UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

MICHAEL A. MILLS, )

)

Plaintiff, )

)

v. ) No. 1:14 CV 154 

)

UNITED STATES POSTAL )

SERVICE, ) 

)

Defendant. )

OPINION and ORDER

Defendant United States Postal Service has moved to dismiss plaintiff Michael

Mills’s complaint for failure to state a claim. (DE # 13.) Plaintiff has filed a response

(DE # 17), and defendant has filed a reply (DE # 18.) For the following reasons,

defendant’s motion is denied.

I. Facts and Background 

In his amended complaint, plaintiff alleges that during his time as one of

defendant’s employees, supervisors and other employees asked how old he was.

(DE # 10 at 2.) Plaintiff was the only City Carrier Assistant (“CCA”) that did not have

an assigned route. (Id.) During his time in defendant’s employ, plaintiff was considered

a “floater,” even though he had more seniority than younger CCAs. (Id.) Other CCAs

were given work lockers, but plaintiff was not, and plaintiff had to carry his belongings

to and from work every day. (Id.) 

Despite other CCAs being allowed to report to work at 8 AM, plaintiff was not

allowed to report to work until 9:30 AM. (Id.) This prevented plaintiff from hearing the
workplace daily news announcements, and also prevented plaintiff from inspecting the

route he was assigned to each day. (Id.) Finally, plaintiff was not trained to do the CCA

job through defendant’s standard protocols. (Id.) 

As a result of the foregoing facts, plaintiff filed the instant suit, in which he 1

alleges defendant violated the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. 621, et seq. (Id.) Defendant has now moved to dismiss plaintiff’s complaint.

(DE # 18.) 

II. Legal Standard 

Defendant has moved to dismiss plaintiff’s claim under RULE 12(b)(6) of the

FEDERAL RULES OF CIVIL PROCEDURE for failure to state a claim upon which relief may be

granted. RULE 8 of the FEDERAL RULES OF CIVIL PROCEDURE sets forth the pleading

standard for complaints filed in federal court; specifically, that rule requires that a

complaint contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” FED. R. CIV. P. 8. “The RULE reflects a liberal notice pleading regime,

which is intended to focus litigation on the merits of a claim rather than on

technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580

(7th Cir. 2009) (internal quotation marks omitted). “While the federal pleading standard

is quite forgiving . . . ‘the complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.’” Ray v. City of Chicago, 629 F.3d

There are a few additional facts alleged in plaintiff’s response brief. The court will 1

address these later. 

2
660, 662-63 (7th Cir. 2011) (quoting Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir.

2010)); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). 

For purposes of deciding defendant’s RULE 12(b)(6) motion, the court accepts

plaintiff’s factual allegations as true. Pardus, 551 U.S. at 93.

III. Analysis

Defendant argues that plaintiff fails to state an age discrimination claim because

he has failed to allege that he suffered an adverse employment action and because he

has failed to allege that he is a member of a protected group under the ADEA. (DE # 14

at 3-5.) A plaintiff alleging discrimination under the ADEA may prove his or her claim

using the direct or indirect method of proof. Andrews v. CBOCS West, Inc., 743 F.3d 230,

234 (7th Cir. 2014). “Under the direct method of proof, the plaintiff makes her case by

pointing to evidence directly showing that her employer subjected her to an adverse

employment action on an impermissible discriminatory basis . . . .” Id. Under the

indirect method of proof, the plaintiff has the burden of establishing a prima facie case

of discrimination: 

(1) she is a member of a protected class, (2) she performed reasonably on the

job in accord with her employers’ legitimate expectations, (3) despite her

reasonableperformance, she was subjected to an adverse employment action,

and (4) similarly situated employees outside of her protected class were

treated more favorably by the employer.

Id. (citations and quotations omitted). Thus, “[w]hether the plaintiff proceeds by the

direct or indirect method of proof, he must show a materially adverse employment

action.” Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004). 

3
The Seventh Circuit, however, has stated that plaintiffs alleging employment

discrimination “may allege these claims quite generally.” Tamayo v. Blagojevich, 526 F.3d

1074, 1081 (7th Cir. 2008). “A complaint need not ‘allege all, or any, of the facts logically

entailed by the claim,’ and it certainly need not include evidence.” Id. (quoting Bennett

v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (emphasis in original)). “[I]n order to

prevent dismissal under Rule 12(b)(6), a complaint alleging [age] discrimination need

only aver that the employer instituted a (specified) adverse employment action against

the plaintiff on the basis of her [age].” See Tamayo, 526 F.3d at 1084; see also Luevano v.

Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013) (same).

In its motion to dismiss, defendant argues that plaintiff’s claim must be

dismissed because he has not alleged an adverse employment action and because he has

not alleged that he is a member of a protected group under the ADEA. (DE # 14 at 3-5.)

If the only allegations the court had in front of it were contained in plaintiff’s amended

complaint, the court would agree with defendant that plaintiff had failed to allege an

adverse employment action or that he was a member of a protected group. Plaintiff,

however, included additional allegations in his response to defendant’s motion to

dismiss. (DE # 17.) 

In its reply brief, defendant argues that plaintiff cannot use his response brief to

add allegations to a complaint. (DE # 18 at 1 n.1.) The cases that defendant cites to

support this argument, however, discuss amending a complaint in a summary

judgment response brief, not a response to a motion to dismiss. Grayson v. O’Neill, 308

4
F.3d 808, 817 (7th Cir. 2002). Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004). Under

Seventh Circuit precedent, a plaintiff may allege additional facts in response to a

motion to dismiss. Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992)

(“[A] plaintiff is free, in defending against a motion to dismiss, to allege without

evidentiary support any facts he pleases that are consistent with the complaint, in order

to show that there is a state of facts within the scope of the complaint that if proved (a

matter for trial) would entitle him to judgment.”); see also Bartholet v. Reishauer A.G.

(Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (“A complaint under Rule 8 limns the claim;

details of both fact and law come later, in other documents.”); Huon v. Breaking Media,

LLC, --- F.Supp.3d ----, 2014 WL 6845866, at *1 n.2 (N.D. Ill. 2014) (“In reviewing a

motion to dismiss, the Court may consider . . . additional facts set forth in the plaintiff’s

response to the motion or in any documents attached to the response, as long as those

additional facts are consistent with the allegations in the complaint . . . .”). The

allegations in plaintiff’s response brief are consistent with the allegations in plaintiff’s

complaint. Therefore, considering the additional facts alleged in plaintiff’s response

brief, the court will now address defendant’s arguments. 

First, defendant argues that plaintiff has failed to allege that he is a member of a

protected group under the ADEA. (DE # 14 at 4.) “In general, the ADEA provides

coverage for private, state, and federal employees who are forty years of age and

older . . . .” Levin v. Madigan, 692 F.3d 607, 615 (7th Cir. 2012); see also Guinto v. Exelon

Generation Co., LLC, 341 F. App’x 240, 245 (7th Cir. 2009) (“The ADEA prohibits an

5
employer from discriminating against any person over 40 years of age because of the

individual’s age.”). Although he does not indicate his age in his amended complaint,

plaintiff makes clear in his response brief that he is 46 years old, and that he was

terminated in May of 2013, which means he was over the age of 40 at the time of his

termination. (DE # 17 at 1-2.) Defendant’s argument on this point fails. 

Next defendant argues that plaintiff has not alleged an adverse employment

action. (DE # 14 at 5.) As the court noted earlier, plaintiff has not alleged any adverse

employment action in his amended complaint. But, in his response brief, plaintiff has

alleged that he was terminated in May of 2013. (DE # 17 at 2.) Plaintiff also alleges that

he filed his EEOC charge in June of 2013, and that the charge was for an ADEA claim.

2

(Id.) Although plaintiff could have been more clear in linking his termination to his

ADEA claim, plaintiff is proceeding pro se, and the court is “obligated to give a liberal

construction to a pro se plaintiff’s filings.” Nichols v. Michigan City Plant Planning Dept.,

755 F.3d 594, 600 (7th Cir. 2014). Given that the court must construe plaintiff’s filings

liberally, the court concludes that the allegations in plaintiff’s response brief are

sufficient to state an ADEA discrimination claim. Defendant’s argument on this point

therefore fails. 

In his response, plaintiff also alleges that the allegation about him being unable to 2

perform his job (which presumably was the reason for his termination) is false. (DE # 17

at 3.)

6
Finally, defendant argues that plaintiff’s case must be dismissed because plaintiff

did not name the proper party as the defendant in this case. (DE # 14 at 1, 3.) When an

age discrimination claim is brought against the Postal Service, “the only proper

defendant is the head of the agency—the Postmaster General.” See Ellis v. United States

Postal Serv., 784 F.2d 835, 838 (7th Cir. 1986). As noted earlier, however, the only

defendant that plaintiff named in this suit is the United States Postal Service. (See

DE # 10.) Thus, defendant argues that this suit must be dismissed because plaintiff has

not sued Patrick Donahoe, the Postmaster General. (DE # 14 at 1, 3.)

Under Rule 21 of the FEDERAL RULES OF CIVIL PROCEDURE, “[o]n motion or on its

own, the court may at any time, on just terms, add or drop a party.” FED. R. CIV. P. 21.

“If [a] pro se plaintiff has named the wrong defendant, the Court is authorized by

Federal Rule of Civil Procedure 21 to cure the problem.” Brown v. Chicago Municipal

Employees Credit Union, No. 13 C 02597, 2014 WL 1613037, at *4 (N.D. Ill. Apr. 16, 2014).

In this case, plaintiff is proceeding pro se, and presumably, has very little legal

experience. The court believes that under these circumstances, the interests of justice are

served by adding the Postmaster General as a defendant and dropping the United

States Postal Service as a defendant.3

“If joinder will not prejudice those already parties and otherwise meets the criteria 3

for relation-back of pleading amendments under Rule 15(c) a Rule 21 joinder may relate

back to the date of the original complaint.” MOORE’S FED. PRACTICE 3d, § 21.04[1]. The

requirements for relation back under Rule 15 have been met in this case because adding the

Postmaster General will not change anything about the claims asserted in plaintiff’s first

two complaints, Rule 15(c)(1)(B), and because the U.S. attorney for this district was served

with plaintiff’s original complaint, Rule 15(c)(2). (DE # 4.) 

7
IV. Conclusion 

For the foregoing reasons, defendant’s motion to dismiss (DE # 13) is DENIED.

Additionally, the Clerk is directed to add Patrick Donahoe, the United States

Postmaster General, as a defendant in this case, and remove the United States Postal

Service as a defendant in this case. 

SO ORDERED.

Date: January 7, 2015

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT