United States District Court, E.D. Wisconsin
JEREMI D. GRAVES, Plaintiff,
BRIDGEMAN FOODS and RONALD MALDONADO, Defendants.
ADELMAN, DISTRICT JUDGE
Graves filed a pro se complaint against his former employer
and manager alleging that he was retaliated against and
discriminated against because of his bisexuality. To his
complaint, he attached an EEOC right-to-sue letter dated
February 7, 2019; he did not, however, attach the EEOC charge
itself. Defendants filed a motion to dismiss, which
identified several grounds for dismissal, including that
Graves' complaint did not make out a claim for disability
discrimination, and that Graves' claims of retaliation
and discrimination on the basis of sex had not been
administratively exhausted and were now time barred. With
their motion, defendants also submitted a copy of Graves'
EEOC charge, which alleges only discrimination on the basis
of disability. The EEOC charge does not allege retaliation or
discrimination on the basis of sex.
general rule, a plaintiff alleging workplace discrimination
cannot bring claims in a lawsuit that were not included in
his EEOC charge. Cheek v. Western and Southern Life Ins.
Co., 31 F.3d 497, 500 (7th Cir. 1994). “[A]llowing
a complaint to encompass allegations outside the ambit of the
predicate EEOC charge would frustrate the EEOC's
investigatory and conciliatory role, as well as deprive the
charged party of notice of the charge.” Id.
The test for the proper scope of a judicial inquiry following
an EEOC charge is that “the complaint in the civil
action . . . may properly encompass any . . . discrimination
like or reasonably related to the allegations of the charge
and growing out of such allegations.” Jenkins v.
Blue Corss Mut. Hosp. Ins., Inc., 538 F.3d 164, 167 (7th
Cir. 1976). Here, the complaint's allegations of
retaliation and discrimination on the basis of sex are not
related to the charge's allegation of disability
discrimination, nor can they reasonably be expected to grow
out of an EEOC investigation of the charge. The EEOC charge
contains no factual allegations suggestive of retaliation or
sex discrimination. Therefore, Graves has not
administratively exhausted his retaliation and sex
discrimination claims, and he may not now proceed on them.
Graves proceed on a claim of disability discrimination,
because the allegations in his complaint with respect to such
claim do not meet the standard of Federal Rule of Civil
Procedure 12(b)(6). To avoid dismissal under Rule 12(b)(6), a
complaint must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows 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). The
complaint must, at a minimum, “give the defendant fair
notice of what the claim is and the grounds upon which it
rests.” Twombly, 550 U.S. at 555. The elements
of a disability discrimination claim are (1) the plaintiff is
disabled within the meaning of the ADA; (2) the plaintiff is
qualified to perform the essential functions of the job,
either with or without a reasonable accommodation; and (3)
the plaintiff suffered from an adverse employment action
because of his disability. Hoppe v. Lewis
University, 692 F.3d 833, 839 (7th Cir. 2012). Here, the
complaint does not allege that plaintiff was disabled within
the meaning of the ADA, nor does it speak to his
qualification to perform his job functions. Thus, the
complaint fails to state a plausible claim of disability
discrimination. I will dismiss plaintiff's complaint.
further argue that plaintiff's disability discrimination
claim is time-barred because he filed it more than 90 days
after receipt of his receipt of the EEOC right-to-sue letter.
On the facts before me, I can't make a conclusive
determination whether this is true. Therefore, I will dismiss
plaintiff's complaint without prejudice, meaning that he
may file an amended complaint that corrects the deficiencies
identified here. I instruct plaintiff, however, that in
addition to alleging facts necessary to establish a
disability discrimination claim, his amended complaint must
also include facts that establish that he filed his initial
complaint with the district court within 90 days of his
receipt of the EEOC's right to sue letter. Failure to
include such facts will be fatal to his claim. If, given
these strictures, the plaintiff does wish to file an amended
complaint, he must do so by October 23, 2019. If plaintiff
does not file an amended complaint by that date, I will
dismiss this action with prejudice.
IS ORDERED that defendant's motion to dismiss
(ECF #13) is GRANTED.
IS FURTHER ORDERED that plaintiff's motion to
proceed in court (ECF # 16) is DENIED WITHOUT
plaintiff shall have until October 23, 2019, to file an
amended complaint that meets the requirements discussed
above. If the plaintiff does not file an amended complaint ...