BLANCHE M. MANNING, U.S.D.J.
Defendant, Electrical Joint Apprenticeship And Training Trust ("EJATT") (incorrectly named in Plaintiffs' complaint as the "Electrical Joint Apprenticeship Committee") moves to dismiss Derrick M. Calvin's complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) or, in the alternative, for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, EJATT's motion to dismiss is DENIED. EJATT has until March 20, 2000 to file a motion for summary judgment on the issue of whether Calvin's suit is timely.
I. Standard for a Motion to Dismiss
Regardless of whether the Court considers the Defendants' motion under Fed.R.Civ.P. 12(b)(1) or 12(b)(6), dismissal is properly granted only if it is clear that no set of facts which the plaintiff could prove consistent with the pleadings would entitle him to relief. See, Kunik v. Racine County, Wis., 946 F.2d 1574, 1579 (7th Cir. 1991) (motion to dismiss under 12 (b)(6) for failure to state a claim); Komorowski v. Townline Mini-Mart and Restaurant, 162 F.3d 962, 964 (7th Cir. 1998) (per curiam) (motion to dismiss under 12(b)(1) for lack of jurisdiction). See. e.g., McMath v. City of Gary, 976 F.2d 1026, 1031 (7th Cir. 1992); Gillman v. Burlington Northern R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989). Dismissal is properly granted only if no set of facts which a Plaintiff could prove consistent with the pleadings would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-56, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Kunik, 946 F.2d at 1579, citing, Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
II. Background
Calvin is a former member of an apprenticeship program operated by EJAAT. On June 22, 1998, Calvin alleges that he was suspended from the program in retaliation for filing racial discrimination charges with the Illinois Department of Human Rights and Equal Employment Opportunity Commission ("EEOC"). On July 14, 1998, the EEOC informed Calvin that it would not file suit on his behalf. The EEOC also issued Calvin a Notice of Right to Sue which Calvin received by certified mail on or around July 14, 1998. Calvin brought this action on April 27, 1999, approximately 287 days after he received the right-to-sue letter.
III. Discussion
EJATT moves to dismiss Calvin's complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) or, in the alternative, because his complaint fails to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
A. Motion to Dismiss for Lack of Jurisdiction
EJATT moves to dismiss Calvin's complaint on the grounds that his Title VII civil rights claim is time-barred.
Title VII requires a claimant to clear certain administrative requirements before filing suit in this Court. A party must file a claim with the EEOC encompassing all claims that may later arise in this Court within 180 days of the alleged discriminatory act occurs. 42 U.S.C. § 2000e-5 (e)(1). If the EEOC dismisses the charge, it informs the claimant by certified mail that the action may be brought by the claimant against the employer within 90 days of receipt of the letter. 42 U.S.C. § 2000e-5 (f)(1). Similar to a statute of limitations, compliance with the 90-day time limit functions as a "condition precedent" to filing a suit. Perkins v. Silverstein, 939 F.2d 463, 470 (7th Cir. 1991); Alfred St. Louis v. Alverno College, 744 F.2d 1314, n. 2 (7th Cir. 1984); see, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). It is not, however, a jurisdictional prerequisite which poses "an absolute bar to suit." Perkins, 939 F.2d at 470. Thus, Title VII's filing requirements are not jurisdictional and EJATT's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) must be denied.
B. Motion to Dismiss for Failure to State a Claim
With its motion to dismiss, EJATT has attached a copy of Calvin's right-to-sue letter to demonstrate that his suit is time-barred. A motion to dismiss pursuant to Rule 12(b)(6) requires the Court to accept Calvin's factual allegations as true. Dismissal for untimeliness is only appropriate where facts comprising the defense appear on the face of the complaint. R.J.R. Services, Inc. v. Aetna Casualty and Surety Co., 895 F.2d 279, 281 (7th Cir. 1989); EEOC v. Park Ridge Public Library, 856 F. Supp. 477 (N.D.Ill. 1994). EJATT's argument for finding Calvin's complaint time-barred was not apparent until EJATT brought this motion. Therefore, the Court may not consider whether the right-to-sue letter bars Calvin's action. Accordingly, EJATT's motion to dismiss is DENIED.
III. Summary Judgment and Notice to Pro Se Litigants
EJATT's claim that Calvin's action is time-barred is appropriate for the Court to consider upon a motion for summary judgment, because facts outside of the pleadings may be considered. Fed.R.Civ.P. 56(e). In Lewis v. Faulkner, the Seventh Circuit established "a general rule that a prisoner who is a plaintiff in a civil case and is not represented by counsel is entitled to receive notice of the consequences of failing to respond with affidavits to a motion for summary judgment." 689 F.2d 100, 102 (7th Cir. 1982). To effect such notice, Lewis held that "defense counsel could provide this notice by including a short and plain statement of the need to respond with their summary judgment motion, giving both the text of Rule 56(e) and an explanation of the rule in ordinary English." Id. The Seventh Circuit extended the reach of Lewis to include all pro se plaintiffs. Timms v. Frank, 953 F.2d 281, 287 (7th Cir. 1992). Therefore, if EJATT pursues a motion for summary judgment, it must follow the rule in Lewis and provide Calvin with a short and plain statement of the consequences of failing to respond to the motion with affidavits or other supporting materials.
CONCLUSION
For the reasons stated above, EJATT's motion to dismiss [20-1] is DENIED. EJATT must request leave to file a motion for summary judgment, attached with an answer to the complaint, and a copy of the Lewis notice to Calvin, by March 20, 2000. Because the Court wishes first to address the issue of whether Calvin's suit is timely, the motions to dismiss filed by each the International Brotherhood of Electrical Workers, Local No. 134 [14-1] and Electrical Contractor Association of City of Chicago [19-1] are stricken. The proceedings as to these two Defendants will be held in abeyance pending the resolution of the timeliness issue. SO ORDERED.
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