that Coburn has failed to surmount.
Complaint ¶5 alleges that Land and Lakes’ claimed
It
discrimination against Coburn began about May 1, 2010, while
Coburn’s attached Charge of Discrimination (which jibes with his
answer to Application ¶2.b) states that his employment ended in
December 2010.
That same Charge of Discrimination is dated, and
is stamped as having been received by EEOC, on October 31, 2011
(that tracks with the date that Coburn filled in at Complaint
¶7.1(a)(ii)1).
And the Charge of Discrimination specified
December 31, 2010 as the latest date on which the alleged
discrimination took place.
All of that being the case, Coburn’s obvious problem is that
he did not institute his administrative Charge of Discrimination
until 304 days after the final adverse employment action taken by
Land and Lakes2--four days after expiration of the 300-day
timetable applicable to all such claims.
It is true that the
300-day deadline is not viewed as jurisdictional by a majority of
the courts that have considered the issue--but this Court is
entitled to consider the great unlikelihood that any employer
such as Land and Lakes would be willing to forgo that ground for
the dismissal of a plaintiff’s case.
That then would render the
1
Just above that last date Coburn’s handwritten insert at
Complaint ¶7.1(a)(i) refers to his filing with EEOC as “on or
about Oct. 31, 2010,” but that is obviously a typographical error
in light of the already-mentioned October 31, 2011 date stamp
placed by EEOC itself on the Charge of Discrimination.
2
That 304-day calculation represents the time span between
December 31, 2010 and the October 31, 2011 filing date of the
Charge of Discrimination.
2
clearly time-barred claim legally frivolous.
And that being so,
the Application must be denied.
This Court will not however dismiss this action, because
(as stated in the preceding paragraph) most caselaw perceives
that time limit as nonjurisdictional.
Accordingly if Coburn were
to pay the $350 filing fee on or before December 19, 2011, he
could go forward with this case in the first instance.3
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
November 28, 2011
3
Coburn should understand, however, that this Court would
be obligated to deal with any motion to dismiss that Land and
Lakes might file based on untimeliness grounds. If such a
dismissal were to be granted, the expensive filing fee would be
lost by Coburn.
3
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