Jordan v. Kelly Services, Inc.

          OPINION AND ORDER

          William C. Lee, Judge

         This matter is before the Court on the Partial Motion to Dismiss filed on November 9, 2018, by Defendant The Lincoln National Life Insurance Company (“Lincoln”) (ECF 16).^[1]Plaintiff Scott Jordan filed a response to the motion on November 21 (ECF 21) and Lincoln filed a reply on November 28 (ECF 24). While that should have been the end of the briefing, Jordan filed a pleading on December 7 that he titled a “Motion to Reconsider [Lincoln's] Motion for Partial Dismissal of Plaintiff's Claims” (ECF 25). On January 4, 2019, Lincoln filed a Motion to Strike Plaintiff's Motion to Reconsider (ECF 26), to which Jordan did not respond. For the reasons explained in this order, the Court holds as follows:

1. Lincoln's motion to strike is DENIED;

2. The Clerk of the Court is instructed to amend the docket to designate docket entry 25 as “Plaintiff's supplemental brief in opposition to Defendant Lincoln's motion for partial dismissal”;

3. Lincoln's motion for partial dismissal is GRANTED in part and DENIED in part. The motion is GRANTED as to Jordan's race and sex discrimination claims contained in paragraph 8, subparagraphs (e), (f), (h), (i), and (j) of his Complaint, and DENIED as to race and sex discrimination claims that were allegedly wrongfully excluded from Jordan's January 2018 Charge of Discrimination; and

4. Plaintiff Scott Jordan is directed to file an Amended Complaint within 30 days of the date of this order that addresses the deficiencies discussed below.

         STANDARD OF REVIEW

         Lincoln brings its motion to dismiss pursuant to Federal Rule 12(b)(6), which allows a defendant to move to dismiss a complaint that fails to “state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). The complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the Supreme Court explained that the complaint must allege facts that are “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. 544, 555 (2007). The complaint must include “enough facts to state a claim to relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (internal citation and quotation marks omitted). To be facially plausible, the complaint must allow “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) (citing Twombly, 550 U.S. at 556). Although Rule 8(a) requires only a “short and plain statement” of the plaintiff's claims, to survive a motion to dismiss a complaint must consist of more than “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. (quoting Twombly, 550 U.S. at 570).

         DISCUSSION

         Scott Jordan filed this lawsuit in state court on September 12, 2018, and Lincoln removed it to this Court on October 5. Notice of Removal (ECF 1). Removal was based on federal question jurisdiction since Jordan's Complaint asserted claims of discrimination and retaliation under Title VII, claims of discrimination under 42 U.S.C. § 1981, and (apparently mistakenly) claims of violations of his 14th Amendment rights brought under 42 U.S.C. § 1983. Complaint (ECF 6), p. 1. Jordan states that he filed charges of discrimination with the Fort Wayne Metropolitan Human Relations Commission in January of 2018 and received a Notice of Right to Sue letter for each Defendant. Id., p. 2. Jordan claims that Kelly and Lincoln were his employers and that they discriminated against him on the basis of his race (he is African-American) and gender. Id., pp. 3-5.

         Lincoln contends in its motion for partial dismissal that Jordan's claims brought under § 1983, along with all of his Title VII claims (with the sole exception of his retaliation claim) are not viable and must be dismissed. Partial Motion to Dismiss, p. 1. Lincoln asserts that “[t]he Title VII claims subject to dismissal include (1) failure to properly train; (2) failure to hire into a permanent position; and (3) harassment/hostile work environment brought in paragraphs 8(e), (f), (h), (i), [and] (j) of Plaintiff's Complaint.” Id. Lincoln summarizes its legal arguments as follows:

[Lincoln] is moving to dismiss Jordan's claims under Section 1983 because it is a for-profit corporation, not a state actor. Additionally, [Lincoln] is moving to dismiss nearly all of Jordan's Title VII claims. Jordan filed two charges against [Lincoln], but did not file a lawsuit within 90 days of receiving the Dismissal and Notice of Rights for his first charge. Only the retaliatory discharge claim alleged in his second charge is arguably timely. Accordingly, the Court should dismiss the Title VII claims alleged by Jordan in his first charge as untimely, which include: (1) failure to train; (2) failure to hire into a full-time position; and (3) harassment/hostile work environment.

         Brief in Support of Partial Motion to Dismiss (ECF 17), pp. 1-2. Lincoln “requests that this Court enter an Order dismissing these claims with prejudice and without leave to amend.” Motion to Dismiss, p. 1.

         I. Lincoln's Motion to Strike.

         Lincoln argues in its motion to strike Jordan's “motion to reconsider” that “[t]he Court has not yet issued any order on [Lincoln's] partial motion to dismiss. Plaintiff's motion for reconsideration is therefore premature and should be stricken.” Motion to Strike (ECF 26), p. 1. Lincoln is correct-there is no ruling to be reconsidered. But Jordan's pleading is not a motion at all-it is a supplemental brief in which he tries to explain more clearly his position and argument in opposition to Lincoln's motion to dismiss. The pleading is not a sur reply either, since sur replies can only be filed with leave of court (which Jordan did not seek) and for the purpose of addressing new issues raised for the first time in an opposing party's brief (which Lincoln did not do). So, for some unexplained reason, Jordan's counsel decided to file this brief as a “motion.” The filing was improper either way. That said, the pleading amounts to nothing more than an attempt to elaborate on the arguments Jordan presented in his original response brief. Whether the pleading helps clarify things is questionable, but the Court will consider it when ruling on the motion for partial dismissal. Therefore, the Court interprets Jordan's “motion to reconsider” to be a supplemental response in opposition to Lincoln's motion to dismiss and denies Lincoln's Motion to Strike.^[2]

         II. Lincoln's Motion for Partial Dismissal.

         A. Section 1983 claims.

         Lincoln moves for dismissal of Jordan's claims brought under 42 U.S.C. § 1983 “because [Lincoln] is a for-profit corporation, not a state actor.” Brief in Support, p. 1. Jordan concedes this point, stating that he “is not asserting and did not intend to assert a Section 1983 claim involving the Defendant, [Lincoln].” Plaintiff's Response, p. 1. Accordingly, Lincoln's motion to dismiss is granted and any claims in Jordan's Complaint brought against Lincoln under Section 1983 are dismissed with prejudice.

         B. Section 1981 claims.

         Lincoln expressly states that it “is not moving to dismiss Jordan's Section 1981 claims.” Brief in Support, p. 8, n. 4. Accordingly, those claims are unaffected by this order and remain pending.

         C. Title VII claims.

         The contested issue here involves Jordan's Title VII race, sex and retaliation claims. Lincoln contends that all but the retaliation claim are barred because Jordan did not file suit on his race and gender claims within 90 days of receiving his Notice of Right to Sue letter. Brief in Support, pp. 6-8. Jordan's race and sex claims were set out in a Charge of Discrimination he filed against Lincoln on November 7, 2016. Complaint, Exh. A. He received his Notice of Right to Sue letter on October 11, 2017 (see Defendant's Brief in Support, Exh. 1, ECF 17-1) but never filed a lawsuit based on that Charge. Jordan concedes that the claims set out in his 2016 Charge are time-barred, but argues that he still has viable Title VII race and sex discrimination claims that arise out of a second Charge of Discrimination that he filed on January 4, 2018, and which he amended on January 29, 2018. Plaintiff's Response (ECF 21), p. 2. Jordan contends that his January 4 ...