TAYLOR v. AMCDC et al

Filing 19

ORDER on defendants' 12 Motion to Dismiss for Failure to State a Claim. Plaintiff's ADEA, ADA, and Title VII claims are DISMISSED with prejudice and Plaintiff's EPA and Section 1981 claims are DISMISSED without prejudice to Plaint iff refiling those claims, provided she can do so consistent with her obligations under Rule 11. If Plaintiff desires to do so in accordance with this order, her amended complaint must be filed by February 21, 2019. (See Order). Copy to Plaintiff via U.S. Mail. Signed by Judge James R. Sweeney II on 1/31/2019. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JANICE D. TAYLOR,

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Plaintiff,
v.
AMCDC,
LISA HARVEY,
Defendants.

No. 1:18-cv-00109-JRS-DML

Entry on Defendants’ Motion to Dismiss
Plaintiff Janice Taylor (“Plaintiff”) invokes the Court’s federal question
jurisdiction under 28 U.S.C. §§ 1331 and 1343(a), alleging claims against Defendants
Auntie Mame’s Child Development Center (“AMCDC”) and Lisa Harvey (collectively
with AMCDC, “Defendants”) for unlawful discrimination and retaliation under
federal law. After carefully considering the complaint, motion, response, and reply,
the Court concludes that the complaint should be dismissed, and the Plaintiff shall
have the opportunity to file an amended complaint.
I.

Background

On January 12, 2018, Plaintiff filed her complaint, alleging violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), “Equal rights
under the law,” 42 U.S.C. § 1981 (“Section 1981”), the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101, the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 621, and the Equal Pay Act (“EPA”), 29 U.S.C. § 206.

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Plaintiff alleges that AMCDC wrongfully terminated her employment in
November 2016 in retaliation for Plaintiff’s request for a reasonable accommodation
for her disability, which request AMCDC denied. (ECF No. 1-1 at 2.) Plaintiff also
alleges that Defendant Lisa Harvey “treated [Plaintiff] differently because of
[Plaintiff’s] age.” (ECF No. 1-1 at 2.)
Several months after her termination, Plaintiff filed an Equal Employment
Opportunity (“EEOC”) Charge of Discrimination (“Charge”) (Charge No. 470-201701810) against Defendants, checking only the boxes for “Retaliation,” “Age,” and
“Disability” as the bases of her Charge. (ECF No. 1-1 at 2.) On August 31, 2017, the
EEOC issued Plaintiff a “Notice of Suit Rights” (“Notice”), informing her that she
must file any lawsuit “within 90 days” of her receipt of the Notice, or her right to sue
based on the Charge would be lost. (ECF No. 1-1 at 1.) Plaintiff received this Notice
on September 2, 2017 and filed her complaint on January 12, 2018. (ECF No. 1 at 2.)
II.

Legal Standard

To state a cognizable claim under the federal notice pleading system, the
complaint must contain a “short and plain statement of the claim showing that
[Plaintiff] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). “This requirement is satisfied
if the complaint (1) describes the claim in sufficient detail to give the defendant fair
notice of what the claim is and the grounds upon which it rests and (2) plausibly
suggests that the plaintiff has a right to relief above a speculative level.” Bravo v.
Midland Credit Mgmt., Inc., 812 F.3d 599, 601–02 (7th Cir. 2016) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009)). A complaint that offers “labels and conclusions” or a “formulaic recitation of
the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678. To state a claim,
a complaint must contain sufficient factual matter, accepted as true, “that is plausible
on its face.” Id. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
A complaint will likely be found sufficient under the plausibility requirement if it
gives “enough details about the subject-matter of the case to present a story that holds
together.”

Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).

Alternatively, a plaintiff’s claim will be found insufficient if she “plead[s] facts that
show that [s]he has no legal claim.” Atkins v. City of Chicago, 631 F.3d 823, 832 (7th
Cir. 2011). When evaluating the sufficiency of a complaint for the purposes of a
Motion to Dismiss, the Court must “construe [the complaint] in the light most
favorable to the nonmoving party, accept well-pleaded facts as true, and draw all
inferences in [the non-movant’s] favor.” Reger Dev., LLC v. Nat’l City Bank, 592 F.3d
759, 763 (7th Cir. 2010). Pro se complaints such as that filed by the Plaintiff are
construed liberally and held to a less stringent standard than formal pleadings
drafted by lawyers. Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (internal
quotation omitted).
III.

ADEA, ADA, and Title VII claims

Defendants move to dismiss Plaintiff’s ADEA and ADA claims, arguing that the
claims are time-barred. (ECF No. 13 at 5-6.) Defendants also move to dismiss
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Plaintiff’s Title VII retaliation claim, arguing that Plaintiff failed to exhaust her
administrative remedies with respect to that claim. It is unclear from the complaint
whether Plaintiff alleges disability-based retaliation or Title VII protected activity
retaliation.

However, in her EEOC Charge, Plaintiff checked the box for

“Retaliation,” and alleges that she was retaliated against “for requesting an
accommodation [for her disability].” (ECF No. 1-1 at 2.) Conversely, Plaintiff fails to
mention her race or any other Title VII protected activity in her EEOC Charge or in
her complaint.

Plaintiff also failed to check any of the “Race,” “Color,” “Sex,”

“Religion,” or “National Origin” boxes on her EEOC Charge. In addition, the EEOC’s
acknowledgement receipt for Plaintiff’s Charge, dated May 3, 2017, expressly
informed Plaintiff that “[t]he information provided indicates that the charge is
subject to” the ADEA and the ADA alone. (ECF No. 1-1 at 3.) Plaintiff did not dispute
this acknowledgment. Therefore, the Court finds that Plaintiff does not complain of
any conduct prohibited by Title VII and Plaintiff’s allegations of retaliation are
properly construed as an ADA claim.
Moreover, Plaintiff failed to address or even respond to Defendants’ arguments in
support of dismissing her Title VII claim. While this is enough to support dismissal
of the claim, see Burton v. City of Franklin, 2011 WL 2938029, at *2 (S.D. Ind. July
18, 2011) (citing Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 480 (7th Cir. 2010));
see also Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011) (“[Plaintiff]
forfeited [the] opportunity to oppose the defendants’ motions to dismiss by failing to
respond to the arguments in support of those motions.”), it also supports the

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conclusion that Plaintiff did not have or make such a claim. If Plaintiff did mean to
make out a claim under Title VII, however, such a claim would either be barred for
Plaintiff’s failure to exhaust her administrative remedies, or for her failure to timely
file the lawsuit. The Court therefore incorporates Plaintiff’s retaliation claim into
her ADA claim.

For any of the foregoing reasons, Plaintiff’s Title VII claim is

DISMISSED with prejudice.
Turning then to Plaintiff’s ADEA and ADA claims—including her mislabeled
retaliation claim—they are time-barred. The timely filing of an EEOC charge is “not
a jurisdictional prerequisite to filing a federal lawsuit, but rather, is more akin to a
statute of limitations and subject to . . . equitable tolling under appropriate
circumstances.” Day v. Lincoln Ins. Agency, Inc., 1 F. App’x 521, 523 (7th Cir. 2001);
See also Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1174
(7th Cir. 1999) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).
A plaintiff has 90 days from receipt of the EEOC’s “Dismissal and Notice of the Right
to Sue” to file a complaint with the appropriate court. 42 U.S.C. § 2000e–5. The 90
days begins to run when the plaintiff or her attorney has actual receipt of the Notice.
Thread-gill v. Moore U.S.A., Inc., 269 F.3d 848, 850 (7th Cir. 2001). A complaint filed
after the 90 days is time-barred and subject to dismissal. Dandy v. United Parcel
Serv., Inc., 388 F.3d 263, 270 (7th Cir. 2004). “Equitable tolling applies when a
plaintiff, despite the exercise of due diligence and through no fault of [her] own,
cannot determine information essential to bringing a complaint.” Ashafa v. City of

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Chicago, 146 F.3d 459, 463 (7th Cir. 1998) (internal quotations and citation omitted);
see also Hamilton v. Komatsu Dresser Indus., Inc., 964 F.2d 600, 605 (7th Cir. 1992).
In her response to Defendants’ motion, Plaintiff argues that her ADA and ADEA
claims were timely filed, maintaining that “weekends and holidays” should not be
counted in the 90-day computation. (ECF No. 16 at 1.) But “90 days” means 90 days
as computed under the Federal Rules of Civil Procedure, so computations of time
require the “inclusion of weekends and holidays in a 90-day period.” Grzanecki v.
Bravo Cucina Italiana, 408 Fed.Appx. 993, 996 (7th Cir. 2011). Plaintiff alleges that
she received the EEOC Notice of Suit Rights on September 2, 2017. (ECF No. 1 at 2.)
Accordingly, Plaintiff’s ADEA and ADA claims would be timely only if filed on or
before December 1, 2017. Plaintiff filed this lawsuit on January 12, 2018—over one
month after the deadline to file had passed.
The only way Plaintiff could overcome her late filing and maintain her ADEA and
ADA claims is if some basis existed for equitably tolling the 90-day limitations period,
but Plaintiff offers no basis for equitable tolling. As such, Plaintiff’s ADEA and ADA
claims are time-barred, and these claims are DISMISSED with prejudice.
IV.

EPA and Section 1981 claims

Defendants argue that Plaintiff’s Section 1981 and EPA claims should be
dismissed pursuant to Rule 12(b)(6) because Plaintiff failed to state a plausible claim
for relief with respect to these claims. Plaintiff's complaint was hand-filed on one of
the Court's pro se form complaints, titled “Employment Discrimination Complaint.”
(ECF No. 1 at 1-2.) Under the pre-printed subsection of this form, which states, “[t]his

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complaint is brought pursuant to:”, Plaintiff checked the boxes for the ADEA, the
ADA, Title VII, the Equal Pay Act, and “Equal rights under the law,” (42 U.S.C. §
1981). (ECF No. 1 at 1-2.) However, as was the case with respect to her Title VII
claim discussed above, the narrative of Plaintiff’s complaint fails to allege any facts
in support of the EPA and Section 1981 claims.
To state a discrimination claim under Section 1981, the plaintiff must sufficiently
allege the following: “(1) [she is a member] of a racial minority; (2) the defendant had
an intent to discriminate on the basis of race; and (3) the discrimination concerned
one or more of the activities enumerated in the statute.” Morris v. Office Max, 89
F.3d 411, 413 (7th Cir. 1996); see also 42 U.S.C. § 1981(a)-(c). Here, Plaintiff neither
alleges that she was discriminated against because of her race, nor alleges that she
is even a member of a racial minority. As such, Plaintiff fails to state a claim for relief
under Section 1981, and this claim is DISMISSED without prejudice.
Dismissal is also proper on Plaintiff’s EPA claim. The EPA provides, in pertinent
part, that “[n]o employer . . . shall discriminate . . . between employees on the basis
of sex by paying wages to employees. . . at a rate less than the rate at which he pays
wages to employees of the opposite sex.” 29 U.S.C. § 206(d)(1)). However, Plaintiff
fails to allege any facts related to her compensation or to wage discrimination on the
basis of sex. Accordingly, Plaintiff fails to state a claim for relief under the EPA and
this claim is DISMISSED without prejudice.

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V.

Conclusion

The dismissal of the complaint will not lead to the dismissal of the action at
present. Instead, the plaintiff shall have through February 21, 2019, in which to
file an amended complaint relating to those claims not dismissed with prejudice.
The Court notes that while the Plaintiff has not officially requested leave to file a
First Amended Complaint, leave to amend should “be freely given when justice so
requires.” Fed. R. Civ. P. 15(a). “Unless it is certain from the face of the complaint
that any amendment would be futile or otherwise unwarranted, the district court
should grant leave to amend after granting a motion to dismiss.” Barry Aviation Inc.
v. Land O’Lakes Municipal Airport Com’n, 377 F.3d 682, 687 (7th Cir. 2004).
Additionally, “as is the general practice in this circuit, the court will sua sponte grant
[the] plaintiff leave to file an amended complaint if the court believes [the plaintiff]
has a sufficient basis for [her] claims . . . and should [s]he so choose” Jamison v.
Schnider Nat'l Carrier, Inc., No. 2:18-CV-120, 2018 WL 1638446, at *2 (N.D. Ind.
Apr. 4, 2018).
The amended complaint must (a) contain a short and plain statement of the
claim showing that the Plaintiff is entitled to relief, which is sufficient to provide the
Defendant with fair notice of the claim and its basis; (b) the amended complaint must
include a demand for the relief sought; and (c) the amended complaint must identify
what injury the Plaintiff claims to have suffered and what persons are responsible
for each such injury. Any amended complaint should also have the proper case
number, No. 1:18-cv-0109-JRS-DML, and the words “Amended Complaint” on the

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first page. If no amended complaint is filed with respect to those claims dismissed
without prejudice, this action will be dismissed without further notice for the reasons
set forth above.
For the foregoing reasons, Plaintiff’s ADEA, ADA, and Title VII claims are
DISMISSED with prejudice and Plaintiff’s EPA and Section 1981 claims are
DISMISSED without prejudice to Plaintiff refiling those claims, provided she can
do so consistent with her obligations under Rule 11. If Plaintiff desires to do so in
accordance with this order, her amended complaint must be filed by February 21,
2019.

Date: 1/31/2019

SO ORDERED.
Distribution:
JANICE D. TAYLOR
3636 Paseo Blvd.
Kansas City, MO 64109
Melissa A. Macchia
TAFT STETTINIUS & HOLLISTER LLP (Indianapolis)
[e-mail]

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