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4:13-cv-04016-SLD-JAG # 15 Page 1 of 4

Tuesday, 30 July, 2013 11:45:48 AM
Clerk, U.S. District Court, ILCD








Case No. 4:13-cv-04016



Plaintiff Nadine Gay alleges that Defendant Quad City Hotel, L.L.C. (“the Hotel”)

discriminated against her based upon her race and disability in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”). Gay also

alleges that the Hotel harmed her through an intentional infliction of emotional distress. This

matter is now before the Court on the Hotel’s motion to dismiss. Mot. to Dismiss, ECF No. 6.

The Court will treat the Hotel’s motion regarding Counts I - VI as a motion for summary

judgment pursuant to Rule 12(d) of the Federal Rules of Civil Procedure because a critical matter

outside the pleadings has been raised. The Court reserves ruling on the motion to dismiss Count

VII (intentional infliction of emotional distress).


Gay filed her complaint with the Equal Employment Opportunity Commission (“EEOC”)

on November 22, 2011. ECF No. 7-1. On September 11, 2012, the EEOC dismissed Gay’s

claim and sent her a notice of her right to sue the Hotel “within 90 days of [her] receipt” of the

notice. ECF No. 7-2. On January 9, 2013, 120 days later, Gay filed her complaint in Illinois

State Court. ECF No. 1-1.


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After removing the case to federal court, the Hotel promptly filed the motion to dismiss

that is now in question. Mot. to Dismiss, ECF No. 6. The Hotel argues that the Title VII and

ADA claims contained in Counts I - VI of Gay’s complaint should be dismissed because Gay

failed to file her lawsuit within the ninety-day deadline prescribed by 42 U.S.C. § 2000e-5(f)(1).

Id. Additionally, the Hotel argues that Count VII of Gay’s complaint should be dismissed for

failure to state a claim under the pleading standard established by Twombly and Iqbal.

Gay responded to the Hotel’s motion with an affidavit from Gay’s attorney. Aff. in Opp.

re Mot. to Dismiss, ECF No. 11. In the affidavit, Gay’s attorney swears that he did not receive

the right to sue notice until October 9, 2012. Id. Gay claims this makes her filing the complaint

on January 9, 2013, timely.


In an employment discrimination action, a claimant is required to file a lawsuit against an

employer within ninety days of receiving notice of their right to sue from the EEOC. 42 U.S.C.

§ 2000e-5(f)(1) (“If the charge filed with the Commission . . . is dismissed . . . the Commission .

. . shall so notify the person aggrieved and within ninety days after the giving of such notice a

civil action may be brought against the respondent named in the charge . . .”). In the Seventh

Circuit, a claimant is presumed to receive notice five days after notice is mailed from an

administrative agency like the EEOC. See Loyd v. Sullivan, 882 F.2d 218, 218 (7th Cir. 1989);

Scott v. Coca Cola Enters., Inc., No. 2:05-CV-41, 2005 WL 1661808 at *4 (N.D. Ind. 2005).

The five-day presumption of receipt is, however, rebutted if the evidence shows when the notice

was actually received. Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850 (7th Cir. 2001)

(quoting Jones v. Madison Service Corp., 744 F.2d 1309, 1312 (7th Cir. 1984)).


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Motions to dismiss are to be determined solely on the information contained in the

pleadings. See Fed. R. Civ. P. 12(b). Gay’s response to the Hotel’s motion to dismiss contains

an affidavit that states that Gay’s attorney received the notice of right to sue from the EEOC on

October 9, 2012. ECF No. 11. Because the Court wishes to consider this affidavit in order to

resolve the motion to dismiss, and the affidavit is a matter outside of the pleadings, the Court

must convert the motion to dismiss to a motion for summary judgment. See Fed. R. Civ. P.

12(d); Tregenza v. Great Am. Commc’ns Co., 12 F.3d 717, 719 (7th Cir. 1993) (holding that an

affidavit considered by a trial court during a motion to dismiss converts a motion to dismiss to a

motion for summary judgment).

As the facts currently stand, Gay has conceded that her lawsuit was untimely filed in

violation of 42 U.S.C. § 2000e-5(f)(1). Gay’s attorney swears that he received actual notice on

October 9, 2012. The time between October 9, 2012 and January 9, 2013 (the date Gay’s lawsuit

was filed) is ninety-two days, not ninety.1 This deadline is strict and leaves the Court no leeway

to grant slight exceptions. See Guy v. Robbins & Myers, Inc., 429 U.S. 229, 239-40 (1976)

(“Congress has already spoken with respect to what it considers acceptable delay when it

established a 90-day limitations period . . . Congress did not leave to courts the decision as to

which delays might or might not be “slight.”); Jones v. Madison Serv. Corp., 744 F.2d 1309,

1314 (7th Cir. 1984) (holding that the filing of a Title VII lawsuit ninety-two days after receipt of

receiving actual notice of right to sue was “untimely”).

Pursuant to Rule 12(d), this order is only a notice to the parties that the Court intends to

treat the Hotel’s motion to dismiss as a motion for summary judgment. Gay has twenty-one days

1 While neither party has raised this fact, since this motion is now a motion for summary
judgment, the Court may “grant the motion on grounds not raised by a party.” Fed. R. Civ. P.


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to respond to this order and either withdraw Counts I - VI or explain to the Court why there is a

genuine issue of material fact regarding the timeliness of this lawsuit and the Hotel is not entitled

to judgment as a matter of law.


For the reasons described above, the Court converts the Hotel’s motion to dismiss, ECF

No. 6, to a motion for summary judgment for Counts I - VI of Gay’s complaint. Gay has twenty-

one days to respond to the motion for summary judgment. The Court reserves ruling on the

motion to dismiss Count VII (intentional infliction of emotional distress). To the extent that the

parties wish to conduct discovery concerning the issues raised in the motion for summary

judgment, the parties must file a motion requesting the desired discovery.

Entered this 30th day of July, 2013.

s/ Sara Darrow