Foster v. Chicago Transit Authority
MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 2/8/2017:Mailed notice(rth, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WILLIAM J. FOSTER,
CHICAGO TRANSIT AUTHORITY,
Case No. 13 cv 5942
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Plaintiff William J. Foster, filed a six count First Amended Complaint on May 15, 2014,
alleging employment discrimination, retaliation, and intentional infliction of emotional distress under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., the American with Disabilities Act
of 1990 (“ADA”), Age Discrimination in Employment Act of 1967 (“ADEA”), and the Illinois
Human Rights Act, 775 ILCS 5/1-101- 5/10-101. Defendant Chicago Transit Authority (“CTA”)
filed an Answer to the First Amended Complaint, denying the allegations, and filed the instant
motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).  For
the reasons stated below, the Court grants the motion.
Plaintiff William Foster worked at CTA from March 13, 1981, until his termination on
January 26, 2012. Following arbitration proceedings, CTA reinstated Foster’s employment on or
about October 1, 2013. Foster alleges that over the years he complained numerous times to CTA
about ongoing racial discrimination and sexual harassment that he believed CTA committed against
other employees. Foster also alleges that he suffered discrimination based on his age and clinical
depression and that CTA retaliated against him, ultimately terminating his employment.
Foster filed his first Equal Employment Opportunity Commission (“EEOC”) charge on or
about November 28, 2012, only claiming retaliation on January 26, 2012, for his complaints about
CTA discriminating against other employees. The Right to Sue letter is dated May 21, 2013. Foster
filed his initial complaint pro se in this Court on August 20, 2013, alleging retaliation for the
numerous complaints he made to CTA about what he believed to be ongoing racial discrimination
and sexual harassment of CTA employees. (Dkt. 1).
On January 9, 2014, Foster filed his second EEOC charge, alleging discrimination based on
age and disability, and retaliation on September 30, 2013. The Right to Sue letter is dated January 31,
2014. Foster filed a First Amended Complaint in this Court on May 15, 2014. Thereafter, on April
29, 2014, Foster filed a complaint in the Circuit Court of Cook County, which was consolidated with
the instant lawsuit and voluntarily dismissed.
CTA now moves for dismissal of the First Amended Complaint, arguing that it is entitled to
judgment on the pleadings because the retaliation and discrimination claims are untimely and the
intentional infliction of emotional distress claim is preempted by the Illinois Human Rights Act.
A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is
analyzed under the same standard as a motion to dismiss under Rule 12(b)(6). United States v. Wood,
925 F.2d 1580, 1581 (7th Cir. 1991); see also Brooks v. Ross, 578 F.3d 574, 579 (2009) (noting that the
practical effect of addressing a statute of limitations defense in a Rule 12(c) motion is the same as
addressing it in a Rule 12(b)(6) motion). For purposes of ruling on this motion, the Court accepts as
true all well-pleaded facts in the complaint and draws all reasonable inferences in the plaintiff’s
favor. See Thomas v. Guardsmark, Inc., 381 F.3d 701, 704 (7th Cir. 2004). Dismissal pursuant to Rule
12(c) is appropriate when a plaintiff alleges sufficient facts to establish the untimeliness of the
complaint. See Cancer Found., Inc. v. Cerberus Cap. Mgmt., 559 F.3d 671, 674-75 (7th Cir. 2009).
CTA argues that Counts I to V, alleging retaliation and discrimination are time-barred. CTA
also argues that Count VI, alleging intentional infliction of emotional distress is both time-barred
and pre-empted by the Illinois Human Rights Act. This Court first addresses the timeliness of the
discrimination and retaliation claims.
Foster had 90 days from receiving his Right to Sue letter from the EEOC to file his
Complaint. 42 U.S.C. § 2000e-5(f)(1); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 849-850 (7th Cir.
2001). The EEOC issued a Right to Sue letter on January 31, 2014. Foster filed his First Amended
Complaint on May 15, 2014. If the allegations do not aver when a plaintiff received a Right to Sue
letter, this Court presumes timely delivery of the letter within seven days. See Bobbitt v. Freeman Cos.,
268 F.3d 535, 538 (7th Cir. 2001) (citing McPartlin v. Commissioner, 653 F.2d 1185, 1191 (7th Cir.
1981)). Therefore, even if this Court assumes that Foster did not receive the Right to Sue letter until
February 7, 2014, the First Amended Complaint was filed 98 days later and is untimely.
Foster asserts that the claims contained in the First Amended Complaint are timely because
they relate back to the original complaint. In the context of employment discrimination and
retaliation, claims in the charge and allegations in the complaint must be alike or reasonably related.
See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1030 (7th Cir. 2013) (citing Cheek v. Western &
Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)); see also McKenzie v. Illinois Dep't of Transp., 92
F.3d 473, 482-83 (7th Cir. 1996) (collecting cases). “Normally, retaliation and discrimination charges
are not considered ‘like or reasonably related’ to one another.” Swearnigen-El v. Cook County Sheriff’s
Dep’t, 602 F.3d 852, 864-865 (7th Cir. 2010).
Foster’s original complaint and his 2012 EEOC charge claimed only retaliation for his
complaints about third-party discrimination and thus his age and disability discrimination claims do
not relate back to that charge. The original retaliation claim and the current claims that Foster
suffered age and disability discrimination do not describe the same conduct by the same individuals.
See Cheek, 31 F.3d at 501. Accordingly, Foster’s discrimination claims are untimely.
Even if this Court were to consider Foster’s retaliation claims as relating back to the original
EEOC charge in 2012, they fail for the additional reason that Foster has not alleged any conduct
within the necessary 300-day window for filing an EEOC charge. See 42 U.S.C. § 2000e-5 (1964). In
his second EEOC charge on January 9, 2014, Foster stated that the last date of CTA’s
discriminatory conduct was September 30, 2013. While January 9, 2013, is within 300 days of
September 30, 2013, Foster was not an employee of CTA on that date nor was he a CTA employee
at any time between March 15, 2013, which begins the 300-day window for Foster to file an EEOC
charge, and September 30, 2013. Indeed, the date of Foster’s termination, January 26, 2012, is the
last date on which the alleged retaliation could have occurred. 1
The 2012 EEOC charge does not save this claim. Foster would have had to file his EEOC
charge by November 21, 2012, which is 300 days from his termination. Foster asserts that he
submitted his EEOC charge on that November date. However, it was actually the Intake
Questionnaire that Foster mailed to the EEOC on November 21, 2012. While an Intake
Questionnaire may fulfill the requirements of a “charge,” it is not necessarily the equivalent. See
Philbin v. General Electric Capital Auto Lease, Inc., 929 F.2d 321, 324 (7th Cir. 1991) (holding that hold
that an intake questionnaire that is later verified may be sufficient to constitute a charge in some
circumstances). Even if this Court were to accept the Intake Questionnaire as the equivalent of an
EEOC charge, the EEOC did not receive that form until November 23, 2012. According to 29
C.F.R. § 1601.13(a)(4)(ii)(A), a claim is filed when the agency receives it. See also Laouini v. CLM
Freight Lines, Inc., 586 F.3d 473, 474 (7th Cir. 2009). Thus, the earliest date on which the EEOC
could have received even the 2012 Charge or Intake Questionnaire was two days after the expiration
Foster does not allege any retaliatory conduct after his reinstatement on or about October 1, 2013.
of the 300-day deadline. Accordingly, this Court finds that Foster’s retaliation claim is also timebarred.
Lastly, this Court considers whether Foster’s intentional infliction of emotional distress claim
is timely and is not pre-empted by the IHRA. Foster’s intentional infliction of emotional distress
claim is a state-law tort claim subject to a two-year statute of limitations in Illinois. 735 ILCS 5/13202. By asserting that this claim relates back to his original complaint Foster is conceding that his
intentional infliction of emotional distress claim is untimely. Even if this argument could save his
claim from being barred by the statute of limitations, the same argument justifies dismissal for
preemption under the Illinois Human Rights Act, 775 ILCS 5-111(D). Not every tort claim
is preempted by the IHRA. Where, as here, the factual allegations supporting a plaintiff’s claim
of intentional infliction of emotional distress are identical to those set forth in the plaintiff’s
discrimination and retaliation claims, the IHRA preempts the intentional infliction of emotional
distress claim. See Quantock v. Shared Mktg. Servs., 312 F.3d 899, 905 (7th Cir. 2002). Accordingly, this
Court finds Foster’s intentional infliction of emotional distress claims are preempted by IHRA.
Based on the foregoing discussion, this Court finds that Foster’s discrimination and
retaliation claims are untimely and his intentional infliction of emotional distress claim is preempted
by the IHRA. This Court therefore grants defendant CTA’s motion for judgment on the pleadings.
IT IS SO ORDERED.
Dated: February 8, 2017
SHARON JOHNSON COLEMAN
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