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Ely
Ely, Counselor at Law
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ely I talked on 4/12 about a case I have in federal court

Resolved Question:

ely

I talked on 4/12 about a case I have in federal court I have completed the amended complaint can you review
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend,

Sure - please copy and paste, or, use the paperclip icon on the toolbar to attach it.

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.


the federal judge is asking that I allege each claim in a separate count and identify the jurisdictional basis for each claim have I achieved that?

 

judges order

 

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

 

 

XXXXXXXX

Plaintiff,

vs.

XXXXXXXXX.,

Defendants.


)
)
)
)
)
)
)
)
)
)


XXXXXXXXXXX

 

 

MEMORANDUM OPINION AND ORDER

Plaintiff XXXXXXX filed a two count pro se complaint against defendants CDW LLC

("CDW") and Computer Resource Solutions, Inc. ("CRS") alleging (1) disability discrimination

in violation ofthe Americans with Disabilities Act of 1990 ("ADA"), 42 D.S.C.

§§ 12111-12117, and/or the Rehabilitation Act of 1973, 29 D.S.C. § 793; and (2) age

discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"),

29 U.S.C. §§ 621 et seq. Defendant CDW has moved to dismiss XXXX ADEA claim (#9) and

defendant CRS has moved to dismiss the complaint in its entirety (#21). Before receiving a

ruling on these motions, XXX filed two documents styled as amended complaints (#33, #34),

which defendants have moved to strike (#39, #41). For the reasons set forth herein, defendants'

motions will be granted in part and denied in part.

BACKGROUND

On September 8, 2011, XXXX filed a complaint of discrimination with the Office of

Federal Contract Compliance Programs ("OFCCP") alleging disability discrimination in

 

Case: 1:12-cv-07037 Document #: 48 Filed: 04/10/13 Page 2 of 7 PagelD #:231

violation of Section 503 ofthe Rehabilitation Act, 29 D.S.C. § 793, and violation of the Vietnam

Era Veterans' Readjustment Assistance Act of 1974 ("VEVRAA"), 38 U.S.c. § 4212. (Dkt. #32

Ex. A.)! On June 4,2012, the OFCCP issued a notice of right- to-sue. (Dkt. #1 at 9 of9.) CDW

was the only defendant listed on the notice. On September 4,2012, XXXX filed the present

complaint.

LEGAL STANDARD

In ruling on a Rule 12(b)(6) motion, the court accepts as true all well-pleaded facts in the

plaintiffs complaint and draws all reasonable inferences from those facts in the plaintiffs favor.

Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To survive a Rule 12(b)(6) motion, the

complaint must not only provide the defendant with fair notice of a claim's basis but must also

establish that the requested relief is plausible on its face. Ashcroft v. Iqbal, 556 US. 662, 678,

129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); see Bell At!. v. Twombly, 550 U.S. 544, 555, 127 S.

Ct. 1955, 167 L. Ed. 2d 929 (2007). The allegations in the complaint must be "enough to raise a

right of relief above the speculative level." Twombly, 550 U.S. at 555. At the same time, the

plaintiff need not plead legal theories. Hatmakerv. Mem. '1 Med. Ctr., 619 F.3d 741, 743 (7th

Cir. 2010). Rather, it is the facts that count.

1 Braun neglected to attach a copy of his OFCCP complaint to his initial pleading, but CDW
included a copy of the complaint as an exhibit to its reply brief. Because this document is referenced in
the complaint and central to XXXX claims, the court may consider it in ruling on the motions to dismiss.
See 188 LLe v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002).

2

 

Case: 1:12-cv-07037 Document #: 48 Filed: 04/10/13 Page 3 of 7 PagelD #:232

ANALYSIS

  1. ADAlRehabilitation Act Claim

CRS moves to dismiss XXXX disability discrimination claim arguing that (1) no private
right of action exists under the Rehabilitation Act; and (2) XXXX has failed to exhaust his
administrative remedies under the ADA or alternatively, the ADA claim fails to state a claim.

As to CRS's first argument, the Seventh Circuit has held that there is no private right of
action under Section 503 of the Rehabilitation Act, which requires federal
contractors to take
affirmative action to employ qualified handicapped individuals. See D'Amato v. Wise. Gas Co.,
760 F.2d 1474, 1487 (7th Cir. 1985) ("Section 503 provides its own administrative remedy.
Unlike Title VII, no private right of action is available and the administrative complaint is the
only recourse available to a private plaintiff."); Simpson v. Reynolds Metals Co., 629 F.2d 1226,
1238 (7th Cir. 1980) ("[W]e conclude that Congress did not intend to create a private right of
action to remedy violations of § 503 of the Rehabilitation Act."). Thus, to the extent XXXXXX
intends to proceed on his disability discrimination claim, he must do so under the ADA.

CRS next argues that XXXX has failed to exhaust the administrative remedies for his
ADA claim because CRS was not named in XXXX OFCCP complaint and CRS was not
identified in the notice of right- to-sue. A review of the relevant documents demonstrates that in
the text of his complaint filed with OFCCP, XXXX identified CRS as one of two entities that had
discriminated against him. (See Dkt. #32 Ex. A.) Although it does not appear that the OFCCP
sent CRS a copy of XXXX notice of right- to-sue (see Dkt. #1 at 9 of 9), nevertheless, the
Seventh Circuit has held that a plaintiff may proceed against a party that is not named in the
initial charge where the "unnamed party has been provided with adequate notice of the charge ..

3

 

Case: 1:12-cv-07037 Document #: 48 Filed: 04/10/13 Page 4 of 7 PagelD #:233

. [and] the party has been given the opportunity to participate in conciliation proceedings aimed

at voluntary compliance." Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir.

1989) (quoting Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130,657 F.2d

890,905 (7th Cir. 1981)). CRS has failed to demonstrate that it did not receive adequate notice

of XXXX complaint and/or that it was prevented from attempting to voluntarily resolving his

complaint. XXXXX may be able to explain, as well, why CRS was omitted on the first page of his

complaint but named in the text. Thus, it would be premature to dismiss XXXX ADA claim

against CRS at this time.'

Finally, CRS argues that the complaint fails to state an ADA claim upon which relief

may be granted. XXXX filed apro se complaint using this court's standard employment

discrimination form. Under Rule 8(a), he need only provide a "short and plain statement of the

claim showing that [he] is entitled to relief." Fed. R Civ. P. 8(a)(2). Contrary to CRS's

position, XXXXXX need not allege a prima facie case of discrimination in his complaint. See

Swierkiewicz v. Sorema, NA., 534 U.S. 506, 510,XXXXX 992, 152 L. Ed. 2d 1 (2002) ("The

prima facie case under McDonnell Douglas ... is an evidentiary standard, not a pleading

requirement."), overruled in part on other grounds by Twombly, 550 U.S. at 562-63; Swanson v.

Citibank, NA., 614 F.3d 400,404 (7th Cir. 2010) ("The Supreme Court's explicit decision to

2 Although CRS is correct that the notice of right- to-sue contains no explicit reference to the
ADA, CRS cites no authority for its position that this alleged defect forecloses liability. Rather, federal
regulations state that the "OFCCP will act as EEOC's agent for the sole purpose of receiving,
investigating and processing the ADA charge component of a section 503 complaint[,]" 29 C.F.R.

§ 1641.5(a), and "fthe OFCCP investigation of the section 503 complaint/ADA charge results in a
finding of no violation under section 503 (no cause under the ADA), OFCCP will issue a determination of
no violation/no cause under both section 503 and the ADA, and issue a right-to-sue letter under the ADA,
closing the complaint/charge." 29 C.F.R. § 164l.S(e)(1). Thus, absent a showing by CRS that the
OFCCP did not investigate XXXX ADA claim, the court declines to dismiss his complaint on this basis.

4

 

Case: 1:12-cv-07037 Document #: 48 Filed: 04110113 Page 5 of 7 PagelD #:234

reaffirm the validity of Swierkiewicz ... , which was cited with approval in Twombly, 550 U.S.
at 556,XXXXX 1955, indicates that in many straightforward cases, it will not be any more
difficult today for a plaintiff to meet [Rule 8's pleading] burden than it was before the Court's
recent decisions.").

The complaint alleges that CDW is a federal contractor and that CRS is a subcontractor
with whom XXXX sought employment. XXXXX notified CDW that he was a disabled veteran and
during his first week on the job he identified himself as a disabled veteran to his supervisor. His
requests for accommodation were subsequently ignored. As such, XXXX alleges that defendants
failed to hire him, terminated his employment and failed to reasonably accommodate his
disability in violation of the ADA. Moreover, XXXXX OFCCP complaint, which was not
attached to his complaint but which the court may properly consider, provides a number of
factual details about XXX qualifications and the scope and nature of defendants' alleged
discrimination. (See Dkt. #32 Ex. A.) These allegations are sufficient to plausibly suggest that
CRS failed to hire, terminated and/or failed to accommodate XXX disability in violation of
the ADA. Cf Swanson, 614 FJd at 404-05 ("A plaintiff who believes that she has been passed
over for a promotion because of her sex will be able to plead that she was employed by
Company X, that a promotion was offered, that she applied and was qualified for it, and that the
job went to someone else. That is an entirely plausible scenario, whether or not it describes what
'really' went on in this plaintiffs case.") CRS's motion to dismiss XXX ADA claim is
therefore denied.

5

 

Case: 1:12-cv-07037 Document #: 48 Filed: 04110113 Page 6 of 7 PagelD #:235

II. ADEA Claim

Defendants next move to dismiss XXXX ADEA claim for failure to exhaust his
administrative remedies. On this point defendants are correct. A plaintiff may not bring a claim
of discrimination under the ADEA in federal court without first filing a charge before the Equal
Employment Opportunity Commission. See Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520,
527 (7th Cir. 2003). The complaint expressly states that XXXX did not file such a charge.
Moreover, the allegations in his OFCCP complaint relate to his disability claim, not his age
claim. Dismissal is therefore proper. Because XXX is proceeding pro se, the court will allow
him an opportunity to amend his complaint to demonstrate that he properly exhausted his
administrative remedies as to his ADEA claim. If XXX cannot make this showing, however,
the court will dismiss his age claim. See 29 D.S.C. § 626(d)(1) ("No civil action may be
commenced by an individual under this section until 60 days after a charge alleging unlawful
discrimination has been filed with the Equal Employment Opportunity Commission ... within
300 days after the alleged unlawful practice occurred.").

III. Motions to Strike

Finally, defendants have moved to strike two documents filed byXXX and styled as
amended complaints. The court agrees thatXXXX failed to seek proper leave under Rule
15(a)(2) before filing these documents and that they unnecessarily muddle the present
proceedings. Nevertheless, Rule 15(a)(2) directs the court to "freely give leave [to amend] when
justice so requires" and, as such, the court will allowXXX leave to file a single amended
complaint. Fed. R. Civ. P. lS(a)(2). XXXXs amended complaint should, at a minimum,
include allegations related to his ADA and ADEA claims (as discussed supra) as well as any

6

 

Case: XXXXXXX Document #: 48 Filed: 04/10/13 Page 7 of 7 PagelD #:236

other claims that XXXXX intends to assert against defendants. For clarity,XXXX is requested to

allege each claim in a separate count and identify the jurisdictional basis for each claim that

allows him to assert the claim in federal court. See Fed. R. Civ. P. 8(a)(l) & lO(b) & (c).' In

addition, XXXX must plead facts that demonstrate that he has exhausted his administrative

remedies as it relates to his ADEA claim.

ORDER

The partial motion to dismiss for failure to state a claim by defendant XXXX(#9) is

granted without prejudice. The motion to dismiss for failure to state a claim by defendant

Computer Resource Solutions, Inc. (#21) is granted without prejudice as to plaintiff's ADEA

claim and denied as to plaintiffs ADA claim. Defendants' motions to strike plaintiffs amended

complaints (#39, #41) are granted without prejudice. Plaintiff is given leave to file a single

amended complaint by April 23, 2013. This case will be called for status on April 30, 2013 at

8:30 a.m.


my amended compliant

 

 

------------------------------------------------------------------------------------------------------------

PLAINTIFFS AMENDED COMPLAINT

 

JURY TRIAL DEMANDED

-----------------------------------------------------------------------------------------------------------

 

 

COMES NOW the Plaintiff, XXXXX, Pro Se, and files this action to recover damages

 

for violations of his rights under the Americans with Disabilities Act of 1990, as

 

amended against Defendant(s), XXXXXXXX

 

In support of this cause, the Plaintiff would show unto the Court the following facts to

 

wit:

 

PARTIES

 

1. The Plaintiff, XXXXX, is an adult male resident of Gwinnett County,

 

Georgia, residing at XXXXXXXXX

2. The Defendant(s), XXXXXXs are

 

Corporations doing business in the state of Illinois with its principle place

 

 

 

of business located in XXXXXXX and

 

XXXXXXX, respectively.

.

JURISDICTION AND VENUE

 

3. This Court has federal question jurisdiction.

 

4. This Court has personal jurisdiction over the Defendant(s) and venue is

 

proper in this Court.

 

5. Plaintiff timely filed a Charge of Discrimination in Employment Under

 

Federal Government Contractors with the OFCCP.

 

On June 4, 2012, the OFCCP issued a Dismissal and Notice of Right too

 

Sue Plaintiff timely files this Cause of Action within ninety (90) days of

 

receipt of his Dismissal and Notice of Right to Sue.

 

STATEMENT OF THE FACTS

 

6. On June 8, 2011, Plaintiff responded to an E-Mail from XXXXXX,

 

recruiter for CRS for a position as a Wireless Consultant.

 

7. On June 15, 2011, Plaintiff's recruiter, XXXXXXXX, advised him that he

 

would be interviewing with two CDW employees, XXXXXX

 

8. On June 17, 2011 Plaintiff was informed by XXXXXXX, CRS recruiter

 

that CDW approved plaintiff’s hire as a CDW Principal Wireless

 

Engineer at $50.00 per hour.

 

9. On June 19, 2011 Plaintiff sent XXXXXX and e-mail and attached a

 

copy of his Service Connected Veterans Administration Identification

 

card. In the e-mail, plaintiff identified himself as a service connected

 

disabled Veteran.

 

10. On June 21, 2011 Plaintiff filled out a CRS employment application

 

identifying himself as a Veteran.

 

11. On June 23, 2011 Plaintiff, at the request of CDW, filled out OPM form

 

306, application for Federal employment identifying himself as a Veteran

 

of the Vietnam Era.

 

12. On July 15, 2011, Plaintiff identified himself, by e-mail, to XXXXXXXX CDW VA Program Technical Architect as a Disabled Veteran.

 

13. On July 19, 2011, Plaintiff approached XXXXXX, CDW Site Lead,

 

Identified himself as a disabled Veteran by producing his service

 

connected Veterans ID. Plaintiff wanted to discuss some accommodations

 

he would need to perform the job. Mr.XXXX l told Plaintiff that this was a

 

CDW contract/project not a Veterans project. Mr. XXXXX informed

 

Plaintiff that because of it being a CDW contract his Veterans status did

 

not apply.

 

14. On July 22, 2011 plaintiff was informed by CRS that his services would

 

not be needed.

 

15. Defendant's actions constitute a negligent, willful, and direct violation of

 

his rights under Vietnam Era Veterans Readjustment Assistance Act as

 

amended

 

 

 

 

 

 

 

 

 

CAUSES OF ACTION

 

COUNT ONE:

 

DIRECT VIOLATION OF THE ADA

 

16. Plaintiff re-alleges and incorporates all averments set forth in paragraphs 1

 

through 15 above as if fully incorporated herein.

 

17. The Defendant(s) violated the ADA by improperly refusing to

 

acknowledge Plaintiff’s disability.

 

18. The unlawful actions of the Defendant complained of above were

 

intentional, malicious, and taken in reckless disregard of the statutory

 

rights of Plaintiff. Under the ADA, Plaintiff in entitled to recover at a

 

minimum:

 

a. Compensatory Damages;

 

b. Punitive Damages;

 

c. Back Pay

 

d. Interest on Back Pay;

 

e. Reinstatement or Front Pay in lieu of reinstatement;

 

f Plaintiff Fees; and Costs.

 

PRAYER FOR RELIEF

 

Plaintiff respectfully XXXXX XXXXX the Court cause service to issue in the cause upon

 

the Defendant and that this matter be set for trial. Upon trial by jury thereon, Plaintiff

 

prays that the following relief be granted:

 

a. Damages resulting from Defendant's actions including: unpaid

 

pay increases, unpaid vacation pay, unpaid back pay, lost benefits, and

 

other pecuniary losses proximately caused by Defendant's unlawful

 

conduct;

 

b. Compensatory damages against Defendant in an amount to be determined

 

by the jury;

 

c. Reinstatement or front pay in lieu of reinstatement;

 

d. Punitive damages against Defendant in an amount to be determined by the

 

jury;

 

e. All costs, disbursements, pre-judgment interest, post-judgment interest,

 

expert witness fees and reasonable Plaintiff’s fees allowed under actions

 

brought pursuant to the American's with Disabilities Act of 1990; and

 

f. Such further relief as is deemed just and proper.

 

 

 

 

 

THIS the 2 3rd day of April 2013

 

Respectfully submitted

 

Expert:  Ely replied 1 year ago.
Hello,

Yes, except that no actual law is listed in the claim. One may wish to include specifically which statutory authority of law one is citing.

17. The Defendant(s) violated the ADA by improperly refusing to acknowledge Plaintiff’s disability...

Define ADA - which statutes specifically apply? See here.

Example:

"By refusing to acknowledge and provide for Plaintiff's disability as recognized under 42 USC § 12102(1)(A) et seq and refusing to accommodate as necessary under .... , Defendant has violated ...."

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups for free after rating. My ultimate goal is your complete satisfaction.
Customer: replied 1 year ago.

this is all I could find


 


 


17. By refusing to acknowledge and provide for Plaintiff's disability as



recognized under 42 USC 12102(1)(A)(B)(C) and refusing to


 


accommodate as necessary under .42 USC 12112 (a), Defendant has


 


violated Plaintiff’s rights under ADA.

Expert:  Ely replied 1 year ago.
Friend,

The thing is, I cannot tell you how to draft your complaint, as this goes above what an expert can do on this website.

But, generally speaking, this looks like a beginning - yes. The paragraph actually states what law is being alleged to be broken.

Ergo, one has jurisdiction, and a stated claim, arguably...

If at all possible, this should still be reviewed by counsel in person before filing.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups for free after rating. My ultimate goal is your complete satisfaction.
Customer: replied 1 year ago.


I agree time does not permit I thought the actions of the employer where so mean I didn't think it would go far. I most likely move for dismissal

Expert:  Ely replied 1 year ago.
Gary,

I understand. Just in case, I can recommend three resources. First, here is a list of all pro bono work in the state...

http://www.abanet.org/legalservices/probono/directory/illinois.html

…and another list:

http://www.lawhelp.org

Finally, you may call your local law school and see if they have a legal clinic place available. The legal clinic is a free service the school(s) provide to the community. While they are often overbooked, they have openings sometimes. Here is the list law schools in your state:

http://www.hg.org/law-schools-illinois.asp

Good luck, and please don't forget to rate my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you – or, please REPLY to keep on chatting – I want you to be satisfied.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 85239
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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