IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF INDIANA 

 SOUTH BEND DIVISION 

ARETHA GOODAKER ) 

) 

Plaintiff, ) 

) 

vs. ) CAUSE NO. 3:15-CV-530 

) 

HEARTSIDE FOOD ) 

SOLUTIONS, LLC, ) 

) 

Defendant. ) 

OPINION AND ORDER

This matter is before the Court on the Defendant’s Motion to 

Dismiss Pursuant to Rule 12(b)(1), filed by Hearthside Food 

Solutions, LLC (“Hearthside”), incorrectly denominated as 

Heartside Food Solutions, LLC, on June 17, 2016. (DE #16.) For 

the reasons set forth below, the motion is DENIED. 

BACKGROUND 

On October 29, 2015, Plaintiff Aretha Goodaker (“Goodaker”) 

filed a complaint against Hearthside in the LaPorte County Circuit 

Court, claiming Hearthside violated the Americans with 

Disabilities Act (“ADA”) and the laws and Constitution of the State 

of Indiana. (DE #4 at ¶ 1.) Goodaker’s complaint states that she 

worked for Hearthside from approximately November 11, 2014, 
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through April 16, 2015. (Id. ¶ 4.) Goodaker alleges that on March 

18, 2015, she informed her manager that she had medical limitations 

requiring accommodations. (Id. ¶ 5.) Goodaker further alleges that 

Hearthside denied her accommodations and retaliated against her 

because she claimed rights guaranteed by the ADA. (Id. ¶ 6.) 

Moreover, Goodaker asserts that on April 16, 2015, she was fired 

by Hearthside as a result of her disability and because she claimed 

rights guaranteed by the ADA. (Id. ¶ 7.) 

Hearthside filed a notice of removal on November 11, 2015. 

(DE #1 at ¶ 4.) On June 17, 2016, Hearthside filed the instant 

motion to dismiss. Hearthside alleges that Goodaker’s complaint 

must be dismissed for lack of subject matter jurisdiction because 

Goodaker failed to exhaust her administrative remedies under the 

ADA by not timely filing a verified charge of discrimination with 

the Equal Employment Opportunity Commission (“EEOC”) prior to 

initiating this lawsuit. The motion is fully briefed and ripe for 

adjudication. 

DISCUSSION 

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a 

defendant may move to dismiss claims over which the federal court 

lacks subject matter jurisdiction. Jurisdiction is the “power to 

decide” and must be conferred upon a federal court. In re Chicago, 

Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). 
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Federal courts are courts of limited jurisdiction. Hart v. FedEx 

Ground Package System Inc., 457 F.3d 675, 679 (7th Cir. 2006). The 

party asserting that jurisdiction exists has the burden of 

establishing that the cause lies within the federal court’s limited 

jurisdiction. Id. In reviewing a Rule 12(b)(1) motion to dismiss, 

the court may look beyond the complaint to review any extraneous 

evidence submitted by the parties to determine whether subject 

matter jurisdiction exists. United Transp. Union v. Gateway 

Western R.R. Co., 78 F.3d 1208, 1210 (7th Cir. 1996). 

To bring suit under the ADA, a plaintiff must first file a 

timely charge of employment discrimination with the EEOC. 42 

U.S.C. 2000e-5(b), (e) and (f); 42 U.S.C. § 12117(a). The ADA 

adopts the enforcement procedures governing Title VII actions, 

including the filing procedures and timing requirements. 42 U.S.C. 

§ 12117(a) (incorporating the filing requirements found in 42 

U.S.C. § 2000e-5(e) as the filing requirements under the ADA). In 

a deferral state such as Indiana, a charge is timely if filed 

“within 300 days ‘after the alleged unlawful employment practice 

occurred.’” Stepney v. Naperville Sch. Dist. 203, 392 F.3d 236, 

239 (7th Cir. 2004) (quoting 42 U.S.C. § 2000e-5(e)(1)). If a 

plaintiff does not file her charge within this window, “his claim 

is time-barred and he may not recover.” Roney v. Ill. Dep’t of 

Transp., 474 F.3d 455, 460 (7th Cir. 2007). 
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The statute further requires that “[c]harges shall be in 

writing under oath or affirmation.” 42 U.S.C. § 2000e-5(b). Most 

Courts consider this verification requirement is mandatory. Gray 

v. Morrison Mgmt. Specialists, Inc., No. 1:10-CV-460JD, 2012 WL 

3960318, at *9 (N.D. Ind. Sep. 7, 2012)(“Most courts, when 

confronted with similar facts, have found it to be a simple affair: 

the verification requirement is a statutory prerequisite, and 

failure to meet it means the suit may not proceed.”). It “is meant 

to provide some degree of insurance against catchpenny claims of 

disgruntled, but not necessarily aggrieved, employees.” Id.

(citing Edelman v. Lynchburg College, 535 U.S. 106, 115 (2002)). 

According to Hearthside, Goodaker completed an intake 

questionnaire with the EEOC on April 16, 2015, alleging disability 

discrimination while employed at Hearthside. On April 28, 2015, 

the EEOC notified Hearthside that Goodaker filed a charge of 

discrimination under the Americans with Disabilities Act. Id. On 

May 13, 2015, the EEOC sent Goodaker a letter and attached the 

draft EEOC Form 5, which included the allegations from her intake 

questionnaire. The letter from the EEOC also stated the following: 

Before we initiate an investigation, we must 

receive your signed Charge of Discrimination 

(EEOC Form 5). Please sign and return the 

charge within 30 days of this letter. 

(DE # 17-1 at 7). Hearthside alleges that the EEOC’s official 

file contains no such perfected charge, nor did it ever receive 
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one from Goodaker. Id. As a result, the EEOC did no further 

investigation and notified Goodaker by way of a right to sue letter 

that it was dismissing her charge on or about July 30, 2015. Id. 

Goodaker contends that she did in fact file a claim with the 

EEOC, but concedes that she failed to send a verified charge of 

discrimination to the EEOC. (DE #24 at 7). Hearthside argues that 

Goodaker’s failure to meet her statutory obligation, by not 

verifying her EEOC discrimination charge prior to the EEOC issuing 

its right to sue letter, should result in a dismissal due to a 

lack of subject matter jurisdiction. 

Hearthside filed the instant motion to dismiss for failure to 

exhaust administrative remedies under Rule 12(b)(1), asserting a 

lack of subject matter jurisdiction. However, “a failure to 

exhaust administrative remedies should not be evaluated under Rule 

12(b)(1) for lack of subject matter jurisdiction.” Williams v. 

Potter, 2008 WL 4449549, at *2 (N.D. Ind. Sep. 25, 2008) (quoting 

H.H. ex. Rel Hough v. Ind. Bd. of Special Education Appeals, 501 

F.Supp.2d 1188 (N.D. Ind. 2007)); see also Gray, No. 1:10-CV460JD, 2012 WL 3960318 at * 9 (“[T]he verification requirement is 

not a jurisdictional prerequisite for suit, such that a plaintiff’s 

failure to comply divests the federal court entirely of its ability 

to hear the case.”). Failure to exhaust administrative remedies 

is an affirmative defense rather than a jurisdictional bar. See 
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Mosley v. Board of Education of City of Chicago, 434 F.3d 527, 532 

(7th Cir. 2006); Gibson v. West, 201 F.3d 990, 993 (7th Cir. 2000). 

While Goodaker’s alleged failure to exhaust administrative 

remedies may preclude her suit from proceeding, it is not a 

jurisdictional prerequisite to her discrimination claim. 

Accordingly, Hearthside’s Motion to Dismiss pursuant to Rule 

12(b)(1) for lack of jurisdiction must be denied. 

CONCLUSION 

For the aforementioned reasons, the Court DENIES Hearthside’s 

Motion to Dismiss Goodaker’s complaint. 

DATED: JANUARY 27, 2017 /s/RUDY LOZANO, Judge 

 United States District Court