Federal Rule of Civil Procedure 8(c) requires that affirmative defenses, such as the statute
of limitations or “any other matter constituting an avoidance or affirmative defense,” be pled in a
responsive pleading. Federal Rule of Civil Procedure 7 “clarifies that the use of the word
‘pleading’ in Rule 8 includes the answer, but not other motions.” Perry v. Sullivan, 207 F.3d
379, 382 (7th Cir. 2000) (Perry). Therefore, an affirmative defense is not waived simply because
it is filed after a Rule 12(b)(6) motion. Perry, 207 F.3d at 383.

Here, Defendant filed a motion for summary judgment before it filed an answer. Motions
for summary judgment may be filed “at any time.” Fed. R. Civ. P. 56(b). Therefore, just like in
Perry, Defendant did not waive its affirmative defenses by filing a motion for summary
judgment.

Defendant next argues Plaintiff's Complaint is time-barred. A complaint which alleges
Title VI violations is time-barred unless he files a complaint within ninety-days from the time he
receives his right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Grayson v. O'Neill,
308 F.3d 808, 817 (7th Cir. 2002). “[T]he time limit is not flexible, even for pro se litigants, and
a one-day delay is fatal.” Wilson v. N.E. Commuter R.R. Corp., 2003 U.S. Dist. LEXIS 21149, at
*3 (N.D. Ill. Nov. 20, 2003) (Wilson). Typically, it is presumed that a mailing is received
threedays after it is sent. Fed. R. Civ. P. 6(¢); Baldwin v. County Welcome Ctr., 466 U.S. 147,
148 n.1 (1984), However, other evidence must be presented demonstrating that the EEOC
actually mailed the right-to-sue letter upon its issuance. Wilson, 2003 U.S. Dist. LEXIS 21149,
at *4,

Here, Defendant argues that the right-to-sue letter was received by Plaintiff three days

after it was issued, on December 21, 2001. Defendant relies upon an affidavit of a person who


CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss Complaint is granted in part

and denied in part.

Dated: } 05 2004 haat.

W. DARRAH

Uni d States District Judge


Iam a Stager and began my employment with [Defendant] on April 10, 2000. On
March 15, 2001, I was sexually harassed by a co-worker. A few weeks later I
complained about sex harassment to the Administrator. On May 31, 2001 I was
placed on administrative leave and subsequently discharged.

I believe I was discriminated against and retaliated against because of my sex,
male, in violation of Title VII of the Civil Rights Act of 1964, as amended.

On December 18, 2001, Plaintiff received his “Dismissal and Notice of Rights” from the
EEOC, otherwise known as a “right-to-sue letter.” On April 4, 2002, Plaintiff filed his
Complaint in this action.

ANALYSIS

Defendant argues that Plaintiff's Complaint should be dismissed for three reasons. First,
Defendant asserts that Plaintiff's Complaint was filed more than ninety-days after he received his
right-to-sue letter. In the alternative, Defendant contends that Plaintiff admitted he was not
discharged and, thus, cannot establish an actionable constructive discharge claim. Defendant
also argues that Plaintiff's claims for racial discrimination and gender discrimination were not
properly asserted in Plaintiff's charge before the EEOC, and Plaintiff thus failed to exhaust his
administrative remedies with respect to those claims.

In response, Plaintiff argues that Defendant has waived its right to assert affirmative
defenses concerning Plaintiff's failures to comply with the ninety-day filing requirement and to
exhaust his administrative remedies before the EEOC. Plaintiff claims that Defendant responded
to the Complaint by filing a summary judgment motion, which made no mention of the statute of
limitations or the failure to exhaust administrative remedies. Furthermore, Plaintiff contends that

Defendant issued written discovery; but none of the discovery touched on these issues.



reviewed the EEOC files and EEOC operating procedures in its attempt to prove this fact.
Therefore, when Plaintiff received his right-to-sue letter is a question of fact not proper to resolve
on a motion to dismiss.

Next, reading the Complaint liberally, Plaintiff alleges that he was constructively
discharged because of the sexual harassment he endured. Defendant contends that in an affidavit
for an earlier motion for summary judgment, Plaintiff admitted that he chose to accept a
severance package and that, therefore, he was not discharged.

However, that affidavit is not proper to consider on a Rule 12(b)(6) motion to dismiss.
Although Defendant’s Motion to Dismiss Complaint could be converted to a motion for
summary judgment — Fed. R. Civ. P. 12(b)(6); Marques v. Federal Reserve Bank of Chicago, 286
F.3d 1014, 1017 (7th Cir. 2002) (Marques) — other facts may exist which show Plaintiff was
unlawfully discharged. See Henn y. Nat'l Geographic Soc’y, 831 F.2d 824, 829-31 (7th Cir.
1987). Accordingly, Defendant’s motion to dismiss with respect to his sexual harassment claim
is denied on this basis.

Defendant further argues that Plaintiff failed to exhaust his administrative remedies with
respect to his claims for gender discrimination. “A plaintiff may pursue a claim not explicitly
included in an EEOC complaint only if her allegations fall within the scope of the charges
contained in the EEOC complaint.” A two-part test is used to determine if the allegations fall
within the scope of the charges in the EEOC complaint. First, the allegations must be like or
reasonably related to those in the EEOC complaint. If those allegations are related, “the court
asks whether the current claim reasonably could have developed from the EEOC’s investigation

of the charges before it.” Cheek v. Peabody Coal Co., 97 F.3d 200, 202 (7th Cir. 1996).


Minute Order Form (06/97)

United States District Court, Northern District of Iinois

Name of Assigned Judge
or Magistrate Judge

John W. Darrah Sitting Judge if Other [

than Assigned Judge

CASE NUMBER 02 C 2446 DATE [ $/27/2004
CASE Jeff W. Nobles vs. Discover Financial Services, Inc.
TITLE
(In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) Qo Brief in support of motion due
(3) qo Answer brief to motion due___. Reply to answer brief due_
(4) Qa Ruling/Hearing on. set for at
(5) it Status hearing held and continued to 7/1/2004 at 9:00 A.M..
(6) im) Pretrial conference[held/continued to] (set for/re-set for] on set for at .
(7) Oo Trial[set for/re-set for] on at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (Local Rule 41.1. COFRCP41(a)(1) 0 FRCP41(a)(2).
ao wf [Other docket entry] Defendant’s motion to dismiss is granted in part and denied in part. Enter
memorandum opinion and order.
a) ff (For further detail see order attached to the original minute order.]

| Nonotices required, advised in open court

Li ired.
No notices required. number of notices

Document
Number

Notices mailed by judge’s staff.

Notified counsel by telephone.

8.2004

Si docketing. g initials

date mailed notice

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
SLB deputy’s
initials

Date/time received in
central Clerk's Office

sailing deputy initials

BS



Generally, allegations of gender discrimination are not like or reasonably related to claims of
sexual harassment or retaliatory discharge. E.g., Sitar v. Indiana Dep’t of Transp., 344 F.3d 720,
726-27 (7th Cir. 2003).

Plaintiff, though, argues that his EEOC charge, which states Plaintiff believed he was
discriminated because he was a male, sufficiently satisfies the two-part test. The “like or
reasonably related” standard should be applied liberally to serve the remedial purpose of Title
VIL. See, e.g., Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167-68 (7th Cir. 1976)
(en banc).

Here, the plain language of Plaintiff's EEOC charge states that Plaintiff believed he was
discriminated against because of his gender, thus satisfying the like or reasonably related
standard. Plaintiff also checked the box for sex discrimination on his EEOC charge. Moreover,
reading these statements liberally and particularly in combination, Plaintiff sufficiently alleged in
his EEOC charge that he suffered gender discrimination to enable the EEOC to develop
Plaintiff's current claim for gender discrimination. Therefore, Plaintiff has properly exhausted
his gender discrimination claim before the EEOC.

Lastly, Defendant contends that Plaintiff failed to exhaust his administrative remedies
with respect to his claims for racial discrimination, as well. Allegations of racial discrimination
are not “like or reasonably related” to gender discrimination, retaliation, or sexual harassment.
Crawford y. Bank of Am., 986 F. Supp. 506, 508-09 (N.D. Ill. 1997).

Here, Plaintiff's charge does not list racial discrimination; and nothing in Plaintiff's
narrative of the underlying events mentions racial discrimination. Therefore, Defendant’s motion

to dismiss with respect to Plaintiff’s racial discrimination claims is granted.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JEFF W. NOBLES, )
Plaintiff, }
v. } No: 02 C 2446
DISCOVER FINANCIAL SERVICES, } Judge John W. Darrah
INC., )
Defendant, } POCKETED

MAY 2 8 2004
MEMORANDUM OPINION AND ORDER

Plaintiff, Jeff Nobles, filed suit against Defendant, Discover Card Financial Services, Inc.,
alleging that Defendant discriminated against him in violation of Title VII. Specifically, Plaintiff
alleges that he suffered racial discrimination, gender discrimination, and sexual harassment.
Presently before the Court is Defendant’s Motion to Dismiss Complaint. For the following
reasons, Defendant’s Motion to Dismiss Complaint is granted in part and denied in part.

LEGAL STANDARD

In reviewing a motion to dismiss, the court reviews all facts alleged in the complaint and
any reasonable inferences drawn therefrom in the light most favorable to the plaintiff. See
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). A plaintiff is
not required to plead the facts or elements of a claim, with the exceptions found in Federal Rule
of Civil Procedure 9, not here applicable. See Swierkiewicz v. Sorema, 534 U.S. 506, 511

(2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). Dismissal is warranted only

3S


if “it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The “suit
should not be dismissed if it is possible to hypothesize facts, consistent with the complaint, that
would make out a claim.” Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir.
1995).
BACKGROUND

The facts, for the purposes of this motion, are as follows. Plaintiff is a black male who
worked for Defendant. Defendant is a New York corporation that does business in the state of
Illinois.

Plaintiff's Complaint states that Defendant violated Title VII by:

(a) Subjecting Jeff Nobles to different standards of review, specifically, requiring

that he test higher than his non-black colleagues or females during performance

reviews;

(b) Failing to promote Jeff Nobles to a position in which only females occupied

because he is a black male;

(c) Creating a hostile work environment by sexually harassing Jeff Nobles;

(d) Terminating Jeff Nobles while not terminating similarly situated, less

Qualified non-black colleagues or females.
Pl.’s Compl., 5. The effect of these practices “has been to deprive Jeff Nobles of equal
employment opportunities and otherwise affecting his status as an employee, because of his race
and gender.” Pl.’s Compl., { 6.

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”). Plaintiff checked the boxes for sex discrimination and retaliation. His

charge also included a narrative which stated that: