Memon, Iftikhar v. Western Technical College
Filing
12
ORDER denying 5 Motion to Dismiss; denying as moot 11 Motion to Lift Stay. Signed by District Judge James D. Peterson on 5/11/2015. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
IFTIKHAR AHMED MEMON,
OPINION and ORDER
Plaintiff,
14-cv-581-jdp
v.
WESTERN TECHNICAL COLLEGE,
Defendant.
Plaintiff Iftikhar Ahmed Memon has brought this action alleging that defendant
Western Technical College violated Title VII of the Civil Rights Act and the Age
Discrimination in Employment Act by discriminating against him based on his race, age, sex,
national origin, and religion when it refused to interview him for a position as associate dean
of business. Currently before the court are defendant’s motion to dismiss the case under
Federal Rule of Civil Procedure 12(b)(6) and motion to lift the discovery stay put in place
pending resolution of the motion to dismiss. After considering the parties’ submissions, I will
deny defendant’s motion to dismiss. I will also deny the motion to lift the discovery stay as
moot.
MOTION TO DISMISS
In its motion to dismiss, defendant argues that (1) the complaint fails to properly
allege claims for relief; (2) plaintiff failed to exhaust his administrative remedies before filing
this lawsuit; and (3) plaintiff’s request for relief is not authorized by Title VII or the ADEA. I
will address these arguments in turn.
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1.
Adequacy of complaint
Defendant assumes, and plaintiff does not dispute, that plaintiff’s claims rely on the
“indirect method” of proving discrimination first set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). To make out a prima facie case for such a claim, a plaintiff must show
that: (1) he was a member of the protected class; (2) he was qualified for the position; (3) he
was rejected for the position; and (4) the position was given to an individual outside the
protected class who was similarly situated or less qualified than he was. Stockwell v. City of
Harvey, 597 F.3d 895, 901 (7th Cir. 2010). Defendant argues that plaintiff fails to state a
claim upon which relief may be granted because the complaint does not explain whether he
was qualified for the associate dean position or whether defendant filled the position with
someone younger or of a different sex, religion, national origin, or race.
In support of its argument, defendant cites to a recent decision by this court stating
that “‘it is not enough to identify the discriminatory act and the characteristic that prompted
the discrimination.’” Dkt. 6, at 2 (quoting Riley v. Vilsack, 665 F.Supp.2d 994, 1004 (W.D.
Wis. 2009)). In Riley, this court concluded that United States Supreme Court decisions in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009), refined pleading standards for discrimination cases to require that a plaintiff “must
include some allegations about each element [of a claim], or at least allegations from which a
court can draw reasonable inferences about each of the elements.” Riley, 665 F.Supp.2d at
1002.
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However, defendant fails to take into account a more recent ruling by the Court of
Appeals for the Seventh Circuit concluding that Twombly and Iqbal did not change pleading
standards as much as the Riley decision assumed:
Furthermore, the Supreme Court has made clear that the pleading
standards in Title VII cases are different from the evidentiary burden a
plaintiff must subsequently meet when using the method of indirect proof
under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 511 (2002) (explaining that “we have rejected the
argument that a Title VII complaint requires greater ‘particularity,’ because
this would ‘too narrowly constric[t] the role of the pleadings’”) (internal
quotations omitted) (brackets in original). “In addition, under a notice
pleading system, it is not appropriate to require a plaintiff to plead facts
establishing a prima facie case because the McDonnell Douglas framework does
not apply in every employment discrimination case.” Id.
While there is some unresolved tension between Swierkiewicz and the
Court’s later decisions in Twombly and Iqbal, we have “affirmed our previous
holdings that, in order to prevent dismissal under Rule 12(b)(6), a complaint
alleging sex discrimination need only aver that the employer instituted a
(specified) adverse employment action against the plaintiff on the basis of her
sex.” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). “In these
types of cases, the complaint merely needs to give the defendant sufficient
notice to enable him to begin to investigate and prepare a defense.” Id. at 1085
(plaintiff sufficiently pled violation of Title VII where she alleged salary
discrepancy and that “she ha[d] been subjected to adverse employment actions
by Defendants on account of her gender”). Neither Iqbal nor Twombly overruled
Swierkiewicz, and it is our duty to apply the Supreme Court’s precedents unless
and until the Supreme Court itself overrules them.
Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013). Because plaintiff’s
complaint alleges that he was not given an interview because of his race, age, sex, national
origin, and religion, he has stated plausible Title VII and ADEA claims, so I will not dismiss
the case based on the specificity of plaintiff’s pleading.
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2.
Administrative exhaustion
Defendant next argues that plaintiff has failed to show that, before filing this lawsuit,
he first filed a charge with the Equal Employment Opportunity Commission (EEOC) within
300 days of the alleged discrimination. Although it is true that Title VII and ADEA plaintiffs
must file a charge within 300 days of the discretionary action, a plaintiff’s failure to exhaust
this administrative remedy is an affirmative defense that is defendant’s burden to prove. Salas
v. Wisconsin Dep’t of Corr., 493 F.3d 913, 922 (7th Cir. 2007). Plaintiff’s failure to plead that
he complied with this rule is not dispositive, and his complaint does not contain facts
pleading himself out on this issue. Even if I expanded the motion to dismiss to consider other
evidence, plaintiff has now submitted a copy of his charge indicating that he filed his charge
on June 20, 2014, for events occurring in March or April 2014. Dkt. 8-3. Defendant does not
provide any evidence rebutting that submission. Accordingly, I will deny defendant’s motion
to dismiss based on this argument.
3.
Request for relief
Finally, defendant argues that the case should be dismissed because plaintiff has failed
to “provide . . . a clear demand for the relief sought.” Dkt. 6, at 3 (citing Fed. R. Civ. P. 8(a)).
Defendant takes issue with plaintiff’s request for “exactly $350,000” because he does not
provide any “specific or factual allegations that support this amount other than conclusory
statements of job discrimination and stress.” Id. I conclude that plaintiff’s request does not
rule afoul of Rule 8(a)(3), which simply requires “a demand for the relief sought.” Plaintiff is
not required to show how he arrived at this number. See e.g., Eggmann v. Myers, 2009 WL
1098677, at *4 (S.D. Ill. Apr. 23, 2009) (“Plaintiff need not plead how he arrived at the
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calculation of damages, it is enough under the rule that he has made a ‘demand for the relief
sought.’”); Williams v. Sabin, 884 F. Supp. 294, 296 (N.D. Ill. 1995) (“Rule 8 . . . does not
require that a plaintiff plead damages with particularity.”).
Defendant also argues that plaintiff’s requests for injunctive relief are not authorized
by Title VII or the ADEA. Plaintiff requests the resignation of high-level administrators and
that he be named interim president of Western Technical College. Although this court may
order “appropriate” equitable relief in Title VII and ADEA actions, 29 U.S.C. § 626 and 42
U.S.C. § 2000e-5(g), plaintiff’s requests are quite clearly beyond the scope of plausible relief
for his claims. However, this is a relatively minor defect given plaintiff’s pro se status and
does not merit immediate dismissal given that he has made an appropriate request for
damages.
MOTION TO LIFT STAY
Defendant has filed a motion to lift the discovery stay that was put in place at the
preliminary pretrial conference pending resolution of the motion to dismiss. It is not readily
apparent from the pretrial conference order itself, Dkt. 10, that a stay was formally entered,
but in any event I will deny the motion as moot. Now that I have denied the motion to
dismiss, the parties are free to conduct discovery.
ORDER
IT IS ORDERED that:
1.
Defendant Western Technical College’s motion to dismiss the case under
Federal Rule of Civil Procedure 12(b)(6), Dkt. 5, is DENIED.
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2.
Defendant’s motion to lift the discovery stay, Dkt. 11, is denied as moot.
Entered May 11, 2015.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge
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