Wise v. Lessie Bates Davis Neighborhood House
ORDER: The Court grants in part and denies in part both 52 MOTION for Partial Judgment on the Pleadings and 50 MOTION for Partial Dismissal for Failure to State a Claim. In summary, only Counts VI and VIII under 42 U.S.C. §1981 remain. Signed by Judge Stephen P. McGlynn on 9/19/2022. (jce)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LESSIE BATES DAVIS
NEIGHBORHOOD HOUSE, INC.,
Case No. 3:21-cv-01265-SPM
MEMORANDUM AND ORDER
McGLYNN, District Judge:
On June 6, 2022, plaintiff Reona Wise (“Wise”) filed her second amended
complaint (Doc. 44). Pending before the Court are two motions filed by defendant
Lessie Bates Davis Neighborhood House, Inc. (“LBD”) regarding said complaint
(Docs. 50, 52). The first is a motion for partial dismissal for failure to state a claim
and the second is a motion for partial judgment on the pleadings (Id.). For judicial
economy, the motions are addressed jointly, and for the reasons set forth below, the
Court grants in part and denies in part both the motion for partial judgment on the
pleadings and the motion for partial dismissal.
The following facts alleged by Wise are accepted as true for purposes of LBD’s
motions 1. FED. R. CIV. P. 10(c); Arnett v. Webster, 658 F.3d 742, 751-52 (7th Cir. 2011).
The factual information was taken directly from the second amended complaint (Doc.44) and will be
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The Court has set forth the allegations in chronological order.
Wise began employment at LBD in May 2016 as Program Coordinator (¶6).
Wise is an African American female with a medium to dark complexion (¶5). She is
married and over the age of forty (40) (Id.). Wise performed her job competently,
meeting and exceeding LBD’s legitimate business expectations, even being promoted
to Vice President of Early Childhood Programs in September 2016 (¶7).
In April of 2017, Wise complained to Christopher Coleman, CEO of LBD, about
unfair treatment and discrimination of Rita Brown, CFO, another African American
female over the age of forty (40) (¶8). Shortly thereafter, Coleman began subjecting
Wise to increased work scrutiny (Id.). Until her termination in 2018, Coleman
harassed, criticized, and humiliated Wise (¶9). Coleman also threatened Wise in
2017, telling her that she would be fired if she became pregnant (¶10).
In approximately August of 2017, Wise reported to the Board of Directors,
Human Resources, and Mr. Gaston, that Coleman was inappropriately allocating
government funds 2 (¶11). From this time until her termination, Wise complained to
the CEO and HR that she felt discriminated against as an African American female;
Wise also felt that she was being retaliated against for reporting illegal actions of her
superiors (¶21). Wise was paid less than similarly situated male employees (¶20).
Wise also claims she was stripped of programs that resulted in a pay reduction in
On June 4, 2019, Christopher Coleman was indicted by the grand jury with one count of
Embezzlement from the Lessie Bates Neighborhood House, an Organization that Received Federal
Funds in violation of 18 U.S.C. §666(a)(1)(A). See USA v. Coleman, 3:19-cr-30080-SMY (S.D. IL). On
August 15, 2019, Coleman entered a guilty plea and was ultimately sentenced to 18 months
incarceration to be followed by two (2) years of supervised release.
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September 2018; however, because she was terminated in August of 2018, the year is
most likely incorrect (¶19).
In October of 2017, Wise was placed upon administrative leave, purportedly
due to reporting the wrongful treatment of Ms. Brown and the inappropriate financial
practices of Coleman (¶14). On or about December 18, 2017, Wise was placed on a
performance improvement plan (“PIP”) (¶16). While under the PIP, Wise was
prevented from applying for the newly opened CEO position, even though she had
experience running non-profit organizations (¶17). Wise was also disciplined on
December 21, 2017 for being three minutes late to work, even though she was a
salaried employee (¶18).
As for general allegations, Wise claims she was humiliated in front of
coworkers and students’ parents on several occasions due to her race, sex, and color
(¶23). Additionally, even though she was required to be compensated from several
grants and her allocated salary was stipulated in the awarded grants, she was not
compensated accordingly, which she also claims was due to her race, sex, age, and
On December 22, 2017, Wise filed her first complaint of discrimination with
the EEOC, Charge Number 440-2018-01971, alleging discrimination on the basis of
sex, along with retaliation 3 (Doc. 51-2). On December 27, 2017, the EEOC issued Wise
her “right to sue” letter; however, she did not initiate a lawsuit within the requisite
90-day time period.
Although Wise did not attach the EEOC charge of discrimination to her second amended complaint,
she referred to it, and it was attached to the answer filed by LBD.
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Wise was terminated on August 17, 2018. On July 26, 2019, 343 days later,
Wise filed another charge of discrimination with the EEOC, charge number 560-201902257, this time alleging discrimination on the basis of race, color, and sex, along
with retaliation (Doc. 51-1). On July 29, 2021, the EEOC issued Wise her “right to
sue” letter (Doc. 1-1).
On October 15, 2021, Wise timely filed her initial complaint 4 (Doc. 1). On
October 25, 2021, prior to the entry of LBD, Wise filed an amended complaint (Doc.
14). On November 18, 2021, LBD filed two motions in response to the amended
complaint, a partial motion to dismiss and a partial motion for judgment on the
pleading (Docs. 25, 26). On April 4, 2022, in lieu of ruling on the pending motions,
this Court sua sponte dismissed the amended complaint for procedural deficiencies
and granted Wise leave to file a second amended complaint (Doc. 41).
On June 4, 2022, Wise filed her second amended complaint (Doc. 44). In
addition to setting forth the nature of action, Wise articulated the following eight
counts: (I) Race-Based Discrimination pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq.; (II) Color-Based Discrimination pursuant to Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; (III) Sex-Based
Discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq.; (IV) Sex-Based Discrimination pursuant to Equal Pay Act, 29 U.S.C. §
206; (V) Age Discrimination pursuant to Age Discrimination in Employment Act of
According to the Notice of Suit Rights dated July 29, 2021, “Your lawsuit must be filed WITHIN
90 days of your receipt of this notice; or your right to sue based on this charge will be lost”.
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1967, 29 U.S.C. §§ 621-634; (VI) Race-Based Discrimination pursuant to 42 U.S.C. §
1981; (VII) Unlawful Retaliation pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et seq.; and, (VIII) Unlawful Retaliation pursuant to 42 U.S.C. §
1981 (Id.). Although not set forth in any counts, Wise also indicates that this action
is brought pursuant to 42 U.S.C. § 1983 (Id.).
On June 20, 2022, LBD filed the two motions at issue: a partial motion to
dismiss and partial motion for judgment on the pleadings (Docs. 50, 52). In the motion
for partial dismissal, LBD argues against any claims under 42 U.S.C. § 1983 as LBD
is not a “state actor” nor are there any allegations that LBD acted “under color of
state law” 5 (Doc. 50). LBD also argues against Counts VI - Race Discrimination under
42 U.S.C. § 1981 and VIII - Retaliation under 42 U.S.C. § 1981, claiming Wise failed
to state a valid cause of action (Id.).
With respect to the motion for partial judgment on the pleadings, LBD argues
that Wise’s claims for discrimination in violation of Title VII, to wit: Counts I, II, III,
and VII, as well as Count V, ADEA discrimination, were untimely as the EEOC
charge was filed more than 300 dates after her termination (Doc. 52). LBD also argues
that several counts of the second amended complaint raised claims that were not first
raised in the EEOC charge (Id.).
Of note, Wise did not specifically reference 42 U.S.C. § 1983 in any of the enumerated counts;
however, when stating the nature of action, she included that the action was brought pursuant to 42
U.S.C. § 1983, among other statutory citations.
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In addressing a motion to dismiss for failure to state a claim on which relief
can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court
must assess whether the complaint includes “enough facts to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007)). “Plausibility is not a synonym for
probability in this context but asks for more than a sheer possibility that a defendant
has acted unlawfully.” West Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670 (7th Cir.
2016). “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.” Iqbal, 556 U.S. at 678. Although a facially plausible complaint
need not give “detailed factual allegations,” it must allege facts sufficient “to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. These requirements ensure
that the defendant receives “fair notice of what the ... claim is and the grounds upon
which it rests.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964.
The Court of Appeals for the Seventh Circuit has clarified that courts must
approach Rule 12(b)(6) motions by construing the complaint in the light most
favorable to the non-moving party, accepting as true all well-pleaded facts alleged,
and drawing all possible inferences in the non-moving party’s favor. Hecker v. Deere
& Co., 556 F.3d 575, 580 (7th Cir. 2009), cert. denied, 558 U.S. 1148 (2010) (quoting
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Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Under this standard, a
plaintiff who seeks to survive a motion to dismiss must “plead some facts that suggest
a right of relief that is beyond speculative level.” In re marchFIRST Inc., 589 F.3d
A motion to dismiss under Federal
Procedure 12(b)(6) is meant to test the sufficiency of the complaint, not to decide the
merits of the case. McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th Cir.
2012); Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990).
Federal Rule of Civil Procedure 12(c) permits a party to move for judgment
after the parties have filed the complaint and answer. See Fed.R.Civ.P. 12(c). The
review of Rule 12(c) motions is the same standard as a motion to dismiss under Rule
12(b). N. Indiana Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3rd 449, 452
(7th Cir. 1998). As with Rule 12(b) motions, a court will grant a Rule 12(c) motion
only if the plaintiff cannot, beyond a doubt, prove any facts that would support his
claim for relief. Craigs, Inc v. General Elec. Capital Corp., 12 F.3rd 686, 688 (7th Cir.
1993) (quoting Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989)).
Therefore, to succeed the moving party must show that, when reviewed in the light
most favorable to the nonmoving party, there are no material issues of fact to be
resolved. GATX Leasing Corp. v. National Union Fire Ins. Co., 64 F.3d 1112, 1114
(7th Cir. 1995). However, the Court must not ignore facts in the complaint that would
undermine the plaintiff’s claim or consider any unsupported conclusions of law.
R.J.R. Serv., Inc. v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989).
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Motion to Dismiss
A. 42 U.S.C. §1981 (Counts VI and VIII)
Section 1981 provides a federal remedy against racial discrimination in private
employment. McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783, 789 (7th Cir.
2019). To state a claim of discrimination under Section 1981, a plaintiff must first
allege, inter alia, that [s]he is a member of a racial minority. Pourghoraishi v. Flying
J, Inc., 449 F.3d 751 (7th Cir.2006) (citing Morris v. Office Max, Inc., 89 F.3d 411 (7th
In general, a plaintiff states a claim of discrimination under § 1981 (or Title
VII) by asserting that: (1) he is a member of a protected class; (2) he was meeting the
employer’s legitimate employment expectations; (3) he suffered an adverse
employment action; and (4) he was treated less favorably than a similarly situated,
non-protected class member. See Farrell v. Butler Univ., 421 F.3d 609, 613 (7th Cir.
2005). Notwithstanding the foregoing, a plaintiff alleging race discrimination need
not allege each evidentiary element of a legal theory to survive a motion to
dismiss. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510–14 (2002); Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Indeed, simply stating, ‘I was turned
down for a job (or terminated or some other adverse action) because of my race’ is all
a complaint has to say.” Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). Failure
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to plead an evidentiary element is not fatal at this stage. Freeman v. Metropolitan
Water Reclamation District of Greater Chicago, 927 F.3d 961, 965 (7th Cir. 2019).
Wise is an African American female who has asserted race-based
discrimination and unlawful retaliation in violation of 42 U.S.C. § 1981 via counts VI
and VII of the second amended complaint (Doc. 44). As an African American, Wise is
obviously a member of a protected class. As for the remaining elements, Wise has
articulated that she was performing her job competently and was meeting and
exceeding expectations (¶ 7). She also set forth numerous claims of alleged
discrimination that occurred at work that resulted in her being humiliated,
disciplined, under-compensated, and ultimately, terminated. Furthermore, Wise
referred to similarly situated males that did not suffer the same adverse employment
action, albeit in different counts 6.
Construing the complaint in favor of Wise, the Court finds that she has pleaded
sufficient facts to sustain plausible claims under Section 1981. Moreover, she has
provided fair notice to LBD of these claims. Accordingly, LBD’s motion to dismiss is
denied as to Counts VI and Count VIII.
B. 42 U.S.C. §1983
A plaintiff must allege two elements to state a § 1983 claim: (1) the conduct
complained of was committed by a person acting under color of state law; and, (2) the
Each count began with a paragraph re-alleging and incorporating the preceding paragraphs by
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activity deprived a person of rights, privileges, and/or immunities secured by the
Constitution of laws of the United States. Case v. Milewski, 327 F.3d 564, 566 (7th
Cir. 2003). Additionally, § 1983 is the exclusive remedy for violations of § 1981
committed by state actors. Campbell v. Forest Preserve Dist. Of Cook County, IL, 752
F.3d 665, 971 (7th Cir. 2014).
Wise indicated in her “Nature of Action” that this action was brought, in part,
pursuant to 42 U.S.C. § 1983, but she did not specify that statute in any of the counts
asserted (Doc. 44). In its motion for partial dismissal, LBD argues that Wise failed to
state a claim under 42 U.S.C. § 1983 as she failed to name LBD as a “state actor” that
acted “under color of state law (Doc. 50). Nevertheless, this issue is conceded as Wise
admits any references to § 1983 in the second amended complaint were inadvertent
and voluntarily (Doc. 63).
Motion for Partial Judgment on the Pleadings
A. Title VII Discrimination (Counts I, II, III, and VII)
Before challenging an unlawful employment practice under Title VII, an
employee must first file a timely EEOC charge. Chaudry v. Nucor Steel-Indiana, 546
F.3d 832 (7th Cir. 2008). Title 42 U.S.C. § 2000e–5(e)(1) is a charge filing provision
satisfy. Alexander v. Gardner–Denver Co., 415 U.S. 36, 47 (1974). Indeed, the statute
expressly provides that an individual must file a charge within the statutory time
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“[a] charge under this section shall be filed within one hundred and
eighty days after the alleged unlawful employment practice
occurred … except that in a case of an unlawful employment practice
with respect to which the person aggrieved has initially instituted
proceedings with a State or local agency … such charge shall be
filed by or on behalf of the person aggrieved within three hundred
days after the alleged unlawful employment practice occurred … ”. 7
42 U.S.C. § 2000e-5(e)(1).
Notwithstanding the foregoing time limitation, the Supreme Court has held
the contrary – the filing period is not a jurisdictional prerequisite to filing a Title VII
suit. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Rather, it is more
like a statute of limitations subject to waiver, estoppel, and equitable tolling “when
equity so requires.” Morgan, 536 U.S. at 121. Although the Supreme Court allowed
for exceptions, they concluded that (1) a Title VII plaintiff raising claims of discrete
discriminatory or retaliatory acts must file his charge within the appropriate time
period of 180 or 300 days; and (2) a Title VII plaintiff alleging a hostile work
environment will not be time barred so long as the claims are all part of the same
unlawful practice and at least one act falls within the time limitation [180 or 300
days]. Id., at 122.
The Morgan Court also defined “discrete acts” as acts that are easy to identify,
including “termination, failure to promote, denial or transfer, or refusal to hire”.
Morgan, 536 U.S. at 114; see also Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550
Because Illinois has an entity with the authority to grant or seek relief with respect to the alleged
unauthorized practice, an employee who initially files a grievance with that Agency must file the
charge with the EEOC within 300 days. See, e.g., Nagle v. Village of Calumet Park, 554 F.3d 1106,
1121 n. 4 (7th Cir.2009) (“In Illinois, a complainant must file a charge with the EEOC within 300
days of the alleged discriminatory act and failure to do so renders the charge untimely.”)
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U.S. 618 (2007) (confirming the discrete acts definition in Morgan.). As such, Wise’s
termination on August 17, 2018 was a discrete act.
Wise filed her charge with the EEOC on July 26, 2019, which was 343 days
after her termination, clearly outside the 300-day time period to file her charge with
the EEOC. However, the examination of the timeliness issue does not stop at this
point. See National R.R. Passenger Corp., 536 U.S. at 121. Wise articulates several
grounds to excuse her filing outside the 300-day time period, but all of her arguments
Wise first argues that LBD waived the statute of limitations argument by not
raising it before the EEOC (Doc. 62). LBD counters that it did raise the untimeliness
of Wise’s charge before the EEOC and further argues that it raised the jurisdictional
time limitation in its first responsive pleading via motion (Doc. 65). This Court
considers the facts of the case before it, not what may or may not have taken place in
an underlying administrative proceeding. As such, this Court finds no merit in this
b. Continuing Violation
Wise next asserts that LBD’s actions, including those raised in her 2017 EEOC
claim, constitute a continuing violation and raises arguments for why this action
should not be precluded or time-barred (Doc. 62). The doctrine of continuing
violation allows you to delay suing until a series of acts by a prospective defendant
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blossoms into a wrongful injury on which a suit can be based. Limestone Development
Corp. v. Village of Lemont, 520 F.3d 797, 801 (7th Cir.2008)
While the continuing violation doctrine can alter the time period for filing, the
time period is not indefinite. Indeed, there are limitations. See Morgan, 536 U.S. at
122 (2002). Wise, herself, cites to cases that hold that at least one act of
discrimination must occur within the limitations period. See Hall v. Bodine Elec. Co.,
276 F.3d 345, 353 (7th Cir. 2002); Shanoff v. Illinois Dept. of Human Services, 258
F.3d 696, 701 (7th Cir. 2001); Stewart v. CPC Int’l, Inc., 679 F.3d 117, 120-21 (7th
Cir. 1982); Jones v. Merch’s Nat’l Bank Trust Co. of Indianapolis, 42 F.3d 1054, 1058
(7th Cir. 1994).
In this case, the latest date raised in the complaint was Wise’s date of
termination, August 17, 2018. See Hentosh v. Herman M. Finch University of Health
Sciences/The Chicago Medical School, 167 F.3d 1170 (7th Cir. 1999) (concluded that
alleged discriminatory conduct ceased on the date of resignation). While the alleged
conduct may have been ongoing, Wise was no longer subject to it after the date of her
separation from LBD. Accordingly, the 300-day period within which she could file her
charge commenced on that day.
Additionally, in light of the 2017 EEOC charge, Wise cannot now claim to have
no knowledge of the alleged discriminatory conduct of LBD until 43 days after her
termination. Indeed, she claimed retaliation and sexual harassment as far back as
December 22, 2017, mentioning incidents beginning in April 2017 in that first claim.
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c. Relation Back/Reasonably Related
Wise’s final argument is confounding and appears to assert that the charges
raised in the 2017 are reasonably related to those in 2019 and should also be subject
to this suit; however, any such argument does not address the 300-day limitation
period. In other words, the final date is always August 17, 2018, whether the claims
were previously raised before the EEOC or not. Furthermore, Wise had 90 days from
the issuance of the right to sue on December 27, 2017, or until March 27, 2018, to file
a suit on those allegations.
Accordingly, this Court holds that Wise’s claims under Title VII, which include
Counts I, II, III, and VII, are all untimely, as the EEOC claim was filed beyond the
300-day time limitation for the last set forth in 42 U.S.C. § 2000e-5(e)(1).
Additionally, the Title VII counts are not subject to an exception as none of the alleged
incidents occurred within the limitation period that ended with her termination on
August 18, 2017. Therefore, judgment on those counts is appropriate.
B. Equal Pay Act (Count IV)
“The Equal Pay Act (“EPA”) prohibits employers from discriminating between
its employees by paying an employee lower wages than the employer pays an
employee of the opposite sex.” Terry v. Gary Cmty. Sch. Corp., 910 F.3d 1000, 1008
(7th Cir. 2018) (citing 29 U.S.C. § 206(d)(1)). Claims under the EPA must be
brought within two years, unless it can be shown that Defendant has acted
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willfully, in which case the limitations period is extended to three years. 29
U.S.C. § 255(a).
LBD argues that Wise’s EPA claim is barred by the applicable statute of
limitations (Doc. 52). Wise was terminated on August 17, 2018 (Doc. 1). She filed her
initial complaint on October 15, 2021, which was more than 3 years after the date of
termination (Doc. 1). Wise does not make any argument that her EPA claim was
timely. Accordingly, there is no question of fact that Count IV is time-barred and that
judgment shall enter.
C. ADEA (Count V)
The Age Discrimination in Employment Act (“ADEA”) makes it unlawful “for
an employer to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's age.” 29 U.S.C.
§ 623(a)(1). In order to bring an ADEA claim in federal court, a plaintiff must first
have raised it in a timely EEOC charge. See 29 U.S.C. § 626(d) (“No civil action may
be commenced by an individual under this section until 60 days after a charge
alleging unlawful discrimination has been filed with the EEOC.”)
The purpose of ADEA, like Title VII of the Civil Rights Act of 1964, is to reduce
discrimination in the workplace. Husch v. Szabo Food Service Co., 851 F.2d 999, 1002
(7th Cir. 1988). In Illinois, similar to claims brought under Title VII, an employee
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may sue under the ADEA only if he files a charge of discrimination with the
EEOC within 300 days of the alleged “unlawful employment practice.” See Hamilton
v. Komatsu Dresser Indus., 964 F.2d 600, 603 (7th Cir.1992) 29 U.S.C. § 621, et seq.
In her second amended complaint, Wise indicates that she is over the age of
forty (40) and claims that “[s]imilarly situated females under the age of 40 did not
suffer the same adverse employment action … and were treated more favorably” (Doc.
44, ¶¶ 5, 54). As indicated infra, Wise claims to have suffered from numerous adverse
employment actions, which ultimately ended in her termination on August 17, 2018.
There are two main questions that need to be answered. First, did Wise file her
complaint within 300 days of the alleged unlawful employment practice; and second,
did Wise file an age discrimination claim with the EEOC?
It is clear that Wise filed her second EEOC claim on July 26, 2019, which was
343 days after her August 17, 2018 termination. The termination was a discrete act
and is considered the “final” date for any alleged discriminatory conduct; therefore,
any ADEA claim is untimely.
b. Relation Back
Assuming arguendo that the ADEA claim was timely, Wise still cannot sustain
her cause of action. Wise argues that she raised age discrimination before the EEOC;
however, the age box was not checked in either the 2017 charge of discrimination,
440-2018-01971, or the 2019 charge of discrimination, 560-2019-02257. Furthermore,
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Wise did not even mention her age in the narrative of either document. Because Wise
did not specifically articulate her age, she argues that her age complaints were
“reasonably related” to the allegations in the charges to the EEOC, but again, Wise
Generally, a plaintiff may not bring claims in a court action that were not
included in the charge that she filed with the EEOC. Kersting v. Wal-Mart, Inc., 250
F.3d 1109, 1118 (7th Cir. 2001). This rule provides “an opportunity for the EEOC to
settle the dispute between the employee and employer, and put[s] the employer on
notice of the charges against it.” Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th
Cir.1995). A plaintiff can only pursue a claim that is not specifically included in an
EEOC charge if the “allegations fall within the scope of the charges contained in the
EEOC complaint.” Kersting, 250 F.3d at 1118. A claim falls within the scope of the
EEOC charge if the claim is “like or reasonably related to” the claim included in the
EEOC charge. Harper, 45 F.3d at 147 (indicating a claim is sufficiently related if the
new claim “reasonably can be expected to grow out of an EEOC investigation of the
charges”). In making such a determination, the plaintiff is required “at minimum” to
show that the new claim and the EEOC charge “describe the same conduct and
implicate the same individuals.” Kersting, 250 F.3d at 1118 (quoting Cheek v.
Western and Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir.1994)).
In the 2017 EEOC charge, Wise complains of sexual discrimination and
retaliation based on her status as a female. In her 2019 EEOC charge, Wise expands
her claims and alleges discrimination on the basis of her race (African American),
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color (dark skin tone), sex (female), and retaliation (termination). While Wise has
attempted to connect her ADEA claims to her Title VII claims for sex, race, and color
discrimination, the EEOC charge allegations do not support the connection. There is
no mention of Wise’s age much less generation, either directly or indirectly, despite
her specific comparisons to white, male co-workers. Furthermore, although the
complaint references the CFO “Rita Brown (an African American female over the age
of 40), the 2017 EEOC does not provide any demographic information for Ms. Brown
whatsoever. There is not a scintilla of evidence for this Court to find even a hint of a
connection, again assuming the ADEA claim would survive the timeliness argument.
Thus, the Court concludes that Plaintiff's ADEA claim (Count V) fails.
Based on the foregoing analysis, the Court grants in part and denies in part
both the motion for partial dismissal and the motion for partial judgment on the
pleadings. The motion to dismiss is granted with respect to any such claims brought
pursuant to 42 U.S.C. § 1983 but denied with respect to the claims asserted in Counts
VI and VIII pursuant to 42 U.S.C. § 1981.
With respect to the motion for partial judgment on the pleadings, the Court
grants the motion as to the Title VII and ADEA claims brought in Counts I, II, III, V,
and VII for filing outside the 300 day jurisdictional requirement. The motion is also
granted with respect to the EPA claim brought in Count IV as it was filed outside the
statute of limitations. Finally, this Court denies the motion for partial judgment as
to all other issues and/or incidents raised in the second amended complaint, as they
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Case 3:21-cv-01265-SPM Document 72 Filed 09/19/22 Page 19 of 19 Page ID #346
may be used to support the remaining charges of discrimination and retaliation under
42 U.S.C. § 1981.
In summary, the Court enters judgment as to Counts I, II, III, IV, V, and VII,
as there are no material issues of fact to be resolved and no set of facts that can uphold
these claims. Accordingly, Wise may proceed on Counts VI and VIII under 42 U.S.C.
IT IS SO ORDERED.
DATED: September 19, 2022
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge
Page 19 of 19
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