JORGE L. ALONSO, District Judge.
Three motions are before the Court. For the reasons explained below, defendant's agreed motion to amend the caption of the pleadings to reflect the proper defendant [31] is granted; defendant's amended motion to dismiss certain claims [22] is granted in part and denied in part; and plaintiff's motion for attorney representation [27] is denied. The Clerk of Court is directed to amend defendant's name in the case caption to read "Folding Guard Company, a division of Leggett and Platt, Incorporated." This case is set for a status hearing on January 27, 2016 at 9:30 a.m.
Pro se plaintiff, Victor J. Evans, brought this employment discrimination action against Folding Guard Company, asserting race and color discrimination in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), retaliation, and defendant's failure to stop ongoing "sexual harassment and lewd jokes."
In the complaint, plaintiff refers to the defendant as "Folding Guard Leggett & Platt." The parties are in agreement that the proper defendant is "Folding Guard Company, a division of Leggett and Platt, Incorporated." Therefore, defendant's agreed motion to amend the case caption [31] is granted.
On a Rule 12(b)(6) motion to dismiss, the Court construes the complaint in the light most favorable to the plaintiff, accepts as true all well-pleaded facts in the complaint, and draws all reasonable inferences in plaintiff's favor. Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009). "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations" but must contain "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
Defendant moves to dismiss what it characterizes as plaintiff's age, color, retaliation, and "sexual harassment" claims for failure to exhaust administrative remedies because the Charge of Discrimination plaintiff filed with the United States Equal Employment Opportunity Commission ("EEOC") did not encompass those claims. The charge claimed only race discrimination.
Plaintiff has failed to exhaust his administrative remedies for his age discrimination claim because his EEOC charge did not encompass any such claim. See, e.g., Escarzaga v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, No. 15 C 2568, 2015 WL 6445606, at *4 (N.D. Ill. Oct. 23, 2015) (dismissing age discrimination claim where plaintiff's EEOC charge asserted only claims of national origin, ancestry and disability discrimination). Therefore, plaintiff's age discrimination claim is dismissed. Because the EEOC charge also did not encompass color discrimination or retaliation, the Court dismisses, for failure to exhaust administrative remedies, plaintiff's Title VII claims for color discrimination and retaliation. See, e.g., Howell v. Rush Copley Med. Grp. NFP, No. 11 C 2689, 2012 WL 832830, at *3 (N.D. Ill. Mar. 12, 2012) (holding that an EEOC charge alleging discrimination based on "my race, Black" was insufficient to allow a federal suit alleging color discrimination); Reynolds v. Tangherlini, 737 F.3d 1093, 1100-01 (7th Cir. 2013) (holding that plaintiff failed to exhaust his administrative remedies on his Title VII retaliation claim). However, the Court will not dismiss plaintiff's § 1981 claims for color discrimination and retaliation
As for the claim that defendant characterizes as one for "sexual harassment," the Court construes this claim differently. Plaintiff alleges that because of his race, he was harassed and subjected to lewd jokes. In the complaint, he refers to this harassment and states that he was "the only black male that worked in the punch department," and in his response brief, he states that he was subjected to "lewd jokes about black penis."
The dismissals of plaintiff's ADEA claim and Title VII claims for color discrimination and retaliation will be without prejudice. Defendant seeks a with-prejudice dismissal, but that would be inappropriate; the claims are premature, not untimely. See Teal v. Potter, 559 F.3d 687, 693 (7th Cir. 2009).
On January 13, 2016, plaintiff filed, in addition to his response to defendant's motion to dismiss, 1) a document titled "wrongful termination" in which plaintiff explains that defendant terminated him from his job in October 2015 and the alleged circumstances; 2) a letter to the Court in which plaintiff discusses his termination and requests "help with an attorney"; and 3) a motion for attorney representation.
In his motion, plaintiff states that he contacted "Ms. Victoria L. Gray Chief Attorney, Law & Employment" to seek representation but has not received a response. It appears, however, that Ms. Gray is an attorney for the Chicago Transit Authority and does not represent private parties. Plaintiff does not state that he has contacted anyone else. The motion for attorney representation [27] is denied because plaintiff has not made reasonable attempts to seek representation with lawyers, firms, or legal aid societies or other associations that represent private parties.
As for plaintiff's filings concerning his termination, it appears that plaintiff is asserting that he was wrongfully terminated in retaliation for exercising his workers' compensation rights and filing the instant case, but it is unclear whether plaintiff seeks leave to amend his complaint to add these claims. The Court will set a status hearing to discuss the matter.
Defendant's agreed motion to amend the caption of the pleadings to reflect the proper defendant [31] is granted, and the Clerk of Court is directed to amend defendant's name in the case caption to read "Folding Guard Company, a division of Leggett and Platt, Incorporated." Defendant's amended motion to dismiss certain claims [22] is granted in part and denied in part. The motion is granted as to plaintiff's ADEA age discrimination claim and Title VII claims for color discrimination and retaliation, and those claims are dismissed without prejudice. The motion is denied as to plaintiff's § 1981 claims for color discrimination, retaliation, and a hostile work environment. Plaintiff's motion for attorney representation [27] is denied. This case is set for a status hearing on January 27, 2016 at 9:30 a.m.