Kawczynski v. F.E. Moran, Inc. Fire Protection

Filing 26

ORDER Signed by the Honorable Amy J. St. Eve on 8/13/2015: The Court denies Defendant's motion to dismiss 20 . The Court grants Plaintiff leave to file a Second Amended Complaint in compliance with this ruling by no later than 8/27/15. Defendant's Answer is due on or before 9/10/15. Status hearing set for 10/8/15 is stricken and reset to 9/16/15 at 8:30 a.m. [For further details, see Order.] Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEFFREY E. KAWCZYNSKI,

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Plaintiff,
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v.
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F.E. MORAN, INC. FIRE PROTECTION, )
a/k/a and d/b/a THE MORAN GROUP
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and FE MORAN and THE MORAN
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GROUP and FE MORAN MECHANICAL )
SERVICES,
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Defendant.
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Case No. 15 C 3099
Judge Amy J. St. Eve

ORDER
The Court denies Defendant’s motion to dismiss [20]. The Court grants Plaintiff leave to
file a Second Amended Complaint in compliance with this ruling by no later than August 27,
2015. Defendant’s Answer is due on or before September 10, 2015. Status hearing set for
October 8, 2015 is stricken and reset to September 16, 2015 at 8:30 a.m.
STATEMENT
On April 8, 2015, Defendant F.E. Moran, Inc. Fire Protection removed this action from
the Circuit Court of Cook County, Illinois pursuant to the Court’s original jurisdiction over
Plaintiff Jeffrey Kawczynski’s employment discrimination claim brought under the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”). See 28 U.S.C. §§ 1331,
1441, 1446(b). On June 1, 2015, the Court granted Defendant’s motion to dismiss Plaintiff’s
original complaint without prejudice, and on June 8, 2015, Plaintiff filed the present Amended
Complaint. Before the Court is Defendant’s motion to dismiss brought pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6) based on Plaintiff’s failure to exhaust his administrative
remedies, as well as a motion to strike under Rule 12(f). For the following reasons, the Court
denies Defendants’ Rule 12(b)(6) motion to dismiss. The Court also denies Defendant’s Rule
12(b)(1) motion based on Article III standing and Rule 12(f) motion as moot.1 The Court grants
Plaintiff leave to amend his allegations to include both the factual background of his claims and

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Because Plaintiff has sufficiently alleged that he exhausted his administrative remedies,
Defendant’s Article III standing argument necessarily fails. See, e.g., Chicago Fire Fighters
Union Local No. 2 v. City of Chicago, No. 87 C 7295, 1999 WL 1289125, at *59 (N.D. Ill. Dec.
30, 1999); see also Kyles v. J.K. Guardian Sec. Serv., Inc., 222 F.3d 289, 295 (7th Cir. 2000)
(discussing standing in relation to employment discrimination statutes).

the procedural background explaining how he exhausted his administrative remedies.
BACKGROUND
In his Amended Complaint, Plaintiff attempts to incorporate the facts from his original
complaint instead of re-alleging them. An amended complaint, however, supersedes an original
complaint and must stand on its own. See Chasensky v. Walker, 740 F.3d 1088, 1094 (7th Cir.
2014). Nevertheless, for the sake of background, the Court outlines the following facts to give
context to whether Plaintiff has exhausted his administrative remedies. In his original complaint,
Plaintiff alleged that Defendant employed him for approximately five years and ten months and
that he is 51 years old. He also alleged that Defendant terminated his employment on April 5,
2013, based on his age and that Defendant terminated other employees over the age of 51 based
on their age. Further, Plaintiff asserts that during his employment, he endured harassment due to
his age, including co-workers and management calling him “old man” and “old Jeff.” In
addition, he asserts that a superintendent at a job site asked Plaintiff how old he was, after which
Defendant terminated Plaintiff’s employment.
Plaintiff alleges in his Amended Complaint that Defendant F.E. Moran Inc. Fire
Protection was his employer. (R. 18, Am. Compl. ¶¶ 6, 7.) He further states that he filed a
charge of age discrimination with the United States Equal Employment Opportunity Commission
(“EEOC”), specifically, EEOC Charge Number 440-2013-03415, and on December 18, 2014, the
EEOC issued a right-to-sue letter for EEOC Charge Number 440-2013-03415. (Id. ¶¶ 5, 12.)
Plaintiff’s EEOC Charge, dated May 9, 2013, states that he began his employment with
Respondent, F.E. Moran Mechanical Contracting & Service, on or about June 4, 2007. (R. 18,
Ex. E.) Also, Plaintiff alleges that on his EEOC intake questionnaire, he put “F.E. Moran” as the
employer and “fire protection” under the type of business. (Id. ¶¶ 9, 21, 24 Ex. C, EEOC
intake.) He further maintains that the named Defendant–F.E. Moran Inc. Fire Protection–was
aware of his EEOC Charge and had the opportunity to participate in the EEOC’s conciliation
proceedings. (Am. Compl. ¶¶ 16-20.)
LEGAL STANDARD
“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the
viability of a complaint by arguing that it fails to state a claim upon which relief may be
granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). Under
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). The short and plain statement under Rule
8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it
rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)
(citation omitted). Under the federal notice pleading standards, a plaintiff’s “factual allegations
must be enough to raise a right to relief above the speculative 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, 556 U.S. 662, 678, 129 S. Ct.
1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570). “In reviewing the
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sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts
in the complaint as true, Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013), and
draw “reasonable inferences in favor of the plaintiffs.” Teamsters Local Union No. 705 v.
Burlington No. Santa Fe, LLC, 741 F.3d 819, 823 (7th Cir. 2014). Also, when ruling on motions
to dismiss, federal courts may also consider documents attached to the pleadings without
converting the motion to dismiss into a motion summary judgment, as long as the documents are
referred to in the complaint and central to the plaintiff’s claims. See Adams v. City of
Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014); Fed.R.Civ.P. 10(c).
ANALYSIS
The gist of Defendant’s motion to dismiss is that Plaintiff failed to identify his actual
employer as the Respondent in his EEOC Charge, and thus Plaintiff failed to properly exhaust
his administrative remedies. To clarify, Plaintiff, via the EEOC investigator, listed F.E. Moran
Mechanical Contracting & Service as the Respondent in his EEOC Charge instead of F.E.
Moran, Inc. Fire Protection. Although “a party not named as the respondent in an EEOC Charge
may not ordinarily be sued in a private civil action,” the Seventh Circuit recognizes an exception
to this rule where the “unnamed party has been provided with adequate notice of the charge,
under circumstances where the party has been given the opportunity to participate in conciliation
proceedings aimed at voluntary compliance[.]” Alam, 709 F.3d at 666 (citing Eggleston v.
Chicago Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 905 (7th Cir. 1981)).
Here, Plaintiff has provided the Court with documents that he attached to the pleadings.
These documents are referred to in his Amended Complaint and are central to his ADEA claim,
therefore, the Court can refer to them without converting this motion into a motion for summary
judgment. See Adams, 742 F.3d at 729. Specifically, Plaintiff attaches his EEOC
acceptance/objection to mediation form that indicates Respondent is F.E. Moran Fire Protection
North for EEOC Charge Number 440-2013-03415. (R. 18, Ex. C; Am. Compl. ¶ 10.) He further
attaches correspondence from Defendant’s counsel that indicates that F.E. Moran, Inc. Fire
Protection of Northern Illinois is the Respondent to EEOC Charge Number 440-2013-03415. (R.
18, Ex. D.) In fact, in this correspondence, Defendant’s counsel points out that the EEOC
Charge incorrectly captioned “F.E. Moran Mechanical Contracting & Service,” instead of “F.E.
Moran, Inc. Fire Protection of Northern Illinois.” (Id.) Moreover, in his Amended Complaint,
Plaintiff alleges that Defendant F.E. Moran Inc. Fire Protection was aware of his EEOC Charge
and had the opportunity to participate in the EEOC’s conciliation proceedings. (Am. Compl. ¶¶
17, 18.) This is all Plaintiff need allege at this stage of the proceedings. See Alam, 709 F.3d at
666; see, e.g., Hernandez v. Partners Warehouse Supplier Servs., LLC, 890 F.Supp.2d 951, 958
(N.D. Ill. 2012); McQueen v. City of Chicago, 803 F.Supp.2d 892, 904 (N.D. Ill. 2011). As
such, the Court denies Defendant’s motion to dismiss based on Plaintiff’s failure to exhaust his
administrative remedies.

Dated: August 13, 2015

______________________________
AMY J. ST. EVE
United States District Court Judge
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