issue an early right-to-sue letter before 180 days has elapsed if: (1) the aggrieved party submits a
written request for the early notice, and (2) an appropriate EEOC official determines ‘that it is
probable that the Commission will be unable to complete its administrative processing of the
charge within 180 days from the filing of the charge and has attached a written certificate to that
effect.” Krause v. Turnberry Country Club, 571 F. Supp. 2d 851, 858 (N.D. Ill. 2008) (Krause)
(citing 29 C.F.R. § 1601.28(a)(2)). An early right-to-sue letter terminates any further
investigation by the EEOC. 29 C.F.R. § 1601.28(a)(3). Once a right-to-sue letter issues, a
plaintiff has ninety days to file suit. 42 U.S.C. § 2000e-5(f)(1) (2012).

In Krause, the defendant brought a motion to dismiss the plaintiff's complaint for failing,
in part, to exhaust her administrative remedies. /d., 571 F. Supp. 2d at 851. However, the court
in Krause found that the plaintiff presented sufficient evidence to survive a motion to dismiss
under Fed. R. Civ. P. 12(b)(6) because: (1) she filed a charge with the EEOC on June 7, 2007,
alleging sexual harassment and constructive discharge; (2) the EEOC issued her a right-to-sue
letter on June 26, 2007; and (3) the plaintiff filed her complaint within ninety days of receiving
the right-to-sue letter. Jd. at 859. The defendant argued that since the EEOC issued a right-to-
sue letter to the plaintiff only nineteen days after she filed her charge, the EEOC failed to
properly investigate the claim. Jd. The court in Krause found that the plaintiff pled adequate
allegations and, therefore, denied the defendant’s motion to dismiss. /d. at 861.

Defendants rely on Morris v. Albertson, Inc., No. 01-CV-2099, 2001 WL 936118, at *3
(N.D. Ill. Aug. 17, 2001) (Morris), in support of their argument that when a claimant fails to
cooperate with the EEOC, a right-to-sue letter becomes irrelevant. (Def.’s Mot. at 6.) In Morris,
the investigation of the plaintiff's charge was closed by the EEOC because of his failure to

cooperate with an investigation; this basis was clearly indicated on the Notice of Right to Sue the


2009); 42 U.S.C. § 12112(a). Basil sufficiently pled facts to support his claim of discrimination
on the basis of his disabilities under the ADA.

In Tamayo, the Seventh Circuit explained that at this stage in the proceedings, it is
unnecessary for a complaint to state all the ways in which the defendant was allegedly negligent.
Rather, a complaint serves merely to put the defendant on notice of what the plaintiff is alleging,
in order to allow the defendant to investigate the allegations and to plan a defense. Tamayo, 526
F.3d at 1081; see also Twombly, 127 U.S. at 1977. Accordingly, Defendants’ Motion to Dismiss
is denied, as Basil has alleged sufficient facts to put Defendants on notice as to his ADEA and
ADA claims against them.

CONCLUSION

For the reasons set forth above, poe po Manak [9] is denied.

Date: mn & 23-2 | re
JOHN W. DARRA 6. LiF

S States District Court Judge



are drawn in favor of the plaintiff. Sprint Spectrum L.P. v. City of Carmel, Ind., 361 F.3d 998,
1001 (7th Cir. 2004). However, “[w]here the well-settled pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not
‘show[n]’ — ‘that the pleader is entitled to relief.”” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
(2009) (Iqbal). For a claim to be plausible, the plaintiff must put forth enough “facts to raise a
reasonable expectation that discovery will reveal evidence” supporting the plaintiff's allegations.
Brooks v. Ross, 578 F.3d 574, 581 (2009) (Brooks) (quoting Twombly, 550 U.S. at 556).
ANALYSIS
Failure to Exhaust Administrative Remedies

Defendants first allege that Count I and II of Basil’s Complaint should be dismissed,
pursuant to Fed. R. Civ. P. 12(b)(6), because Basil failed to exhaust his administrative remedies.
(Defs.’ Mot. at 4.) Defendants assert that Basil’s filing of his demand for his Notice of Right to
Sue on the same day that he filed his Charge of Discrimination denied the EEOC an opportunity
to investigate his charge. (/d. at 5.) Defendants argue that by immediately requesting his Notice
of Right to Sue, Basil circumvented the EEOC’s investigation process and failed to give
Defendants an opportunity to resolve the matter before Basil filed his Complaint. (/d.)

In order to bring a claim of discrimination under Title VII, a plaintiff must timely file a
charge with the EEOC, specifying the alleged discriminatory conduct; then, the plaintiff must
wait for authorization from the EEOC to file a civil action (a “right-to-sue” letter). 42 U.S.C. §
2000e-5(b); Conner v. Illinois Dept. of Natural Res., 413 F. 3d 675, 680 (7th Cir. 2005). The
statute provides that after a charge is filed, the EEOC shall make an investigation of the charges
and make a determination of reasonable cause within 120 days from the filing of the charge. 42

USS.C. § 2000e-5(b). “The EEOC has also promulgated a regulation that permits the EEOC to


plaintiff received. Morris, 2001 WL 936118, at *1. However, the facts alleged in this case are
distinguishable from Morris, because nothing in the facts presented indicate that Basil failed to
cooperate with the EEOC.

Furthermore, the Notice of Right to Sue, issued on January 23, 2012, states that Basil’s
claim under the ADA “must be filed in a federal or state court WITHIN 90 DAYS of [his]
receipt of this Notice; or [his] right to sue based on this will be lost.” (PI.’s Resp., Ex. 2.) In
addition, the Notice of Right to Sue also states that Basil’s claim under the ADEA “must be
filed in federal or state court WITHIN 90 DAYS of your receipt of this Notice.” Id.
Therefore, because Basil exhausted his administrative remedies and followed the proper
procedure required by the EEOC, Defendants’ Motion to Dismiss is denied on the basis of a
failure to exhaust administrative remedies.

Failure to State a Claim Upon Which Relief May Be Granted

To succeed on a claim under the ADEA, a plaintiff must eventually “prove by a
preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’
cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 129 8.Ct. 2343,
2350 (2009). However, at the pleading stage, a plaintiff need only provide the defendant with
fair notice of what claim is being alleged and the grounds upon which it rests. Twombly, 550
USS. at 555.

To establish a prima facie claim for age discrimination under the ADEA, a plaintiff must
present evidence that:

(1) he was over forty years of age; (2) he performed his job according to
the employer’s legitimate expectations; (3) he suffered an adverse

employment action; and (4) similarly situated employees, not within the
protected class, were treated more favorably.


LF

Ree

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DENNIS A. BASIL, )

)

Plaintiff, )

)

v. )
) Case No. 1:12-cv-1341

CC SERVICES, INC. and ILLINOIS )
AGRICULTURAL ASSOCIATION, ) Judge John W. Darrah

)

Defendants. y

MEMORANDUM OPINION AND ORDER

Plaintiff Dennis A. Basil filed a three-count Complaint against Defendants CC Services,
Inc. and Illinois Agricultural Association. Count I alleges a violation of the Age Discrimination
in Employment Act (“ADEA”). Count II alleges a violation of the Americans with Disabilities
Act (“ADA”). Count III is a claim for retaliatory discharge under Illinois common law.

Defendants move to dismiss Basil’s Complaint on the basis that Basil failed to exhaust
his administrative remedies or, alternatively, failed to state a claim upon which relief may be
granted, pursuant to Fed. R. Civ. P. 12(b)(6). Based on the analysis below, the motion is denied.

BACKGROUND

The following facts are taken from the Complaint and are accepted as true for purposes of
resolving Defendants’ Motion to Dismiss. Coates v. Ill. St. Bd. of Educ., 559 F.2d 445, 447 (7th
Cir. 1977). Basil started his employment with CC Services, Inc. on June 3, 1985, as a Claims
Representative. (Compl. § 9.) CC Services, Inc. is a company in the business of providing
insurance services. (/d. 3.) When Basil was terminated by CC Services, Inc. on June 9, 2011,
his title was Claims Representative III. (/d. 9.) Basil performed the duties of his job ina

capable and proficient manner. (Jd. | 10.) Throughout Basil’s employment, he was evaluated by


Alexander v. Cit Tech. Fin. Services, Inc., 217 F. Supp. 2d 867, 888 (N.D. Ill. 2002). However,
much less is required of a plaintiff at the pleading stage. “To survive a motion to dismiss under
Rule 12(b)(6), a plaintiff in an employment discrimination case need not allege facts
corresponding to each element of a prima facie case of . . . age discrimination.” Heinze v.
Southern Illinois Healthcare, No. 08-672—GPM, 2010 WL 276722, at *3 (S.D. Ill. Jan. 19,
2010) (citing Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002)). The Seventh Circuit has
held: “a plaintiff alleging employment discrimination under Title VII may allege these claims
quite generally. A complaint need not allege all, or any, of the facts logically entailed by the
claim, and it certainly need not include evidence.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081
(7th Cir. 2008) (Tamayo) (internal quotations omitted).

Because Basil alleges in his Complaint he is over forty years of age, suffered an adverse
employment action, and that he was discriminated against based on his age while similarly
situated employees were treated more favorably, Basil properly states a claim for discrimination
under the ADEA. To survive a motion to dismiss, a plaintiff has to “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”” Iqbal, 556 U.S.
at 679 (citing Twombly, 550 U.S. at 570). Because Basil has alleged a claim for age
discrimination that is plausible, and creates an inference that Defendants may be liable for age
discrimination against him, Basil’s ADEA claim survives Defendants’ Motion to Dismiss
pursuant to Fed. R. Civ. P. 12(b)(6).

Similarly, Defendants’ Motion to Dismiss Basil’s claims under the ADA fail for the same
reasoning: Defendants seek to hold Basil to a higher standard than what is required at a pleading
stage. The ADA prohibits discrimination against a qualified individual by an employer on the

basis of an employee’s disability. See Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 601 (7th Cir.


his supervisors and management personnel on a regular basis. (/d. 11.) Prior to his termination
in June 2011, Basil received satisfactory evaluations and was given routine raises and job
promotions. (/d. § 11.)

While on duty, Basil was involved in an automobile accident in the summer of 2009; the
accident caused Basil to file a workers’ compensation claim. (/d. 412.) In August 2009, Basil
suffered a fall while inspecting an insured’s home; this resulted in a second workers’
compensation claim. (Jd. § 12.) In February 2011, Basil sustained another on-duty fall, resulting
in a third workers’ compensation claim. (/d. § 12.) Despite the work-related injuries he
sustained, Basil continued to try to perform his work duties. (/d. § 12.) Basil sustained three on-
duty injuries, and subsequent to each injury, he sought medical treatment with the full knowledge
of CC Services, Inc. (Id. | 34.) Following each on-duty injury, Basil pursued a claim with the
Illinois Workers’ Compensation Commission. (/d. { 34.)

In May 2011, Basil began to be treated by a cardiologist for heart issues. (/d. § 13.) His
cardiologist advised Basil that his strenuous work environment was harmful to his health and
ordered him off work. (/d. { 13.) Basil’s cardiologist suggested he find a work position that was
more sedentary. (/d. § 13.) CC Services, Inc. failed to accommodate Basil’s request for a more
sedentary role. (/d. § 13.)

In June 2011, management at CC Services, Inc. ordered Basil to have his cardiologist
provide him with an authorization, allowing Basil to return to work in his position as a Claims
Representative III. (/d. 14.) On June 7, 2011, Basil’s cardiologist released him to return to
work with restrictions. (Jd. J 15.) Upon Basil’s return to work on June 9, 2011, he was called
into a meeting and terminated from his position after twenty-six years of employment. (/d. J 16.)

CC Services, Inc. allegedly terminated Basil for “Unsatisfactory Performance (375),” with no


specific reasoning provided. (Id. 435.) CC Services, Inc. replaced Basil with a younger
employee in his twenties. (/d. J 17.)

Basil was refused reasonable accommodations for both his on-duty injuries and his
cardiac condition. (/d. 417.) On January 4, 2012, Basil filed a charge with the Equal
Employment Opportunity Commission (“EEOC”), alleging that his employer failed to
accommodate his work restrictions, in violation of the ADA. (/d. 8, 18.) Basil further alleged
he was discriminated because of his age, fifty-two, in violation of the ADEA. (Jd. § 18.) In his
charge filed with the EEOC, Basil alleged he was retaliated against because he reported the

_ actions of CC Services, Inc. to the EEOC. (/d.) The EEOC issued Basil a Notice of Right to Sue
on January 23, 2012, and Basil received the Notice of Right to Sue on January 26, 2012. (Id. J
8.) Thereafter, Basil commenced the present action in the Northern District of Illinois.

LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” A complaint must
describe the claim in sufficient detail to “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(Twombly) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The allegations in the complaint
“must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’; if they do not, the plaintiff pleads itself out of court.” Equal Employment
Opportunity Comm’n v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citing
Twombly, 550 U.S. at 555, 569 n.14).

In addressing a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P.

12(b)(6), all well-pleaded factual allegations are accepted as true, and all reasonable inferences