Parker v. UGN Incorporation

Filing 27

OPINION AND ORDER denying 21 Motion for Reconsideration. Court GRANTS the parties thirty days from the date of this order in which to file any argument or evidence that they believe is relevant to the courts analysis explaining why the court bel ieves defendant is entitled to summary judgement on plaintiffs federal employment discrimination claim. Court GRANTS plaintiff thirty days from the date of this order in which to file an amended complaint addressing the diversity issues as set forth in this opinion. Signed by Senior Judge James T Moody on 2/10/15. cc: Parker (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ANTHONY PARKER

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Plaintiff,
v.
U.G.N. INC.,
Defendant.

No. 2:13 CV 420

OPINION AND ORDER
This matter is before the court on defendant U.G.N. Inc’s (“defendant”) motion
to reconsider the court’s denial of its motion to dismiss plaintiff Anthony Parker’s
(“plaintiff”) complaint.1 (DE # 21.) Plaintiff has not filed a response to defendant’s
motion to reconsider, and the time to do so has now passed. For the following reasons,
defendant’s motion is denied. The parties will have thirty days to respond to the court’s
additional analysis set out in this order.
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 argued that
plaintiff’s federal employment discrimination claims should be dismissed because he

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The court actually granted defendant’s motion in part. (DE # 20.) Defendant
only seeks reconsideration of the portion of its order that the court denied. (DE # 21.)

did not file his suit within 90 days of receiving his right-to-sue letter from the EEOC.
(DE # 10 at 3.)
In its original order denying defendant’s motion to dismiss (DE # 20), the court
concluded that plaintiff had not pleaded himself out of court with the allegations in his
complaint. Defendant contends, however, that the court may consider plaintiff’s rightto-sue letter when making this determination, which was attached to defendant’s
motion to dismiss. (DE # 21 at 3; DE # 10-1 at 2.)
Defendant is correct that “[d]ocuments attached to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff’s complaint and
are central to his claim.” Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 505 (7th Cir.
2013) (citations and quotations omitted). Defendant argues that the court should
consider plaintiff’s right-to-sue letter because it is central to plaintiff’s claims and
because plaintiff’s complaint makes “repeated references” to the right-to-sue letter.
(DE # 21 at 5.) The problem with this argument is that, as best the court can tell, plaintiff
does not reference his right-to-sue letter even once in either his complaint (DE # 1) or
the document amending a portion of his complaint (DE # 7). And these documents
certainly do not make “repeated references” to the right-to-sue letter.2

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The only mention of the right-to-sue letter in plaintiff’s complaint is the portion
of the standard employment discrimination complaint form that asks when plaintiff
received his right-to-sue letter. (DE # 1 at 2.) Plaintiff did not fill out that portion of his
complaint.
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Thus, it would be improper for the court to consider plaintiff’s right-to-sue letter
in addressing defendant’s motion to dismiss. Defendant’s argument on this point
therefore fails.
In its motion to reconsider, defendant goes on to argue that plaintiff’s admissions
in his response brief that his right-to-sue letter was issued on June 13, 2012 (DE # 15 at
1) and that 90 days had expired since plaintiff’s right-to-sue letter was issued (id. at 2)
should result in the dismissal of plaintiff’s federal employment discrimination claims.
(DE # 22 at 7.) Despite these admissions, however, without the actual right-to-sue letter
which indicates the address to which the letter was sent, the court cannot presume
timely delivery of the right-to-sue letter. Therefore, defendant’s motion to reconsider
will be denied. (DE # 21.)
The court can, however, move for summary judgment sua sponte “if [it has]
given the affected parties advance notice of their intent to do so and a fair opportunity
to respond with argument and evidence.” Smith v. Bray, 681 F.3d 888, 903 (7th Cir.
2012). The court intends to do so here.
I.

Legal Standard
FEDERAL RULE OF CIVIL PROCEDURE 56 requires the entry of summary judgment,

after adequate time for discovery, against a party “who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
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317, 322 (1986). “[S]ummary judgment is appropriate–in fact, is mandated–where there
are no disputed issues of material fact and the movant must prevail as a matter of law.
In other words, the record must reveal that no reasonable jury could find for the nonmoving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.
1994) (citations and quotation marks omitted).
The moving party bears the initial burden of demonstrating that these
requirements have been met; it may discharge this responsibility by showing that there
is an absence of evidence to support the non-moving party’s case. Carmichael v. Village of
Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010) (citing Celotex, 477 U.S. at 323). To
overcome a motion for summary judgment, the non-moving party must come forward
with specific facts demonstrating that there is a genuine issue for trial. Id. (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The existence of
a mere scintilla of evidence, however, is insufficient to fulfill this requirement. Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The nonmoving party must
show that there is evidence upon which a jury reasonably could find for him. Id.
The court’s role in deciding a summary judgment motion is not to evaluate the
truth of the matter, but instead to determine whether there is a genuine issue of triable
fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th
Cir. 1994). On summary judgment a court may not make credibility determinations,
weigh the evidence, or decide which inferences to draw from the facts; these are jobs for
a factfinder. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citing Anderson, 477 U.S. at
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255). In viewing the facts presented on a motion for summary judgment, the court must
construe all facts in a light most favorable to the non-moving party and draw all
reasonable inferences in favor of that party. Chmiel v. JC Penney Life Ins. Co., 158 F.3d
966, 968 (7th Cir. 1998); Doe, 42 F.3d at 443. Importantly, the court is “not required to
draw every conceivable inference from the record [in favor of the non-movant]-only
those inferences that are reasonable.” Bank Leumi Le-Israel, B.M., v. Lee, 928 F.2d 232, 236
(7th Cir. 1991) (emphasis added).
II.

Analysis
Plaintiffs filing suit under Title VII and the ADEA must do so within 90 days of

receiving their right-to-sue letter. 42 U.S.C. § 2000e–5(f)(1); 29 U.S.C. § 626(e); Houston v.
Sidley & Austin, 185 F.3d 837, 838-39 (7th Cir. 1999). Plaintiff’s right-to-sue letter was
issued on June 13, 2012. (DE # 10-1 at 2.) The 90-day statute of limitations began to run
when plaintiff actually received the right-to-sue letter. Prince v. Stewart, 580 F.3d 571,
574 (7th Cir. 2009) (“[T]he limitations period in both Title VII and the ADEA begins to
run, as we said, when the claimant receives the letter, not when it was sent . . . .”
(emphasis in original)). It is unclear from plaintiff’s complaint and response brief when
he actually received his right-to-sue letter.
“The law presumes timely delivery of a properly addressed piece of mail.”
Bobbitt v. Freeman Companies, 268 F.3d 535, 538 (7th Cir. 2001). When the date of delivery
is unknown, courts usually presume delivery three to seven days after the right-to-sue
letter is mailed:
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Court’s have presumed that a plaintiff receives an EEOC notice somewhere
between three and seven days after its mailing date. See, e.g., Payan v.
Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1123–1125 (9th Cir. 2007)
(presuming EEOC notice received three days after mailing date); Taylor v.
Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (“When the date on
which a right-to-sue letter was actually received is either unknown or
disputed, courts have presumed various receipt dates ranging from three to
seven days after the letter was mailed.”) (citing Lozano v. Ashcroft, 258 F.3d
1160, 1164 (10th Cir. 2001); Banks v. Rockwell Intern. N. Am. Aircraft Operations,
855 F.2d 324, 326 (6th Cir. 1988) (applying a five-day presumption of receipt
of a right-to-sue letter); see also Baldwin Cnty., 466 U.S. at 148 n. 1 (1984)
(presuming the plaintiff received a right-to-sue letter three days after
delivery based upon Fed.R.Civ.P. 6(2)); see also Lloyd v. Sullivan, 882 F.2d 218
(7th Cir. 1989) (in an appeal from Social Security Administration
determination, finding that “unless proven otherwise, the receipt date is
presumed to be five days from the mailing date”); Jackson v. F.B.I., No. 02 C
3957, 2007 WL 2492069, at *5 (N.D. Ill. Aug. 28, 2007) (citing Lloyd’s five day
presumption in EEOC context with respect to a Title VII claim);
Moss–Muchanan v. City of Chicago, No. 03 C 0999, 2005 WL 78953, at *3 n.2
(N.D. Ill. Jan. 15, 2005) (same).
McGill v. MacNeal Vansguard Health Systems, No. 12 C 9558, 2012 WL 6727351, at *3 (N.D.
Ill. Dec. 28, 2012).
The right-to-sue letter (DE # 10-1 at 2) in this case was addressed to the same
address plaintiff used on his complaint in this case (DE # 1 at 1), his document
amending a portion of the complaint (DE # 7 at 2), and his most recent filing (DE # 24).
Thus, the right-to-sue letter was properly addressed, and the court will therefore
presume that plaintiff timely received his right-to-sue letter. As the court noted earlier,
plaintiff’s right-to-sue letter is dated June 13, 2012. (DE # 10-1 at 2.) Plaintiff filed his
complaint in this case on November 18, 2013. (See DE # 1.) Plaintiff, therefore, filed his

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complaint in this case well over the 90 days allowed for filing a Title VII or ADEA claim
after receiving a right-to-sue letter.
In his response to defendant’s original motion to dismiss, plaintiff concedes that
his 90 days had expired after receiving his right-to-sue letter. (DE # 15 at 2); see also
(DE # 16 at 1 (“The 90 days expired for using the right-to-sue letter from [the] EEOC.”).)
Plaintiff, however, goes on to make several additional arguments in his response brief
as to why his case should not be dismissed.3
First, plaintiff argues that the 90-day period in which to file his discrimination
suit did not begin to run until defendant committed its last violation against him, which
plaintiff asserts was sometime in late December 2012 or March 2013. (DE # 16 at 2.)
Even assuming, for the sake of argument, that the events of December 2012 and March
2013 somehow tolled or restarted the statute of limitations clock, plaintiff’s suit, which

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It is not entirely clear whether plaintiff is arguing that his federal employment
discrimination claims are timely or whether a related state claim is timely. The court
will assume that these arguments apply to plaintiff’s federal employment
discrimination claims, and will address plaintiff’s arguments regarding his state claim
later in this opinion.
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was filed in November 2013, would still have been filed well beyond the 90 days
allowed under Title VII and the ADEA. Houston, 185 F.3d at 838-39.4
Plaintiff also appears to be arguing that his suit is timely because Indiana Code
§ 34-11-2-1 states: “An action relating to the terms, conditions, and privileges of
employment except actions based upon a written contract (including, but not limited to,
hiring or the failure to hire, suspension, discharge, discipline, promotion, demotion,
retirement, wages, or salary) must be brought within two (2) years of the date of the act
or omission complained of.” Plaintiff therefore argues that his complaint was timely
because he filed it within two years of the relevant employment actions in this case.
(DE # 16 at 2.)
Indiana Code § 34-11-2-1 provides the statute of limitations for a claim under
Indiana law for actions relating to employment other than actions based on a written
contracts. It does not provide the statute of limitations for federal employment
discrimination claims, including the ADEA and Title VII. As the court noted earlier, a
plaintiff filing suit under either Title VII or the ADA must bring that claim within 90

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In line with this argument, plaintiff also mentions tolling, and appears to be
making an equitable tolling argument. (DE # 16 at 1-2.) “Equitable tolling . . . is reserved
for situations in which the claimant has made a good faith error ( e.g., brought suit in
the wrong court) or has been prevented in some extraordinary way from filing his
complaint in time.” Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850 (7th Cir. 2001)
(citations and quotations omitted). Courts have also “allowed equitable tolling where
the claimant has actively pursued his judicial remedies . . . or has been induced or
tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Id.
(emphasis in original) (citations and quotations omitted). There is nothing in this case to
support a claim for equitable tolling.
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days of receiving their right-to-sue letter from the EEOC. 42 U.S.C. § 2000e–5(f)(1); 29
U.S.C. § 626(e); Houston, 185 F.3d at 838-39. Plaintiff did not file suit on either his ADEA
or his Title VII claim within 90 days of receiving his right-to-sue letter. Plaintiff
recognizes this fact in his response brief. (DE # 16 at 1.)
Plaintiff also argues that his employment discrimination claims were timely filed
under FEDERAL RULE OF CIVIL PROCEDURE 60(b) because he obtained new evidence after
he filed his EEOC charge but before he filed this suit, and argues that this constitutes
newly discovered evidence. (DE # 15 at 2-3.) RULE 60(b) does not apply here because
RULE 60(b) only applies to “final orders and final proceedings.” McCormick v. City of
Chicago, 230 F.3d 319, 326 n.6 (7th Cir. 2000); see also Lowe v. McGraw-Hill Companies, Inc.,
361 F.3d 335, 343 (7th Cir. 2004). RULE 60(b) has no application in this case, as there has
been no final order. Plaintiff’s argument therefore fails.
Plaintiff further argues that his employment discrimination claims are timely
under Grayson v. O’Neill, 308 F.3d 808 (7th Cir. 2002), because, according to plaintiff, the
court in Grayson ruled on plaintiff’s discrimination claims despite suit being brought
outside of the 90-day window. (DE # 16 at 6.) As defendant correctly points out in its
reply brief (DE # 17 at -2-3), however, the Grayson court affirmed the district court’s
dismissal of the plaintiff’s retaliation claims, which were associated with plaintiff’s first
right-to-sue letter, and reached the merits of plaintiff’s discrimination claims, which
were associated with a second right-to-sue letter. 308 F.3d at 814, 817-18. The plaintiff in
Grayson brought suit within 90 days of receiving the second right-to-sue letter, but not
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within 90 days of receiving the first right-to-sue letter. Id. at 814. The Grayson plaintiff’s
retaliation claims, which were not filed within 90 days of receiving the first right-to-sue
letter, were therefore not timely filed. Id. Plaintiff’s argument on this point therefore
fails.
Thus, the court believes plaintiff’s federal employment discrimination claims are
untimely, and that defendant is entitled to summary judgment on those claims. The
court, however, will give the parties 30 days in which to respond to the analysis set
forth in this opinion. The parties are encouraged to submit any argument or evidence
that they believe is relevant to the court’s analysis on the issue of whether plaintiff’s
federal employment discrimination claims are untimely. If neither party submits any
argument or evidence relevant to the court’s analysis on the untimeliness of plaintiff’s
federal employment discrimination claims within 30 days, the court will enter summary
judgment in favor of defendant on those claims.
Plaintiff also appears to be alleging a claim for wrongful termination under
Indiana Code § 34-11-2-1. (DE # 16 at 2.) The court has jurisdiction over this case
because plaintiff’s suit alleges violations of federal employment law.5 See 28 U.S.C.
§ 1331; (DE # 1-2 at 1). Under 28 U.S.C. § 1367, when a district court has original
jurisdiction over a civil action, the district court “shall have supplemental jurisdiction
5

The court still has jurisdiction over this case even if plaintiff’s discrimination
claims were not timely filed. See St. Louis v. Alverno College, 744 F.2d 1314, 1316 n.2 (7th
Cir. 1984); see also Mitchell v. Chapman, 343 F.3d 811, 820 n.10 (6th Cir. 2003) (“It is
well-settled that the ninety day right-to-sue provision is an administrative condition
precedent, rather than a jurisdictional prerequisite.”)
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over all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy . . . .” 28 U.S.C. § 1367(a).
A district court “has supplemental jurisdiction over [a plaintiff’s state law claims]
pursuant to 28 U.S.C. § 1367(a) so long as they ‘derive from a common nucleus of
operative fact’ with the original federal claims.” Wisconsin v. Ho-Chunk Nation, 512 F.3d
921, 936 (7th Cir. 2008) (quoting Groce v. Eli Lilly & Co., 193 F.3d 496, 500 (7th Cir. 1999));
see also Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008). “A loose factual connection
is generally sufficient.” Houskins, 549 F.3d at 495.
In this case, plaintiff’s Indiana wrongful termination claim arises out of the same
case and controversy as his federal employment discrimination claims. Therefore, the
court has supplemental jurisdiction over that claim. But, as the court mentioned earlier,
it believes that defendants are entitled to judgment on plaintiff’s federal employment
discrimination claims. If, as the court anticipates, it enters summary judgment on
plaintiff’s federal employment discrimination claims, it will also likely relinquish
jurisdiction over plaintiff’s Indiana wrongful termination claim, unless there is another
valid basis for subject matter jurisdiction in federal court.
Principles of comity encourage the court to relinquish supplemental jurisdiction
over state law claims when all of the federal claims are disposed of prior to trial. See
Hansen v. Bd. of Trs. of Hamilton Southeastern Sch. Corp., 551 F.3d 599, 608 (7th Cir. 2008);
Groce, 193 F.3d at 501 (“[I]t is the well-established law of this circuit that the usual
practice is to dismiss without prejudice state supplemental claims whenever all federal
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claims have been dismissed prior to trial.”); 28 U.S.C. § 1367(c)(3). Plaintiff would not be
prejudiced by the dismissal of his state law claim because he may refile the case in state
court as appropriate under Indiana’s savings statute, Ind. Code § 34–11–8–1, and the
tolling provision of 28 U.S.C. § 1367(d).
Despite checking the box indicating that this court’s subject matter jurisdiction
was based on federal question jurisdiction on his Civil Cover Sheet (DE # 1-2 at 1),
plaintiff indicated in his complaint that the court also has diversity jurisdiction in this
case. (DE # 1-1 at 1.) In his complaint, plaintiff asserts that he is a citizen of the state of
Indiana, but does not put forth any allegations regarding defendant’s citizenship. (Id.)
In its reply brief, defendant contends that there is no diversity jurisdiction in this case
because plaintiff and defendant are citizens of the same state. (DE # 17 at 4); See also Wei
Zhou v. Marquette University, 444 F. App’x 896, 897 (7th Cir. 2008) (“With respect to the
diversity jurisdiction, federal courts may not exercise jurisdiction on this basis when
both the plaintiff and the defendant are citizens of the same state.”).
“[P]arties invoking the diversity jurisdiction in cases where a corporation is a
party must allege the corporation’s state of incorporation and state of its principal place
of business . . . .” Igbinovia v. Indiana Dabney University, No. 14 C 5567, 2014 WL 4099743,
at *1 (N.D. Ill. Aug. 20, 2014); see also 28 U.S.C. § 1332(c)(1); McMillian v. Sheraton Chicago
Hotel & Towers, 567 F.3d 839, 845 n.10 (7th Cir. 2009); Smoot v. Mazda Motors of Am., Inc.,
469 F.3d 675, 676 (7th Cir. 2006). Because plaintiff has failed to allege defendant’s state

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of incorporation and its principal place of business, the court cannot determine whether
it has diversity jurisdiction over plaintiff’s remaining state law claim.
Plaintiff, therefore, is ORDERED to file an amended complaint alleging diversity
jurisdiction, if such jurisdiction exists in this case, within 30 days of the date of this
order. If plaintiff does not file an amended complaint alleging proper diversity
jurisdiction or files an amended complaint that does not allege that the court has
diversity jurisdiction within 30 days of the date of this order, the court will dismiss this
case pursuant to 28 U.S.C. § 1367(c)(3).6
III.

Conclusion
For the foregoing reasons, the court
(1) DENIES defendant’s motion to reconsider the court’s denial of its motion

dismiss plaintiff Anthony Parker’s (“plaintiff”) complaint. (DE # 21.)
(2) GRANTS the parties thirty days from the date of this order in which to file
any argument or evidence that they believe is relevant to the court’s analysis explaining
why the court believes defendant is entitled to summary judgement on plaintiff’s
federal employment discrimination claims. If neither party files anything in response to
the court’s analysis on this issue within those 30 days, the court will grant summary
judgment in defendant’s favor on those claims.

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This assumes, of course, that the court will grant summary judgment in favor of
defendant on plaintiff’s federal employment discrimination claims.
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(3) GRANTS plaintiff thirty days from the date of this order in which to file an
amended complaint addressing the diversity issues the court discussed earlier in this
opinion. If plaintiff does not file an amended complaint alleging proper diversity
jurisdiction or files an amended complaint that does not allege that the court has
diversity jurisdiction within 30 days of the date of this order, the court will dismiss this
case pursuant to 28 U.S.C. § 1367(c)(3).
SO ORDERED.
Date: February 10, 2015
s/James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT