Pizano v. Fanning
4:17-cv-04006
C.D. Ill.Aug 9, 2017Background
- Plaintiff Elias Pizano, a Hispanic Mexican-American long‑time Army engineer, alleges race and national‑origin discrimination and retaliation by supervisors at ARDEC, including exclusion from meetings, denial of promotions, and discouragement from reporting discrimination.
- Pizano contacted an Army EEO officer in May 2016 and the Army’s Formal Complaint of Discrimination is dated July 20, 2016 (the Army produced an August 3, 2016 letter confirming a July 20, 2016 receipt date).
- Pizano filed this federal Title VII suit on January 10, 2017, asserting he exhausted administrative remedies after filing the formal complaint.
- The Army moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing Pizano filed suit before the statutorily prescribed 180‑day administrative review period elapsed and that some discrete acts were untimely for EEO counseling.
- The district court considered the complaint, Pizano’s response, and agency documents incorporated into the pleadings, and concluded the formal complaint was filed or deemed filed on July 20, 2016.
- Because Pizano filed suit before the 180‑day administrative review period expired, the court held he failed to exhaust administrative remedies and dismissed the complaint without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pizano exhausted administrative remedies before suing | Pizano contends the formal complaint was filed June 20, 2016, so 180 days had passed before Jan 10, 2017 | Army contends the formal complaint was filed/deemed filed July 20, 2016, so suit was premature | Court held plaintiff failed to exhaust because formal complaint was filed July 20, 2016 and suit was filed before 180 days elapsed |
| Whether discrete discriminatory acts are time‑barred for EEO counseling | Pizano implicitly disputes timeliness for some incidents | Army argues some alleged discrete acts were not timely reported to an EEO counselor within 45 days | Court did not reach merits after finding failure to exhaust 180‑day administrative period |
| Whether premature filing requires dismissal with prejudice | Pizano did not argue equitable tolling/estoppel based on reliance | Army argued dismissal appropriate for premature filing | Court dismissed without prejudice (failure to exhaust is an affirmative defense; premature filing merits dismissal without prejudice) |
| Whether documents referenced by pleadings can be considered on 12(b)(6) | Pizano failed to attach certain letters he cited | Army submitted agency documents central to the claim | Court considered agency documents incorporated by complaint and response when resolving the motion |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plausible factual allegations required)
- United States v. Lewis, 411 F.3d 838 (7th Cir. 2005) (complaint may be dismissed when it reveals an affirmative defense such as untimeliness)
- Venture Associates Corp. v. Zenith Data Sys. Corp., 987 F.2d 429 (7th Cir. 1993) (documents referred to in the complaint and central to the claim may be considered on a motion to dismiss)
- Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006) (federal employees must exhaust administrative remedies under Title VII)
- Reynolds v. Tangherlini, 737 F.3d 1093 (7th Cir. 2013) (claimants need not wait for a lagging agency; may sue after 180 days)
- Hill v. Potter, 352 F.3d 1142 (7th Cir. 2003) (plaintiff who sues before the 180‑day administrative period may be dismissed to preserve agency remedy)
- Gibson v. West, 201 F.3d 990 (7th Cir. 2000) (failure to exhaust is an affirmative defense subject to equitable tolling, estoppel, or waiver)
- Jones v. Ashcroft, 321 F. Supp. 2d 1 (D.D.C. 2004) (dismissal without prejudice appropriate when plaintiff sues before allowing full 180‑day administrative appeal)