Opinion
No. 00 C 7777.
June 26, 2003.
ORDER
Plaintiff Detrina Moore filed suit against the City of Chicago ("City"), the Chicago Police Department and Lieutenant William Powers alleging discrimination in hiring under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., ("ADA"), and 42 U.S.C. § 1983. The City has filed a motion to dismiss Moore's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons explained below, the motion is granted in part and denied in part.
Background
The facts are taken from Moore's pro se complaint along with her Charge of Discrimination filed with the Illinois Department of Human Rights and the EEOC ("EEOC charge"), which was attached as an exhibit to her complaint. Fed.R.Civ.P. 10(c). The court also considers additional facts raised by Moore in her response brief, including the attached letters. In defending against a motion to dismiss, a plaintiff may raise additional facts that are consistent with the complaint in order to show that there are facts which, if proved, would entitle him to judgment. Early v. Bankers Life Cas. Co., 959 F.2d 75 (7th Cir. 1992). The court declines to follow the City's suggestion that the exhibits be incorporated into Moore's complaint because Moore never properly requested leave to amend her complaint.
Moore is a female African-American who applied for a position as an officer with the Chicago Police Department in 1997. At some point prior to July 6, 1999, Moore was informed by the Chicago Police Department that her application was no longer being processed because she had "failed to cooperate" in a required psychological examination. On July 6, 1999, Moore wrote a letter to the Chicago Police Department explaining that she never received notice of the required psychological exam. In that letter, she asked to be rescheduled for the missed exam and reinstated to the eligibility list for potential hires. Moore also contacted the vendor used by the police department to conduct psychological tests who informed her that her "failed to cooperate" status was an oversight on the vendor's part and that she would be placed back on the list of potential hires. In late July 1999, Moore contacted police headquarters to inform them of the vendor's error and was told by a Sergeant Papanowski that she would be placed on a priority list for hiring and her application would continue to be processed. On August 5, 1999, "approx[imately] a week later," Moore received a letter stating that the testing vendor has determined that she was not "well-suited" for police work. In a letter dated September 24, 1999, Lieutenant Powers stated that the Chicago Police Department had informed Moore of the vendor's conclusion (that she was not "well-suited" for police work and that her application would no longer be processed) in its August 5, 1999 letter (which was not provided to the court). Moore alleges that the Chicago Police Department refused to hire her because of her race, disability and sex.
"Sergeant Papanowski" referred to by Moore in her complaint is likely the same individual referred to as "Sergeant Parizanski" in the July 9, 1999 and August 3, 1999 letters.
Analysis
On a Rule 12(b)(6) motion to dismiss, the court considers all allegations in the complaint to be true and draws all reasonable inferences in the plaintiffs favor. Jacobs v. City of Chicago, 215 F.3d 758, 765 (7th Cir. 2000). A complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss, a pleading need "only contain enough 'to allow the court and the defendant to understand the gravamen of the plaintiffs complaint.'" McCormick v. City of Chicago, 230 F.3d 319, 323-24 (7th Cir. 2000) (quoting Payton v. Rush Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999)).
Title VII and ADA
The City contends that Moore's Title VII and ADA claims are time-barred because she failed to file a charge of discrimination with the EEOC within 300 days after the alleged discriminatory act took place. 42 U.S.C. § 2000e-5; 42 U.S.C. § 12117(a). The City argues that Moore has pled herself out of court by providing facts which show that she is not entitled to relief. Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995). Specifically, the City argues that in her complaint Moore listed August 5, 1999 as the date on which the alleged discriminatory act took place. Moore's EEOC charge of discrimination was filed on June 19, 2000. Therefore, the City argues that Moore's charge was filed more than 300 days after the alleged discriminatory conduct and is time-barred.
In paragraph 7 of her complaint, Moore actually claims that she filed her charge on June, 19, 1999. This date is prior to the date of the alleged discrimination and is therefore presumably erroneous. In any event, Moore's attached charge is stamped with a filing date of June 19, 2000.
In response, Moore admits that her complaint states that "[t]he defendant discriminated against the plaintiff on or about, or beginning on or about August 5, 1999." (Compl. ¶ 6.) However, Moore argues that in her EEOC charge she twice identifies September 1999 as the month when the alleged discrimination took place. Specifically, plaintiff stated that "Respondent was aware of my disability and refused to hire me in September 1999." In addition, in the box identified as "Date Discrimination Took Place," Moore listed September 1, 1999 as the relevant date. In light of the dates listed on the EEOC charge, Moore argues that the allegations on the face of the complaint (and its exhibit) are sufficient to place it within the required statutory time limits.
In the context of a motion to dismiss, the court must bear in mind that the statute of limitations is an affirmative defense, and a plaintiff is not required to negate an affirmative defense in his complaint. Tregenza v. Great American Comm. Co., 12 F.3d 717, 718 (7th Cir. 1993). But if the plaintiff pleads facts that show that his suit is time-barred, he can plead himself out of court. Id. Despite the fact that Moore lists August 5, 1999 in her complaint, the court does not conclude that she has pled herself out of court.
Taking the facts in the light most favorable to the plaintiff, as this court must at the motion to dismiss stage, the court cannot yet conclude that the City has established as a matter of law that it is entitled to a dismissal based on the statute of limitations affirmative defense. With respect to Moore's supposed "admission" that the discriminatory conduct took place on August 5, 1999, the court notes that the complaint actually says, "[t]he defendant discriminated against the plaintiff on or about, or beginning on or about, August 5, 1999." (Compl. ¶ 6) (emphasis added). Taking this in the light most favorable to the plaintiff, the court reads paragraph 6 as stating that the defendant's discriminatory conduct began on August 5, 1999. While the August 5, 1999 letter is not included as an exhibit to her response, Moore states in her response brief that she received an August 5, 1999 letter informing her that she was no longer being considered for a position because the testing vendor concluded she was not well-suited for police work. However, Moore contends that, because of the vendor's error and the assurances by the Chicago Police Department that she would be placed on the hiring list, Moore thought that the August 5, 1999 letter was mistakenly sent, and it was not until she received a September 24, 1999 letter from Lieutenant Powers that she understood that the decision not to hire her was final. Presumably reflecting the September 24, 1999 letter, Moore identifies "September 1999" in her EEOC charge as the date of the defendant's discriminatory conduct.
Moore also identifies "9/1/99" in her EEOC charge as the date of the discriminatory conduct took place. While it is not clear where this date came from or what it refers to, it too falls within the 300 day limitations period.
The court's attempt to piece together the timeline at issue here has been difficult in light of the fact that Moore does not provide the dates certain communications were made and the court does not have before it all of the written communications between Moore and the Chicago Police Department. The question is whether Moore, who had been attempting to right the vendor's error, should have been on notice that she was injured when she received the August 5, 1999 letter informing her that her application was rejected. In order to support her argument, Moore seems to rely on the discovery rule which postpones the beginning of the limitations period to the date when the plaintiff discovers or should have discovered that she has been injured. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990). In addition, Moore suggests that the doctrine of equitable estoppel may apply because she was lulled into a false sense of security by the defendants. Id.
The question before the court at this stage is only whether there is any set of facts that if proven would establish a defense to the statute of limitations, Early, 959 F.2d at 80, and the court concludes that such a possibility exists here. Moore's complaint, though confusing in sequence, does make reasonably clear that Moore is attempting to allege that she did not believe she was injured until she received the September 24, 1999 letter. "If [plaintiff] can prove his allegation and also show that a reasonable person would not have discovered the injury earlier, he would have a defense to the time bar." Clark v. City of Braidwood, 318 F.3d 764, 767-78 (7th Cir. 2003). By informing Moore that the vendor had erred and assuring Moore that the error that would be remedied, defendants may have postponed Moore's claim from accruing until she received the September 24, 1999 letter. See Cada, 920 F.2d at 451 (accrual, which starts the running of the statute of limitations, starts on the date the plaintiff discovers that he has been injured). Moore has alleged facts that, if true, suggest that the clock started running in September 1999. Therefore, the court concludes that dismissal at this point would be premature. See generally Early, 959 F.2d at 80 (finding dismissal premature where plaintiff could prove a set of facts that would show that the untimeliness of his suit was due to wrongful acts of defendants). However, the court acknowledges that the City still has a viable affirmative defense. Given the possibility that the filing of the EEOC charge was untimely, the statute of limitations issue could easily be tested on a motion for summary judgment after a limited period of discovery on the single issue of the affirmative defense.
The court rejects the City's contention that Moore's statement in a January 3, 2001 letter that she was "confused," "humiliated" and in "total disbelief" when she received the August 5, 1999 letter proves that she understood she was injured. Those reactions are not inconsistent with her argument that she did not understand that she was injured until she received the September 24, 1999 letter.
The court denies the City's motion to dismiss the Title VII and ADA claims based on the statute of limitations. However, the court holds that because Moore failed to identify "sex" as a basis for her discrimination in her EEOC charge, she may not pursue that basis now under Title VII. Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir. 1989).
28 U.S.C. § 1983
There is no heightened pleading standard for civil rights claims alleging liability under § 1983. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993). However, in order to allege that a municipal policy has violated an individual's civil rights under § 1983, Moore must allege that "(1) the City had an express policy that, when enforced, causes a constitutional deprivation; (2) the City had a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage within the force of law; or (3) plaintiffs constitutional injury was caused by a person with final policymaking authority." McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000). While Moore must allege only enough so that the defendant may understand the "gravamen of her complaint," Payton, 184 F.3d at 627, and pro se complaints are to be liberally construed, Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 378 (7th Cir. 1988), the court concludes that Moore has failed to adequately plead a claim under § 1983. As correctly pointed out by the City, Moore fails to identify any custom, policy or policymaker involved in the police department's decision not to hire her. Without this, Moore has failed to state a claim and her § 1983 claim must be dismissed.
For all the reasons described above, the City's motion to dismiss is granted in part and denied in part.