Edwards v. Johnson
Filing
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MEMORANDUM OPINION: Defendant's motion to dismiss the amended complaint is granted with prejudice. Dkt. 13 . It is so ordered. Civil case terminated. Signed by the Honorable Charles P. Kocoras on 7/29/2016.Mailed notice(vcf, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THOMAS H. EDWARDS,
Plaintiff,
v.
JEH CHARLES JOHNSON, Secretary
Department of Homeland Security,
Defendant.
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16 C 837
MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Now before the Court is the motion of Secretary of the United States
Department of Homeland Security, Jeh Charles Johnson, (“Defendant”) to dismiss
Plaintiff Thomas H. Edwards’ (“Edwards”) amended complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). For the following reasons, the
motion to dismiss is granted.
BACKGROUND
For purposes of the instant motion, the following well-pleaded allegations
derived from Edwards’ amended complaint are accepted as true. The Court draws all
reasonable inferences in favor of Edwards. See Tamayo v. Blagojevich, 526 F.3d
1074, 1081 (7th Cir. 2008).
In November 2011, Edwards, an African American male, resigned from the
Federal Emergency Management Agency (“FEMA”), a component of the Department
of Homeland Security (“DHS”). Dkt. 7, ¶¶ 2, 9, 15. Edwards claims that while
performing his minimum job requirements, he was “treated differently and less
favorably than female employees and non-African American employees.” Id., ¶ 5.
On September 6, 2011, Edwards filed a formal Equal Employment Opportunity
(“EEO”) complaint alleging that the DHS, specifically FEMA, discriminated against
him based on his sex and race, in violation Title VII of the Civil Rights Act of 1964,
(“Title VII”), 42 U.S.C. § 2000(e) et seq. Dkt. 7, ¶ 1; see also Dkt. 7-1, p. 2-3.
Edwards also alleged that he was subjected to a hostile work environment due to the
discrimination. Id. On November 9, 2012, the DHS Office for Civil Rights and Civil
Liberties issued a Final Agency Decision, in response to Edwards’ EEO complaint,
concluding that Edwards “failed to prove by a preponderance of the evidence that”
FEMA discriminated against him. Dkt. 7-1, p. 1. Edwards filed a timely appeal with
the Equal Employment Opportunity Commission (“EEOC”) on December 15, 2012.
Dkt. 7, ¶ 15; Dkt. 7-3, p. 3.
In May of 2013, Edwards moved to Cleveland, Ohio. Dkt. 7, ¶ 15. He
continued to work for the Federal Government as an employee of the Veterans
Administration Agency (“VA”). Id. According to Edwards, in December 2013, the
VA contacted the National Records Center and notified it of his employment with the
VA. At that time, the VA also requested Edwards’ personnel record from FEMA. Id.
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Two years later, on December 10, 2015, Edwards contacted FEMA and
requested an update on his appeal of the Final Agency Decision. Id. On that same
day, in response to his request, Edwards received an email with a copy of the EEOC’s
decision regarding his appeal of the Final Agency Decision.
Id.
decision also included a right-to-sue notification. Dkt. 7-3, p. 7.
The EEOC’s
Edwards claims
that he did not receive the EEOC’s June 10, 2015 decision because “it was sent to an
old address,” but that FEMA “should have been aware of his current address.” Dkt. 7,
¶ 15. The EEOC’s June 10, 2015 decision concluded that “Complainant was not
subjected to disparate treatment discrimination or a hostile work environment because
of his race or sex,” and the decision unequivocally gave Edwards “ninety (90) days
from the date you receive this decision” to file a lawsuit “in the appropriate United
States District Court.” Dkt. 7-3, p. 1, 7.
On January 20, 2016, Edwards filed his initial complaint with this Court
alleging discrimination based on his sex and race in violation of Title VII. Dkt. 1. On
March 15, 2016, Edwards filed an amended complaint.
Dkt. 7.
Subsequently,
Defendant filed the instant motion to dismiss arguing that Edwards’ Title VII claim is
time-barred because it was “filed more than four months after the expiration of the 90day limitation period.” Dkt. 15, p. 1.
LEGAL STANDARD
A motion to dismiss pursuant to Rule 12(b)(6) “tests the sufficiency of the
complaint, not the merits of the case.” McReynolds v. Merrill Lynch & Co., 694 F.3d
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873, 878 (7th Cir. 2012). The allegations in a complaint must set forth a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). A plaintiff need not provide detailed factual allegations but must
provide enough factual support to raise his right to relief above a speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim must be facially
plausible, meaning that the pleadings must “allow[ ] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The claim must be described “in sufficient detail to give
the defendant ‘fair notice of what the . . . claim is and the grounds upon which it
rests.’” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)
(quoting Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements,” are insufficient to withstand a
motion to dismiss under Rule 12(b)(6). Iqbal, 556 U.S. at 678.
DISCUSSION
Defendant moves to dismiss the amended complaint arguing that Edwards
failed to file the instant suit within the ninety-day period allowed for filing. Dkt. 15,
p. 1. In response, Edwards contends that “[a] complaint [ ] need neither anticipate nor
overcome affirmative defenses such as the statute of limitations at this stage of the
pleadings,” and in the alternative, if the suit is untimely, Edwards “can show that he is
entitled to equitable tolling.” Dkt. 17, p. 2, 4. “Although generally a plaintiff is not
required to plead around an affirmative defense, such as a statute of limitations, the
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district court can dismiss a complaint as untimely if the plaintiff has admitted all the
elements of the affirmative defense.” Khan v. United States, 808 F.3d 1169, 1172
(7th Cir. 2015); see also O’Gorman v. City of Chi., 777 F.3d 885, 889 (7th Cir. 2015)
(“if a plaintiff alleges facts sufficient to establish a statute of limitations defense, the
district court may dismiss the complaint on that ground”).
“It is well settled that in deciding a Rule 12(b)(6) motion, a court may consider
‘documents attached to a motion to dismiss . . . if they are referred to in the plaintiff’s
complaint and are central to his claim.’” Brownmark Films, LLC v. Comedy Partners,
682 F.3d 687, 690 (7th Cir. 2012) (quoting Wright v. Assoc. Ins. Cos. Inc., 29 F.3d
1244, 1248 (7th Cir. 1994)).
Thus, “if a plaintiff mentions a document in his
complaint, the defendant may then submit the document to the court without
converting defendant’s 12(b)(6) motion to a motion for summary judgment.” Id. A
plaintiff is thereby prevented from “evad[ing] dismissal under Rule 12(b)(6) simply
by failing to attach to his complaint a document that prove[s] his claim has no merit.”
Id. (quoting Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002)).
Here, Edwards not only referenced the EEOC’s June 10, 2015 decision in his
amended complaint, he also included it as an exhibit to his amended complaint as
“Plaintiff’s Exhibit C.” See Dkt. 7-3, Plaintiff’s Exhibit C. However, as recognized
by Defendant, Plaintiff’s Exhibit C appears to be incomplete. Dkt. 15, p. 2. Thus,
attached to Defendant’s motion to dismiss is what appears to be a complete copy of
the EEOC’s June 10, 2015 decision. See Dkt. 15-1, Exhibit 1. Defendant’s Exhibit 1
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is identical to Plaintiff’s Exhibit C except that it includes page eight of the EEOC’s
June 10, 2015 decision. Dkt. 15-1; cf. Dkt. 7-3. Page eight of the EEOC’s June 10,
2015 decision contains the certificate of mailing, the addresses to which the decision
was sent, and the date the decision was sent to those addresses. See Dkt. 15-1, p. 9.
Edwards does not dispute the authenticity of this document and we note that
page eight of Defendant’s Exhibit 1 contains the same appeal number, 0120130976, as
that listed on the first page of Plaintiff’s Exhibit C. Accordingly, although the statute
of limitations is an affirmative defense properly raised by a motion for judgment on
the pleadings under Rule 12(c), “a district court may resolve the defense under Rule
12(b)(6) where (as here) it has before it everything ‘needed in order to be able to rule
on the defense.’” Uppal v. Welch, 15 C 8077, 2016 WL 2909652, at *4, n.4 (N.D. Ill.
May 19, 2016) (citing Walczak v. Chi. Bd. of Edu., 739 F.3d 1013, 1016, n.2 (7th Cir.
2014)) (quoting Carr v. Tillery, 591 F.3d 909, 913 (7th Cir. 2010)).
I. Timeliness
“A civil action alleging a Title VII violation must be filed within 90 days of
receiving a right-to-sue notice from the EEOC.” Threadgill v. Moore U.S.A., Inc.,
269 F.3d 848, 849-50 (7th Cir. 2001)). “The 90-day period of limitation set forth in
42 U.S.C. § 2000e-5(f)(1) begins to run on the date that the EEOC right-to-sue notice
is actually received either by the claimant or by the attorney representing him in the
Title VII action.” Id. at 850 (quoting Jones v. Madison Serv. Corp., 744 F.2d 1309,
1312 (7th Cir. 1984)) (emphasis omitted); see also Prince v. Stewart, 580 F.3d 571,
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574 (7th Cir. 2009) (same); Houston v. Sidley & Austin, 185 F.3d 837, 839 (7th Cir.
1999) (same). “However, when the claimant does not receive the notice in a timely
fashion due to her own fault, the ‘actual notice’ rule does not apply.” Bobbitt v.
Freeman Cos., 268 F.3d 535, 538 (7th Cir. 2001) (citing St. Louis v. Alverno College,
744 F.2d 1314, 1316-17 (7th Cir. 1984)).
Although the EEOC issued its decision on June 10, 2015, Edwards claims that
he did not receive it until December 10, 2015, after he inquired with the EEOC
regarding the status of his appeal. Dkt. 7, ¶ 15. Only then did Edwards allegedly
discover that the EEOC sent its decision, along with the right-to-sue notification, to
“an old address.” Id. Edwards asserts that FEMA “should have been aware of his
current address.” Id. Thus, according to Edwards, the instant suit was timely filed on
January 20, 2016, because he did not actually receive the EEOC’s decision, and rightto-sue notification until December 10, 2015. Id.; see also Dkt. 17, p. 2.
This argument fails because despite Edwards’ assertions that his former
employer “should have been aware of his current address,” the law requires Edwards
to inform the EEOC of any change of address after a charge has been filed. See 29
C.F.R. § 1601.7(b); see also St. Louis, 744 F.2d at 1316-17 (“[s]ince 1997 people who
have filed charges with the EEOC have been required to notify the Commission of
any change of address”); Ruffin-El v. St. Gobain Containers, No. 13 C 1739, 2013
WL 3716658, at *2 (N.D. Ill. July 12, 2012) (a claimant has “the express burden of
keeping EEOC apprised of any changes in the claimant’s address from the one
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originally furnished to that agency”). The Seventh Circuit acknowledged in St. Louis
v. Alverno College that “claimants who do not receive actual knowledge of their rightto-sue letter through no fault of their own should not be penalized,” however, a
“plaintiff’s failure to tell the EEOC that he [has] moved [is] not an event beyond his
control.” St. Louis, 744 F.2d at 1317 (emphasis added); see also Saunders v. Am.
Warehousing Servs., Inc., No. 02 C 7650, 2003 WL 21266652, at *2 (N.D. Ill. May
30, 2003) (“Saunders failed to notify the EEOC of the change in his address . . . [his]
actions demonstrate that he was at fault for not receiving the letter sooner, so he
cannot benefit from the actual notice rule.”).
Here, Edwards failed to inform the EEOC of the change in his address. Thus,
when a plaintiff fails to inform the EEOC that he or she has moved the ninety-day
limitations period begins to run “on the date the notice was delivered to the most
recent address plaintiff provided the EEOC.” St. Louis, 744 F.2d at 1316-17; see also
Reschny v. Elk Grove Plating Co., 414 F.3d 821, 823 (7th Cir. 2005) (same); King v.
Ford Motor Co., No. 13 C 7967, 2015 WL 5722606, at *3 (N.D. Ill. Sept. 29, 2015)
(same); and Stavrou v. Mercy Hosp. and Med. Ctr., No. 01 C 2493, 2004 WL
1403715, at *1 (N.D. Ill. June 23, 2004) (same). “In the absence of evidence proving
dates of delivery, the ‘law presumes [timely] delivery of a properly addressed piece of
mail.’” Stavrou, 2004 WL 1403751, at *1 (quoting McPartlin v. Comm’r of the
Internal Revenue Serv., 653 F.2d 1185, 1191 (7th Cir. 1981)). As there is no evidence
of the actual date of delivery, the Court assumes the June 10, 2015 EEOC decision,
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addressed to the address that Edwards provided to the EEOC was timely delivered.
Accordingly, the ninety day period began to run at the latest on June 15, 2015.1
While normally “[a] complaint [ ] need neither anticipate nor overcome
affirmative defenses such as the statute of limitations at this stage of the pleadings,” as
recognized by Edwards, “it is possible for a plaintiff to plead himself out of court by
admitting all of the ingredients of an ‘impenetrable defense.’” Dkt. 17, p. 2-3. In the
instant matter, Edwards argues that the only admission he has made is that he was
unaware of the EEOC’s June 10, 2015 decision. Dkt. 17, p. 3.
But Edwards was
unaware of the EEOC’s decision because he failed to notify the EEOC of his change
of address after he moved in May of 2013. Dkt. 7, ¶ 15. Unfortunately for Edwards,
in the instant matter, this is the “main ingredient” of an “impenetrable defense.”
Thus, Edwards has pleaded himself out of court by alleging facts that establish that
the delay in filing resulted from his own negligence. He was required to file his
complaint within ninety days of June 15, 2015. The initial complaint was filed on
January 20, 2016, which was well beyond the ninety day filing period for a Title VII
claim. Therefore, Edwards’ Title VII claim is time-barred.
II. Equitable Tolling
Next, Edwards contends that while “he is not required to do so at this point in
the proceedings, [h]e can show that he is entitled to equitable tolling.” Dkt 17, p. 4.
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“Unless proven otherwise, the receipt date is presumed to be five days from the mailing
date.” McClinton El v. Potter, Nos. 06 C 5329, 06 C 6839, 2008 WL 5111182, at *4 (N.D. Ill.
Dec. 4, 2008) (quoting Loyd v. Sullivan, 882 F.2d 218, 218 (7th Cir. 1989)).
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However, the cases that Edwards cites to support this argument are either
distinguishable or not controlling. See Etheridge v. United States Army, No. 01 C
8120, 2002 WL 31248473 (N.D. Ill. Oct. 4, 2002) (equitable tolling justified where
Clerk’s Office employees “affirmatively misled” plaintiff); Payne v. Cook Cnty.
Hosp., 719 F. Supp. 730 (N.D. Ill. 1989) (equitable tolling applied where pro se
litigant timely filed suit after receipt of her right-to-sue letter, but she filed suit in the
wrong court and limitations period expired while the case was filed in the improper
court); Ortiz v. Clarence H. Hackett, Inc., 581 F. Supp. 1258 (N.D. Ind. 1984) (initial
complaint filed within the ninety day period); Franks v. Bowman Transp. Co., 495
F.2d 398, 404 (5th Cir. 1974) (Title VII action was not time-barred where plaintiff
never “received” the first right-to-sue letter, although it was sent to his mailing
address, because his nine-year old nephew received the letter and subsequently lost it).
The circumstances in Etheridge, Payne, Ortiz, and Franks are not present here. More
importantly, however, the controlling authority precludes equitable tolling.
The Seventh Circuit has stated that:
In discrimination cases equitable tolling extends filing deadlines in
only three circumstances: when a plaintiff exercising due diligence
cannot within the statutory period obtain the information necessary
to realize that she has a claim[;] when a plaintiff makes a goodfaith error such as timely filing in the wrong court; or when the
defendant prevents a plaintiff from filing within the statutory
period.
Porter v. New Age Servs. Corp., 463 Fed. Appx. 582, 584 (7th Cir. 2012) (internal
citations omitted). Edwards does not contend that equitable tolling is warranted in the
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instant matter based on any of these three circumstances. Instead, he asserts that
equitable tolling should apply because his “limited knowledge” of federal labor laws
amounts to “excusable ignorance of or noncompliance with the limitations period,
evidently with no prejudice to defendant.” Dkt. 17, p. 4. However, this argument is
unsupported by the relevant case law. See Schmidt v. Wis. Div. of Vocational Rehab.,
502 Fed. Appx. 612, 614 (7th Cir. 2014) (“although Schmidt did not have legal
representation, mistakes of law (even by plaintiffs proceeding pro se) generally do not
excuse compliance with deadlines or warrant tolling a statute of limitations”);
Williams v. Sims, 390 F.3d 958, 963 (7th Cir. 2004) (“reasonable mistakes of law are
not a basis for equitable tolling”); Brown v. United Airlines Inc., 15 C 2751, 2015 WL
5173646, at *2 (N.D. Ill. Sept. 2, 2015) (plaintiff’s “ignorance of the law [did] not
excuse her untimely filing”); Berry v. Potter, No. 07 C 6282, 2008 WL 4066246, at *4
(N.D. Ill. Aug. 27, 2008) (“Berry is not entitled to equitable tolling of his claim since
his ignorance of law argument is not a sufficient grounds on which to allow equitable
tolling . . .”). Moreover, as Defendant correctly argues, a “litigant is entitled to
equitable tolling if ‘he shows (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and prevented timely
filing.’” Dkt. 22, p. 2 (citing Lee v. Cook Cnty., Ill., 635 F.3d 969, 972 (7th Cir.
2011)) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). While Edwards
asserts that he would “follow-up from time to time” with the EEOC to “find out the
status” of his appeal, his failure to inform the EEOC of his new address does not
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amount to an “extraordinary circumstance that stood in his way and prevented timely
filing” such that equitable tolling is warranted. See Reschny, 414 F.3d at 823 (“[h]is
negligence in failing to apprise the EEOC of his change of address does not toll the
period of limitations”); see also St. Louis, 744 F.2d at 1317 (“plaintiff’s failure to tell
the EEOC that he had moved was not an event beyond his control”). Accordingly,
Edwards is not entitled to equitable tolling.
CONCLUSION
For the aforementioned reasons, Defendant’s motion to dismiss the amended
complaint is granted with prejudice. Dkt. 13. It is so ordered.
___________________________________
Charles P. Kocoras
United States District Judge
Dated: 7/29/2016
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