Parker v. UGN Incorporation
Filing
20
OPINION AND ORDER granting in part and denying in part 9 Dft's MOTION to Dismiss Plaintiff Anthony Parker's Complaint. The motion to dismiss is GRANTED as it relates to plaintiffs state law claim for unemployment benefits and DENIED as it relates to plaintiffs federal employment discrimination claims. Signed by Senior Judge James T Moody on 8/6/14. cc:pltf(kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ANTHONY PARKER
Plaintiff,
v.
U.G.N. INC.,
Defendant.
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No. 2:13 CV 420
OPINION AND ORDER
This matter is before the court on defendant U.G.N. Inc’s (“defendant”) motion to
dismiss plaintiff Anthony Parker’s (“plaintiff”) complaint. (DE # 9.) Plaintiff has filed a
response (DE ## 15, 16) and defendant has filed a reply (DE # 17). For the following
reasons, that motion is granted in part and denied in part.
In his complaint, plaintiff alleges that he was discriminated against due to his race
and age while employed by defendant. (DE # 1.) Plaintiff alleges that defendant violated
Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act
(ADEA). (DE # 1 at 2.) In its motion to dismiss, defendant argues that plaintiff’s federal
employment discrimination claims should be dismissed because he did not file this suit
within 90 days of receiving his right to sue letter from the EEOC. (DE # 10 at 3.)
“A statute of limitations provides an affirmative defense, and a plaintiff is not
required to plead facts in the complaint to anticipate and defeat affirmative
defenses.”Independent Trust Corp. v. Stewart Info. Serv. Corp., 665 F.3d 930, 935 (7th Cir.
2012). “But when a plaintiff’s complaint nonetheless sets out all of the elements of an
affirmative defense, dismissal under Rule 12(b)(6) is appropriate.” Id.; see also Jay E.
Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 383 (7th Cir. 2010) (“Although the
statute of limitations is an affirmative defense to liability and so ordinarily must be
pleaded and proved by the defendant, if it is plain from the complaint that the defense is
indeed a bar to the suit dismissal is proper without further pleading.”). Here, the
allegations in plaintiff’s complaint do not establish that he failed to timely file his suit,
and defendant’s motion cannot be granted on this ground. Defendant makes no other
argument regarding plaintiff’s federal employment discrimination claims, and therefore,
defendant’s motion to dismiss will be denied as it relates to these claims.
Plaintiff also brings a state law claim against defendant for the denial of
unemployment benefits. (DE # 1 at 2.) As defendant points out in its reply brief, however,
plaintiff appears to have abandoned this claim. (DE # 17 at 3-4.) In his response brief,
plaintiff states that he “[i]s not asking for unemployment benefit [sic] in complaint. The
Plaintiff received unemployment benefits on March 2013 [sic].” (DE # 16 at 5.) Thus,
defendant’s motion to dismiss will be granted to the extent that plaintiff’s complaint
asserts a claim seeking unemployment benefits under state law.
For the foregoing reasons, defendant’s motion to dismiss (DE # 9) is GRANTED as
it relates to plaintiff’s state law claim for unemployment benefits and DENIED as it
relates to plaintiff’s federal employment discrimination claims.
SO ORDERED.
Date: August 6, 2014
s/James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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