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granting motion to dismiss complaint as untimely, noting that the "factual claims" relating to equitable tolling, which the pro se plaintiff raised in her brief in opposition to the motion to dismiss, "were not included in the complaint and therefore [would not] be considered by the court on motion to dismiss pursuant to Rule 12(b)"
Summary of this case from Lambert v. PerryOpinion
Case No. 01 C 8697
July 30, 2002
ORDER
Plaintiff Kim Kyles has filed this pro se complaint against defendant Staff Management, Inc. ("Staff Management"), alleging, inter alia, race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983. Staff Management moves to dismiss Kyles's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the court grants the motion in part and denies it in part.
The court accepts the allegations in Kyles's complaint to be true for present purposes. In January 2001, Staff Management discriminated against Kyles by, among other things, terminating her because she is black. On or about June 4, 2001, Kyles filed a charge with the EEOC against Staff Management. The EEOC issued a notice of Kyles's right to sue, which Kyles received on August 10, 2001. Kyles filed her complaint in this court 91 days later, on November 9, 2001. Subsequently, this court granted Kyles's motion for appointment of counsel.
Defendants move to dismiss the Title VII claim as untimely. "A civil action alleging a Title VII violation must be filed within 90 days of receiving a right-to-sue notice from the EEOC." Threadgill v. Moore USA., Inc., 269 F.3d 848, 849-50 (7th Cir. 2001) (citing 42 U.S.C. § 2000e-5 (f)(1)). The filing period is not jurisdictional, but acts as a statute of limitations for Title VII claims. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Furthermore, the limitations period can be subject to equitable tolling. Id. However, federal courts require that plaintiffs strictly adhere to the deadline. "Even one day's delay beyond the statutory 90-day period is fatal in the absence of a specified basis for equitable tolling . . . ." Wilson v. Doctors Hosp. of Hyde Park, 909 F. Supp. 580, 581 (N.D.Ill. 1996).
In considering a motion to dismiss pursuant to Rule 12(b)(6), the court's consideration is limited primarily to the facts alleged in the complaint. In this case, Kyles has not alleged sufficient facts in her Title VII claim to withstand a motion to dismiss on statute of limitations grounds. See Turman v. Commonwealth Edison Co., No. 86 C 136, 1986 WL 5018, at *1 (N.D. Ill. Apr. 22, 1986). The complaint is clear that Kyles filed her complaint after the 90-day statutory deadline had passed. Furthermore, the complaint contains no excuse for Kyles's untimely filing. "Although the 90 day limitations period is not jurisdictional, a plaintiff filing a Title VII claim after this period has expired should allege sufficient facts in his complaint to justify his tardy filing." Id. at *2. Therefore, the court must dismiss the complaint.
In her memorandum in response to Staff Management's motion to dismiss, Kyles admits that she filed her complaint after the 90-day deadline but she argues that the statutory filing period should be equitably tolled. Specifically, she argues that during the 90 days after she received her right-to-sue letter, she tried, unsuccessfully, to find an attorney. "Plaintiff did not rest, and, when it became clear that she would not obtain counsel within the 90-day statutory period, she filed her Complaint on November 9, 2001, on what she believed to be the 90th day." (Pl.'s Resp. at 2.) This combination of Kyles's diligence in searching for counsel and her mistake in counting the number of days within which she had the right to sue, she argues, is grounds for equitable tolling of the filing period. A problem for Kyles is that these factual claims were not included in the complaint and therefore cannot be considered by the court on a motion to dismiss pursuant to Rule 12(b)(6). Turman, 1986 WL 5018, at *2. The court will not determine the validity of Kyles's arguments at this time. Therefore, Kyles's Title VII claim is dismissed without prejudice. She is granted leave to file an amended complaint, within 21 days of this order, that alleges facts showing why the court should apply equitable tolling to the statutory filing period. See id.
Like the court in Turman, 1986 WL 5018, at *2 n.*, this court declines to convert the motion to dismiss to a motion for summary judgment, despite Kyles's introduction of materials outside the pleadings. Kyles's unverified allegations are not contained in an affidavit or other sworn pleading, and are therefore inappropriate for review under either Rule 12(b)(6) or Rule 56.
Kyles has also brought a § 1983 claim against Staff Management. Kyles's complaint is contained in a standard pre-printed form commonly used by pro se litigants in this district, titled "Complaint of Employment Discrimination." (Compl. at 1.) Kyles's allegations consist of checked boxes and filled-in blanks. Paragraph 10 of the form, to which Kyles checked the "Yes" box, states: "The plaintiff is suing the defendant, a state or local government agency, for discrimination on the basis of race, color, or national origin ( 42 U.S.C. § 1983)." She makes no further mention of this allegation elsewhere in the complaint.
In its Rule 12(b)(6) motion, Staff Management makes little mention of Kyles's § 1983 claim. First, it claims that "Staff Management is clearly not a state or local government agency." (Def.'s Mot. ¶ 8.) This unverified factual assertion may not be considered at this stage of litigation. Staff Management also claims that "Plaintiff has not, nor can she support her allegation that Staff Management is a state or local government agency." (Def.'s Mot. ¶ 11.) This argument also fails on a motion to dismiss. Staff Management appears to concede, as it should, that Kyles has adequately alleged that Staff Management is a state or local government agency. Its only argument is that Kyles has failed to support her allegation. Under the federal notice pleading regime, she is not required to do so on a motion to dismiss. She has successfully stated a § 1983 claim and Staff Management's motion to dismiss is denied with respect to that claim.
ENTER: