United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
William C. Lee, Judge
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).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
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.
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).
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.
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.
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.
Lincoln's Motion to Strike.
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.
Lincoln's Motion for Partial Dismissal.
Section 1983 claims.
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
Section 1981 claims.
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.
Title VII claims.
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 ...