IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CHARLES J. STOKES, 

 

 Plaintiff, 

 vs. 

PAPPAS RESTAURANTS, INC., 

 Defendant. 

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Case No. 11 C 9206 

MEMORANDUM OPINION AND ORDER 

MATTHEW F. KENNELLY, District Judge: 

Charles Stokes has sued his employer Pappas Restaurants for discrimination 

based on race for retaliation for making a complaint of discrimination. Stokes filed a pro 

se complaint on a form provided by the clerk’s office for employment discrimination 

cases. He checked off the box on the form stating that he claims discrimination based 

on race. Compl., p. 4. Next to this box is a reference to Title VII of the Civil Rights Act 

of 1964 and another statute, 42 U.S.C. §1981. Id. Stokes also checked boxes 

indicating that the Pappas failed to promote him, failed to stop harassment, and 

retaliated against him because he asserted rights protected by the referenced statutes. 

Id. Stokes asks the Court to direct the defendant to promote him and to “end all 

harassment of Plaintiff and end all retaliation against Plaintiff,” in addition to other relief. 

Id., p. 5. 

Stokes alleges that he was hired around August 2003 and continues to be 

employed by Pappas as a server. Id., p. 7. He contends that Pappas: 1) failed to 
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promoted him while promoting servers of other races; 2) moved him to a “head waiter” 

position that required him to work more hours for less pay; 3) failed to promote him or 

even acknowledge his requests for promotion starting in October 2005; 4) failed to stop 

verbal harassment of African-Americans by employees of other races from August 2004 

through February 2005; and 5) failed to stop verbal harassment of African-Americans 

from February 2005 through 2007. Id., pp. 7-10. Stokes alleges that all of this conduct 

was based on his race and that the conduct listed as items 2, 3, and 5 was also n 

retaliation for his filing of a discrimination charge with the EEOC in February 2005. 

Stokes alleged in his complaint that he received a notice of right to sue from the EEOC 

on October 4, 2011. He filed this suit on December 28, 2011. 

Pappas filed a motion to dismiss for failure to state a claim, arguing that Stokes’ 

complaint should be dismissed under the doctrine of laches. Pappas contended that 

Stokes did not file suit in timely fashion but instead allowed his charge to languish at the 

EEOC. Pappas also contended that Stokes had failed to identify any excuse for his sixyear delay and that the delay materially prejudiced Pappas. 

At a hearing in late July 2012, the Court advised Pappas that because a plaintiff 

is not required to anticipate affirmative defenses in his complaint, and because Stokes’ 

complaint did not establish on its face all of the elements of a laches defense, there was 

not a proper basis for dismissal under Rule 12(b)(6). The Court also noted that Pappas’ 

reply brief had included material outside the complaint, specifically an affidavit in 

support of the motion. The Court asked if Pappas wished to convert the motion to a 

motion for summary judgment. Pappas replied in the affirmative, and the Court gave 
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both sides an opportunity to offer additional material in support of and against summary 

judgment. 

On a motion for summary judgment, the Court Aview[s] the record in the light 

most favorable to the non-moving party and draw[s] all reasonable inferences in that 

party=s favor.@ Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653, 656 (7th Cir. 

2010). Summary judgment is appropriate Aif the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.@ Fed. R. Civ. P. 56(a). In other words, a court may grant summary judgment 

A[w]here the record taken as a whole could not lead a rational trier of fact to find for the 

nonmoving party.@ Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986). 

 The Court need not determine whether Stokes’ six-plus year delay in filing suit 

was excusable (he argues that it was), because Pappas has failed to demonstrate the 

absence of a genuine factual dispute regarding the issue of prejudice resulting from the 

delay. Pappas argues that it is prejudiced by Stokes’ delay because witnesses who 

worked with Stokes in 2005 will not be available; the witnesses who are still available 

will have incomplete memories of the events; crucial evidence may have been lost or 

destroyed in the interim; and the delay would subject Pappas to increased back pay 

liability. 

 The first three of these arguments are speculative, at least based on the current 

record. In support of the first point, Pappas offers only the vague contention that given 

the restaurant industry’s high turnover rate, there is a significant likelihood that it no 

longer employs many of the employees who worked with Stokes in 2005 are no longer 
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employed by Pappas. Besides being speculative, the mere fact that Pappas does not 

employ potential witnesses does not render them unavailable. Pappas says the Stokes’ 

failure to identify in his complaint the employees he claims engaged in racial 

harassment makes it harder to find them. A plaintiff is not required, however, to identify 

witnesses or even individual perpetrators in his complaint; that is the purpose of the 

discovery process. In short, it remains to be seen whether this claimed hardship will 

actually come to pass. 

Pappas also contends that it will have to rely on witnesses whose “memories of 

the alleged events have understandably faded over the past six years.” Def.’s Mem. at 

6. In support of this assertion, Pappas cites Smith v. Caterpillar, Inc., 338 F.3d 730, 

734-35 (7th Cir. 2003). Smith, however, says that to show prejudice in this regard, a 

defendant must show both that witnesses’ memories have faded and that this was 

caused by plaintiff’s delay. Id. (internal quotation marks omitted). The defendant in

Smith submitted the affidavits of four witnesses saying that they could no longer recall 

the relevant facts of the plaintiff’s employment. Id. at 734-35. Pappas, by contrast, has 

done nothing of the kind. 

 Pappas also argues that “evidence that is crucial to Pappas’ case may have 

been lost or destroyed in the six years since Plaintiff filed his charge.” Def.’s Mem. at 

6. Pappas does not, however, point to any particular evidence relevant to Stokes’ 

claims that is no longer available. Again, its contention is speculative and unsupported. 

 Finally, Pappas argues that Stokes’ six-year delay will expose Pappas to 

increased back pay liability. In support, Pappas cites EEOC v. Andrew Corp., No. 81 C 

4359, 1990 WL 92820, at *5 (N.D. Ill. June 26, 1990). The Court in Andrew noted, 
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however, that other courts have declined to find prejudice on this basis. That aside, 

because back pay is an issue for the Court, not the jury, it would seem that 

unreasonable delay is a factor that the Court could consider in determining the amount 

of any back pay award if and when liability is established. Thus it is unclear whether 

Pappas actually will be prejudiced in this regard. 

Conclusion 

 For the reasons stated above, the Court denies defendant’s motion to dismiss 

[docket no. 9] and directs defendant to answer the complaint by no later than November 

7, 2012. 

 ________________________________ 

 MATTHEW F. KENNELLY 

 United States District Judge 

Date: October 17, 2012