Opinion
No. 99 C 4820
July 23, 2001
MEMORANDUM OPINION AND ORDER
The plaintiff, Renée Watanabe, has brought this pro se civil action purportedly pursuant to 29 U.S.C. § 621, 42 U.S.C. § 12101, 42 U.S.C. § 2000e, 42 U.S.C. § 1981, and 42 U.S.C. § 1985(3). Plaintiff claims that the defendants, Loyola University of Chicago and Loyola officials (collectively, "Loyola") and Olsten Staffing Services, Inc. (doing business as Co-Counsel), have discriminated against her in violation of the Americans with Disabilities Act, the Age Discrimination Act, Title VII and other statutes, retaliated against her f or pursuing remedies with the Equal Employment Opportunity Commission (EEOC), subjected her to sexual harassment, and engaged in a conspiracy against her. This matter is before the court for consideration of the motions of defendants to dismiss the "corrected amended complaint" (hereinafter referred to as the "second" amended complaint) for failure to state a claim upon which relief may be granted. For the reasons stated in this order, the motion will be granted with leave to replead.
A third defendant, Dunhill Temporary Systems, Inc. (doing business as Dunhill Staffing Systems), settled with plaintiff and was dismissed from this lawsuit on May 17, 2001. Counts II, VI, X and XIV, which pertain to Dunhill only, will accordingly be dismissed with prejudice. Count VIII, plaintiff's conspiracy claim, is also dismissed insofar as Dunhill is named as a co-conspirator.
Allegations
Plaintiff, Renée Watanabe, is Asian-American and alleges that she is perceived as mentally disabled. Plaintiff obtained a bachelor's degree in philosophy from Loyola in September 1998 and has obtained a pre-law certificate for legal studies. Plaintiff's claims, taken as true for the purpose of this motion, are summarized as follows:
Count I: Race and National Origin Discrimination Under Title VII by Loyola
Between January and June of 1998, plaintiff met with Susan Reis, Director of the Career Center at Loyola, on several occasions. Plaintiff sought help in finding a job.
Reis expressed a willingness to help at the first meeting; however, in ensuing meetings she became increasingly belittling and insulting toward plaintiff. Reis never made any efforts to help place plaintiff in a job. Reis has helped other, non-Asian students find positions. Plaintiff remains unemployed.
Count III: Race and National Origin Discrimination by Co-Counsel
During the fall of 1998, plaintiff sought employment as a legal assistant through Co-Counsel, a temporary employment agency. Although Co-Counsel indicated that there were jobs open that fit plaintiff's qualifications, she was never called about any job openings she could fill. Co-Counsel later told plaintiff that there were no positions available and ref used to respond to her subsequent inquiries. On information and belief, Co-Counsel placed non-Asian-Americans in similar jobs.
Counts IV and XII: Retaliation by Loyola
During one of plaintiff's meetings with Reis, plaintiff raised the issue of discrimination. Reis asked plaintiff whether she intended to sue Loyola. After that discussion, Reis never made any efforts to help place plaintiff in a job.
Counts V and VII: Race and National Origin Discrimination Under 42 U.S.C. § 1981 by Loyola and Co-Counsel
In Counts V and VII, plaintiff realleges her previous claims that defendants willfully discriminated against her on the basis of her race and national origin, in violation of 42 U.S.C. § 1981.
Count VII: Conspiracy to Discriminate Under 42 U.S.C. § 1985(3)
On her resume, plaintiff mentioned Loyola University as part of her educational background. Plaintiff believes that Co-Counsel contacted Loyola about her. Plaintiff believes that defendants circulated references among themselves, thereby conspiring to deprive her of employment on account of her race and national origin.
Counts IX and XI: Claims Against defendants Loyola and Co-Counsel Under the Age Discrimination in Employment Act
At one point, Loyola's Reis implied that plaintiff was too old for the Placement Office to be of assistance to her. Co-Counsel employees, who were under the age of forty, treated plaintiff with disrespect because of her age. Co-Counsel assisted in the placement of persons under forty in jobs for which plaintiff was qualified. (Plaintiff does not allege that she is more than forty years of age, but for this motion the court will so infer.)
Count XIII: Perceived Disability Discrimination under the Americans with Disabilities Act by Loyola
Although plaintiff was capable of performing the essential functions of the positions for which she sought employment, Loyola treated plaintiff as if she had psychological problems. Because defendants perceived plaintiff as disabled, they refused to assist her in finding employment commensurate with her education and experience.
Count XV: Intentional Infliction of Emotional Distress by Loyola
On an unspecified date in 1998, plaintiff was falsely accused of threatening a Loyola employee. Loyola used the incident as a means to force plaintiff to seek counseling she did not need, thereby humiliating her and causing her great emotional distress. Due to the pressures and stress caused by Loyola, plaintiff was unable to complete one course she needed for graduation. Plaintiff's graduation was therefore delayed from January 1998 to September 1998. Loyola provided false and derogatory information to employment agencies seeking information about her. Because plaintiff was unable to find employment, she could not pay the tuition of her son, who was also attending Loyola University. Her son was dismissed from school shortly after plaintiff filed this lawsuit.
DISCUSSION
The second amended complaint was filed after the court, in a Memorandum Opinion and Order entered by the Hon. Robert W. Gettleman on June 27, 2000, dismissed the first amended complaint with leave to replead in accordance with the court's Opinion. The second amended complaint, however, is virtually identical to the dismissed first amended complaint and in no respect complies with Judge Gettleman's order directing her to amend. The deficiencies of the second amended complaint, then, are the same as the deficiencies of the first. Plaintiff admits that her second amended complaint is not in compliance with Judge Gettleman's order, but she explains that she failed to make the required corrections because her second amended complaint was prepared "at the last minute" due to having to "focus on other things."
Plaintiff was granted two enlargements of time and almost four months to draft her second amended complaint (and still filed it four days after the last, extended deadline). Lack of time to devote to the case is not an excuse to neglect one's case, for it is not only the plaintiff's case. It is also the defendants' case, a case on which they have been forced to expend their time and money to defend. Further, merely to refile a defective pleading to meet a court deadline is unacceptable conduct. See Downs v. Westphal, 78 F.3d 1252, 1257 (7th Cir.), opinion amended on other grounds on denial of rehearing by Downs v. Westphal, 87 F.3d 202 (7th Cir. 1996) ("being a pro se litigant does not give a party unbridled license to disregard clearly communicated court orders. It does not give the pro se litigant the discretion to choose which of the court's rules and orders it will follow, and which it will wilfully disregard").
In short, the defendants' motions to dismiss must be granted. In the main, there is no need to go through the exercise of identifying the defects in the second amended complaint other than to refer plaintiff back to Judge Gettleman's Opinion. A couple of new issues are addressed as follows:
Despite Judge Gettleman's directive that facts arising pre-February 1998 are not actionable and should be omitted from the third amended complaint, plaintiff now argues that the discrimination against her was a "continuing violation." Because the previous motions to dismiss contended that plaintiff had not even alleged dates on which the discrimination occurred, the precise issue of "continuing violation" did not arise in the first round of motions. And since the second amended complaint is virtually the same as the first amended complaint, it is still impossible to frame or decide the issue of continuing violation. In Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 344 (7th Cir.), cert. denied, 528 U.S. 874 (1999), the Seventh Circuit explained that when alleged discriminatory acts are part of a policy or pattern of continuing discrimination and "it would be unreasonable to expect plaintiff to perceive offensive conduct as Title VII harassment before the limitations period runs, or the earlier discrimination may only be recognized as actionable in light of events that occurred later, within the period of the statute of limitations," the continuing violation doctrine will apply and events that took place prior to 300 days before a plaintiff filed an EEOC charge will be deemed timely.
It is a rare instance, however, when that court finds a continuing violation outside the context of discriminatory pay. In Selan v. Kiley, 969 F.2d 560 (7th Cir. 1992), for example, the court addressed the question whether two separate incidents of alleged discrimination three years apart constituted a single continuing violation. The court ruled that these incidents did not amount to a continuing violation on the theory that it would have been difficult for plaintiff to "`pinpoint the exact day the violation occurred.'" Id. at 565 (quoting Stewart v. CPC Int'l, Inc., 679 F.2d 117, 120 (7th Cir. 1982)). Because plaintiff's allegations all indicate that she was aware of alleged discrimination at or near the time it occurred, it is difficult to see any possible room for a continuing violation theory here. At a minimum, the doctrine provides no defense to the motion before the court.
Bartmess v. Drewrys USA, Inc., 444 F.2d 1186 (7th Cir. 1971), is one such instance.
The court previously dismissed Count III, plaintiff's Title VII claim against Co-Counsel, for failure to state a claim. The court noted that the complaint failed to allege either that (a) Co-Counsel placed non-Asian-Americans in jobs after telling plaintiff there were no openings, or (b) plaintiff was denied placement because she is Asian-American. See Memorandum Opinion, p. 13. The second amended complaint does not cure those deficiencies. In fact, in her responsive brief, plaintiff appears to concede that she has no claim against Co-Counsel for race discrimination under Title VII. If that is so, then plaintiff must exclude allegations of race discrimination by Co-Counsel from her third amended complaint.
The court entirely rejected plaintiff's conspiracy claim against all three then-defendants under 42 U.S.C. § 1985(3), finding the complaint to be "fatally deficient" because she had pled no facts whatsoever to support such a claim. Indeed, plaintiffs own allegations refute any inference of a conspiracy. Plaintiff states that she was offered a position with the fiance of a Loyola professor who disliked her. It was the plaintiff herself who refused the position because she feared a set-up. These facts indicate that Loyola officials did not share negative information to denigrate her, as she suggests, and that none of the defendants denied her that job. Setting this aside, the court also rejects plaintiff's argument that discovery is necessary to prove that a conspiracy existed. Although discovery may yield information that would permit plaintiff to amend her complaint to add a count for conspiracy, she may not plead a claim without any basis in fact in the hope of discovering evidence. See Rule 11, Fed.R.Civ.P.
As a result, the motions to dismiss will be granted. Plaintiff will be given one, final opportunity to draft a complaint in accordance with the court's orders and with applicable law. She is granted until August 20, 2001, to file a third amended complaint that cures the various pleading deficiencies discussed in Judge Gettleman's Opinion, dropping any non-actionable claims. The third amended complaint shall further omit any claims against Dunhill employment agency, with whom plaintiff has settled, and any race discrimination claim against Co-Counsel. entirety.No extensions will be granted. On this occasion, in light of plaintiff's pro se status, the court will deny the defendant Loyola University's request to award costs and attorneys fees in connection with having to bring a motion to dismiss the duplicative pleading. However, if plaintiff continues to ignore court orders, she may be subject to the imposition of costs as well as sanctions, including dismissal of this case with prejudice.