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Nunez v. United States Steel

United States District Court, N.D. Indiana, Hammond Division

August 4, 2017

SALVADOR HONEY NUNEZ, Plaintiff,
v.
UNITED STATES STEEL, Defendant.

          OPINION AND ORDER

          PAUL R. CHERRY, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint [DE 23], filed by Defendant United States Steel on May 10, 2017.

         PROCEDURAL HISTORY

         Plaintiff Salvador Honey Nunez initiated this cause of action by filing a Complaint on January 20, 2017. At the time, he was proceeding pro se. On January 24, 2017, Plaintiff supplemented his complaint by filing a Dismissal and Notice of Rights sent to him by the United States Equal Employment Opportunity Commission (EEOC) and by filing a Charge of Discrimination (“Charge”) that he had filed with the Indiana Civil Rights Commission and EEOC.

         On April 17, 2017, Attorney Daniel Zamudio entered an appearance on behalf of Plaintiff.

         On May 1, 2017, Plaintiff filed a First Amended Complaint with the same Dismissal and Notice of Rights and Charge attached to the pleading.

         On May 10, 2017, Defendant filed the instant motion. Plaintiff filed a response on May 24, 2017, and Defendant filed a reply on May 31, 2017.

         The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

         STANDARD OF REVIEW

         A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint and not the merits of the suit. See Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on such a motion, the Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008).

         To survive a 12(b)(6) motion to dismiss for failure to state a claim, the complaint must first comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Second, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570); see also Tamayo, 526 F.3d at 1082. The Supreme Court explained that the “plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quotation marks and brackets omitted); see also Iqbal, 556 U.S. at 678-79; Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Determining whether a complaint states a plausible claim for relief requires the Court to draw on its judicial experience and common sense. Iqbal, 556 U.S. at 679.

         ANALYSIS

         Defendant argues in its Motion to Dismiss that Plaintiff's Amended Complaint should be dismissed because Plaintiff did not file his Charge with the EEOC before his deadline to do so. Plaintiff counters that his Charge was timely filed when calculated from the date that Plaintiff received notice that Defendant would not rehire Plaintiff.

         Title VII of the Civil Rights Act of 1964 provides that “[i]t shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual . . ., because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In order to file a Title VII claim, a plaintiff must first file a charge of employment discrimination with the EEOC that encompasses the conduct complained of and must receive a statutory notice of right to sue from the EEOC. 42 U.S.C. § 2000e-5(e), (f); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974); Conner v. Ill. Dept. of Nat. Res., 413 F.3d 675, 680 (7th. Cir. 2005). The charge must be filed within 300 days after the alleged discrimination; failure to file a timely charge precludes a lawsuit on the claim. Beamon v. Marshall & Ilsley Trust Co., 411 F.3d ...


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