Academy on May 15, 2009, and the July 30, 2009, request was not an
independent discriminatory act. Therefore, the 300-day filing
period began, at the latest, on May 15, 2009, the date on which his
request for re-entry was denied, and ended on March 11, 2010.

Plaintiff's response and the affidavit attached to it attempt
to introduce facts that, if properly pleaded, would cast some doubt
on how the alleged re-entry policy is implemented, though the
affidavit alone does not entirely overcome the deficiencies in the
complaint. In court, plaintiff's counsel also argued that McKillop
was not the final decision-maker and did not have the authority to
implement the alleged policy allowing similarly situated trainees
to re-enter the Academy. If plaintiff can allege facts that, if
proven, would show that someone other than McKillop independently
discriminated against plaintiff in denying his July 30, 2009,
request for re-entry into the Academy, plaintiff may amend his
complaint.

In opposing the motion to dismiss, plaintiff also argues that
equitable tolling is appropriate in this case because he did not
discover that non-African-American trainees received more favorable
treatment until after he submitted his second request for re-entry
on July 30, 2009. It is true that the EEOC filing deadline may be
tolled “until the time when ‘facts that would support a charge of
discrimination ... were apparent or should have been apparent toa

person with a reasonably prudent regard for his rights.'” Vaught v.



Plaintiff alleges that CFD Instructor Daniel Hudson informed
him that he could re-enter the Academy with the permission of Fire
Chief John McKillop. (Compl., at § 33). According to plaintiff's
complaint, he sought reinstatement from McKillop on May 15, 2009.
(Id. at § 34). McKillop immediately denied plaintiff's request to
re-enter the CFD Academy. (Id.). Under these facts, plaintiff's
subsequent request for reinstatement cannot be used to extend the
300-day filing period. Plaintiff has not alleged any facts to
support his argument that the CFD’s rejection of his subsequent
July 30, 2009, written appeal for re-entry was a discrete act of
discrimination. See Lever v. Northwestern Univ., 979 F.2d 552, 556
(7th Cir. 1992) (reiterating that “adverse decisions on appeals do
not re-start the time for filing a charge” in holding that time
started to run on the plaintiff's claim when she was initially
denied tenure and not when her appeal was denied). While plaintiff
had passed the EMT exam in the period between May 15 and July 30,
this alone is not enough to overcome the deficiencies in the
complaint, namely the failure to allege that the denial of
plaintiff's July 30, 2009, appeal was itself discriminatory.
Additionally, plaintiff‘’s attempt to re-characterize the July 30,
2009, request for reinstatement as an “application for rehire” or
“reapplication” in his response to the motion to dismiss fail to
persuade me for the same reasons—under the facts as pleaded in the

complaint, McKillop rejected plaintiff’s request to re-enter the



R.R. Donnelley & Sons Co., 745 F.2d 407, 410-11 (7th Cir. 1984)
(quoting Reeb v. Econ. Opportunity Atlanta, Inc., 516 F.2d 924 (5th
Cir. 1975)). However, “when the plaintiff’s complaint demonstrates
it is untimely on its face, the plaintiff must plead in the
complaint facts demonstrating that the failure to timely file the
claim should be excused.” Gorski v. Lewis Univ., No. 99 C 5244,
1999 WL 1250192, at *3 (N.D. Ill. Dec. 22, 1999) (Lindberg, J.)
(citations omitted). Here, plaintiff has not alleged any facts in
his complaint that would support tolling the EEOC filing deadline.

Even if plaintiff were to attempt to amend his complaint to include
the allegations set forth in his affidavit, he would not be able to
establish that equitable tolling is appropriate in this case.

“[T]he Seventh Circuit has ruled that equitable tolling extends the
limitations period to give a plaintiff only enough extra time as is
necessary to allow him to make a filing.” Cruse v. Chicago Park
Dist., No. 95 C 2882, 1995 WL 519735, at *3 (N.D. Ill. Aug. 31,
1995) (Kocoras, J.) (citing Cada v. Baxter Healthcare Corp., 920
F.2d 446, 452 (7th Cir. 1990)). According to plaintiff's
affidavit, he began to suspect the circumstances surrounding the
CFD’s rejection of his application for re-entry around August 24,
2009. (Pl.’s Af£., at § 12). At that time he still had more than
six months to file a charge with the BEOC but he waited over eight
months to file. Plaintiff's affidavit offers no reason for why he

could not file within the 300-day period following May 11 or 15,



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PATRICK EKANEM,

Plaintiff,
v.

No. 12 € 0359
CITY OF CHICAGO,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant City of Chicago has moved to dismiss plaintiff
Patrick Ekanem’s two-count complaint on the grounds that it is
time-barred. Plaintiff voluntarily dismisses the second count in
the complaint, but the parties dispute whether the first count for
discrimination under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seg. (“Title VII”), was filed within the 300 day
filing period. For the following reasons, defendant’s motion is

granted.

I.
Plaintiff was hired by the Chicago Fire Department (“CFD”) as
a firefighter trainee in December 2008. He was discharged on May
11, 2009, after failing to pass the EMT exam three times. As
alleged in the complaint, plaintiff sought re-entry into the CFD

Academy on May 15, 2009, and again on July 30, 2009. His first



2009, and does not support an extension of the filing deadline. As
such, plaintiff has not established that he is entitled to

equitable tolling and his claims are time-barred.

Iv.
For the foregoing reasons, defendant’s motion is granted and
plaintiff's case is dismissed. Plaintiff has 30 days in which to

amend his complaint if he wishes to do so.

ENTER ORDER:

Las? Buhle

Elaine E. Bucklo
United States District Judge

Dated: June 6, 2012



request was rebuffed; the CFD did not respond to plaintiff’s second
request. Plaintiff alleges that the CFD has a policy of
reinstating trainees who have been dismissed “with permission of
CFD and/or the Fire Chief.” (Compl., at § 16).

Plaintiff filed a Charge of Discrimination with the United
States Equal Employment Opportunity Commission (“EEOC”) on May 7,

2010.

Ir.

“A motion under Rule 12(b) (6) challenges the sufficiency of
the complaint to state a claim upon which relief may be granted.”
Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570
F.3d 811, 820 (7th Cir. 2009). A complaint must include “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under the federal
notice pleading standards, a plaintiff’s “[flactual allegations
must be enough to raise a right to relief above the speculative
level.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007) (citation omitted). In considering a
motion to dismiss, I must assume that all the allegations contained
in the complaint are true. Erickson v. Pardus, 551 U.S. 89, 94,

127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).

Tir.



Plaintiff does not dispute defendant’s contention that his
claims under Title VII that are based on conduct prior to July 30,
2009-including his discharge on May 11, 2009, and first request for
reinstatement on May 15, 2009-were not filed as charges with the
EEOC within 300 days of their occurrence. Therefore, the only
issues to be decided on defendant’s motion to dismiss are whether
plaintiff's written request for reinstatement, submitted on July
30, 2009, can be considered a discrete discriminatory employment
action and, if not, whether equitable tolling is appropriate in
this case.

Relying on Caldwell v. Nat’1 Assoc. of Home Builders, 771 F.2d
1051 (7th Cir. 1985), plaintiff argues that his Title VII claims
are not time-barred because the CFD’s failure to rehire him
pursuant to his July 30, 2009, request constituted an adverse
employment action, triggering a later start date for the 300-day
filing period. In Caldwell, the plaintiff alleged that his
employer had discriminated against him when he was discharged and
also when his applications for four newly-created positions were
rejected. The Seventh Circuit held that the plaintiff's
independent claim for failure to rehire was timely filed even
though his claim for discriminatory discharge was time-barred. The
problem for plaintiff is that according to his complaint he had

already requested reinstatement prior to July 30, 2009.