United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
JAMES T. MOODY, District Judge.
This matter is before the court on defendant U.G.N. Inc's ("defendant") motion to reconsider the court's denial of its motion to dismiss plaintiff Anthony Parker's ("plaintiff") complaint. (DE # 21.) Plaintiff has not filed a response to defendant's motion to reconsider, and the time to do so has now passed. For the following reasons, defendant's motion is denied. The parties will have thirty days to respond to the court's additional analysis set out in this order.
In his complaint, plaintiff alleges that he was discriminated against due to his race and age while employed by defendant. (DE # 1.) Plaintiff alleges that defendant violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). (DE # 1 at 2.) In its motion to dismiss, defendant argued that plaintiff's federal employment discrimination claims should be dismissed because he did not file his suit within 90 days of receiving his right-to-sue letter from the EEOC. (DE # 10 at 3.)
In its original order denying defendant's motion to dismiss (DE # 20), the court concluded that plaintiff had not pleaded himself out of court with the allegations in his complaint. Defendant contends, however, that the court may consider plaintiff's rightto-sue letter when making this determination, which was attached to defendant's motion to dismiss. (DE # 21 at 3; DE # 10-1 at 2.)
Defendant is correct that "[d]ocuments attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim." Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013) (citations and quotations omitted). Defendant argues that the court should consider plaintiff's right-to-sue letter because it is central to plaintiff's claims and because plaintiff's complaint makes "repeated references" to the right-to-sue letter. (DE # 21 at 5.) The problem with this argument is that, as best the court can tell, plaintiff does not reference his right-to-sue letter even once in either his complaint (DE # 1) or the document amending a portion of his complaint (DE # 7). And these documents certainly do not make "repeated references" to the right-to-sue letter.
Thus, it would be improper for the court to consider plaintiff's right-to-sue letter in addressing defendant's motion to dismiss. Defendant's argument on this point therefore fails.
In its motion to reconsider, defendant goes on to argue that plaintiff's admissions in his response brief that his right-to-sue letter was issued on June 13, 2012 (DE # 15 at 1) and that 90 days had expired since plaintiff's right-to-sue letter was issued ( id. at 2) should result in the dismissal of plaintiff's federal employment discrimination claims. (DE # 22 at 7.) Despite these admissions, however, without the actual right-to-sue letter which indicates the address to which the letter was sent, the court cannot presume timely delivery of the right-to-sue letter. Therefore, defendant's motion to reconsider will be denied. (DE # 21.)
The court can, however, move for summary judgment sua sponte "if [it has] given the affected parties advance notice of their intent to do so and a fair opportunity to respond with argument and evidence." Smith v. Bray, 681 F.3d 888, 903 (7th Cir. 2012). The court intends to do so here.
I. Legal Standard
FEDERAL RULE OF CIVIL PROCEDURE 56 requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary judgment is appropriate-in fact, is mandated-where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the nonmoving party." Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted).
The moving party bears the initial burden of demonstrating that these requirements have been met; it may discharge this responsibility by showing that there is an absence of evidence to support the non-moving party's case. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010) (citing Celotex, 477 U.S. at 323). To overcome a motion for summary judgment, the non-moving party must come forward with specific facts demonstrating that there is a genuine issue for trial. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The existence of a mere scintilla of evidence, however, is insufficient to fulfill this requirement. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The nonmoving party must show that there is evidence upon which a jury reasonably could find for him. Id.
The court's role in deciding a summary judgment motion is not to evaluate the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). On summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citing Anderson, 477 U.S. at 255). In viewing the facts presented on a motion for summary judgment, the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998); Doe, 42 F.3d at 443. Importantly, the court is "not required to draw every conceivable inference from the record [in favor of the non-movant]-only those inferences that are reasonable." Bank Leumi Le-Israel, B.M., v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) (emphasis added).
Plaintiffs filing suit under Title VII and the ADEA must do so within 90 days of receiving their right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e); Houston v. Sidley & Austin, 185 F.3d 837, 838-39 (7th Cir. 1999). Plaintiff's right-to-sue letter was issued on June 13, 2012. (DE # 10-1 at 2.) The 90-day statute of limitations began to run when plaintiff actually received the right-to-sue letter. Prince v. Stewart, 580 F.3d 571, 574 (7th Cir. 2009) ("[T]he limitations period in both Title VII and the ADEA begins to run, as we said, when the claimant receives the letter, not ...