DAVIS v. SHERATON HOTELS

Filing 33

ORDER granting in part and denying in part Defendant's 30 Motion for Judgment on the Pleadings. The Hotel's motion is DENIED to the extent it seeks dismissal of Davis's claims. The Hotel's motion is GRANTED to the extent i t seeks an order directing the filing of an amended complaint. Davis is ORDERED to file an amended complaint within FOURTEEN (14) DAYS from the date of this entry. Copy to Plaintiff via U.S. Mail. Signed by Judge Sarah Evans Barker on 4/10/2018. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
AUBREY DAVIS,

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Plaintiff,
v.
SHERATON HOTELS,
Defendant.

No. 1:17-cv-01587-SEB-DLP

ENTRY ON DEFENDANT’S MOTION (DKT. 30) ORDERING PLAINTIFF TO
FILE AMENDED COMPLAINT
Plaintiff pro se Aubrey Davis (“Davis”) has sued his employer (he calls Defendant
“Sheraton Hotels”; Defendant calls itself “Remington Lodging & Hospitality, LLC”; we
will call Defendant “the Hotel”) for discriminating against him on the basis of his age,
race, and sex (Davis is a fifty-six-year-old black man). The Hotel has filed a motion to
dismiss Davis’s complaint (more precisely, a motion for judgment on the pleadings), and
Davis has not responded.
Background
Davis’s lawsuit was filed on May 15, 2017. Dkt. 1. As required under our Local
Rule 8-1, Davis filed it on a form supplied by the Clerk of Court. The complaint was
sparse, omitting any useful information about what Davis says happened to him in
connection with his employment, but it did include two attachments. The first was a
right-to-sue letter from the EEOC giving Davis the right to sue on EEOC charge number
470-2017-00001 (“Charge 00001”) within ninety days. The second attachment was

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EEOC charge number 470-2017-01753 (“Charge 01753”), which shows Davis’s
signature dated April 27, 2017. In Charge 01753, Davis alleged that the Hotel wrote him
up unfairly in retaliation for his filing Charge 00001.
On June 7, 2017, Davis filed an “Addendum” to his complaint. Dkt. 7. The
“Addendum” included another two attachments. Both of these attachments appear to be
copies of Charge 00001, but the charges are worded differently, and only one of them is
signed and dated by Davis. The signed and dated copy of Charge 00001 is dated October
13, 2016. In the signed and dated copy of Charge 00001, Davis alleged that other
employees of the Hotel, some younger than he, some white, and some female, have been
treated better than he was treated.
The Hotel filed its motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) on March 6, 2018. Under our Local Rule 7-1(c), Davis was
required to respond to the Hotel’s motion within fourteen days. But he did not do so, and
still has not, more than one month later.
The Hotel’s Motion
As mentioned above, the Hotel asks the Court to dismiss Davis’s complaint, which
could end his lawsuit. As an alternative to the dismissal of Davis’s claims, however, the
Hotel asks the Court to order Davis to file an amended complaint. Br. Supp. (Dkt. 30) 3
n.3. We view the Hotel’s second request as preferable.
What Davis Must Do Now

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Within fourteen days of this order, Davis must file an amended complaint. If he
fails to do so, dismissal of the original complaint may be in the offing. Davis’s amended
complaint should do the following things.
First, Davis should disclose under which federal law or laws he seeks to sue the
Hotel. Davis does not have to choose just one statute; there is significant overlap between
the relevant federal statutes. But it would be helpful nevertheless if he were to identify
which law or laws he is relying on. On his complaint form, Davis checked the box next to
“42 U.S.C. § 1981,” indicating that he seeks to sue the Hotel under that statute. 1 Section
1981 allows Davis to sue his employer for discrimination and retaliation based on race,
but only based on race. Humphries v. CBOCS West, Inc., 474 F.3d 387, 402–03 (7th Cir.
2007). As relevant here, Section 1981 has a four-year statute of limitations, 28 U.S.C. §
1658(a); Campbell v. Forest Pres. Dist., 752 F.3d 665, 668 (7th Cir. 2014), and a Section
1981 claim does not have to go through the EEOC before a person is entitled to sue on
that claim in court. Randolph v. IMBS, Inc., 368 F.3d 726, 732 (7th Cir. 2004).
By contrast, two other statutes—Title VII and the ADEA—allow Davis to sue his
employer, under Title VII, 2 for discrimination and retaliation based on race and sex,

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“All persons within the jurisdiction of the United States shall have the same right in every State
and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . . [T]he term
‘make and enforce contracts’ includes the making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.” 42 U.S.C. § 1981(a), (b).
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“It shall be an unlawful employment practice for an employer . . . to discharge any individual,
or otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race . . . [or] sex[.]” 42
U.S.C. § 2000e-2(a)(1). And, “[i]t shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has opposed any practice made an
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Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 359–60 (2013), and, under the
ADEA, 3 for discrimination and retaliation based on age. Barton v. Zimmer, Inc., 662 F.3d
448, 453 (7th Cir. 2011). In general, Title VII and ADEA claims both have to go through
the EEOC’s administrative procedures before a person can sue in court, Reynolds v.
Tangherlini, 737 F.3d 1093, 1098–99 (7th Cir. 2013), and the lawsuit has to be filed
within ninety days of receiving a right-to-sue letter from the EEOC. Id. at 1099, 1101. (A
Title VII lawsuit can also be filed 180 days after submission of an EEOC charge, id. at
1099, and an ADEA lawsuit can also be filed with at least 30 days’ notice to the EEOC of
an intent to file an ADEA claim. Id. at 1101.)
Davis’s EEOC charges indicate that he seeks to sue the Hotel for violations of the
Equal Pay Act as well. 4 That statute does not require any filing with the EEOC before

unlawful employment practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” Id. § 2000e-3(a).
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“It shall be unlawful for an employer . . . to . . . discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s age[.]” 29 U.S.C. § 623(a)(1). And, “[i]t shall be unlawful for an employer to
discriminate against any of his employees . . . because such individual . . . has opposed any
practice made unlawful by this section, or because such individual . . . has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or litigation
under this chapter.” Id. § 623(d).
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“No employer . . . shall discriminate . . . between employees on the basis of sex by paying
wages to employees . . . a rate less than the rate at which he pays wages to employees of the
opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort,
and responsibility, and which are performed under similar working conditions, except where
such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production; or (iv) a differential based on any other
factor other than sex[.]” 29 U.S.C. § 206(d)(1).

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going to court and has a two-year limitations period. Stansell v. Sherwin-Williams Co.,
404 F. Supp. 696, 701 (N.D. Ga. 1975).
Second, depending on which statutes he chooses to sue under, Davis has to fulfill
all of the applicable requirements outlined above. So, for example, Davis’s amended
complaint against the Hotel for sex or age discrimination under Title VII or the ADEA
cannot be based on anything that he did not include in the signed and dated copy of
Charge 00001, that is, for anything that has not first been reviewed by the EEOC.
Third, under the heading “Facts in Support of Complaint” on the form complaint,
Davis should write out the underlying facts of his complaint. (In his first complaint,
Davis wrote only, “Recordings and witnesses” under that heading.) In other words,
Davis’s amended complaint should lay out, in plain English, and without worrying about
the correct legal jargon, (1) what the Hotel did to him and (2) why he thinks the Hotel’s
action was due to his race, sex, age, or the fact that he has filed charges with the EEOC.
When talking about (1) what the Hotel did to him, Davis should try to identify as
specifically as possible what happened and who did it to him and when it happened.
Davis should remember that not everything that makes him unhappy at work is an act of
discrimination in violation of federal law. Not even everything unfair that happens at
work is necessarily a federal offense. “A court is not a super personnel department . . . .”
Riley v. Elkhart Cmty. Schs., 829 F.3d 886, 895 (7th Cir. 2016). Rather, there must be an
“adverse employment action,” Atanus v. Perry, 520 F.3d 662, 675 (7th Cir. 2008), or, in
other words, “some sort of ‘real harm,’” “some quantitative or qualitative change in the
terms or conditions of” Davis’s employment that was detrimental to him. Id. Being
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written up, by itself, will not likely be enough. See id. Nor would a simple denial of a
request to transfer to the day shift likely be enough, by itself. See Grube v. Lau Indus.,
Inc., 257 F.3d 723, 728 (7th Cir. 2001).
When talking about (2) above—his explanation for why he thinks what happened
to him was discrimination or retaliation—Davis should try to identify other Hotel
employees who are like him in as many ways as possible except for the way in which he
alleges he was discriminated or retaliated against. So, for example, if Davis alleges that
he was discriminated against because of his race, he should try to identify middle-aged
white men who have done their work as well (or as poorly) as Davis has, but were
nonetheless treated more favorably or more leniently than he was treated. That will help
the Court identify whether Davis was really treated differently because of his race, as
opposed to another reason.
Fourth, in the future, Davis must pay close attention to motions filed by the Hotel
(as well as to rulings made by the Court) and respond to them in a timely fashion. Davis
was savvy enough to move for a default judgment when he thought the Hotel was not
following the rules. See Dkt. 10. So Davis must follow the rules himself, both the Federal
Rules of Civil Procedure and the Local Rules for the Southern District of Indiana.
Though it is well established that a pro se plaintiff’s pleadings are treated less stringently
than pleadings drafted by lawyers, “it is also well established that pro se litigants are not
excused from compliance with procedural rules.” Pearle Vision, Inc. v. Romm, 541 F.3d
751, 758 (7th Cir. 2008). Davis cannot bury his head in the sand when it becomes useful

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for him to do so and hope for the best. He has chosen to sue the Hotel. Now he must
follow through, appropriately and legally, with that decision, or lose his lawsuit.
Conclusion
The Hotel’s motion is DENIED to the extent it seeks dismissal of Davis’s claims.
The Hotel’s motion is GRANTED to the extent it seeks an order directing the filing of an
amended complaint. Davis is ORDERED to file an amended complaint within
FOURTEEN (14) DAYS from the date of this entry.
IT IS SO ORDERED.

Date:

4/10/2018

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
AUBREY DAVIS
3251 N. Winthrop
Indianapolis, IN 46205
Stephen Cole
REMINGTON HOTELS
[e-mail]
Courtney R. White
OGLETREE DEAKINS NASH SMOAK & STEWART, P.C. (Indianapolis)
[e-mail]

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