United States District Court, Southern District of Indiana Indianapolis Division
REPORT AND RECOMMENDATION DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT [DOC. 10]
Denise K. LaRue, United States Magistrate JudgeSouthern District of Indiana
This Cause came before this magistrate judge for preparation of a report and recommendation, pursuant to the referral of the district judge [doc. 14], for the disposition of Defendant’s motion to dismiss Plaintiff’s complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) and for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1). For the reasons explained herein, this magistrate judge recommends that the motion be granted in part and denied in part.
Plaintiff, who proceeds pro se in this case, filed the instant action on April 3, 2013 against his former employer, defendant Pitt Ohio Express. He asserts claims for violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”); violation of 42 U.S.C. § 1981; and “lost wages.” Employment Discrimination Complaint [doc. 1] (“Complaint”), § II. Plaintiff’s claims arise from Defendant’s alleged wrongful termination of him and its failure to pay him for hours worked. His factual allegations are brief. For example:
Negitive [sic] hairalysis [sic], no time for lunch was put in computer system & in logs route start late for deliveries and pickups were coming in before all deliveries were done, not enough help to accomplish what the company want done in a days [sic] work.
Complaint § IV. A supplemental filing the next day [docs. 5 through 5-3], provide additional allegations regarding the drug tests for which Defendant ostensibly terminated him. Defendant’s motion to dismiss is now ripe for ruling.
Fed. R. Civ. P. 8(a)(2) requires that a complaint contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint is sufficient so long as it provides “enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008) (quoting Equal Employment Opportunity Commission v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)). In determining the sufficiency of a claim, all of a plaintiff’s allegations are accepted as true and all reasonable inferences are drawn in his favor. Jacobs v. City of Chicago, 215 F.3d 758, 765 (7th Cir. 2000).
ADEA and § 1981 claims.
Defendant moves to dismiss Plaintiff’s § 1981 claim because he “makes absolutely no allegations of race discrimination, ” “does not even identify his race or claim persons of a different race received preferential treatment.” (Defendant’s Brief in Support of Its Motion for Dismissal of Plaintiff’s Complaint [doc. 11] (“Brief”) at 6). Thus, Defendant argues, the Complaint fails to plead an essential fact required for a claim of race discrimination under § 1981. (Id.) Similarly, Defendant argues that Plaintiff’s ADEA claim should be dismissed because the Complaint fails to allege the fundamental fact that Plaintiff is over forty years old and, therefore, a member of the class protected by the ADEA. In addition, Defendant argues that the Complaint fails to state a claim under the ADEA because it failed to attach a right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC”) or plead that Plaintiff timely filed a charge, and Plaintiff admitted to this magistrate judge during a pretrial conference that he had not filed a charge with the EEOC. (Defendant’s Reply in Support of Its Motion for Dismissal of Plaintiff’s Complaint [doc. 18] at 2 and n. 2.) Finally, Defendant argues that a plain reading of the Complaint, drawing all reasonable inferences in Plaintiff’s favor, supports only a claim that Defendant did not give Plaintiffs sufficient assistance to meet its legitimate work expectations and that he was terminated due to a false positive drug test, not that he was discriminated against due his race or age. Thus, the Complaint “does not indicate what conduct [Plaintiff] is attributing to [Defendant], or if/why it is illegal” and fails to indicate the timeframe of the conduct. (Id.)
The Seventh Circuit has addressed the level of pleading required in simple claims of employment discrimination, even after Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007):
We previously have stated, on numerous occasions, that a plaintiff alleging employment discrimination under Title VII may allege these claims quite generally. A complaint need not “allege all, or any, of the facts logically entailed by the claim, ” and it certainly need not include evidence. Tamayo, 526 F.3d at 1081 (footnote omitted).
Acknowledging that a complaint must contain something more than a general recitation of the elements of the claim, however, we nevertheless reaffirmed the minimal pleading standard for simple claims of race or sex discrimination. Concentra, 496 F.3d at 781-82 . Reaffirming our prior holdings in Bennett, 153 F.3d at 518, and Kolupa, 438 F.3d at 714, we noted:
[O]nce a plaintiff alleging illegal discrimination has clarified that it is on the basis of her race, there is no further information that is both easy to provide and of clear critical importance to the claim. Requiring a more detailed complaint in Bennett wold have replicated the inefficient chase for facts decried in Bennett and Dioguardi [ v. Durning, 139 F.2d 774 (2nd Cir. 1944)].
Concentra, 496 F.3d at 781-82. Even after Bell Atlantic, Concentra 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.
Additionally, Bell Atlantic’s explicit praise of Form 9 of the Federal Rules of Civil Procedure illustrates that conclusory statements are not barred entirely from federal pleadings. The Court noted that a complaint of negligence in compliance with Form 9 provides sufficient notice to defendants, even though it alleges only that the defendant, on a specified date, “negligently drove a motor vehicle against plaintiff who was then crossing [an identified] highway.” Bell Atlantic, 127 S.Ct. at 1977; see also Iqbal v. Hasty, 490 F.3d 143, 156 (2d Cir.2007). To survive dismissal at this stage, the complaint need not state the respects in which the defendant was alleged to be negligent (i.e., driving too fast, driving drunk, etc.), although such specificity certainly would be required at the summary judgment ...