JENKINS v. INDIANA DEPT. OF SERVICES

Filing 15

ORDER granting 9 Motion to Dismiss with prejudice and denying as moot 12 Motion to Appoint Counsel. Signed by Judge Tanya Walton Pratt on 6/23/2015 (dist made) (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TAMARA L. JENKINS,
Plaintiff,
v.
INDIANA DEPARTMENT OF
CHILD SERVICES,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 1:14-cv-01520-TWP-DML

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
This matter is before the Court on a Motion to Dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(6) by Defendant Indiana Department of Child Services (“DCS”) (Filing No.
9). Plaintiff Tamara L. Jenkins (“Ms. Jenkins”), a former employee of DCS filed this action under
the Americans with Disabilities Act (“ADA”), alleging employment discrimination based on her
disability as well as retaliatory discharge for filing charges of discrimination and for seeking
disability compensation (Filing No. 1 at 2). Ms. Jenkins is seeking damages for back pay and
emotional distress and the demotion of her former supervisor. DCS moves to dismiss this action
on the bases that the Complaint was filed after expiration of the statute of limitations and because
of Eleventh Amendment immunity. For the reasons below, the Court GRANTS DCS’s Motion to
Dismiss.
I.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss a complaint
that has fails to “state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When
deciding a motion to dismiss under Rule 12(b)(6), the Court accepts as true all factual allegations
in the complaint and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane,

550 F.3d 632, 633 (7th Cir. 2008). The complaint must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In Bell Atlantic Corp.
v. Twombly, the Supreme Court explained that the complaint must allege facts that are “enough to
raise a right to relief above the speculative level.” 550 U.S. 544, 555 (2007). Stated differently,
the complaint must include “enough facts to state a claim to relief that is plausible on its face.”
Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (internal citation and quotation marks
omitted). To be facially plausible, the complaint must allow “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556).
Additionally, “[a] document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
“[Courts] consider documents attached to the complaint as part of the complaint itself.
Such documents may permit the court to determine that the plaintiff is not entitled to judgment.”
Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 764 (7th Cir. 2010) (citations omitted).
Dismissal is appropriate “when a party has included in its complaint ‘facts that establish an
impenetrable defense to its claims.’” Hecker, 556 F.3d at 588 (quoting Tamayo v. Blagojevich,
526 F.3d 1074, 1086 (7th Cir. 2008).
A plaintiff’s failure to file her complaint within the period provided by the applicable
statute of limitations provides an affirmative defense. Indep. Trust Corp. v. Stewart Info. Servs.
Corp., 665 F.3d 930, 935 (7th Cir. 2012). While “a plaintiff is not required to plead facts in the
complaint to anticipate and defeat affirmative defenses,” if the complaint “nonetheless sets out all

2

of the elements of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate.” Id. (citing
Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009)).
II.

BACKGROUND

Ms. Jenkins began her employment with DCS in July 2007 as an account clerk. During
her employment, she suffered from debilitating stress, anxiety, and depression, which was
exacerbated by a hostile work environment (Filing No. 1-2 at 4). Her doctor placed her on medical
leave from work because of her disability (stress, anxiety, and depression) beginning in June 2010
through November 2010. Ms. Jenkins returned to work for a brief period of time but then began
missing work and on some occasions failed to notify her supervisors of her absence. Because of
her stress, anxiety, and depression, Ms. Jenkins missed work while she participated in an intensive
outpatient program administered by the St. Vincent Stress Center from December 20, 2010 through
February 28, 2011.

After receiving medical documentation regarding Ms. Jenkins’s work

absences, DCS retroactively approved Ms. Jenkins’s participation in the stress center’s program
under the department’s disability plan.
Ms. Jenkins’s doctor released her to return to work on February 28, 2011, but by March
17, 2011, she still had not returned to work. DCS sent a certified letter to Ms. Jenkins stating that
her absences were unauthorized and giving her until March 25, 2011, to return to work. The letter
explained that a pre-deprivation meeting would be held on March 25, 2011 with or without her
attendance, to address her unauthorized absences. Ms. Jenkins did not return to work on March
25, 2011 and did not attend the pre-deprivation meeting due to her mental health status. Ms.
Jenkins received a letter from DCS stating that she was suspended without pay for 30 days pending
dismissal (Filing 1-1 at 2).

3

On April 20, 2012, Ms. Jenkins filed a Charge of Discrimination (the “Charge”) based on
disability and retaliation with the Indiana Civil Rights Commission. The Charge was forwarded
to the Equal Employment Opportunity Commission (“EEOC”) the same day. On April 27, 2012,
the EEOC sent an acknowledgment letter to Ms. Jenkins, notifying her that it had received the
Charge submitted under the ADA (Filing No. 1-1 at 3). Ms. Jenkins stated in the Charge that she
was discriminated against because of her disability and her discipline was in retaliation for her
prior charges of discrimination and filings for disability compensation. She also stated that she
never received notification from DCS that she was actually dismissed or terminated, and that she
should not have been dismissed or terminated because she was on disability leave at that time.
In its Dismissal and Notice of Rights decision dated June 14, 2012, the EEOC informed
Ms. Jenkins that it was closing her file because her charge “was not timely filed with the EEOC,
in other words, you waited too long after the dares of the alleged discrimination to file your
Charge.” Ms. Jenkins was informed that she waited too long after the adverse employment action
to file her Charge of Discrimination (Filing No. 1-1 at 1). The EEOC’s Dismissal and Notice of
Rights decision also informed Ms. Jenkins of her “Notice of Suit Rights,” which informed her that
she could file a lawsuit in court but that it must be initiated within ninety days of her receipt of the
notice or her right to sue would be lost. Id.
Ms. Jenkins failed to initiate this litigation within ninety days of receiving the June 14,
2012 notice. Instead, she waited approximately two years and three months to file her pro se
Complaint in this Court on September 17, 2014. Her Complaint asserts the same claims that she
asserted in her EEOC Charge under the ADA and alleges discrimination based on her disability
and employment discipline based on retaliation for her prior discrimination charges and for filing
for disability compensation.

4

III. DISCUSSION
As a preliminary matter, Ms. Jenkins asserts that DCS failed to timely respond to her
Complaint within sixty days of September 23, 2014 (Filing No. 11). DCS was required to file a
responsive pleading by November 22, 2014. However, November 22, 2014, was a Saturday and,
therefore, the filing deadline was extended to the following Monday, November 24, 2014. See
Fed. R. Civ. P. 6(a)(1)(C). DCS filed its Motion to Dismiss on November 24, 2014, and thus, it
was timely filed.
Ms. Jenkins also asserts that on June 11, 2012, she submitted evidence to the EEOC to
dispute DCS’s defense of her Charge (Filing No. 11). She was given until June 15, 2012, to submit
this evidence. After receiving the evidence on June 11, 2012, the EEOC then issued its Dismissal
and Notice of Rights decision on June 14, 2012, explaining that Ms. Jenkins’s Charge was
untimely submitted. Ms. Jenkins disputes the EEOC’s determination regarding timeliness based
on her submission of evidence on June 11, 2012, before the June 15, 2012 deadline. However,
while Ms. Jenkins did timely submit the requested evidence, that submission of evidence did not
affect the untimeliness of her filing of the Charge of Discrimination.
Turning to DCS’s Motion to Dismiss, DCS argues that Ms. Jenkins’s ADA Complaint was
untimely filed after the statute of limitations period passed and therefore should be dismissed. In
addition to the untimeliness of the Complaint, DCS argues that Ms. Jenkins’s claim is barred
because of DCS’s immunity under the Eleventh Amendment. The Court will address each
argument in turn.
A. Statute of Limitations
Allegations of employment discrimination and retaliation based on disability are brought
under Title I of the ADA. Brumfield v. City of Chi., 735 F.3d 619, 622 (7th Cir. 2013). The

5

remedies for an ADA Title I violation are the same as the remedies for an employment
discrimination claim brought under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 12117.
Thus, a plaintiff asserting an ADA Title I claim must follow the same procedural requirements for
a Title VII Civil Rights Act claim. See, e.g., Basith v. Cook Cnty., 241 F.3d 919, 931 (7th Cir.
2001); Stewart v. Cnty. of Brown, 86 F.3d 107, 110–11 (7th Cir.1996). In order to pursue claims
based on disability discrimination in the employment context, prior to filing a lawsuit, an employee
is required to file a charge with the EEOC or the state or local agency within 180 days of the
alleged unlawful practice, or within 300 days if the charge was first filed with a state or local equal
opportunity agency. 42 U.S.C. § 2000e-5(e)(1). In the event of an adverse decision by the EEOC,
the EEOC must notify the employee of that decision, and then the employee may file a civil action
in court, which must be filed within 90 days of the notice. 42 U.S.C. § 2000e-5(f)(1).
Ms. Jenkins argues that DCS is incorrect in asserting that she filed her Complaint after the
statute of limitations period expired. However, a review of the documents attached to the
Complaint confirms that Ms. Jenkins filed late at each stage of her proceedings. DCS made an
adverse employment decision against Ms. Jenkins on March 25, 2011. Ms. Jenkins then filed her
Charge of Discrimination with the EEOC on April 20, 2012 (392 days after the adverse
employment decision) (Filing No. 1-1 at 2). This was well beyond the 180-day and 300-day
limitation periods for filing a charge with the EEOC. Ms. Jenkins then received her Dismissal and
Notice of Rights decision, which explained she had a right to sue within 90 days, on June 14, 2012
(Filing No. 1-1 at 1). Ms. Jenkins then waited to file her Complaint in this Court until September
17, 2014 (825 days after the EEOC decision) (Filing No. 1). This was well beyond the 90-day
limitation period for filing a civil action.

6

In addition to being outside the 90-day limitation period, Ms. Jenkins’s action was filed after
the two-year statute of limitations applicable to employment related actions against the state of
Indiana. Ind. Code § 34-11-2-2. DCS took adverse employment action against Ms. Jenkins on
March 25, 2011. Based on the documents attached to Ms. Jenkins’s Complaint, she was aware of
the adverse employment action as of June 26, 2011, but most likely earlier. The two-year statute
of limitations applicable to the claim expired more than a year before Ms. Jenkins filed her
Complaint on September 17, 2014. Because Ms. Jenkins failed to initiate this action within the
90-day period after the EEOC’s dismissal and within the two-year statute of limitations period, her
Complaint was untimely filed and this action must be dismissed.
B. Eleventh Amendment Immunity
As an additional basis for dismissal, DCS asserts that Ms. Jenkins’s claim for damages is
barred by Indiana’s immunity under the Eleventh Amendment. Eleventh Amendment immunity
prohibits private parties from suing non-consenting states in federal court for damages except
where Congress has validly abrogated that immunity. Bd. of Trs. of the Univ. of Ala. v. Garrett,
531 U.S. 360, 363 (2001). In Garrett, the Supreme Court held that Congress did not validly
abrogate state immunity as to Title I claims under the ADA. Id. at 374 n.9. Ms. Jenkins brought
her claim for damages against DCS, a non-consenting state agency, under Title I of the ADA.
Thus, even if her claim were timely filed, it would be barred by the Eleventh Amendment.
IV. CONCLUSION
For the foregoing reasons, DCS’s Motion to Dismiss (Filing No. 9) is GRANTED, and
Ms. Jenkins’s action is dismissed with prejudice. The Court, having granted DCS’s Motion to
Dismiss, DENIES as moot Ms. Jenkins’s Motion to Appoint Counsel (Filing No. 12). Final
judgment will issue under separate order.

7

SO ORDERED.
Date: 6/23/2015

DISTRIBUTION:
Tamara L. Jenkins
3223 Welch Drive
Indianapolis, Indiana 46224
Melinda Jae Schwer
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]

8