United States District Court, N.D. Indiana, Fort Wayne Division
ERIC D. BOOKER, Plaintiff,
HH GREGG, Defendant.
OPINION AND ORDER
DEGUILIO Judge United States District Court
Booker filed suit against his former employer, HH Gregg,
asserting an array of employment discrimination and
retaliation claims. He also filed an amended petition for
leave to proceed in forma pauperis, which now shows
that he is financially eligible to proceed without
pre-payment of the filing fee.
the Court also has an obligation under 28 U.S.C. §
1915(e)(2) to dismiss a complaint if the Court determines
that it “fails to state a claim on which relief may be
granted” or that the action “is frivolous or
malicious.” Under federal pleading standards:
[A] complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotation marks and internal citations omitted). When a
complaint is confusing or lacking in necessary detail, the
district court is “within its rights” to dismiss
the complaint with leave to replead. Loubser v.
Thacker, 440 F.3d 439, 443 (7th Cir. 2006).
Mr. Booker asserts a claim under the Age Discrimination in
Employment Act. However, the Age Discrimination in Employment
Act only applies to “individuals who are at least 40
years of age, ” 29 U.S.C. § 631(a), and Mr. Booker
expressly alleges that he was 33 to 38 years old at the time
of his employment. Therefore, the Age Discrimination in
Employment Act offers him no relief. Mr. Booker also asserts
a claim under the Genetic Information Nondiscrimination Act,
because his “genetics are African American.”
However, the Genetic Information Nondiscrimination Act
prohibits discrimination because of “genetic
information, ” meaning an “individual’s
genetic tests, ” 42 U.S.C. § 2000ff(4)(A), not an
individual’s race. Mr. Booker’s complaint does
not include any allegations relating to genetic tests, so his
claim under the Genetic Information Nondiscrimination Act
likewise fails. Mr. Booker further asserts a claim under the
Equal Pay Act because he was paid less than other employees.
However, the Equal Pay Act prohibits discrimination in
compensation “on the basis of sex, ” 29 U.S.C.
§ 206(d)(1), and Mr. Booker does not allege that any pay
disparity was due to his sex. Accordingly, the complaint
fails to state a claim under the Equal Pay Act.
Mr. Booker asserts discrimination and retaliation claims
under Title VII and the Americans with Disabilities Act,
alleging that he was discriminated against because of his
race and because of his multiple disabilities, and that he
was retaliated against for filing charges of discrimination.
The complaint also states, though, that Mr. Booker received
his Right to Sue Notice from the Equal Employment Opportunity
Commission on June 1, 2010-nearly six years before he filed
his complaint on May 27, 2016. A suit must be filed within 90
days of receiving such a notice, 42 U.S.C. §
2000e-5(f)(1), making this suit untimely by nearly six years.
Booker’s complaint hints at a basis for equitable
tolling, which can extend a limitations period, by noting
that his suit is untimely because of injuries he sustained
that resulted in a permanent disability. However,
disabilities can only toll a limitations period where the
plaintiff’s “medical condition actually
prevented [him] from satisfying the limitations
requirement.” Gray v. Potter, 115 F.
App’x 891, 894 (7th Cir. 2004). As the Seventh Circuit
stated in Miller v. Runyon, 77 F.3d 189, 191 (7th
Cir. 1996), an illness “tolls a statute of limitations
only if the illness in fact prevents the sufferer
from managing his affairs and thus from understanding his
legal rights and acting upon them.” See also
Gray, 115 F. App’x at 894 (holding on a motion to
dismiss that a plaintiff’s physical limitations did not
justify tolling where she was still able to make telephone
calls, write letters, and attend appointments); Clark v.
Runyon, 116 F.3d 275, 278 (7th Cir. 1997) (finding that
a plaintiff’s physical limitations did not justify
tolling where the plaintiff was able to make phone calls and
leave her home at least sporadically). Mr. Booker does not
suggest that any disability has actually prevented him from
understanding or acting upon his legal rights. To the
contrary, his supplemental filing indicates that he has been
pursuing claims for disability benefits since 2010, that he
has been represented by counsel for at least a portion of
that time, and that he has regularly visited his
doctors’ offices for treatment over that time. The
Court therefore finds that these claims are frivolous to the
extent that they are untimely by many years, so they must be
Court will, however, give Mr. Booker an opportunity to amend
his complaint to add any additional claims or to present a
valid basis for excusing the extreme untimeliness of these
claims. Accordingly, the court:
(1) DISMISSES the complaint [DE 1];
(2) TAKES the motion for leave to proceed in forma
pauperis [DE 4] under advisement;
(3) GRANTS Mr. Booker to and including September 19, 2016, to
file an amended complaint; and
(4) CAUTIONS Mr. Booker that if he does not respond by the
deadline, this case will be dismissed ...