Carter v. Journey Senior Living of Merrillville

Filing 53

OPINION AND ORDER DENYING 39 Defendant Parkside Management Services, LLC's Motion to Dismiss Plaintiff's Third Amended Complaint. Signed by Judge Philip P Simon on 10/15/2020. (bas)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TRACIE CARTER,
Plaintiff,
vs.
ARGENT JOURNEY SENIOR LIVING OF
MERRILLVILLE, LLC, PARKSIDE
MANAGEMENT SERVICES, LLC, and
JOURNEY SENIOR LIVING, LLC,
Defendants.

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2:19CV438-PPS/JPK

OPINION AND ORDER
Tracie Carter claims that her former employer discriminated against her in
violation of the Americans with Disabilities Act, the Family and Medical Leave Act, 42
U.S.C. §1981, and Title VII of the Civil Rights Act of 1964. [DE 24.] There was some
initial confusion on who the proper defendant should be but it appears to have now
been sorted out in Carter’s third amended complaint where she names three companies
as defendants. [DE 24 at ¶¶4-6.] Carter alleges that she began working for defendants
Argent Journey Senior Living of Merrillville and Journey Senior Living in 2016. [Id. at
¶7.] Defendant Parkside’s role is allegedly that it “was retained to assume the
management of Journey Senior Living” in October 2018.
Parkside has filed a motion to dismiss principally on the grounds that it was not
timely sued within the 90-day limitation period applicable to claims under the ADA
and Title VII. For both ADA and Title VII claims, a plaintiff must bring an action

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against a defendant within 90 days of her receipt of the EEOC’s right-to-sue notice. 42
U.S.C. §2000e-5(f)(1); Lee v. Cook County, Ill., 635 F.3d 969, 971 (7th Cir. 2011); Lloyd v.
Swifty Transp. Inc., 552 F.3d 594, 600 (7th Cir. 2009). It is undisputed that plaintiff
received her right-to-sue notice on August 29, 2019. [DE 24 at ¶2; DE 39 at 3.] The 90day period expired on November 27, 2019. Carter’s third amended complaint adding
Parkside as a defendant was submitted to the court on January 27, 2020, and she was
not granted leave to file that amended pleading until February 6, 2020. [DE 24, 23.]
Either of those dates is well beyond the November 27 deadline.1
Carter argues that the addition of Parkside was timely under the “relation back”
doctrine of Fed.R.Civ.P. 15(c)(1)(B). Whether that provision applies depends on
whether “the amendment changes the party or the naming of the party against whom a
claim is asserted” and “if, within the period provided by Rule 4(m) for serving the
summons and complaint, [Parkside] (i) received such notice of the action that it will not
be prejudiced in defending on the merits; and (ii) knew or should have known that the
action would have been brought against it, but for a mistake concerning the proper
party’s identity.”
The Supreme Court’s decision in Krupski v. Costa Crociere S,p.A., 560 U.S. 538
(2010), corrected some misinterpretations of the relation back standards. Following

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On January 23, 2020, Carter had lodged an amended complaint naming only Parkside as a
defendant. [DE 11.] Later the same day, Carter lodged a second amended complaint naming both
Parkside and Argent Journey as defendants. [DE 12.] Both of these pleadings were stricken by Judge
Kolar for failure to comply with Fed.R.Civ.P. 15. [DE 14.] Neither of these complaints would have been
timely within the November 27 deadline either.

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Krupski, the Seventh Circuit has instructed district courts in the application of the
doctrine:
The only two inquiries that the district court is now permitted to make in
deciding whether an amended complaint relates back to the date of the
original one are, first, whether the defendant who is sought to be added
by the amendment knew or should have known that the plaintiff, had it
not been for a mistake, would have sued him instead or in addition to
suing the named defendant; and second, whether, even if so, the delay in
the plaintiff’s discovering his mistake impaired the new defendant’s
ability to defend himself.
Joseph v. Elan Motorsports Technologies Racing Corp., 638 F.3d 555, 559-60 (7th Cir. 2011).
This standard is readily met here.
First, Parkside’s relationship with Journey supports the conclusion that Parkside
was aware of the lawsuit and well knew it should have been sued but inadvertently
wasn’t. As Carter points out, Journey and Parkside were acting in concert throughout
the administrative process. Indeed, Parkside defended Carter’s EEOC complaint even
though the EEOC complaint was filed against Journey. As Carter points out, “Parkside
and Journey have the same address. Parkside is the managing company of Journey.”
[DE 48 at 6.] Carter’s EEOC charge named “Journey Senior Living of Merrillville” as
her employer. [DE 48-1 at 1.] An Employer Statement of Position was filed with the
EEOC on behalf of respondent Journey Senior Living. [DE 48-2 at 1.] And the
Introduction explains the shifting of management at the facility where Carter was
employed. This goes a long way in providing an explanation for Carter’s original
confusion about the defendants necessary to name in her lawsuit.

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According to the Employer Statement, Carter was hired in 2016 and “employed
by Journey Senior Living, LLC, the third party management company that operated and
managed Journey Senior Living of Merrillville.” [Id.] But “[i]n July 2018, Journey Senior
Living, LLC was terminated as manager of the JSL and following a transition of
management duties ending on October 15, 2018, Carter was employed with Parkside
Management Services, LLC, the third party management company that was retained to
assume the management of JSL.” [Id.] The statement was verified and signed by Mark
Matthews as President of Argent Journey Senior Living, and also by Todd Miller on
behalf of Parkside Management Services, LLC, which was identified as “Manager and
Former Employer of Complainant.” [DE 48-2 at 7.]
In light of this background, Parkside’s assertion that Journey Senior Living of
Merrillville is “an entity that has no affiliation with Parkside” is nothing short of
astonishing. At best, it’s a textbook case of someone playing fast and loose with the
facts. [DE 50 at 1.] And then, to make matters worse, Parkside’s reply brief goes on to
invoke outmoded Seventh Circuit caselaw preceding and impliedly overruled by the
relation back teachings of Krupski and Joseph. [DE 50 at 2, citing Hall v. Norfolk S. Ry. Co.,
469 F.3d 590, 596 (7th Cir. 2006). See Herrera v. Cleveland, No. 18 C 6846, 2020 WL 1548954,
at *2 (N.D.Ill. April 1, 2020) (observing that Hall is inconsistent with Krupski).]
The record of the EEOC proceedings is enough to demonstrate that Parkside
“knew or should have known that the action would have been brought against it, but
for a mistake concerning the proper party’s identity.” Rule 15(c)(1)(C)(ii). Parkside’s
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simplistic focus on how unspecified mail was addressed and received is beside the
point. [DE 50 at 2-3.] Parkside’s participation in the EEOC proceedings, in which it
identified itself as Carter’s employer, provided the awareness the relation-back rule
requires. An unsuccessful charge of discrimination with the EEOC is a precursor to a
lawsuit, and it is entirely implausible that after its involvement before the EEOC and
given its role managing the Journey Senior Living facility, Parkside would not have
become aware when Carter brought suit against Journey Senior Living of Merrillville
based on the same allegations. And that knowledge was likely nearly simultaneous
with Journey’s own awareness of the lawsuit, so that Parkside’s notice was in time to
meet the requirement of Rule 15(c)(1)(C). Parkside is also unable to demonstrate any
impairment in its ability to defend itself attributable to the brief delay in being named
as a defendant, the second requirement under the relation back doctrine. In sum, the
relation-back doctrine defeats Parkside’s argument that it was not timely sued under
Title VII and the ADA.
Parkside next challenges the pleading sufficiency of Carter’s race discrimination
claim under 42 U.S.C. §1981, arguing that Carter “does not allege she was prevented
from making or enforcing any contract because of her race.” [DE 39 at 4.] Section 1981
prohibits race discrimination in the making, enforcing and terminating of contracts. It
has long been interpreted to encompass employment discrimination based on race.
Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60 (1975) (“it is well settled
among the federal Courts of Appeals – and we now join them – that §1981 affords a
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federal remedy against discrimination in private employment on the basis of race”).
“Section 1981 protects employees with contracts for a specified duration as well as atwill employees.” Pulliam v. General Motors, 354 F.Supp.2d 874, 879 (W.D.Wisc. 2005),
citing Walker v. Abbott Laboratories, 340 F.3d 471, 478 (7th Cir. 2003). Parkside’s argument
fails.
Perhaps recognizing that its “contract” argument about §1981 is a non-starter,
Parkside pivots in its reply to make a different argument, namely that Carter has failed
to allege sufficient facts to support a race discrimination claim. [DE 50 at 5.] This
argument can be rejected both for coming too late (appearing for the first time in
Parkside’s reply) and on its merits. Fed.R.Civ.P. 8(a)(2) requires only a “short and plain
statement of the claim.” Carter’s Third Amended Complaint expressly alleges that her
employment “was terminated due to her race.” [DE 24 at ¶31.] The Supreme Court has
held that “the Federal Rules do not contain a heightened pleading standard for
employment discrimination suits.” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 515 (2002).
Also, “an employment discrimination plaintiff need not plead a prima facie case of
discrimination.” Id.
As in Swierkiewicz, Carter’s pleading “detail[s] the events leading to [her]
termination, provide[s] relevant dates” (id. at 514) and includes an allegation that a
white employee “engaged in conduct of comparable seriousness, but they have not
been terminated” (DE 24 at ¶25). These allegations, along with the ultimate assertion
that Carter was terminated due to her race, are sufficient to survive a motion to dismiss
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her claim under §1981. “Given the straightforward nature of the claim,” applicable
pleading standards require “nothing more” than allegations of who discriminated
against Carter, the type of discrimination claimed, and when. McCauley v. City of
Chicago, 671 F.3d 611, 617 (7th Cir. 2011).
Parkside’s final argument for dismissal is just as fruitless. It relates to whether
Parkside was timely served with the Third Amended Complaint. Judge Kolar granted
leave to file the Third Amended Complaint on February 6, 2020. [DE 23.] The 90 days
for service provided in Fed.R.Civ.P. 4(m) expired on May 6, 2020. Parkside says it was
served on May 26, 2020. [DE 39 at 6.] As Carter points out, Rule 4(m) contemplates
only dismissal without prejudice for a failure of timely service, not dismissal with
prejudice as Parkside requests. [DE 39 at 6.] Furthermore, I agree with Carter that
dismissal without prejudice would be a waste of resources serving no reasonable
purpose, when Parkside has been served, only 20 days late, and in view of the
difficulties Carter’s counsel was experiencing due to pregnancy complications
(requiring hospitalization followed by bed-rest) and the COVID-19 pandemic (resulting
in the furlough of her assistant). [DE 48 at 8.] Finding that Carter has shown good
cause for the failure of timely service, I extend the time for service nunc pro tunc and
declare service of the Third Amended Complaint on Parkside to have been timely.
ACCORDINGLY:

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Defendant Parkside Management Services, LLC’s Motion to Dismiss Plaintiff’s
Third Amended Complaint [DE 39] is DENIED.
SO ORDERED.
ENTERED: October 15, 2020.

/s/ Philip P. Simon
UNITED STATES DISTRICT JUDGE

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