Forma Scientific, Inc., 147 F.3d 567, 574 (7th Cir. 1998) (stating that ADA adopts
enforcement procedures of Title VII and that period is extended to 300 days). A claim
based on any of Kozmer’s allegations that occurred more than 300 days before filing
the EEOC charge on January 23, 2002 is time-barred. Thus only alleged events that
occurred after March 29, 2001 will be considered.

Kozmer states generally in her complaint that United discriminated against her
in September 2000 “through the present.” In its motion to dismiss United pointed out
that in her complaint Kozmer had not alleged any acts of discrimination which
occurred after March 29, 2001. Kozmer responded in her answer by providing the
specific instances of discrimination and retaliation. However, none of the allegations
in the answer fall within the allowable 300 day limitations period. According to
Kozmer, “[b]y April, 2001” she was placed in a new position which she was
unqualified for because of her disability and which consisted of tasks that effectively
lowered her status to that of a “clerk.” It is not clear from this statement when she was
placed in the new position. Although, Kozmer is a pro se plaintiff and on this motion
all reasonable inferences and ambiguities are to be determined in her favor, Kozmer
must do more than provide broad ranges of possible dates of discrimination,
particularly when there is a legitimate issue as to whether her claims are time barred.

Also, a reasonable interpretation of her being in her new position “by April” would be

-4-


CONCLUSION

Based on the foregoing reasons, we grant United’s motion to dismiss. We also

note that the retaliation claim based on the Family Medical Leave Act is not a subject

of the instant motion to dismiss.

Dated: _ october 30, 2002

Qs Plecroa

Charles P. Kocoras
Chief Judge
United States District Court


LEGAL STANDARD

The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test
the legal sufficiency of a complaint, not to decide the merits of the case. Gibson v. City
of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, all
well pleaded facts and allegations in the plaintiff's complaint must be taken as true and
all reasonable inferences drawn in a light most favorable to the plaintiff. Bontkowski
v. First Nat’l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993), A complaint should
not be dismissed for failure to state a claim “unless it appears beyond 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). Furthermore, a pro se complaint
will be liberally construed and held to a less stringent standard than formal pleadings
drafted by an attorney. See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001).
With these principles in mind, we now address the motion before us.

DISCUSSION

United argues that all counts relating to allegations of discrimination and
violations of the ADA are time-barred and must be dismissed because Kozmer failed
to file charges within 300 days of the alleged discrimination. In Iinois a plaintiff must
file a charge of discrimination with the EEOC within 300 days of the alleged unlawful

employment practice. See 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e); Fairchild v.


that she was placed in the new position sometime in March which would be time
barred unless it was done on March 30 or 31. However, we need not resort to
speculation to determine the discrimination which is the basis of Kozmer’s claim, She
was given ample opportunity to present at least the operative facts that are the basis of
her claim and she has failed to do so.

We note that Kozmer’s answer is somewhat disjointed. United has commented
in its reply on a supposed retaliatory action taken against Kozmer after March 29, 2001
that could be inferred from Kozmer’s answer. In her answer Kozmer mentions being
placed in the new position “[b]y April, 2001”and then states that “this was a deliberate
retaliation for complaining to management on the followin ig issues that developed prior
to January 22, 2001 .. ..” Kozmer then lists those issues and states that she met with
management “to discuss resolving those issues on April 30, 2001.” One possible
inference from those statements is that Kozmer complained about those issues to
management on April 30 and was later placed in the new position sometime after
April 30 in retaliation. However, if that were the case, then she would have been
placed in the new position sometime in May which would be inconsistent with her
statement that she was placed in the new position “[b]y April.” Another inference that
is reasonable from the above allegations is that she was placed in the new position

before April 30 in retaliation for complaining to management and then later met with

-5-


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judi Sitting Judge if Oth
vor Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER 02 C 2726 DATE 10/30/2002
CASE Kozmer vs. United Air Lines, Inc.
TITLE

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 nature

MOTION:

DOCKET ENTRY:

QQ) im) Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

GB) a Answer brief to motion due___. Reply to answer brief due__.

(4) oa Ruling/Hearingon ss setfor__— at,

(5) HC Status hearing set for 1/30/2003 at 9:30 A.M..

(6) Qa Pretrial conferencefheld/continued to} [set for/re-set for]on___setfor____—sat__.
(@) oOo Trialfset for/re-set for]on__at

(8) QO (Bench/Jury trial] [Hearing] held/continued to_____at

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

COFRCP4(m) ClLocal Rule 41.1 CFRCP41(a)(1) O FRCP41(a)(2).

ce)

ao) ff [Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: We grant United’s
motion (Doc 11-1) to dismiss. We also note that the retaliation claim based on the Family Medical Leave
Act is not a subject of the instant motion to dismiss. All other pending motions are denied. All discovery
to be completed by January 30, 2003.

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

No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone. ie T r
Docketing to mail notices.

Mail AO 450 form. neers

Copy iggQguimosistate judge.

umber of notices

Ekctipf ddfuty initials

SCT

oe date mailed notice

courtroom
deputy’s
initials

|, Date/time received in 7
central Clerk’s Office railing depuy intials



management on April 30 to reiterate the same complaints. This is reasonable in light
of the many other allegations that indicate she complained to United prior to April 30
and in light of her statement in her EEOC charge where she stated that on “April 30,
2001 [she] continued to complain to management . . ..” (Emphasis added.)

Kozmer also states that on May 16,2001 she was placed on illness leave because
she could not perform the tasks of the new position. However, being placed on leave
was merely the ultimate outcome after the alleged wrongful conduct of her being
placed in the new position that she was not able to perform. The leave is not a new act
of discrimination or retaliation. Finally, we note that Kozmer claims that she contacted
the EEOC prior to January, 2002, but in an appended exhibit to Kozmer’s answer is a
letter dated January 26, 2001 to Kozmer from the EEOC. The letter states that the
EEOC investigator received her correspondence concerning employment
discrimination, but warns her that her correspondence is not a charge and informs her
of the 300 day limitations period. Therefore we grant the motion to dismiss and we
need not address United’s argument that this court lacks jurisdiction due to the fact that

Kozmer was prematurely given a right to sue notice by the EEOC.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SUE E. KOZMER, )
Plaintiff, }
vs. } 02 C 2726
UNITED AIR LINES, INC., 5
Defendant. DOCKETED
OCT 3 1 2002

MEMORANDUM OPINION
CHARLES P. KOCORAS, Chief District Judge:

This matter is before the court on Defendant United Airlines, Inc.’s (“United”)
motion to dismiss Plaintiff Sue E. Kozmer’s (“Kozmer’) complaint pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth
below, we grant United’s motion to dismiss.

BACKGROUND

Kozmer was hired by United on August 4, 1984, and was promoted to a
supervisor position in 1987. During December of 1994 Kozmer sustained a work-
related injury to her hands that she claims left her with a permanent disability. In 1997
she returned to work and was assigned a different position. In September of 2000

Kozmer requested that United replace or repair her keyboard and she was remov:


from her position. Kozmer returned to United part-time after surgery on J anuary 22,
2001. Despite numerous requests and complaints to the management starting from
September 2000 onward, Kozmer claims that United failed to reasonably accommodate
her disabilities. According to Kozmer, by April of 2001 she was permanently placed
in a newly created position without reasonable accommodations. Kozmer claims that
the new position has in effect lowered her status to that of a clerk and that she is unable
to perform the tasks required ofher. Kozmer met with management on April 30, 2001
to discuss her complaints. On May 16, 2001, United placed Kozmer on a leave of
absence. Kozmer alleges that United violated its own policies with regard to leave of
absences. Furthermore, Kozmer alleges that United retaliated against her for
submitting complaints of disability discrimination and for exercising her rights under
the Family Medical Leave Act.

Kozmer filed charges of discrimination with the EEOC on J: anuary 23, 2002.
Kozmer received a notice of right to sue letter from the EEOC on January 28, 2002.
On April 16, 2002, Kozmer filed a pro se complaint allegin g that United discriminated
against her based on her disability in violation of the Americans with Disabilities Act
(“ADA”); that United retaliated against her for complaining about disability
discrimination; and that United failed to reasonably accommodate her disability at the

workplace.