Opinion
No. 02-CV-0147
December 4, 2002
ORDER
Before this court is the motion of defendant, Arthur Anderson, L.L.P., to dismiss the two-count amended complaint of plaintiff, Katrina Dabbs ("Dabbs"), for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(1) and (6). Count I alleges that defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., because Dabbs' supervising partner subjected Dabbs to a sexually hostile work environment and ultimately fired her for refusal to acquiesce while other partners turned a blind eye. Count II alleges that the unidentified partners' actions constituted "willful and wanton conduct."
In ruling on defendant's motion, the court accepts as true all well-pleaded facts alleged in Dabbs' amended complaint, and it draws all reasonable inferences from those facts in favor of Dabbs. Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999); Zemke v. City of Chicago, 100 F.3d 511, 513 (7th Cir. 1996). The court will not summarize the facts herein but refers to the relevant facts where necessary.
With respect to Count I, defendant argues that Dabbs' hostile work environment claim must be dismissed because Dabbs did not timely file her charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). In Illinois, "[a] plaintiff . . . must file a charge of discrimination with the EEOC or equivalent state agency within 300 days after the `alleged unlawful employment practice.'" Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001), quoting 42 U.S.C. § 2000e-5(e)(1). "The 300-day limit . . . begins to run when the defendant has taken the action that injures the plaintiff and when the plaintiff knows she has been injured, not when [she] determines that the injury was unlawful[.]" Id. (internal citations and quotations omitted). This is known as claim accrual. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1991) (distinguishing accrual of the plaintiff's claim from equitable tolling of the statute of limitations and stating, inter alia, "[a]ccrual is the date on which the statute of limitations begins to run.").
Defendant argues that the timely filing of an EEOC charge is a jurisdictional requirement. "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 waiver, estoppel, and equitable tolling under appropriate circumstances." Hentosh v. Herman M. Finch Univ. of Health Sci./The Chicago Med. Sch., 167 F.3d 1170, 1174 (7th Cir. 1999), citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).
Dabbs concedes that she filed a charge on November 30, 2001, and that the EEOC dismissed her charge as untimely on December 6, 2001. (See Pl. Resp. at 2; Am. Compl. ¶ 16.) Dabbs, however, asserts that her allegations support equitable tolling of the limitations period because "[a]t the moment [she] was fired she did not realize that she was a victim of sexual discrimination" and because at the time of the events at issue, she was not aware of any procedures to report the conduct to defendant. (Pl. Resp. at 2, 3). Equitable tolling provides that
In response to the motion, Dabbs agrees that the charge was filed on "November 31, 2001." Presumably, she means that she agrees with defendant's representation in the motion that the charge was filed on November 30, 2001. (Mot. ¶ 1; see Compl. ¶ 7.)
[a] plaintiff may toll the statute of limitations if, despite all due diligence, he is unable to obtain enough information to conclude that he may have a discrimination claim. . . . Equitable tolling does not postpone the running of the statute of limitations until the plaintiff is certain his rights had been violated. Rather, the limitations period begins to run when a reasonable person would believe he may have a cause of action. This is especially true when the plaintiff need only file a charge with an administrative agency.
Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 268 (7th Cir. 1995) (emphasis in original) (internal citations and quotations omitted).
Dabbs alleges (a) that the unidentified partners' (including her supervising partner's) misconduct occurred between approximately October 1 and her termination in early November, 2000, but (b) she discovered (at an unspecified time from Choice of Staffing, the temporary employment agency that sent her to defendant) after her job at defendant ended that her supervising partner had actually fired her ostensibly for poor performance.
Dabbs can allege no harassment after she left the presence of the offending partner in early November, 2000, and her allegations belie a notion that she did not know that she had been injured (as opposed to understanding that she might have a legal claim). Dabbs alleges the partner's offending conduct in some detail and alleges that she "subjectively perceived the environment as hostile or abusive. . . ." (Am. Compl. ¶ 20.) According to these allegations, Dabbs was injured and knew she had been injured (thus her claim accrued) at least by the time she was told in early November, 2000 that her job was over. Nor did Dabbs need to wait to be fired to pursue such a claim, for the partner's conduct itself was unlawful. Cf. Tolbert v. Dave Miller Olds, Inc., No. 98 C 5312, 2000 WL 655958, at *7 (N.D.Ill. May 19, 2000) (Shadur, J.) ("[the plaintiff] needs to establish only the existence of a hostile work environment, not that any adverse employment action took place, to recover at trial on her hostile work environment claim"). Because Dabbs alleges that she knew while she was employed that she was a victim of a sexually hostile environment, and this was considerably more than 300 days before she filed her charge, her charge was untimely and must be dismissed. See Holman v. Ind., 211 F.3d 399, 406 (7th Cir. 2000), quoting Northern Trust Co. v. Peters, 69 F.3d 123, 129 (7th Cir. 1995) ("More is not necessarily better under the Federal Rules; a party `can plead himself out of court by . . . alleging facts which . . . demonstrate that he has no legal claim[,]'" quoting Trevino v. Union Pac. R.R. Co., 916 F.2d 1230, 1234 (7th Cir. 1990)).
The court does not understand Dabbs to be arguing that she was not injured until she was fired, i.e., that before she was fired the partner's misconduct consisted of merely isolated incidents lacking the pervasiveness necessary for a claim of sexual harassment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (Sexual harassment is actionable under Title VII only when it is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."). This argument might raise the question whether the firing was the injury. If Dabbs had to know she had been injured and did not, perhaps her claim did not accrue until she learned of the injury. But, as indicated, this is not what Dabbs has pled and does not seem to be her argument in response to the motion.
Neither can one infer from the allegations that equitable tolling might apply, for a reasonable person in Dabbs' position would have had enough information at least to file a charge based on a sexually hostile environment. Further, Dabbs does not allege or argue that she exercised due diligence in discovering the information. See, e.g., Bilow v. Much Shelist Freed Denenberg Ament Rubenstein, P.C., 277 F.3d 882, 892-93 (7th Cir. 2001) (Equitable tolling did not apply where a reasonable person in the plaintiff's position exercising due diligence would have discovered long before five years had elapsed that she was not receiving the correct amount in her paycheck); Jackson v. Rockford Hous. Auth., 213 F.3d 389, 397 (7th Cir. 2000) (When the plaintiff learned that his employer had hired the white candidate, he knew that one possible explanation for why he was not promoted was racial discrimination and, therefore, he was required to undertake some inquiry to verify or discard this theory).
Turning to Dabbs' argument that "despite the notice requirements concerning Title VII, [she] was not aware of any procedures at [defendant] for reporting the improper behavior," the court is not persuaded that it defeats dismissal. (Pl. Resp. at 3.) It is true that the Seventh Circuit in Kephart v. Inst. of Gas Tech., 581 F.2d 1287, 1289 (7th Cir. 1978), stated that an employer's failure to post notice of ADEA rights, if proven at trial, would provide sufficient equitable grounds for tolling the statute. The same principle has been applied by other courts to Title VII claims. E.g., Mirza v. Dep't of Treasury, 875 F. Supp. 513, 519 (N.D.Ill. 1995) (If an employer fails to post informational notices in conspicuous places, then the charge-filing period will not begin to run until the employee either retains an attorney or acquires actual knowledge of her rights); Schele v. Porter Mem'l Hosp., 198 F. Supp.2d 979, 986 (N.D.Ind. 2001) ("Employers are required to post in conspicuous places notices of fair employment practices, including a description of applicable provisions of Title VII. 42 U.S.C. § 2000e-10 29 C.F.R. § 1601.30(a). Failure to post the required notice will toll the running of the limitation period, at least until such time as aggrieved persons seek out an attorney or acquire knowledge of their rights under the Act"). But Dabbs has not alleged that notices were not posted. She has merely alleged that she was unaware of procedures by which she might complain. (Am. Compl. ¶ 12). Although a civil rights claim need not be pled with particularity, the court believes, to justify putting defendant to the task of defending this lawsuit, Dabbs must be able to allege in good faith, at a minimum, that to the best of her knowledge notices were not posted and when she acquired knowledge of her rights. Furthermore, should Dabbs endeavor to replead her claim, she is directed to plead the facts concerning the date she learned she was terminated and the date she filed her charge. For these reasons, Count I will be dismissed with leave to replead.
The court in Schele further stated "the filing period is equitably tolled until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights. If employees are generally aware of their rights, however, ignorance of specific legal rights or failure to seek legal advice should not toll the filing period." 198 F. Supp.2d at 986-87 (internal citations and quotations omitted).
With respect to Count II, defendant argues that Count II should be dismissed because federal courts do not recognize an independent cause of action for "willful and wanton conduct." Dabbs argues that her claim for "willful and wanton conduct" is a state law claim. (Pl. Resp. at 4.) Dabbs, however, does not allege that this court has supplemental jurisdiction under 28 U.S.C. § 1367. (Am. Compl. ¶ 4.) Moreover, the court declines to exercise supplemental jurisdiction because Dabbs' federal claim will be dismissed. For these reasons, Count II will be dismissed.
Accordingly, the court grants defendant's motion to dismiss [#14] with leave to replead by January 3, 2002. If a second amended complaint is not filed by that date, the dismissal shall become a dismissal with prejudice.