activities to be fair game for a federal suit. See, e.g., Gawley, 276 F.3d at 313; Harper
v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995). In this case, Conway’s EEOC
charges made no mention that Pinnacle failed to promote him because of impermissible
motives and the two types of conduct are unrelated. Harper, 45 F.3d at 148.
Accordingly, Conway may not assert failure to promote in his complaint.

Conway also seeks relief under 42 U.S.C. § 1983. That statute prohibits
violations of federal rights under color of state law, which means that the violation must
be done by a state actor. See American Manufacturers Mutual Ins. Co. v. Sullivan, 119
S.Ct. 977, 985 (1999). As Pinnacle correctly points out, there is no color of state law
here. Pinnacle is a private entity, not a branch of government. Consequently, § 1983
is inapplicable and Conway’s claims based on that statute are dismissed.

Pinnacle’s final argument in favor of dismissal asserts that any claims arising
from the June 2 EEOC charge should be dismissed because they were not timely filed.
A party must file a Title VII claim within 90 days of receiving a right-to-sue letter from
the EEOC. 42 U.S.C. § 2000e-5((1); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848
(7th Cir. 2001). The 90-day period does not begin to run until the plaintiff receives
actual notice of the right to sue unless the plaintiffs failure to receive notice is the result

of his or her own fault. Howard v. Sidley & Austin, 185 F.3d 837, 839 (7th Cir. 1999),

Here, Conway’s complaint states that he received his right-to-sue letters on January 2,
2002. Although we acknowledge that it is highly unlikely that Conway did not receive

a letter mailed in early August until the following January, for the purposes of a motion

-4-


DISCUSSION
Pinnacle first attacks the viability of Conway’s claims of discrimination
predicated on his color and race. They argue that because sex was the sole basis of
discrimination Conway cited in the EEOC charges, he can assert that ground and no
other in his complaint. As a general rule, a plaintiff seeking relief under Title VII is
required to pursue a resolution through administrative avenues before filing suit in

federal court. Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.

1994), Thus, a claim not included in an EEOC charge cannot form the foundation of
a subsequent Title VII action. Gawley v. Indiana Univ., 276 F.3d 301, 313-14 (7th Cir.
2001). An exception exists for claims that are “reasonably related” to the basis cited
in the EEOC charge, but that exception does not apply to the circumstances of this case.

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

Conway is restricted to bringing suit only for the discrimination he reported in his
charges, namely discrimination on the basis of his sex.

Just as allegations ofa particular kind of discrimination must be mentioned in an
EEOC charge before it can be included in a later Title VII suit, so too must the EEOC

charge mention the types of conduct alleged in the complaint in order for those

‘Pinnacle also moves to dismiss any claim that Conway has based on his sexual
orientation, as Title VII does not prohibit discrimination on that ground. Schroeder v.
Hamilton Sch. Dist., 282 F.3d 946, 951 (7th Cir. 2002). Although this is an accurate
statement of current law, none of Conway’s submissions indicate that he makes such
an allegation, so Pinnacle’s argument is unnecessary.

-3-


to dismiss we must accept the well-pleaded facts of the complaint as true. DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000). At this stage of the game, we must take
Conway at his word, and Pinnacle has not argued that the 4-month delay resulted from
any fault on Conway’s part. Conway’s complaint, filed on January 10, was submitted
well within 90 days from his alleged receipt of notice to sue. Thus, we decline to
dismiss any portion of the complaint as untimely at this stage of the litigation.

Finally, we consider Pinnacle’s motion to strike the document Conway filed on
March 19, 2002, which he styled as an amended complaint. As Pinnacle correctly
notes, Conway’s submission is not an amended complaint but merely an addendum to
the original. Conway was specifically instructed that such a submission would not be
sufficient, and we will not tack on additional claims as afterthoughts and call the
resulting hodgepodge an amended complaint. Pinnacle’s motion to strike Conway’s
March 19 filing is therefore granted.

CONCLUSION

Based on the foregoing analysis, we grant Pinnacle’s motion to dismiss the
portions of the complaint relating to race discrimination, color discrimination, and
failure to promote as well as the claims rooted in 42 U.S.C. § 1983 and strike the

document Conway filed on March 19, 2002.

CRa Dra Peres

Charles P. Kocoras
United States District Judge

Dated: May 15, 2002


«_ Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Charles P. Kocoras Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 253 DATE 5/15/2002
CASE Conway vs. Pinnacle Realty Management Co
TITLE

[In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
‘of the motion being presented.}

a)

MOTION:

DOCKET ENTRY:

() O Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer briefdue__

(4) oO Ruling/Hearingon set for at

(5) oO Status hearing[held/continued to] [set for/re-set for]on__—ssetfor__— at

(6) Qo Pretrial conference[held/continued to] [set for/re-set for]on__setfor____—_at___.

(7) Oo Trial{set for/re-set for]on__—_at

(8) oO (Bench/Jury trial] [Hearing] held/continued to__at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OGeneralRule21 OFRCP41(a)(1) OO FRCP41(a)(2).

(0) (Other docket entry] Ruling held. Plaintiff fails to appear. ENTER MEMORANDUM

OPINION: We grant Pinnacle’s motion (Doc 9-1) to dismiss the portions of the complaint relating to
race discrimination, color discrimination, and failure to promote as well as the claims rooted in 42 U.S.C.
§ 1983 and strike the document Conway filed on March 19, 2002. (Motion (Doc 18-1) to strike is
granted). Defendant’s oral motion to dismiss all remaining claims for want of prosecution is granted
without prejudice to plaintiff seeking leave to prosecute within 30 days. So ordered.

[For further detail see order attached to the original minute order.]

No notices required, advised in open court, Document

No notices required.

Notices mailed by judge's staff. ;
Notified counsel by telephone. MAY 16 2002

Docketing

Copy to ju

to mail notices, / O
Mail AO 459 form. rove sh ent doftsg ing dghty initials
magistrate judge. ee

Number

number of notices,

locketed

, OV ietel
courtroom soa VA be we date mailed notice
Cagis
deputy’s ;
initials

(UL. Date/time received in
central Clerk’s Office satin deputy inials



UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS DOCKETED
EASTERN DIVISION Mn *

AY 16 2002
SUNDIATA CONWAY. )
)
Plaintiff, )
)

vs. ) 02 C 253
)
PINNACLE REALTY MANAGMENT )
COMPANY, )
)
Defendant. }
MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the court on a motion to dismiss and a motion to strike
by Defendant Pinnacle Realty Management Company (“Pinnacle”). For the reasons set
forth below, the motions are granted.

BACKGROUND

Plaintiff Sundiata Conway (“Conway”), an Illinois resident, is a former Pinnacle
employee. His complaint alleges that on or about June 27, 2001, Pinnacle began to
discriminate against him on the basis of his color, race, and sex. According to Conway,
Pinnacle failed to promote him and terminated his employ based on these unlawful
grounds.

Conway has filed three EEOC charges of discrimination by Pinnacle on June 27,

2001; August 2, 2001; and August 22, 2001. The EEOC issued right-to-sue letters for

we


these charges on August 16, 2001; December 18, 2001, and December 18, 2001,
respectively. The complaint alleges that he did not receive notice of his right to sue
until January 2, 2002. Conway filed the instant suit on January 10, 2002.

Pinnacle has answered certain portions of the complaint and now moves to
dismiss the remainder of the claims, arguing that Conway has failed to state a claim
upon which relief can be granted.

LEGAL STANDARD

The purpose of a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is to test the legal sufficiency ofa complaint. Triad Associates, Inc. v. Chicago
Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). In ruling on a motion to dismiss, the
court must construe the allegations of the complaint in the light most favorable to the
plaintiff, and all well-pleaded facts and allegations in the complaint must be accepted
as true. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993).

The allegations ofa complaint should not be dismissed for failure to state a claim
“unless 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). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege

facts sufficiently setting forth the essential elements of the cause of action. Lucien v.

Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). With these principles in mind, we turn

to Pinnacle’s motion.