Thomas v. Zonder et al

Filing 58

OPINION AND ORDER granting Thomass 45 Motion to voluntarily dismiss Defendants Robert Strader, Robert Zonder, and Amalgamated Transit Union under Fed. R. Civ. P. 41(a)(2) ; denying AS MOOT Zonders 43 Motion to Dismiss ; granting in part and denying in part Michigan Citys 50 Motion to Dismiss for Failure to State a Claim ; dismissing Count II charging age discrimination, but retaining Count I alleging race discrimination under both Title VII and Section 1981.. Signed by Chief Judge Philip P Simon on 6/9/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
VINCENT THOMAS,
)
)
Plaintiff,
)
)
v.
)
3:14-cv-00164-PPS-CAN
)
ROBERT ZONDER, ROBERT
)
STRADER, CITY OF MICHIGAN
)
CITY, and AMALGAMATED UNION )
TRANSIT,
)
)
Defendants.
)
OPINION AND ORDER
Vincent Thomas, initially representing himself, filed a complaint alleging that he
was fired as a bus driver for Michigan City, Indiana, because of his race or age. This
case has been on my docket for a long time as the Court has tried to clear up filing
mistakes that made it unclear which document was the operative Complaint. Now
Thomas seeks to voluntarily dismiss with prejudice all of the defendants except
Michigan City. (Docket Entry 45.) Michigan City, in turn, seeks dismissal of the
remaining case against it for failure to state a claim, making three procedural
arguments. (DE 50.) Because Thomas’s unopposed motion streamlines and clarifies the
case it will be granted, and Defendants Robert Strader, Robert Zonder, and
Amalgamated Transit Union will be dismissed from the case. Michigan City’s motion to
dismiss will be granted in part and denied in part, as explained in this Opinion and
Order.

Thomas’s voluntary dismissal with prejudice of three of the four named
defendants requires little discussion. The motion to dismiss indicates that Thomas
decided to file it based on advice from his counsel. (DE 45 at 2.) The defendants do not
object. (Id.) The motion is therefore GRANTED. (DE 45.) Zonder is dismissed from the
case, so his motion to dismiss is DENIED AS MOOT. (DE 43.)
Michigan City, now the only remaining defendant, seeks dismissal of the case
against it. (DE 50.) Thomas was hired as a city bus driver in September 2007. Starting
around November 5, 2012, he alleges he was subjected to discrimination based on his
age or race, culminating in his firing on January 28, 2013. Thomas filed a charge of race
and discrimination with the Indiana Civil Rights Commission (the “EEOC charge”) on
September 18, 2013. The EEOC issued Thomas a right-to-sue letter on October 31, 2013.
In the current case Thomas alleges “violations of Title VII of the Civil Rights Act of 1964
(‘Title VII’), as amended, 42 U.S.C. §§ 2000e et seq.; the Civil Rights Act of 1866, as
amended, 42 U.S.C. § 1981 (‘Section 1981'); and the Age Discrimination in Employment
Act (‘ADEA’), as amended, 29 U.S.C. §§ 621 et seq.” (DE 46 at 1.)
Michigan City’s threefold arguments for dismissal at this point relate to
timeliness and prerequisites to federal suit. Michigan City argues that (1) the complaint
against it is untimely because the first operative complaint naming it as a defendant was
filed after the statute of limitations period had run after the issuance of the EEOC rightto-sue letter; (2) the prerequisite EEOC charge for the age discrimination claim was
untimely, so Thomas’s age discrimination claim is barred; and (3) Thomas has never
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filed a discrimination claim with the EEOC against Michigan City itself, which is a
prerequisite to filing suit, so Thomas can’t sue Michigan City for his Title VII race
discrimination claim. I’ll take up each argument below.
Michigan City’s first argument stems from the issues surrounding the filing of
the pro se complaint which I alluded to before. Thomas initially filed four separate
complaints on January 29, 2014, one against each defendant. This was exactly 90 days
after the EEOC issued Thomas a right-to-sue letter on October 31, 2013, making the case
timely filed. The complaint naming Zonder was at the top of the January 2014 pile, and
the Clerk of Court filed that as the operative complaint, apparently assuming that the
other documents were hand-copies of the same document. Thomas then served on each
defendant the version of the complaint directed against that defendant. That error has
been corrected, and the docket contains a single operative amended complaint against
Michigan City, now the only defendant after Thomas’s unopposed motion to
voluntarily dismiss the other defendants. (DE 46.) Michigan City argues that no case
was filed against it within the 90-day period allotted for suing after the EEOC issued the
right-to-sue letter, see Dandy v. UPS, 388 F.3d 263, 270 (7th Cir. 2004) (citing 42 U.S.C. §
2000e-5(f)), so the claims against it aren’t timely and must be dismissed. Michigan City
argues that there is no basis for equitable tolling.
Equitable tolling is irrelevant here, and Michigan City’s first argument is
unavailing. Michigan City didn’t mention Federal Rule of Civil Procedure 15(c),
addressing relation back, which is directly apropos. That rule allows relation back of an
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amended complaint changing a defendant or defendant’s name where the “amendment
asserts a claim or defense that arose out of the conduct, transaction, or occurrence set
out–or attempted to be set out–in the original pleading,” and where the new defendant
got notice of the action within 120 days after the action was filed, and where the new
defendant “knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.” Michigan City filed
a motion for extension of time to answer on February 18, 2014, then filed its first motion
to dismiss on March 19, 2014. It knew the case was intended to be filed against it, and it
defended the case well within 120 days of the case being filed. The case that Michigan
City relies on, Baldwin Cnty. Welcome Cntr. v. Brown, 466 U.S. 147 (1984), is
distinguishable because in Baldwin no complaint at all was filed within 90 days of the
issuance of the right-to-sue letter. Thomas, on the other hand, filed too many
complaints, but at least one federal case was filed in time, and has always been deemed
filed in time by this Court. Michigan City knew that it was being sued from the get-go,
and knew what it was being sued for, and by whom. Michigan City’s first ground for
dismissal is therefore denied.
Next Michigan City argues that Thomas’s age discrimination claim was timebarred even if the Court finds that the amended complaint relates back (as I have done).
In short, Thomas filed his EEOC charge more than 180 days after the alleged age
discrimination ended, making it untimely. In his response Thomas concedes this point
and says that he “abandons Count II of the Amended Complaint.” (DE 52 at 3.)
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Michigan City’s motion to dismiss the claim of age discrimination will therefore be
granted, and Count II of the amended complaint will be dismissed.
Finally, Michigan City argues that Thomas couldn’t sue it for Title VII race
discrimination without first filing a discrimination claim against it with the Equal
Employment Opportunity Commission, which he didn’t do. See, e.g., Hampton v. Ford
Motor Co., 561 F.3d 709, 715 (7th Cir. 2009) (“filing a charge with the EEOC is a
prerequisite to bringing a federal action, see 42 U.S.C. § 2000e-5(b)”). Michigan City says
Thomas’s Title VII claim is therefore barred. (There is no dispute that Thomas’s § 1981
race claim is not subject to prior EEOC filing, that a four-year statute of limitations
applies, and that this claim is timely. (DE 55 at 1-2.) See, e.g., Tyson v. Gannett Co., 538
F.3d 781, 783 (7th Cir. 2008).) Thomas filed a timely race discrimination charge with the
EEOC that named “Michigan City Transit” as Thomas’s employer and the offending
party, but the charge didn’t say “City of Michigan City.”
Thomas argues that “Michigan City Transit” and “Michigan City” are
interchangeable as far as the requirements of the EEOC charge go:
On the face of the Charge, Thomas identifies his employer as
“Michigan City Transit” with the employer’s contact information
specified as 1801 Kentucky Street, Michigan City, IN 46360, (219)
873-1502. Michigan City Transit is a d/b/a of Michigan City and
the contact information listed on the transit department page of the
Michigan City, Indiana official web site perfectly matches the
contact information provided on the face of the Charge. [Exhibit 1
and 2]. Notably, the EEOC addressed all correspondence intended
for the Respondent to Thomas’ Charge to the City of Michigan City,
Indiana. [Exhibit 3].

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Further, Michigan City uses the term “Michigan City
Transit” or “MC Transit” on its web site and various official
documents related to its transit employees like Thomas and in
communications with its partners, constituents and customers. [See
e.g., Exhibit 4]. It is simply disingenuous for Michigan City to argue
that Thomas’ Title VII claims should be dismissed because the
EEOC Charge utilized the interchangeable d/b/a term “Michigan
City Transit” rather than “Michigan City, Indiana” to identify the
Respondent to the Charge filed by Thomas against his employer.
(DE 52 at 3-4.)
Michigan City doesn’t appear to contest this issue in its reply, instead limiting its
reply to the relation back issue that I denied above (although the reply, like the initial
brief in support of the motion, completely ignores the concept of relation back and the
existence of Rule 15). Michigan City’s reply only discusses the defendants named (or
not named) in the complaint and the amended complaint, argues that Baldwin should
control, and concludes by saying: “[The age discrimination claim should be dismissed.]
Additionally, all race discrimination claims made under Title VII must be dismissed as
untimely due to the plaintiff’s failure to name the City of Michigan City as a defendant
prior to October 14, 2014.” (DE 55 at 3.)
Regardless of whether Michigan City has waived the argument by failing to
dispute it in its reply, the Seventh Circuit has recognized an exception to the EEOCcharge prerequisite in situations just like this one:
The requirement that a party be named in the EEOC charge is not
jurisdictional, and it is subject to defenses such as waiver and
estoppel. The purpose of requiring the complaint to match the
EEOC charge is to give the employer some warning of the conduct
about which the employee is aggrieved and afford the EEOC and
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the employer an opportunity to attempt conciliation without resort
to the courts. Therefore, we have recognized an exception to the
rule where an unnamed party has been provided with adequate
notice of the charge, under circumstances where the party has been
given the opportunity to participate in conciliation proceedings.
Tamayo v. Blagojevich, 526 F.3d 1074, 1089 (7th Cir. 2008) (citations, quotation marks,
brackets omitted). That is exactly what happened here. Although Thomas’s EEOC
charge identified the discriminating entity as Michigan City Transit (DE 52-1 at 1; DE 1
at 6), the EEOC’s Notice of Charge of Discrimination was addressed to The City of
Michigan City, Indiana (DE 52-3 at 2; DE 1 at 5), and the subsequent right-to-sue letter
issued to Thomas was copied to The City of Michigan City, Indiana (DE 52-3 at 1; DE 1
at 4). So the EEOC read Thomas’s charge as alleging discrimination against Michigan
City, Michigan City had adequate notice of the EEOC charge, and Michigan City had
the same opportunity to participate in pre-suit conciliation proceedings as it would
have had if Thomas had written “Michigan City” rather than “Michigan City Transit”
on his EEOC charge form. Michigan City’s argument for dismissal of Thomas’s Title VII
race discrimination claim based on failure to complete a prerequisite to suit is therefore
denied.
FOR THE FOREGOING REASONS I hereby:
(1) GRANT Thomas’s motion to voluntarily dismiss Defendants Robert Strader,
Robert Zonder, and Amalgamated Transit Union under Fed. R. Civ. P. 41(a)(2) (DE 45),
and DIRECT the Clerk of Court to denote the matter as terminated against those
defendants;
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(2) DENY AS MOOT Defendant Zonder’s motion to dismiss this case against
him (DE 43) due to Zonder’s dismissal from the case pursuant to Thomas’s unopposed
motion to voluntarily dismiss certain defendants including Zonder (see DE 45 at 2); and
(3) GRANT IN PART AND DENY IN PART Defendant City of Michigan City’s
motion to dismiss for failure to state a claim, dismissing Count II charging age
discrimination, but retaining Count I alleging race discrimination under both Title VII
and Section 1981. (DE 50)
SO ORDERED.
ENTERED: June 9, 2015
/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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