Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Elaine E. Bucklo Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 2021 DATE 10/3/2012

CASE

TITLE

Charles McClendon vs. Illinois Department of Transportation, et al.

DOCKET ENTRY TEXT

Defendant Illinois Department of Transportation’s motion to dismiss [29] is denied.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Plaintiff Charles McClendon has filed a five-count first amended complaint against the Illinois

Department of Transportation (“IDOT”), James A. Stumpner, and Carmen W. Iacullo. Counts I and II,

against IDOT, allege discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. The other three counts allege that the individual defendants violated plaintiff’s statutory and

constitutional rights. Defendant IDOT has filed a motion to dismiss the complaint under Rule 12(b)(6) of the

Federal Rules of Procedure. For the following reasons, that motion is denied.

Defendant IDOT argues that counts I and II of plaintiff’s amended complaint should be dismissed

because plaintiff failed to timely file a charge of discrimination with the U.S. Equal Employment Opportunity

Commission (“EEOC”). In Illinois, a claimant may sue under the federal anti-discrimination laws “only if he

files a charge of discrimination with the EEOC within 300 days of the alleged unlawful employment

practice.” Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004) (internal

quotation marks and citation omitted); see also Pelnarsh v. R.R. Donnelley & Sons Co., 348 Fed.Appx. 178,

180 (7th Cir. 2009). Though the 300-day deadline is not jurisdictional, dismissal on a 12(b)(6) motion is

appropriate where the pleadings, along with any documents within the public record, indicate that there are

no well-pleaded facts that, if proven, would show that the plaintiff has filed a timely charge of discrimination

with the EEOC.

Defendant wishes to rely on plaintiff’s charge of discrimination filed with the EEOC to show that

plaintiff has not complied with the 300-day deadline. Plaintiff, however, has not attached the charge to the

amended complaint. Initially, in its memorandum in support of its motion to dismiss, defendant relied on the

EEOC charge attached as an exhibit to plaintiff’s original complaint. But, as plaintiff points out, defendant

cannot rely on the original complaint or its attachments as the amended complaint supersedes the original

complaint and renders the original complaint void. Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632,

638 n. 1 (7th Cir. 2004). In an attempt to rescue its motion, defendant attached a copy of plaintiff’s EEOC

charge to its reply. In ruling on a Rule 12(b)(6) motion to dismiss, I generally may not consider documents

12C2021 Charles McClendon vs. Illinois Department of Transportation, et al. Page 1 of 2

Case: 1:12-cv-02021 Document #: 37 Filed: 10/03/12 Page 1 of 2 PageID #:153
STATEMENT

outside of the complaint. 

Even if I were to consider the charge, though, it would not support defendant’s argument. To the

contrary, the charge indicates that plaintiff may have filed his charge within the deadline. In his amended

complaint, plaintiff alleges that he was terminated “on or about September 14, 2010.” The charge, however,

states that the latest instance of discrimination occurred on November 14, 2010. Assuming the later date, as I

must do on a motion to dismiss, plaintiff filed his charge of discrimination within the 300-day deadline. 

Defendant’s motion is denied.

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