United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.
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.
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.
April 17, 2017, Attorney Daniel Zamudio entered an appearance
on behalf of Plaintiff.
1, 2017, Plaintiff filed a First Amended Complaint with the
same Dismissal and Notice of Rights and Charge attached to
10, 2017, Defendant filed the instant motion. Plaintiff filed
a response on May 24, 2017, and Defendant filed a reply on
May 31, 2017.
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).
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.
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.
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.
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