United States District Court, N.D. Indiana, Hammond Division
FINDINGS, REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(b)(1)(B) & (C)
JOHN E. MARTIN, Magistrate Judge.
This matter is before the Court on Defendant's Motion to Dismiss [DE 10], filed by Defendant on July 29, 2013, and on a Motion for to File Amended Complaint [sic] [DE 15], filed by Plaintiff on September 10, 2013. Plaintiff filed a response to Defendant's Motion to Dismiss on September 17, 2013, after the time to do so had expired. Also on September 17, 2013, Defendant filed an objection to Plaintiff's Motion for to File Amended Complaint. Plaintiff did not file a reply, and the time do so has passed.
On November 6, 2013, District Court Judge James T. Moody entered an Order [DE 20] referring Defendant's Motion to Dismiss to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned Magistrate Judge's combined proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The Motion for to File an Amended Complaint is not subject to the Order of Referral.
For the following reasons, the Court grants the Motion for to File an Amended Complaint and recommends that the District Court deny Defendant's Motion to Dismiss as moot.
FACTUAL AND PROCEDURAL BACKGROUND
On November 9, 2010, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") against the Hammond School District, alleging discrimination based on national origin and disability. In it, Plaintiff alleged numerous specific incidents of discriminatory treatment, including being prohibited from speaking Spanish and being paid less than non-Hispanic administrators. Plaintiff received a Right to Sue letter from the EEOC on July 11, 2011, but she did not pursue litigation within the ninety days allotted to do so.
On August 10, 2012, Plaintiff filed a second charge with the EEOC against the Hammond School Corporation, alleging discrimination based on national origin and retaliation. In the statement of particulars, Plaintiff wrote:
I am a Hispanic American who was hired by the Respondent on June 1, 2006. My recent position was Chief Administrator of Human Resource. On December 9, 2010, I filed a complaint with the EEOC (24B-2011-0011), the investigation was concluded around October 2011. Since then I have been denied terms and conditions of employment by Respondent's Supervisor, Walter Watkins (African American) that Respondent's other non Hispanics were afforded. The last act occurred on January 23, 2012, when I was forced to tender my resignation or be terminated. The reason given by Supervisor, Walter Watkins was allegedly due to my creating a hostile work environment, and people not liking me and not wanting to work with me.
I have been discriminated against based on my National Origin/Hispanic, and in retaliation of my filing an EEOC complaint in violation of Title VII of the Civil Rights Act of 1964, as amended.
The EEOC mailed a Right to Sue letter on March 13, 2013. Plaintiff commenced this lawsuit with a Complaint filed on June 12, 2013. In it, she asserts claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the First Amendment of the U.S. Constitution.
The first Count in the Complaint asserts a claim of racial discrimination in violation of Title VII. In support of that claim, Plaintiff alleges that Defendant was aware of and condoned "discriminatory behavior" against Plaintiff, including:
[p]aying her less than her white male predecessor, denying her use of a credit card, denying her a stipend, making her perform additional work duties and work hours, denying her bonuses in comparison to her white counterparts who had fewer educational qualifications than she, forbidding her from speaking Spanish to other Spanish speaking employees, denying her the right to exercise her authority as Chief Administrator of Human Resources and abusing and berating her in public, among other acts.
Compl. ¶ 33. Some of these alleged incidents of discrimination were reported in Plaintiff's first EEOC charge. None were alleged in Plaintiff's second EEOC charge.
On July 29, 2013, Defendant filed a partial Motion to Dismiss, asking the Court to "dismiss those allegations in Plaintiff's Complaint that are untimely and/or not raised in previous EEOC charges." Def. Br. at 1 [DE 11]. It argues that the claims arising from the first EEOC charge were barred as untimely because Plaintiff did not file suit on those claims within ninety days of receiving her Right to Sue letter as required. The rest it argues are barred because they were ...