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Tuesday, 30 July, 2013 11:45:48 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
QUAD CITY HOTEL, L.L.C.,
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
UNITED STATES DISTRICT JUDGE