United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON PENDING MOTIONS
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT.
cause is before the Court on Defendant's Motion to
Dismiss [Docket No. 11], filed on July 10, 2017, pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. Also
before the Court are Defendant's Motion to Strike or in
the Alternative to Accept Filing of Reply [Docket No. 15],
filed on August 8, 2017, and Plaintiff's Motion for Leave
to File Late Response [Docket No. 17], filed on August 10,
2017. Plaintiff Tonya Nichols (“Ms. Nichols”)
brings this lawsuit against her former employer, Defendant
Aspire Indiana, Inc. (“Aspire”), alleging that
she was discriminated against and terminated based on her
race (African-American) and age (58), in violation of Title
VII of the Civil Rights Act of 1964 (“Title VII”)
and the Age Discrimination in Employment Act
addressing the merits of Defendant's Motion to Dismiss,
we turn first to address Defendant's Motion to Strike or
in the Alternative to Accept Filing of Reply and
Plaintiff's Motion for Leave to File Late Response. Upon
review of Plaintiff's motion and her counsel's
explanation for the belated filing of her response brief, we
accept counsel's explanation that she mistakenly
calendared the due date for the response as July 31, 2017,
instead of the correct date because she confused the time for
filing a responsive pleading or reply under Rule 12 of the
Federal Rules of Civil Procedure, which is twenty-one days,
with the response deadline for a motion to dismiss under
Local Rule 7-1(c)(2)(A), which is fourteen days. Although
Plaintiff's response was filed late, we find that it was
filed in good faith and was not intentionally filed in
violation of the deadline to respond to the motion to
dismiss. For these reasons, we hold that the late filing
constitutes excusable neglect and we therefore GRANT
Plaintiff's Motion for Leave to File Late Response.
Defendant's Motion to Strike or in the Alternative to
Accept Filing of Reply is accordingly DENIED as to
the request to strike Plaintiff's response, but
GRANTED as to the request to file its reply.
Finally, for the reasons detailed below, we DENY
Defendant's Motion to Dismiss.
Nichols was employed at Aspire for twenty-six years before
her termination. Compl. ¶ 11. Her most recent position
with the company was as a Marketing Development Associate.
Id. Ms. Nichols is 58 years old and was the only
African-American employee in her department at Aspire.
Id. ¶ 12. Ms. Nichols alleges that she had an
exemplary work performance record with the company until
Susie Maier, who is white, became her supervisor in February
2016. Id. ¶¶ 13-14.
6, 2017, Ms. Maier called Ms. Nichols and another older
co-worker into a meeting and, without citing any specific
issues with their work, criticized them for their
“behavior, visible resentment, anger, [and being]
disconnected.” Id. ¶ 15. This was the
first reprimand Ms. Nichols had received during her
employment with Aspire. Id. Beyond a verbal
reprimand, Ms. Nichols apparently did not suffer any other
job consequences as a result of this incident.
August 9, 2016, Ms. Maier suspended Ms. Nichols with pay
pending an investigation regarding “potential violation
of Aspire policies pertaining to falsification of
documents.” Id. ¶ 16. The alleged
violation involved mileage reports for Ms. Nichols's
attendance at weekly Rotary Club meetings in Anderson,
Indiana. Id. Prior to her suspension, she had not
received any verbal or written warnings about mileage.
Id. ¶ 19. According to Ms. Nichols, she had
attended these meetings for many years as part of her job
duties as well as served on committees for that organization
over the years and had never before been asked by Aspire to
produce documentation to prove her mileage or her attendance
at those meetings. Id. ¶ 17. No other Aspire
employees were required to produce documentation to verify
their mileage. Id. Specifically, Ms. Nichols alleges
that a similarly situated white co-worker, Cheryl Berry, was
not required to prove her mileage or attendance at Rotary
Club meetings. Id. ¶ 18.
being suspended, Ms. Nichols was immediately locked out of
the company website, denied email access, had her keys and
laptop taken away, and was escorted out of the building.
Id. ¶ 20. Ms. Nichols was subsequently
terminated on August 12, 2016. Id. ¶ 21.
August 12, 2016, before she was terminated later that same
day, Ms. Nichols filed a charge with the Equal Employment
Opportunity Commission (“EEOC”), alleging that
her verbal reprimand and paid suspension constituted race and
age discrimination. The EEOC issued Ms. Nichols a right to
sue letter on February 28, 2017, which she received on March
2, 2017. Ms. Nichols then filed her complaint in this action
on May 19, 2017, alleging that she was discriminated against
and terminated because of her race and age, in violation of
Title VII and the ADEA, respectively. Defendant filed its
motion to dismiss on July 10, 2017, on the grounds that Ms.
Nichols failed to adequately allege that she suffered an
adverse employment action. That motion is now fully briefed
and ripe for ruling.
Standard of Review
has filed its fairly limited motion to dismiss, pursuant to
Federal Rule of Civil Procedure 12(b)(6). In this procedural
context, the Court accepts as true all well-pled factual
allegations in the complaint and draw all ensuing inferences
in favor of the non-movant. Lake v. Neal, 585 F.3d
1059, 1060 (7th Cir. 2009). Nevertheless, the complaint must
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests, ” and its
“[f]actual allegations must . . . raise a right to
relief above the speculative level.” Pisciotta v.
Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007)
(quotation marks and citations omitted). The complaint must
therefore include “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
Fed. R. Civ. P. 8(a)(2). Stated otherwise, a facially
plausible complaint is one which permits “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).
seeks dismissal of Ms. Nichols's complaint on the sole
basis that she failed to adequately allege that she suffered
an adverse employment action, which is an essential element
of both her Title VII and ADEA discrimination claims.
Specifically, Aspire argues that the allegation in Ms.
Nichols's complaint that her termination was
discriminatory is outside the scope of her EEOC charge,
meaning that she is barred from asserting this allegation for
the first time in this litigation. Aspire further argues that
the other instances of discrimination alleged by Ms. Nichols
in her complaint, to wit, the verbal reprimand she received
and her suspension with pay, are not, as a matter of law,
adverse employment actions. ...