United States Court of Appeals

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted September 20, 2017*

Decided September 21, 2017 

Before 

MICHAEL S. KANNE, Circuit Judge 

ILANA DIAMOND ROVNER, Circuit Judge 

DAVID F. HAMILTON, Circuit Judge

No. 16-4277 

PATRICIA CLARK, 

Plaintiff-Appellant, 

v. 

LAW OFFICE OF 

TERRENCE KENNEDY, JR., 

 Defendant-Appellee.

 Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division. 

No. 15 C 11890 

Charles R. Norgle, 

Judge. 

O R D E R 

Patricia Clark, a former legal assistant, appeals the decision to dismiss her 

employment-discrimination suit against her previous employer, a law firm, for failure 

to state a claim. She alleges that the firm treated her differently and fired her because of 

her age and her previous complaints of age discrimination. In addition she raises 

allegations of defamation, which the court dismissed as untimely and insufficient. 

Because Clark adequately states claims of discrimination and retaliation, we vacate the 

dismissal but leave intact the dismissal of her defamation claim. 

 

*

 We have agreed to decide this case without oral argument because the briefs 

and record adequately present the facts and legal arguments, and oral argument would 

not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 16-4277 Page 2 

We accept as true the allegations in Clark’s amended complaint and its 

attachments, which include her previously filed administrative charges, see FED. R. CIV.

P. 10(c); Arnett v. Webster, 658 F.3d 742, 751–52 (7th Cir. 2011). Clark was a legal assistant 

at the Law Office of Terrence Kennedy from 2006 until she was fired in 2013. She asserts 

that beginning in 2011, when she was 51, the firm began to treat “similarly situated 

legal assistants . . . who are significantly younger than [her] and who possess levels of 

seniority, discipline and work performance similar to [hers]” differently than her. 

Supervisors excluded her from meetings, removed her from work assignments and 

receptionist duties, issued her a poor performance evaluation that “contained false 

information,” and suspended her. After she filed charges asserting that her age 

motivated this treatment, and eight days after a fact-finding conference investigating 

those charges, the law firm fired her “because of [her] age” and “in retaliation for filing 

discrimination charges.” She adds that the firm twice defamed her during that 

investigation: first through statements it made at the fact-finding conference, and 

second when the firm supplied the agency’s investigator with a personnel file that she 

says contained lies about her. 

The law firm moved to dismiss the amended complaint, raising three arguments 

that the district court accepted. The firm argued first that the age claim failed because it 

was not plausible. According to the firm, for an allegation of age discrimination to be 

plausible, the plaintiff must allege more facts, including (for the discharge claim) that 

the employer replaced the plaintiff with a younger person. The firm argued next that 

the retaliation claim failed because, without more facts, it too was not plausible. Finally 

her defamation allegations, the law firm contended, were untimely and legally 

inadequate. Clark proposed a second amended complaint, which repeated the 

allegations recounted above, but the district court denied leave to file it. Clark 

submitted it days after the court-ordered deadline, the court observed, and she failed to 

allege an “essential element” of her claim: the Age Discrimination in Employment Act, 

the district court observed, applies to only those employing 20 people or more, and in 

the court’s view Clark had not plausibly alleged that the company employed more than 

17. The court terminated the suit, precipitating this appeal. 

On appeal the parties principally focus on the proposed second amended 

complaint. We conclude that some of those claims, which Clark asserted also in her 

amended complaint that she now asks us to “reinstate,” are legally sufficient, so the 

district court should not have dismissed them. We begin with age discrimination. The 

pleading requirement for employment-discrimination claims is minimal. A plaintiff 

need only identify the type of discrimination, when it occurred, and by whom. See Tate 
No. 16-4277 Page 3 

v. SCR Med. Transp., 809 F.3d 343, 346 (7th Cir. 2015) (sex discrimination); Huri v. Office 

of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 833 (7th Cir. 2015) 

(national origin and religion); Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (age); 

see also Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514–15 (2002) (clarifying the pleading 

standard for discrimination cases); Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 

2010) (concluding that Swierkiewicz survived Bell Atl. Corp. v. Twombly, 550 U.S. 544 

(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)). 

Under this standard Clark adequately alleged age discrimination in her 

discharge, suspension, and work duties. She asserts that her employer fired her 

“because of [her] age” in June 2013. Before that, from 2011 to 2013, Clark’s age allegedly 

led the firm to exclude her from meetings, take away her assignments and duties, lie 

about her performance, and suspend her from work, while it spared comparable, 

younger coworkers these adversities. The law firm responds that Clark needed to allege 

more details to make it plausible that age motivated this treatment. But the plausibility 

standard of Rule 8 of the Federal Rules of Civil Procedure “is not akin to a probability 

requirement.” Iqbal, 556 U.S. at 678; see also Swierkiewicz, 534 U.S. at 510–11; Carlson 

v. CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014). “Litigants are entitled to discovery 

before being put to their proof, [because] treating the allegations of the complaint as a 

statement of the party’s proof leads to windy complaints and defeats the function of 

Rule 8.” Bennett, 153 F.3d 519. The firm also argues that some of Clark’s allegations do 

not amount to discrimination. But “[t]he fact that [a discrimination plaintiff] included 

other, largely extraneous facts in her complaint does not undermine the soundness of 

her pleading.” Swanson, 615 F.3d at 405. 

We disagree with the district court’s ruling that Clark needed to allege that the 

law firm employed at least 20 employees. It is true that the ADEA applies only to 

employers with 20 or more employees. 29 U.S.C. §§ 623(a), 630(b). But this threshold is a 

non-jurisdictional defense to liability under the ADEA. See Arbaugh v. Y & H Corp., 

546 U.S. 500, 504 (2006) (holding ADEA’s employee threshold is non-jurisdictional); 

Papa v. Katy Indus., Inc., 166 F.3d 937, 940 (7th Cir. 1999) (explaining threshold as a “tiny 

employer exemption” from antidiscrimination laws). A complaint states a claim 

“whether or not some defense is potentially available,” Barry Aviation Inc. v. Land 

O'Lakes Mun. Airport Comm'n, 377 F.3d 682, 688 (7th Cir. 2004) (quotation and citation 

omitted), and plaintiffs need not, and should not, attempt to plead in anticipation of 

defenses, Gomez v. Toledo, 446 U.S. 635, 640–41 (1980) (holding that defendant bears 

burden of pleading defenses); Davis v. Ind. State Police, 541 F.3d 760, 763 (7th Cir. 2008). 
No. 16-4277 Page 4 

We recognize that litigants may plead themselves out of court by alleging facts 

that establish a defense, Bennett, 153 F.3d at 517, but Clark does not allege that the law 

firm employed fewer than 20 people. To the contrary, she attached to her briefing in the 

district court an employee list that names more than 20 people, and we may consider 

that filing. See Gutierrez v. Peters, 111 F.3d 1364, 1367 n.2 (7th Cir. 1997)(“[F]acts alleged 

in a brief in opposition to a motion to dismiss . . . as well as factual allegations contained 

in other court filings of a pro se plaintiff may be considered when evaluating the 

sufficiency of a complaint so long as they are consistent with the allegations of the 

complaint.”); see also Smith v. Dart, 803 F.3d 304, 311 (7th Cir. 2015) (concluding that 

district court erred by failing to consider factual assertions written in letter that pro se 

plaintiff attached to brief on motion to dismiss). 

The amended complaint stated a plausible retaliation claim as well. To plead a 

claim of retaliation for filing a charge of age discrimination, a plaintiff need only allege 

that her employer subjected her to adverse employment action because she filed that 

charge. See Alamo v. Bliss, 864 F.3d 541, 555 (7th Cir. 2017) (Title VII); Luevano, 722 F.3d 

at 1029 (same). Clark met this standard. She alleges that the firm fired her in 2013 

because she had filed age-discrimination charges with an administrative agency the 

year before. The plausibility of her claim is enhanced by her additional allegation that 

just eight days after a fact-finding conference on her charge, the law firm fired her. 

Clark may not, however, proceed on her claim that the firm defamed her. Illinois 

defamation actions have a one-year statute of limitations, running from the date of 

publication. 735 ILCS 5/13–201; see also Hukic v. Aurora Loan Servs., 588 F.3d 420, 435 

(7th Cir. 2009). Because the fact-finding conference at which the firm allegedly defamed 

her occurred in May 2014, and Clark filed this suit in December 2015, her claim about 

that conference is six months late. Her related claim that the firm defamed her by giving 

her personnel file to an administrative investigator also fails. In Illinois statements 

“necessarily preliminary” to “quasi-judicial” proceedings are privileged and not 

defamatory. Layne v. Builders Plumbing Supply Co., 569 N.E.2d 1104, 1106 (Ill. App. Ct. 

1991). This privilege applies to information supplied to an agency investigating alleged 

legal violations. Parrillo, Weiss & Moss v. Cashion, 537 N.E.2d 851, 856 (Ill. App. Ct. 1989). 

So the firm’s release of Clark’s personnel file to an investigator exploring Clark’s 

discrimination allegations cannot give rise to defamation. 

We VACATE the dismissal of Clark's amended complaint and REMAND for 

proceedings on Clark’s age-discrimination and retaliation claims.