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Nichols v. Aspire Indiana, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

December 15, 2017

TONYA NICHOLS, Plaintiff,
v.
ASPIRE INDIANA, INC., Defendant.

          ORDER ON PENDING MOTIONS

          SARAH EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT.

         This 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 (“ADEA”), respectively.

         Before 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.

         Factual Background

         Ms. 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.

         On June 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.

         On 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.

         Upon 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.

         On 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.

         Legal Analysis

         I. Standard of Review

         Defendant 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).

         II. Discussion

         Aspire 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. ...


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