John Tate v. Scr Medical Transportation

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1447
J OHN T ATE ,
Plaintiff‐Appellant,
v.
SCR MEDICAL T RANSPORTATION,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 10165 — Samuel Der‐Yeghiayan, Judge.
____________________
A RGUED D ECEMBER 15, 2015—D ECIDED D ECEMBER 28, 2015
____________________
Before BAUER , P OSNER , and HAMILTON, Circuit Judges.
P OSNER , Circuit Judge. John Tate filed this suit pro se,
seeking leave to proceed in forma pauperis. The suit charges
the defendant (Tate’s former employer, a company engaged
in providing non‐emergency medical transportation for dis‐
abled persons and veterans) with having discriminated
against him and then having retaliated against him for com‐
plaining about the discrimination. See 42 U.S.C. §§ 2000e et
seq. (Title VII of the Civil Rights Act of 1964) and 42 U.S.C.

-- 1 of 5 --

2 No. 15‐1447
§§ 12101 et seq. (Americans with Disabilities Act). The district
judge dismissed the suit, without allowing the plaintiff to
amend the complaint, on the authority of 28 U.S.C.
§ 1915(e)(2)(B)(ii). That section, a counterpart to Fed. R. Civ.
P. 12(b)(6), requires dismissal of a complaint filed by a plain‐
tiff seeking to proceed in forma pauperis if the complaint
“fails to state a claim on which relief may be granted.” The
actual word in the statute is “case” rather than “complaint,”
but by analogy to Rule 12(b)(6) (“a party may assert the fol‐
lowing defenses [to a claim for relief in any pleading] by mo‐
tion: … failure to state a claim upon which relief can be
granted”) we have read “case” in section 1915(e)(2)(B)(ii) to
mean “complaint.” Luevano v. Wal‐Mart Stores, Inc., 722 F.3d
1014, 1025 n. 5 (7th Cir. 2013).
The judge ruled that Tate’s complaint failed to state such
a claim because it contained “little more than conclusory le‐
gal jargon such as that he [the plaintiff] was ‘subjected to
sexual harassment,’ and that he ‘complained,’ that he ‘be‐
lieve[d he] was discriminated against because of [his] disa‐
bility’ and his ‘sex, male, and in retaliation for engaging in
protected activity.’” The judge continued that Tate had
placed “checks in a variety of boxes provided on his com‐
plaint form with conclusory statements such as that the De‐
fendant ‘failed to reasonably accommodate the plaintiff’s
disabilities.’”
But the judge was mistaken to think that the plaintiff was
required to plead more elaborately than he had done, except
(as we’ll see) with regard to his claim of disability discrimi‐
nation. As the Equal Employment Opportunity Commis‐
sion’s amicus curiae brief in support of Tate points out, he
prepared his complaint by filling out a complaint form sup‐

-- 2 of 5 --

No. 15‐1447 3
plied to him by the district court. The form does not require,
or indeed permit, extensive factual detail, for it provides on‐
ly six lines for listing “the facts supporting the plaintiff’s
claim of discrimination.”
Here is the plaintiff’s list (it was handwritten in the orig‐
inal, and was seven lines long, with the seventh line
squeezed in below the sixth—and final—line on the form):
I was hired by Defendant on or about August 4, 2014. My
most recent position was Driver Trainee. Defendant was
aware of my disability. During my employment, I was
subjected to sexual harassment. I complained to no avail.
On September 5, 2014, I was discharged. I believe I was
discriminated against because of my disability, in violation
of the Americans with Disabilities Act, my sex, male, and
in retaliation for engaging in protected activity, in viola‐
tion of Title VII of the Civil Rights Act of 1964, as amend‐
ed.
The only seriously deficient allegation concerns the disabil‐
ity, which is not named or otherwise identified in the com‐
plaint. A plaintiff charging violation of the Americans with
Disabilities Act must allege that he is disabled within the
meaning of the Act, is nevertheless qualified to perform the
essential functions of the job either with or without reasona‐
ble accommodation, and has suffered an adverse employ‐
ment action because of his disability. See Gogos v. AMS Me‐
chanical Systems, Inc., 737 F.3d 1170, 1172 (7th Cir. 2013). And
surely a plaintiff alleging discrimination on the basis of an
actual disability under 42 U.S.C. § 12102(1)(A) must allege a
specific disability. None of these things is alleged in Tate’s
complaint. Quite apart from the enhanced pleading re‐
quirements imposed the Supreme Court’s decisions in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.

-- 3 of 5 --

4 No. 15‐1447
Iqbal, 556 U.S. 662 (2009), a defendant is entitled to “fair no‐
tice,” in the complaint, of the plaintiff’s claim. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512, 514 (2002). The defendant in a
disability discrimination suit does not have fair notice when
the plaintiff fails to identify his disability.
The other violations that the plaintiff complains of—
sexual harassment, discrimination on the basis of his sex,
and retaliation for engaging in protected activity—are ade‐
quately alleged, given our ruling in Luevano v. Wal‐Mart
Stores, Inc., supra, 722 F.3d at 1028, quoting Tamayo v. Blago‐
jevich, 526 F.3d 1074, 1084–85 (7th Cir. 2008), that “to prevent
dismissal under Rule 12(b)(6), a complaint alleging sex dis‐
crimination need only aver that the employer [had] institut‐
ed a (specified) adverse employment action against the
plaintiff on the basis of her [or his] sex.” See also Huri v. Of‐
fice of the Chief Judge of the Circuit Court of Cook County, 804
F.3d 826, 833–34 (7th Cir. 2015); Carlson v. CSX Transporta‐
tion, Inc., 758 F.3d 819, 827–28 (7th Cir. 2014). The pro se
complaint in this case satisfies that undemanding standard.
Furthermore, the district court dismissed the suit before
the expiration of the 21‐day period (after the filing by the de‐
fendant of a responsive pleading or a motion to dismiss)
during which a plaintiff may file an amended complaint
without the court’s approval. Fed. R. Civ. P. 15(a)(1). This
was a serious mistake given the inadequacy of the plaintiff’s
allegation of disability discrimination. The judge should not
only have complied with the rule; he should have told the
plaintiff what is required to allege disability discrimination.
We’ve often said that before dismissing a case under 28
U.S.C. § 1915(e)(2)(B)(ii) a judge should give the litigant, es‐
pecially a pro se litigant, an opportunity to amend his com‐

-- 4 of 5 --

No. 15‐1447 5
plaint. See e.g., Luevano v. Wal‐Mart Stores, Inc., supra, 722
F.3d at 1022–25; Casteel v. Pieschek, 3 F.3d 1050, 1056 (7th Cir.
1993); Powers v. Snyder, 484 F.3d 929, 933 (7th Cir 2007); Perez
v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015). Indeed the court
should grant leave to amend after dismissal of the first com‐
plaint “unless it is certain from the face of the complaint that
any amendment would be futile or otherwise unwarranted.”
Barry Aviation Inc. v. Land O’Lakes Municipal Airport Commis‐
sion, 377 F.3d 682, 687 (7th Cir. 2004) (emphasis added).
Had the judge told the plaintiff before dismissing his suit
what was missing from the complaint, or had he dismissed
just the complaint and not the suit and informed the plaintiff
of a plaintiff’s right to rectify the deficiencies of his com‐
plaint in an amended complaint, we might have been spared
this appeal, and the district judge a remand. See Hughes v.
Farris, No. 15‐1801, 2015 WL 8025491, at *1–2 (7th Cir. Dec. 7,
2015); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998);
Grayson v. Mayview State Hospital, 293 F.3d 103, 108–09 (3d
Cir. 2002).
The judgment is reversed and the case remanded for fur‐
ther proceedings consistent with this opinion.

-- 5 of 5 --