UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CARLOS VASQUEZ, )

)

Plaintiff, )

)

v. ) CAUSE NO.: 1:15-CV-398-TLS

)

CATERPILLAR LOGISTICS, INC., and )

EA STAFFING SERVICE, INC., )

)

Defendants. )

OPINION AND ORDER

The Plaintiff, Carlos Vasquez, filed a Complaint [ECF No. 1] against the Defendants

Caterpillar Logistics, Inc., and EA Staffing Service, Inc., alleging the following claims: race and

sex discrimination under Title VII of the Civil Rights Act of 1964 (Counts I and II); race

discrimination under 42 U.S.C. § 1981 (Count III); and age discrimination under the Age

Discrimination in Employment Act (ADEA) (Count IV). This matter is before the Court on a

Motion to Dismiss [ECF No. 6], filed by EA Staffing on February 19, 2016. EA Staffing argues

that Counts I, II and IV must be dismissed because the Plaintiff’s Equal Employment

Opportunity Commission (EEOC) Charge of Discrimination [ECF No. 6-2] only lists Caterpillar

as a discriminating party; and therefore, the Plaintiff has failed to exhaust his administrative

remedies.1

 For the reasons stated in this Opinion and Order, the Court will grant the Motion to

Dismiss.

1

The Motion to Dismiss [ECF No. 6] is limited to Counts I, II, and IV against EA Staffing, as it

does not address Count III against EA Staffing or Counts I–IV against Caterpillar. 
BACKGROUND

According to the Complaint, the Plaintiff, a 54-year-old African American, began his

employment with Caterpillar in October 2014, when he was assigned to Caterpillar by Mark

Stayer, an employee of EA Staffing. The Plaintiff alleges that on February 18, 2015, EA Staffing

Associate John Preston terminated his employment with Caterpillar after the Plaintiff’s

supervisor at Caterpillar informed “superiors . . . as well as EA Staffing management, that [the

Plaintiff] was ‘not someone who we would want to hire onto the company[,]’ and that ‘we would

be better off cutting tires [sic] with [the Plaintiff] at this point.’” (Compl. 4.) The Plaintiff alleges

that Caterpillar and EA Staffing discriminated against him on the basis of race, sex, and age. 

The Plaintiff also asserts that, prior to filing suit, he exhausted his administrative

remedies, as required by 42 U.S.C. § 2000e–5(f)(1):

[The Plaintiff] satisfied his obligation to exhaust administrative remedies, having

timely filed Charge No. 470-2015-02724, alleging discrimination on the bases of

race, color and age, with the Equal Employment Opportunity Commission,

receiving a Notice of Right to Sue on November 28, 2015, and by commencing

this action within ninety days of the receipt thereof.

(Id. at 2.) However, on the Plaintiff’s Charge of Discrimination, only “Caterpillar

Logistics” is listed in the box identifying “the Employer, Labor Organization,

Employment Agency . . . [t]hat I Believe Discriminated Against Me or Others.” 

EA Staffing filed its Motion to Dismiss [ECF No. 6], along with a Brief in Support

[ECF No. 7] on February 19, 2016. The Plaintiff filed a Response [ECF No. 16] on March

15, 2016; and EA Staffing filed a Reply [ECF No. 17] on March 25, 2016. This matter is

now fully briefed and ripe for ruling. 

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STANDARD OF REVIEW

A motion to dismiss for failure to state a claim, Fed. R. Civ. P. 12(b)(6), must be decided

solely on the face of the complaint and from any attachments included in the complaint. Miller v.

Herman, 600 F.3d 726, 733 (7th Cir. 2010); see also Fed. R. Civ. P. 10(c) (documents attached

to complaint are considered part of the complaint). Pursuant to Rule 12(d), a motion to dismiss

for failure to state a claim that includes matters outside of the pleadings must be treated as a

motion for summary judgment under Rule 56. See, e.g., Miller, 600 F.3d at 733; Levenstein v.

Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). However, a court is not required to convert a motion

to dismiss to a motion for summary judgment if the additional documents it considers are

referenced in the complaint and are central to the claim. Citadel Grp. v. Wash. Reg’l Med. Ctr.,

692 F.3d 580, 591 (7th Cir. 2012). “Such documents may permit the court to determine that the

plaintiff is not entitled to judgment.” Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 764 (7th

Cir. 2010) (citing Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir. 2009)). Because the

Plaintiff’s Charge of Discrimination [ECF No. 6-2] is referenced in the Complaint and is central

to the Plaintiff’s claim, the Court will consider it in conjunction with the pleadings. See, e.g.,

Medrano v. Cnty. of Lake, Ind., Civil Action No. 2:13-CV-383 JVB, 2014 WL 2694222, at *2

n.2 (N.D. Ind. June 13, 2014) (considering the plaintiff’s EEOC Charge of Discrimination

without converting the Rule 12(b)(6) motion under Rule 12(d)). 

DISCUSSION

“In general, a person wishing to sue for unlawful discrimination under the ADEA and

Title VII must first exhaust administrative remedies by filing a timely charge of discrimination

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with the EEOC.” Wierciszewski v. Granite City Ill. Hosp. Co., Civil No. 11–120–GPM, 2011

WL 1615191, at *2 (S.D. Ill. Apr. 28, 2011) (citing Sauzek v. Exxon Coal USA, Inc., 202 F.3d

913, 920 (7th Cir. 2000) and Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)).

Exhaustion of administrative remedies through the filing of an EEOC charge “serves the dual

purpose of affording the EEOC and the employer an opportunity to settle the dispute through

conference, conciliation, and persuasion” and “giving the employe[r] some warning of the

conduct about which the employee is aggrieved.” Cheek, 31 F.3d at 500; see also Miller v. Am.

Airlines, Inc. 525 F.3d 520, 525 (7th Cir. 2008) (ADEA case). Ordinarily, a party not named in

an EEOC charge may not be sued. See Eggleston v. Chi. Journeymen Plumber’s Local Union

No. 130, U.A., 657 F.2d 890, 905 (7th Cir. 1981). However, an exception is recognized “where

an unnamed party has been provided with adequate notice of the charge, under circumstances

where the party has been given the opportunity to participate in conciliation proceedings.”

Tamayo v. Blagojevich, 526 F.3d 1074, 1089 (7th Cir. 2008) (quoting Schnellbaecher v. Baskin

Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989)).

In his brief, the Plaintiff does not dispute that Caterpillar is the only named party in his

EEOC Charge of Discrimination. Instead, he argues that both Caterpillar and EA Staffing were

named in his EEOC intake questionnaire, dated August 13, 2015; and that the EEOC, in drafting

the Charge of Discrimination, only included Caterpillar as an offending party. The Plaintiff

argues that, pursuant to Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), his intake

questionnaire may be construed as a “charge,” thus satisfying the exhaustion requirement. (Resp.

2–4.) 

EA Staffing counters that, pursuant to Novitsky v. American Consulting Engineers,

L.L.C., 196 F.3d 699 (7th Cir. 1999)—a pre-Holowecki case—any difference between the intake

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questionnaire and the charge of discrimination is immaterial, because “it is the charge and not

the questionnaire that defines the scope of the plaintiff’s claim.” (Reply. 2–3); but see 

Swearnigen–El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852, 865 (7th Cir. 2010) (maintaining

that, despite Novitsky, “‘[a]llegations outside the body of the charge may be considered when it

is clear that the charging party intended the agency to investigate the allegations.’”) (quoting

Vela v. Vill. of Sauk Vill., 218 F.3d 661, 664 (7th Cir. 2000)). 

Notwithstanding the parties’ arguments, the Court cannot determine whether the

Plaintiff’s intake questionnaire satisfies the exhaustion requirement because the Plaintiff has

neither attached the questionnaire to his Complaint, nor referenced the questionnaire in his

Complaint. See Help at Home, Inc., v. Med. Capital, L.L.C., 260 F.3d 748, 752–53 (7th Cir.

2001) (finding that a plaintiff may add facts “by affidavit or brief in order to defeat a motion to

dismiss if the facts are consistent with the allegations of the complaint.”); see also Scott v. City

of Kewanee, Case No. 1:13–cv–01292–SLD, 2014 WL 1302025, at *4 (N.D. Ill. Mar. 28, 2014).

Therefore, the Court’s inquiry is limited to whether the Plaintiff’s Charge of

Discrimination—which only names Caterpillar as an offending party—provides adequate notice

to EA Staffing.2 Tamayo, 526 F.3d at 1074. Because the Charge of Discrimination includes only

two references to EA staffing, (see ECF No. 6-2 (“EA Staffing Associate Mark Stayer, assigned

me to Caterpillar Logistics as a production Associate” and “EA Staffing Associate, John Preston,

ended my assignment allegedly stating that I wasn’t a good fit.”)), and does not even

meaningfully suggest a discriminatory action on the part of EA Staffing, the Court finds that it

fails to provide EA Staffing with adequate notice that the Plaintiff intended to bring ADEA and

2

In his briefing, the Plaintiff does not contest whether the Charge of Discrimination [ECF No. 6-

2] provided adequate notice to EA Staffing.

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Title VII charges against it. Cf. Uhlman v. Panares, Cause No. 2:07-CV-405-TS, 2009 WL

799536, at *3–4 (N.D. Ind. Mar. 24, 2009) (finding that the plaintiff’s charge of discrimination

“would most likely qualify” as adequate notice because the plaintiff “specifically points to the

[discriminatory] actions” of the unnamed party). Thus, based on the Plaintiff’s Charge of

Discrimination, the Plaintiff has failed to exhaust his administrative remedies. 

Accordingly, Counts I, II, and IV against EA Staffing will be dismissed without

prejudice, with leave to refile an amended complaint—if the Plaintiff so chooses—within 14

days of the date of this Order. See Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008) (“District

courts routinely do not terminate a case at the same time that they grant a defendant’s motion to

dismiss; rather, they generally dismiss the plaintiff’s complaint without prejudice and give the

plaintiff at least one opportunity to amend her complaint.”); Barry Aviation Inc. v. Land O’Lakes

Mun. Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004) (stating that the general rule is that

“the district court should grant leave to amend after granting a motion to dismiss”).

CONCLUSION

For the foregoing reasons, Defendant EA Staffing’s Motion to Dismiss [ECF No. 6] is

GRANTED. Counts I, II, and IV against EA Staffing are DISMISSED WITHOUT PREJUDICE,

with leave to refile within 14 days of the date of this Order. 

SO ORDERED on April 19, 2016.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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