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?
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
) ) ) ) ) ) ) ) ) )
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.
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
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).
Case: 1:12-cv-07037 Document #: 48 Filed: 04/10/13 Page 3 of 7 PagelD #:232
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 federalcontractors 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 ..
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.
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.
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
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.
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
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
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
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
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
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
CAUSES OF ACTION
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
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
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
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
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.
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
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