even for pro se litigants, and a one-day delay is fatal.” Davis v. Browner, 113 F. Supp.2d
1223, 1225 (N.D. Ill. 2000), relying on Thomas v. United Parcel Serv., No. 99 C 6258, 2000
WL 290279, at *2 (N.D. Ill. Mar. 17, 2000) (Kocoras, J.); see also Wilson v. ‘Doctors
Hospital of Hyde Park, 909 F. Supp. 580, 581 (N.D. Ill. 1996) (dismissing Title VII lawsuit
filed by pro se plaintiff ninety-one days after her receipt of the right to sue letter); Brown v.
City of Chicago, No. 96 C 3078, 1998 WL 704278, at *3 (N.D. Ill. Sep. 30, 1998) .
(Williams, J.) (holding that Title VII lawsuit filed by pro se plaintiff ninety-three days after
his receipt of right-to-sue letter was untimely).

On its face, the complaint appears to have been filed one day late. If the plaintiff
received her right-to-sue letter on July 26, 2000, as indicated on the pleading, then this suit
would be time-barred. But in her response to the motion to dismiss, the plaintiff contends
that the date provided on her complaint was either a typographical error or a guess on the
part of the typist. The plaintiff now claims that she received her ii ght-to-sue letter on july
28, 2000, two days later, which would make this action timely. The plaintiff argues that it
would be “illogical” to assume next day delivery by mail.

Although the plaintiff could have easily received the letter the next day, the court
cannot resolve the timeliness issue in the context of a motion to dismiss. Fact issues are not
to be decided on a motion to dismiss. See Smith v. Cash Store Management, Inc., 195 F.3d
325, 327 (7" Cir. 1999). The plaintiff asserts that she received the right-to-sue letter on July

28, 2000, and there is no signed certified mail receipt, no indication that the letter was sent


+
>

d filings are true to the best of her knowledge. See Fed. R. Civ. P. 11(b). The plaintiff should
4

: fill out all forms carefully, answering all questions completely and forthrightly. In the

i future, the plaintiff should be mindful to proof-read her documents to ensure their factual

i ee
4 accuracy.

i
| CONCLUSION
{ IT IS THEREFORE ORDERED, for the reasons set forth in the preceding
i paragraphs, that: (1) the defendant’s motion to dismiss [#9] is denied without prejudice; (2)
4

the plaintiff’s “corrected amended complaint” [#12] is stricken; (3) the plaintiff is granted

leave to file a third amended complaint correcting any typographical errors within twenty-

; one days; and (4) the defendant’s request to conduct limited discovery regarding the
i sade :

i timeliness of this lawsuit is granted.
i

ENTER:

Shad Waning

Blanche M. Manning

United States District Court

paea: MAR 23 2001


il a

Se eae a ere a ee

sabi lle ak es a kee

en eA RRB

TO THE PERSON AGGRIEVED: This is your NOTICE OF RIGHT TO
SUE. It is issued at your request. If you intend to sue the respondent(s)
named in your charge, YOU MUST DO SO WITHIN NINETY (90) DAYS
OF YOUR RECEIPT OF THIS NOTICE; OTHERWISE YOUR RIGHT TO
SUE IS LOST. (See unmarked exhibit to amended complaint; emphasis and
capitals in original.)

On October 25, 2000, the e plaintiff filed suit in federal court. Accorting to the

complaint, the plainttt had received her right to sue letter on July 26, 2000 0 a is, ninety-

one days earlier),

The plaintiff filed an amended complaint on November 28, 2000. Although she

si siuliea ed

‘made many changes to her ori iginal complaint, which she attached and incorporated by

reference, she did not alter the date on which she had allegedly received her right- to- -Sue
letter. (The amended complaint was missing the page on the court’s pro se form in which
the plaintiff is directed to specify the date of receipt of the right-to-sue notice.)

DISCUSSION

Based on the record currently before the court, the court cannot find as a matter of ;
law that the plaintiff's claims are time-barred. The date on which the plaintiff received her -
right-to-sue letter is a fact issue that cannot be resolved at this stage of the proceedings.

A plaintiff has ninety days from the receipt of her “right to sue” letter to file suit in
federal court. See 42 U.S.C. § 2000e-5(£)(1); Houston v. Sidley & Austin, 185 Fd 837, 838
(7" Cir. 1999). The ninety-day period begins to run upon the plaintif? s actual receipt of the

right-to-sue notice rather than the date of the notice. Id.. “The time limit is not flexible,


Mitt si ti

baba ti ate

”

by special delivery, and no record of messenger service to contradict her assertion.
Accordingly, for purposes of the motion to dismiss, the court will accept as true that the
plaintiff received her right-to-sue letter three days after it was mailed to her. Accord, see
Fed. R. Civ. P. 6(e); Pointer v. Columbia University, 1997 WL 86387, *2 (S.D. N.Y. 1997);
Olds v. Alamo Group (KS), Inc., 889 F. Supp. 447, 450 ©. Kan. 1995). Contrast Morell v.
US., 91 F. Supp.2d 451, 456 (D. R.I. 2000) (plaintiff's explanation that his mistake was a
typographical error was unsatisfactory where his assertions conflicted with earlier testimony
under oath): Martin v. Merrell Dow Pharmaceuticals, Ine., 851 F.2d 703 (3" Cir. 1988)
(district court disregarded conflicting evidence where no explanation was offered for
contradictions with prior sworn testimony and where the new statements were made only
after the pit “faced almost certain defeat in summary judgment.”)

Ins sum, the court will accept as true, at this stage ‘of the he proceedings, “that the plaintiff

received her right: to-sue letter on July 28, 2000. The court therefore makes a preliminary

ruling that this suit was timely filed within ninety days thereafter. Because the court has

determined that the plaintiff met the statutory filing deadline, the court need not, at this
time, address the parties’ arguments concerning whether the plaintiff is entitled to equitable
tolling because another litigant’s attorney urged her to wait to file suit until several pending
discrimination cases against the same employer were mediated.

Although the court is denying the motion to dismiss, this ruling does not preclude the

defendant from re-raising the issue of timeliness in a motion for summary judgment or at


wae

ei a ak

2 ee ele i

Minute Order Form (06/97)

s United States District Court, Northern District of Illinois
Name of Assigned Judge | ~BI_ANCHE M. MANNING Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 00 C 6636 DATE MAR 23 2001
CASE Gayla Pressner vs. Target Corp., et al.
TITLE

nature of the motion being presented ]

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

discovery regarding the timeliness of this lawsuit is granted.

(il) @ [See attached Memorandum Opinion and Order.]

‘No notices required, advised in open court. _
+ . 7

No notices required. number of notices
Notices mailed by judge’s staff, ~

, MAR 27 2007
Notified counsel by telephone. date docketed

¥ | Docketing to mail notices,
. nok }

Mail AO 450 form. dockering’alguf rival
Copy to judge/magistrate judge.

ean 2
courtroom PAR BR,
mjm deputy’s
initials

Date/time received in aaa j

ti sine 7
central Clerk’s Office ailing deputy initials

MOTION:
DOCKET ENTRY: «
q@ a Filed motion of [ use listing in “Motion” box above.]
(2) im) Brief in support of motion due
(3) Qa Answer brief to motion due___. Reply to answer brief due
4) im Ruling/Hearing on setfor___—__at
(5) ao Status hearing[held/continued to] [set for/re-set for] on setfor at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on —__setfor_at_
(7) a Trial[set for/re-set for]on___at
(8) o [Bench/Jury trial] [Hearing] held/continued to ___at
(9) ao This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OGeneralRule21 O FRCP41(a)(1) O FRCP41(a)(2).
(0) om [Other docket entry] _ For the reasons set forth in the accompanying Memorandum Opinion and

Order, the defendant’s motion to dismiss (#9) is denied without prejudice. The plaintiff's “corrected
amended complaint” (#12) is stricken. The plaintiff is granted leave to file a third amended complaint
in accordance with this order within twenty-one days. The clerk is directed to provide the plaintiff with
an amended employment discrimination complaint form. The defendant’s request to conduct limited



a nl ail oR i i ia i

bi an ik

lle itn a i i. lta,

trial should evidence come to light that the plaintiff, in fact, received her right-to-sue notice

on July 25, 2000. The defendant ‘specifically requests the opportunity to conduct limited

discovery regarding the timeliness of the plaintiff’s complaint. The defendant believes that
the right-to-sue letter was sent by certified mail and that the U. S. Postal Service may have

records that will definitively establish the date of receipt. See Comer v, Interstate United

Corp., 118 F, R. D. 79, 82- 82 (N.D. Ill. 1987). The motion is s granted. The defendant i is

granted leave te to conduct limited discovery relating to to the date the plaintiff received her

right-to-sue letter,
Turning to the planter’ impeopety filed “come amended complain,” the :

document must tbe stricken First, the plaintiff did not seek or obtain leave of court to file

the second amended complaint, as required by Fed. R. Civ. P. 15(a). Moreover, the court

already advised the plaintft that she could neither sue je defendants who Ww were ‘not named as

respondents in the Proceedings be before the Equal Enploymen Opportunity Commission,

Perkins v. Silverstein 939 F.2d 463, al (7" Cir. 1991), nor raise claims unrelated to the

allegations in the E.E.O.C. charge, McKenzie v. Illinois Dept. of Trans., 92 F.3d 473, 481

(7" Cir. 1996). See Minute Order of November 7, 2000. The second amended complaint is

unacceptable.
The plaintiff may file a third amended * complaint correcting the date she received her
right-to-sue letter. The plaintiff i is cautioned that in signing her pleadings and motions, she

is affirmatively expressing to the court that any representations she makes in her court



Gi ee

os te

are ener a =e

a le a Ri,

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

EASTERN DIV. ISION
GAYLA S. PRESSNER, )
Plaintiff,
v. } 00 cv 6636
TARGET CORPORATION }
d/b/a MARSHALL FIELD'S, )
Defendant. }

ORDER

The plaintiff, Gayla Pressner, has brought this pro se civil action pursuant to 42

U.S.C. § 2000e. The plaintiff claims that the defendant, Target Corporation (doing business

as Marshall Field’s) discriminated against her, in violation of Title VII of the Civil Rights
Act of 1964. More specifically, the plaintiff alleges that she was disciplined and harassed
because she is female and because she parvcipated i in Protected activity (acting 2 asa witness
in a lawsuit filed by a fellow employee). This matter is before the court t for consideration of
the defendant’s motion to dismiss the plaintit’s amended complaint as sime-bared. For the
reasons stated in this order, the motion will be denied.

It is well established that pro se complaints are to be liberally construed. Haines v.

Kerner, 404 U.S. 519, 520 (1972), reh’ & denied, 405 U.S. 948 (1972); see also McCormick v.

City of Chicago, 230 F.3d 319, 305 (7 Cit. 2000). They ca can be dismissed for failure to state a

claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in support



4
4
i

TRS te seers

of his claim which would entitle him to relief.” Haines, 404 U.S. at 521; Zimmerman v.
Tribble, 226 F.3d 568, 571 Cir. 2000).

When considering whether to dismiss a complaint for failure to state a claim upon
which relief can be granted, the court takes the allegations in the complaint as true, viewing

all facts--as well as any inferences reasonably drawn therefrom--in the light most favorable

to the plaintiff. Autry v. Northwest Premium Services, Inc., 144 F. 3d 1037, 1039 (7h Cir. 1998)

Dismissal should be denied whenever it appears that a ‘basis for federal jurisdiction i in fact
exists or may exist and can be stated by the plaintiff. Jones v. Edgar, 3 F.Supp.2d 979, 980

(C.D. Ill. 1998). Nevertheless, 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 (7" Cir. 1992), cert. denied, 506 U.S. 893 (1992).

PROCEDURAL BACKGROUND

The plaintiff is a former employee of Marshall Field’s in Chicago, Illinois. On July

7, 2000, the plaintiff filed a charge of discrimination with both the U; S. Equal Employment

Opportunity Commission and the Illinois Department of Human Rights. The plaintiff
complained of harassment and intimidation; she also maintained that she had been
discriminated against because of her sex and in retaliation for her protected activity.

On July 25, 2000, the E.E.O.C. issued its “right to sue” letter. The E.E.0.C.
indicated that it was terminating its process with respect to the discrimination charge. The

right-to-sue letter stated: