-RBC McKinley v. Premiere Food Service Inc, No. 1:2010cv00311 - Document 18 (N.D. Ind. 2010)
Court Description: OPINION AND ORDER GRANTING 12 MOTION for Partial Dismissal of Count 2 of complaint without prejudice filed by Premiere Food Service Inc. Signed by Judge Robert L Miller, Jr on 11/16/10. (jcp)
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION MARK McKINLEY, Plaintiff vs. PREMIERE FOOD SERVICE, INC., Defendant ) ) ) ) ) ) ) ) ) CAUSE NO. 1:10-CV-311 RM OPINION and ORDER Premiere Food Service, Inc. has moved to dismiss Mark McKinley s claim of employment discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. ยง 12101 et seq., found in Count 2 of his complaint. Premiere Food Service says that because Mr. McKinley admits in his complaint that he didn t file a charge of discrimination with the Equal Employment Opportunity Commission, he hasn t established that he exhausted his administrative remedies prior to bringing suit under the ADA and dismissal of Count 2 is proper under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. In response, Mr. McKinley agrees that Count 2 should be dismissed because he hasn t yet complied with the requirement of filing a charge with the EEOC. While exhaustion of administrative remedies doesn t constitute an absolute jurisdictional prerequisite to bringing suit, Mr. McKinley hasn t argued that the filing requirement in this case is subject to waiver, estoppel, or equitable tolling. See Gibson v. West, 201 F.3d 990, 993-994 (7th Cir. 2000). Accordingly, the court GRANTS the motion of Premiere Food Service for partial dismissal [docket # 12] and DISMISSES Count 2 of the complaint without prejudice. SO ORDERED. ENTERED: November 16, 2010 /s/ Robert L. Miller, Jr. Judge, United States District Court 2
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