UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION AT LAFAYETTE 

MARY YORK, 

 Plaintiff, 

 v. 

SAINT JOSEPH’S COLLEGE, 

 Defendant. 

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Case No. 4:14-CV-087 JD 

OPINION AND ORDER

This is an employment discrimination action in which the plaintiff, Mary York, asserts 

claims for age, race, and disability discrimination and retaliation. The defendant, Saint Joseph’s 

College, answered the complaint except as to the claim for age discrimination, which it has 

moved to dismiss. That motion has been fully briefed. For the reasons that follow, the Court 

grants the motion to dismiss Ms. York’s age discrimination claim. 

I. FACTUAL BACKGROUND 

Plaintiff Mary York was hired as an Educational Support Specialist by Defendant Saint 

Joseph’s College on April 8, 2013. Ms. York alleges that during her employment she was 

subjected to a racially hostile environment in that she faced unfounded and untrue criticism and 

was otherwise harassed, intimidated, and treated less favorably than other employees. [DE 9 ¶ 7]. 

Ms. York additionally alleges that after she complained of this harassment, she was retaliated 

against. [DE 9 ¶ 7]. As to her disability discrimination claim, Ms. York alleges that she “was 

discriminated against and denied benefits and associations available to other employees on 

account of her status as a person with disability [sic] in violation of the Americans with 

Disability [sic] Act and denied necessary and reasonable accommodation in the context of the 

administrative proceedings by the employer.” [DE 9 ¶ 8(b)]. Further, as to her age discrimination 
2 

claim, Ms. York alleges that she “was denied equal pay for equal work and discriminated against 

and denied the opportunity to utilize compensatory time when other and younger employees 

were allowed compensatory time, and was denied permission to work from home when ill under 

circumstances in which other employees were allowed in violation of Title VII.” [DE 9 ¶ 8(a)]. 

Ms. York’s employment was ultimately terminated. 

On or about April 18, 2014 Plaintiff filed a charge of discrimination with the Equal 

Employment Opportunity Commission. [DE 9 ¶ 5, 9]. The narrative in the charge states, in full: 

I am a qualified individual with a disability, as defined by the Americans with 

Disabilities Act, as amended. My race is African American. I was employed with 

Saint Joseph’s College beginning April 8, 2013. My position was Educational 

Support Specialist. My supervisor was Juan Casas, Director of Student Success. 

Nancy Studer, is the Human Resources Director. During my employment, I was 

subjected to harassment, intimidation, treated less favorably than other employees, 

denied accommodations, and when I brought my concerns to management, I was 

retaliated against, disciplined, and accused of using threatening language or 

behavior to intimidate employees of the college. On April 4, 2014, my employment 

was terminated because I was accused of being insubordinate when I requested to 

have a third party at a meeting with Mr. Casas and Ms. Studer. Although I offered 

alternatives to meeting solely with Mr. Casas and Ms. Studer, my suggestions were 

ignored and my employment was terminated. I believe I was harassed, intimidated, 

treated less favorably than other employees, denied accommodations, retaliated 

against, and my employment was terminated because I reported my concerns to 

management, and because of my race, African American, in violation of Title VII 

of the Civil Rights Act of 1964, as amended; and/or, my disability, record of 

disability, and/or perceived disability, in violation of the Americans with 

Disabilities Act, as amended. 

[DE 18-2].1

 Ms. York also checked boxes on the form to indicate that the discrimination was 

based on “race,” “retaliation,” and “disability.” [Id.] 

 

1

 The EEOC charge is not included in or attached to the Amended Complaint. However, it is 

critical to the complaint and is referred to in it, so the Court may consider it for the purposes of a 

Rule 12 motion. Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012); 188 LLC v. 

Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002); Massenberg v. A & R Sec. Servs., Inc., 

No. 10 C 7187, 2011 WL 1792735, at *1 n.1 (N.D. Ill. May 11, 2011) (considering an EEOC 

charge that was not attached to the complaint in deciding under a Rule 12 motion whether the 

complaint was within the scope of the EEOC charge). Whether the Court can consider the 

contents of the Dismissal and Notice of Rights letter is less clear, as a plaintiff need not receive a 
3 

On September 17, 2014, the EEOC issued a Dismissal and Notice of Rights, informing 

Ms. York that it was closing its file on her charge. The form also contained the following 

language under the heading of “Notice of Suit Rights”: 

Title VII, the Americans with Disabilities Act, the Genetic Information 

Nondiscrimination Act, or the Age Discrimination in Employment Act: This 

will be the only notice of dismissal and of your right to sue that we will send you. 

You may file a lawsuit against the respondent(s) under federal law based on this 

charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of 

your receipt of this notice; or your right to sue based on this charge will be lost. 

(The time limit for filing suit based on a claim under state law may be different.) 

Equal Pay Act (EPA): EPA suits must be filed in federal or state court within 2 

years (3 years for willful violations) of the alleged EPA underpayment. This means 

that backpay due for any violations that occurred more than 2 years (3 years) 

before you file suit may not be collectible. 

[DE 18-1]. 

On December 16, 2014, Ms. York filed her complaint in this Court, alleging 

discrimination on the basis of age, race, and disability, as well as retaliation. [DE 1]. In response 

to a motion to dismiss, Ms. York filed an amended complaint on January 26, 2015. [DE 9]. Saint 

Joseph’s again moved to dismiss Ms. York’s age discrimination claim, arguing that she failed to 

exhaust her administrative remedies by including the age-related allegations in her EEOC 

charge, and that her complaint failed to adequately plead the claim. 

II. STANDARD OF REVIEW 

Rule 12(b)(1) authorizes dismissal of claims over which the Court lacks subject matter 

jurisdiction. In analyzing a motion to dismiss, the Court must accept as true all well-pled factual 

allegations and must draw all reasonable inferences in favor of the plaintiff. Long v. Shorebank 

Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). Further, “[t]he district court may properly look 

 

right-to-sue letter before filing suit for age discrimination, but the contents of the Notice do not 

affect the outcome of the motion, so the Court does not decide that question.
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beyond the jurisdictional allegations of the complaint and view whatever evidence has been 

submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Id.

(citations omitted). The burden of establishing proper federal subject matter jurisdiction rests on 

the party asserting it, which in this case is Ms. York. Muscarello v. Ogle Cnty. Bd. of Comm’rs, 

610 F.3d 416, 425 (7th Cir. 2010). 

Rule 12(b)(6) authorizes dismissal of a complaint when it fails to set forth a claim upon 

which relief can be granted. When considering a Rule 12(b)(6) motion to dismiss, the Court must 

decide whether the complaint satisfies the “notice-pleading” standard. Indep. Trust Corp. v. 

Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012). The notice-pleading standard 

requires that a complaint provide a “short and plain statement of the claim showing that the 

pleader is entitled to relief,” sufficient to provide “fair notice” of the claim and its basis. Id. 

(citing Fed. R. Civ. P. 8(a)(2)); Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011) (internal 

citations omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. 

R. Civ. P. 8(a)(2)). In determining the sufficiency of a claim, the Court construes the complaint 

in the light most favorable to the nonmoving party, accepts all well-pleaded facts as true, and 

draws all inferences in the nonmoving party’s favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 

1143, 1146 (7th Cir. 2010) (internal citations omitted). “A motion under Rule 12(b)(6) can be 

based only on the complaint itself, documents attached to the complaint, documents that are 

critical to the complaint and referred to in it, and information that is subject to proper judicial 

notice.” Geinosky, 675 F.3d at 745 n.1. 

III. DISCUSSION 

Saint Joseph’s moves to dismiss Ms. York’s claim under the Age Discrimination in 

Employment Act on two grounds. First, it argues that Ms. York failed to file an EEOC charge 

alleging age discrimination, so she has failed to satisfy the exhaustion requirement before 
5 

bringing suit. Saint Joseph’s argues that this is a jurisdictional defect, so it brings this aspect of 

its motion under Rule 12(b)(1). Second, Saint Joseph’s moves to dismiss under Rule 12(b)(6) for 

failure to adequately plead the claim of age discrimination. Because the first ground is 

dispositive, the Court need not reach the second. 

“In order to bring an ADEA claim in federal court, a plaintiff must first have raised it in a 

timely EEOC charge.” Ajayi v. Aramark Bus. Servs., 336 F.3d 520, 527 (7th Cir. 2003); 29 

U.S.C. §626(d) (“No civil action may be commenced by an individual under this section until 60 

days after a charge alleging unlawful discrimination has been filed with the [EOCC].”). This 

means not only that the plaintiff must have filed an EEOC charge, but also that the charge must 

have encompassed age discrimination in particular. Ajayi, 336 F.3d at 527; Miller v. Am. 

Airlines, Inc., 525 F.3d 520, 525 (7th Cir. 2008). “A plaintiff, however, may proceed on a claim 

not explicitly mentioned in [her] EEOC charge ‘if the claim is like or reasonably related to the 

EEOC charges, and the claim in the complaint reasonably could be expected to grow out of an 

EEOC investigation of the charge.’” Miller, 525 F.3d at 525 (quoting Cheek v. W. & S. Life Ins. 

Co., 31 F.3d 497, 500 (7th Cir. 1994)). “‘When an EEOC charge alleges a particular theory of 

discrimination, allegations of a different type of discrimination in a subsequent complaint are not 

reasonably related to them unless the allegations in the complaint can be reasonably inferred 

from the facts alleged in the charge.’” Ajayi, 336 F.3d at 527 (quoting Cheek, 31 F.3d at 503). 

The purpose of this requirement is “to give the employer ‘some warning of the [complained-of] 

conduct’ and afford ‘the EEOC and the employer an opportunity to settle the dispute through 

conference, conciliation, and persuasion.’” Id. (quoting Cheek, 31 F.3d at 500). 

Here, Ms. York did not allege age discrimination in her EEOC charge. She did not check 

the box to indicate that the discrimination was based on her age, and the narrative contains no 
6 

allegation or facts relating to age discrimination; it focuses solely on race and disability 

discrimination and retaliation. In arguing to the contrary, Ms. York states in her response brief: 

In her Charge, Plaintiff described the effects of the actions of Defendant and 

provided information to the EEOC challenging the Defendant’s hiring process. 

That involved the hiring of a less qualified younger person for the job of Director 

of Student Success, instead of her; the awarding of employment contracts to 

younger staff members, but not to her; and the allowance of compensatory time to 

younger staff members, but not to her. 

[DE 18]. The Court can find no justification for this argument as it appears to egregiously 

misstate the record and misrepresent Ms. York’s actual EEOC charge. Moreover, it seems the 

kind of misrepresentation that could subject an attorney to sanctions. Nothing in the charge, 

which is quoted above in full, references Saint Joseph’s’ hiring process, Ms. York’s candidacy 

for any position, or Saint Joseph’s giving benefits to younger employees but not to Ms. York. 

Accordingly, the Court concludes that an EEOC investigation into age discrimination could not 

have reasonably been expected to grow from anything in Ms. York’s actual charge of 

discrimination. 

Ms. York next argues that the charge was sufficient because the EEOC’s Dismissal and 

Notice of Rights form indicates that the EEOC construed her charge as raising age 

discrimination. Specifically, Ms. York notes that the Notice advises her of the limitations period 

for filing suit under the Age Discrimination in Employment Act. As Saint Joseph’s correctly 

observes, though, the Notice is merely a form that advises a charging party of the limitations 

periods for filing suit under various statutes that the EEOC administers. It does not include any 

findings or statements as to the scope of the EEOC’s investigation, and no more shows that the 

charge raised age discrimination than it shows the charge raised a claim under the Genetic 

Information Nondiscrimination Act, which is also referenced in the Notice. Therefore, the Court 
7 

concludes that Ms. York has failed to properly exhaust her administrative remedies as to her age 

discrimination claim. 

Saint Joseph’s argues that exhaustion is a jurisdictional prerequisite, such that the Court 

must dismiss this claim under Rule 12(b)(1) for lack of subject matter jurisdiction.2

 That is 

incorrect: “the requirement that a plaintiff exhaust her administrative remedies by the filing of a 

timely EEOC complaint containing charges whose scope covers the claims in a subsequent 

district court complaint is merely a condition precedent to suit, not a jurisdictional requirement.” 

Volovsek v. Wisconsin Dep't of Agr., Trade & Consumer Prot., 344 F.3d 680, 687 (7th Cir. 

2003); Gibson v. West, 201 F.3d 990, 993 (2000). Nonetheless, dismissal based on the 

affirmative defense of failure to exhaust administrative remedies is appropriate under Rule 12(c). 

Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012); Brooks v. Ross, 

578 F.3d 574, 579 (7th Cir. 2009). This dismissal is without prejudice, Teal v. Potter, 559 F.3d 

687, 693 (7th Cir. 2009), though if Ms. York did not already file a new charge for age 

discrimination within the 300-day limitations period, it may be too late for her to cure this 

deficiency. Griffin v. Evanston/Skokie Cmty. Consol. Sch. Dist. 65, No. 12 C 9828, 2013 WL 

6255225, at *4 (N.D. Ill. Dec. 3, 2013). 

IV. CONCLUSION 

Ms. York failed to exhaust her administrative remedies with the EEOC regarding the age 

discrimination allegations in her complaint. Accordingly, the Saint Joseph’s’ motion to dismiss 

[DE 11] is GRANTED, and Plaintiff’s claim for age discrimination is DISMISSED WITHOUT 

PREJUDICE. 

 

2

 It nonetheless asks that this claim be dismissed with prejudice, which is incompatible with 

arguing that the Court lacks jurisdiction over the claim.
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 SO ORDERED. 

 ENTERED: July 7, 2015 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court