Cover, Jr. v. OSF Healthcare Systems

Filing 39

MEMORANDUM Opinion and Order: The Court finds: (1) that Cover's complaint is timely; but (2) that it fails to state a claim. Because it fails to state a claim, Cover's complaint is dismissed, and his motion to reconsider 25 is denied t o that extent. However, Cover should be given an opportunity to amend his complaint in light of this Order. To that extent, Cover's motion for reconsideration is granted in that the judgment entered against him, R. 24 , is vacated, and instead the complaint is dismissed without prejudice. This means that Cover has leave to file an amended complaint if he can make truthful allegations plausibly demonstrating that he suffered harassment or other adverse employment actions because of his age. If Cover wants to file an amended complaint, he must do so by February 10, 2020. If Cover fails to file an amended complaint by that date, his case will be dismissed with prejudice, and final judgment will be entered against him on his claims. Case reopened. Signed by the Honorable Thomas M. Durkin on 1/9/2020:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
JOHN H. COVER, JR.,
Plaintiff,

No. 18 C 50114

v.

Judge Thomas M. Durkin

OSF HEALTHCARE SYSTEMS,
Defendant.
MEMORANDUM OPINION AND ORDER
The Court dismissed John Cover’s pro se employment discrimination
complaint as untimely based on the date of the charge he filed with the EEOC. See
R. 23. Cover moved to reconsider, arguing that the intake questionnaire he filed with
the EEOC prior to filing his charge served as timely notice of his claims. See R. 25.
The Court ordered supplemental briefing on this issue, because the Supreme Court’s
decision in Federal Express Corporation v. Holowecki, 552 U.S. 389 (2008), plausibly
supports Cover’s argument. See R. 26.
In his supplemental brief, Cover argued that a “brief” he attached to his EEOC
intake questionnaire satisfied the Holowecki standard. See R. 33. The Court noted
that Cover had neglected to file that “brief” with the Court and ordered him to do so.
See R. 34. The Court then asked the parties to address whether the brief Cover
attached to his EEOC intake questionnaire satisfied the Holowecki standard. See R.
36. Cover and defendant OSF filed briefs on the Holowecki issue, and OSF, in the
alternative, reasserted its argument that Cover failed to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6), which it had made in its original motion to
dismiss, see R. 37. For the following reasons, Cover’s motion to reconsider is denied
in part and granted in part.
A.

Timeliness

According to Holowecki, an intake questionnaire can suffice as a “charge” if it
can be “reasonably construed as a request for the agency to take remedial action to
protect the employee’s rights or otherwise settle a dispute between the employer and
the employee.” 552 U.S. at 402; see also E.E.O.C. v. Watkins Motor Lines, Inc., 553
F.3d 593, 597-98 (7th Cir. 2009) (“We know from [Holowecki], that a document may
be a ‘charge’ even if it lacks an appropriate caption and charging language. A piece of
paper that alleges discrimination and asks the agency to take remedial action
suffices.”). The regulation that informed the Holowecki decision requires a “charge”
to include a “clear concise statement of the facts . . . constituting the alleged unlawful
employment practices.” 29 C.F.R. § 1626.8(a)(3).
The “brief” Cover attached to his intake questionnaire relates the events,
dates, and individuals involved in what Cover alleges to be discriminatory conduct by
defendant OSF. OSF argues that “no discrimination, harassment, or retaliation is
alleged” in the brief. R. 37 at 6. But that is a legal argument regarding whether Cover
has stated a claim, which is not relevant to determining whether his complaint is
timely. Holowecki does not require a plaintiff to state a plausible claim of
discrimination in his charge or intake questionnaire. Rather, Holowecki holds that a
plaintiff’s discrimination claim in federal court is timely as long as he timely gave

2

administrative notice of the factual circumstances he believed to violate the law,
whether presented in the EEOC charge itself, or in documents filed with the intake
questionnaire. Cover did that, so his complaint is timely.
OSF also argues that the Court should deny Cover’s motion for reconsideration
because he fails to meet the high standards of review under Federal Rules of Civil
Procedure 59(e) or 60(b). But the Court’s initial order dismissing the case as untimely,
see R. 23, was based on an error of law that satisfies Rule 59. In that order, the Court
held that the complaint was untimely because the date of Cover’s EEOC charge was
more than 300 days after OSF’s allegedly discriminatory actions. This was an error
of law because Holowecki permits other earlier-filed documents—i.e., the EEOC
intake forms—to satisfy the deadline. Further, timeliness is an affirmative defense
Cover is not required to plead. Cover’s failure to raise Holowecki in his initial
opposition to the motion to dismiss is forgiven in light of his pro se status.
B.

Plausibility

OSF has also moved to dismiss Cover’s complaint for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6) motion
challenges the “sufficiency of the complaint.” Berger v. Nat. Collegiate Athletic Assoc.,
843 F.3d 285, 289 (7th Cir. 2016). A complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P.
8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for
it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

3

Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual allegations” are not required,
“labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Boucher v. Fin.
Sys. of Green Bay, Inc., 880 F.3d 362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at
678). In applying this standard, the Court accepts all well-pleaded facts as true and
draws all reasonable inferences in favor of the non-moving party. Tobey v. Chibucos,
890 F.3d 634, 646 (7th Cir. 2018).
1.

Sex

Cover claims OSF: (1) discriminated against him based on his age and sex; and
(2) retaliated against him. As an initial matter, any claim of sex discrimination is
dismissed because Cover did not first present such a claim to the EEOC. Neither
Cover’s EEOC charge nor his EEOC intake questionnaire indicated a claim of sex
discrimination, whether by checking the box for sex discrimination, or by describing
conduct related to his sex. Since Cover didn’t raise a claim of sex discrimination with
the EEOC, he can’t “raise it for the first time in federal court.” See Hamzah v.
Woodman’s Food Mkt., Inc., 693 Fed. App'x 455, 458 (7th Cir. 2017) (“In that charge,
Hamzah marked the check-boxes for discrimination on the basis of race, retaliation,
and age, but not sex. In the narrative section of the charge, he did not include any

4

factual allegations related to his sexual orientation.”). Cover’s sex discrimination
claim is dismissed for that reason.
2.

Age

To state a claim of age discrimination, Cover must simply allege that he
suffered an adverse employment action because of his age. See Samovsky v.
Nordstrom, Inc., 619 Fed. App’x 547, 548 (7th Cir. 2015) (citing Tamayo v.
Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)); see also Tate v. SCR Med. Transp.,
809 F.3d 343, 346 (7th Cir. 2015) (“In order to prevent dismissal under Rule 12(b)(6),
a complaint alleging sex discrimination need only aver that the employer instituted
a (specified) adverse employment action against the plaintiff on the basis of her sex.”).
In his complaint, Cover describes a series of unpleasant experiences he had at work.
He alleges that he “was subjected to ridicule, [foul] language, name calling, etc. by
the supervisor.” R. 1 at 5. He says that after he reported his supervisor’s conduct to
“management,” he was “subjected to more intense, harassing treatment including
discipline for his alleged work performance and other subjective things.” Id. at 6.
Cover alleges that he was subjected to unwarranted “write-ups” related to his
performance, which prevented him from transferring to another department. Id. at
6-8. Cover eventually resigned rather than continue to work in this environment. Id.
at 9-10.
Whether or not Cover’s allegations rise to the level of a hostile work
environment, he never alleges that he suffered this alleged discrimination because of
his age. See McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783, 789 (7th Cir. 2019)

5

(“The ADEA prohibits an employer from refusing to hire a person who is 40 or older
because of his age.”) (emphasis added); see also McDaniel v. Progress Rail Locomotive,
Inc., 940 F.3d 360, 367 (7th Cir. 2019) (“[I]t’s not enough to show that age was a
motivating factor. The plaintiff must prove that, but for his age, the adverse action
would not have occurred.”). Cover never even mentions his age in his complaint.
Further, there is nothing about Cover’s allegations that would allow the Court to
plausibly infer that his age caused the allegedly hostile actions. Indeed, Cover alleges
that his experience was simply one example of “serious personnel problems” that exist
generally in his department at OSF. See R. 1 at 10. This indicates that Cover’s
personal characteristics—including his age—were not the cause of the actions taken
against him. Rather, he alleges they were the product of generally bad working
relationships at OSF.
3.

Retaliation

Cover alleges that the hostility towards him became worse after he complained
about it. This allegation contains the germ of a retaliation claim in that Cover alleges
that he suffered adverse actions because he complained about hostile conduct in his
work place. But a claim for retaliation under the ADEA (or any similar federal civil
rights statute) requires that the conduct complained of be illegal under the statute.
See 29 U.S.C. § 623(d). As discussed, Cover has not plausibility alleged that the
alleged harassment he suffered was due to his age, which is necessary for the
harassment to be prohibited by the ADEA. Thus, Cover’s retaliation claim is also
dismissed.

6

Conclusion
Therefore, the Court finds: (1) that Cover’s complaint is timely; but (2) that it
fails to state a claim. Because it fails to state a claim, Cover’s complaint is dismissed,
and his motion to reconsider is denied to that extent. However, Cover should be given
an opportunity to amend his complaint in light of this Order. To that extent, Cover’s
motion for reconsideration is granted in that the judgment entered against him, R.
24, is vacated, and instead the complaint is dismissed without prejudice. This means
that Cover has leave to file an amended complaint if he can make truthful allegations
plausibly demonstrating that he suffered harassment or other adverse employment
actions because of his age. If Cover wants to file an amended complaint, he must do
so by February 10, 2020. If Cover fails to file an amended complaint by that date, his
case will be dismissed with prejudice, and final judgment will be entered against him
on his claims.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: January 9, 2020

7