Gissendanner claims that the United States Postal Service did not deliver the right-to-sue
letter when it was first sent to him by the EEOC via certified mail. The defendants ask this court
to find that the plaintiff was at fault simply from his failure to receive the letter, The contested
question of plaintiff's fault cannot be resolved upon a motion to dismiss. Under the
circumstances, a determination of whether Gissendanner was at fault “involves a factual inquiry
that extends beyond the four comers of the pleadings and is within the province of Rule 56.”
Covington v. iL. Sec, Serv., 269 F.3d 863, 865 (7th Cir. 2001). Defendants’ argument that
Gissendanner’s complaint is not timely is an affirmative defense, and the plaintiff is not required
to anticipate and overcome affirmative defenses in his complaint. 7regenza v. Great American
Communications Co,, 12 F.3d 717, 718 (7th Cir. 1993). Gissendanner’s complaint is well
pleaded and, at this stage, we must accept his claims as true.

We note, however, that “the law presumes delivery of a properly addressed piece of
mail,” McPartlin v. Commissioner, 653 F.2d 1185, 1191 (7th Cir. 1981), and that the fault
doctrine will only protect a claimant from “fortuitous circumstances or events beyond his or her
contro! which delay receipt of the EEOC’s notice.” St. Louis v. Alverno College, 744 F.2d 1314,
1316 (7th Cir. 1984). If this court must revisit this issue upon a motion for summary judgment,
Gissendanner will need to establish why he is not at fault for his failure to timely receive the
EEOC’s letter. He will not be able to rely upon allegations in the pleadings or upon conclusory
statements in affidavits, but must instead support his claims with proper evidence. Celotex
Corp, v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S, Ct. 2548 (1986).

For the foregoing reasons the motion to dismiss Count } of the plaintiff's complaint is

denied.


the March 15, 2001 letter when it was sent via certified mail. Defendants seek dismissal of
Count Il because they claim that an at-will employee does not have an employment contract as
defined by 42 U.S.C. § 1981.
DI JON

In deciding a motion to dismiss, the court must assume the truth of all facts alleged in the
complaint, construing the allegations liberally and viewing them in the light most favorable to
the plaintiff. Wilson v. Formigoni, 42 F.3d 1060, 1062 (7th Cir. 1994), “A complaint should not
be dismissed unless ‘it is clear that no relief could be granted under any set of facts that could be
proved consistent with the allegations."" Cushing v. City of Chicago, 3 F.3d 1156, 1159 (7th Cir,
1993) (quoting Hirshon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229
(1984)).

L. Proof Of Receipt Of Right To Sue Letter

Under Title VIL, a plaintiff must file suit within 90 days of receiving a right-to-sue letter
from the EEOC. 42 U.S.C. § 2000e- 5(f)(1). It is the established law of this Circuit that the 90-
day limitations period begins to run when the plaintiff receives actual notice of his right to sue,
unless he is at fault for not receiving timely notice, Houston v. Sidley & Austin, 185 F.3d 837,
839 (7th Cir. 1999). If a plaintiff does not receive a right-to-sue letter before it is returned as
undeliverable to the EEOC, and he claims that he was not at fault, then the parties must litigate
to determine whether the plaintiff bears responsibility for not receiving the letter when it was
first mailed by the EEOC. dd. at 840, n.5. The plaintiff has the burden of proving that he was not

at fault because he is the only person with information about why he did not receive the letter,

Td.



II. Section 1981 Claim

This court has previously held that employment at-will is a contract for purposes of §
1981. See Stone v. American Fed'n. of Gov't. Employees, 135 F. Supp. 2d. 873 (N.D. Il. 2001).
In Stone, we noted that while the Seventh Circuit has not squarcly addressed this issue, four
other Federal Courts of Appeals had decided that at-will contracts can support a 1981 claim.
Since that time, the Eight Circuit has reached the same conclusion. See Turner v. Ark. Ins.
Dep’t., 297 F.3d 751 (8th Cir. 2002). We remain convinced that this interpretation upholds the
goals of § 1981 and that the Seventh Circuit would agrec if confronted directly with this
question. Accordingly, the defendants’ motion to dismiss Count M1 of the plaintiff's complaint is
denied.

CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss Plaintiff's Second Amended

Complaint is denied.

} o
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7 Wayne R. Andersen

i 4 United States District Court
Dated: 2 y Au



Minute Qrder Form (6/97),

United States District Court, Northern District of Tlinois

Name of Assigned Jud 4 Sitting Judge if Other
or Magistrate Iudge Wayne R, Andersen han Assigned Judge
CASE NUMBER 1C 5988 DATE 6/27/2003
CASE Ulysses 8, Gissendanner vs. The Gerber Group, Inc. et al
TITLE

[tn the following bux (a) indicate the party filing the motion, cg... plaintiff, defendant, 3d purty plaintif¥, and (b) state briefly the nature
af the motion being presented, |

MOTION:

DOCKET ENTRY:

() Q Filed motion of [ usc listing in “Motion” box above.]

Q) o Brief in support of motion due

(3) gq Answer brief to motion due... Reply to answer briefdue__-

(4) ao Ruling/Hearingon ss setfor_ at

(5) o Status hearing[held/continued to] [sct for/re-set for] on_ set for at

(6) o Pretrial conference[held/continued to] [sct for/re-set for]on ss setfor__ at
7) Q Trial{sct for/re-set for] on___at

(8) Oo [Bench/Jury trial] [Hearing] held/continued toa

(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OOFRCP4(m) OLocal Rule 41.1 CFRCP41(a\(1) © FRCP41(a)(2).

do [Other docket entry] Enter MEMORANDUM, OPINION AND ORDER: Defendant’s motion
to dismiss plaintiff’s second amended complaint is [27-1] denied,

(11) ff [For further detail sec order attached to the original minute ordcr.|

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ULYSSES 8. GISSENDANNER, )
)
Plaintiff, )
) No. 01 C 5988
. DOCKETED
) Wayne R. Andersen JUN 3 0 2003
THE GERBER GROUP, INC., a/k/a ) District Judge
GERBER AUTO COLLISION AND )
GLASS; NEAL GERBER (Individually) —_)
and HERB UPTON (individually), )
)
Defendants. )
MEMORANDUM OPINION AND ORDER

This case is before the court on the defendants’ motion to dismiss the Plaintiff's Second
Amended Complaint in its entirety. Plaintiff Gissendanner filed a two-count complaint alleging
racial discrimination by both his employer and his immediate supervisor. In Count I,
Gissendanner sued corporate defendant The Gerber Group, a/k/a Gerber Auto Collision and
Glass (Gerber), alleging violation of Title VIT of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e, ef seg. In Count II, Gissendanner sued all defendants pursuant to the Civil
Rights Act of 1866, 42 U.S.C. § 1981. Defendants move to dismiss Plaintiff's Second Amended
Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Defendants’ motion presents the court with two questions. First, to withstand a motion to
dismiss under FRCP 12(b)(6) must a plaintiffs complaint conclusively prove that he timely filed
suit within 90 days of receiving his right-to-sue letter from the Equal Employment Opportunity

Commission (EEOC)? Second, does employment at-will provide a sufficient contractual

=



relationship to support a § 1981 claim of employment discrimination? For the following reasons
the defendants’ motion to dismiss is denied.
ALLEGATIONS OF THE COMPLAINT
On a motion to dismiss the facts must be taken in the light most favorable to the plaintiff.
Therefore, the following facts alleged by the plaintiff will be accepted as true for purposes of
this motion.

Plaintiff, Ulysses S. Gissendanner, is an African-American male who worked as a
collision estimator for defendant Gerber from December 1999 through April 2000. Neal Gerber
is the owner of Gerber and defendant Herb Upton was Gissendanner’s immediate supervisor.
Plaintiff's employment was at-will. Gissendanner alleges that defendants discriminated against
him on the basis of race, including unequal wages and terms and conditions of employment, and
discriminatory discipline and discharge. Gissendanner filed charges with the EEOC, which
issued a right-to-sue letter via certified mail on or about March 15, 2001. He filed suit on
August 3, 2001, approximately 4 % months later. Plaintiff justifies this delay by claiming that
the U.S. Postal Service never delivered the certified letter. Gissendanner alleges that he first
received the right-to-sue letter after May !, 2001 when it was re-sent to him by the EEOC via
first-class mail after the certified letter was returned by the U.S. Postal Service as undeliverable.
Plaintiff does not indicate the date on which he actually received the letter, noting only that it
was after May 1, 2001 and that he timely filed suit within 90 days of receiving this letter.

Defendants filed a motion to dismiss Count I on the grounds that plaintiff did not timely
file suit within 90 days of receipt of the March 15, 2001 letter in violation of the statutory filing
requirements. Defendants claim that the suit must be dismissed because the plaintiff failed to

file suit within 90 days or to provide evidence that he was not at fault for his failure to receive

2