Pethtel v. Veterans Roofing PLLC

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PETER PETHTEL
Plaintiff,
v.
VETERANS ROOFING PLLC,
Defendant.
Case No. 25-CV-01648-SPM
MEMORANDUM AND ORDER
McGLYNN, District Judge:
Pending before this Court are two motions: a Motion for Leave to File Second
Amended Complaint filed by Plaintiff Peter Pethtel (Doc. 26) and a Motion to Compel
filed by Defendant Veterans Roofing PLLC (Doc. 27). Having been fully informed of
the issues presented, Plaintiff Pethtel’s Motion is DENIED and Defendant Veterans
Roofing’s Motion is also DENIED.
R ELEVANT FACTUAL A ND P ROCEDURAL B ACKGROUND
The instant suit arises from alleged age discrimination. Plaintiff Peter Pethtel,
a fifty-four-year-old man, alleges that he was terminated from his role as a general
laborer and on-site support worker with Defendant Veterans Roofing on July 18, 2025
because of his age. (Doc. 1, ¶¶ 11–18). He filed the instant suit on August 25, 2025
alleging 	discrimination, 	harassment, 	and 	retaliation 	in 	violation 	of 	the 	Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §621, et seq. (See
id., ¶¶ 19–45). Defendant filed a Motion to Dismiss on September 19, 2025 (Docs. 14,
15). Plaintiff filed a Motion for Leave to File First Amended Complaint on October 3,
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2025 	(Doc. 	16); 	this 	Court 	granted 	the 	Motion 	for Leave to 	File 	and 	denied
Defendant’s Motion to Dismiss as moot on October 6, 2025. (Doc. 17). The operative
First Amended Complaint was filed on the same day. (Doc. 18).
This Court entered a Scheduling Order on October 24, 2025. (Doc. 23). Plaintiff
Pethtel filed the instant Motion for Leave to File Second Amended Complaint on
February 20, 2026 (Doc. 26); Defendant responded in opposition on March 2, 2026
(Doc. 28) and Plaintiff filed a Reply on March 16, 20261 (Doc. 30). Defendant’s Motion
to Compel was filed on February 24, 2026 (Doc. 27) and Plaintiff’s Response was filed
on March 10, 2026 (Doc. 29).
A PPLICABLE LAW A ND LEGAL S TANDARDS
Federal Rule of Civil Procedure 15 governs the amendment of pleadings and
provides that courts “should freely give leave [to amend] when justice so requires.”
F ED. R. CIV. P. 15(a)(2). Nonetheless, “[a] district court may deny leave to file an
amended complaint in the case of ‘undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, and futility of amendment.’” Bausch v. Stryker Corp., 630 F.3d 546, 562
(7th Cir. 2010) (citation modified) (quoting Airborne Beepers & Video, Inc. v. AT & T
Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007)). “Ultimately, the decision to grant
or deny a motion to file and amended pleading is a matter purely within the sound
1 Plaintiff’s Reply (Doc. 30) was untimely filed in accordance with Local Rule 7.1(b)(2)(B), which requires replies
to be filed no later than seven (7) days after the filing of a response in opposition to a pending motion.
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discretion of the district court.” McDaniel v. Loyola Univ. Med. Ctr., 317 F.R.D. 72,
76 (N.D. Ill. 2016) (citing Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008)).
Delay alone may not prove sufficient grounds to warrant denial of leave to
amend a complaint; “rather, the degree of prejudice to the opposing party is a
significant factor in determining whether the lateness of the request ought to bar
filing.” Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004)
(citation modified) (citing Doherty v. Davy Songer, Inc., 195 F.3d 919, 927 (7th Cir.
1999)). Nonetheless, the longer the delay, the greater presumption against granting
leave to amend. McDaniel v. Loyola Univ. Med. Ctr., 317 F.R.D. 72, 77 (N.D. Ill. 2016)
(citing King v. Cooke, 26 F.3d 720, 723 (7th Cir. 1994)). Undue delay is most likely to
result 	in 	undue 	prejudice 	when 	a 	combination 	of 	factors, 	including 	delay 	in
proceedings without explanation, no change in the facts since filing of the original
complaint, and new theories that require additional discovery, occur together.
McDaniel v. Loyola Univ. Med. Ctr., 317 F.R.D. 72, 77 (N.D. Ill. 2016) (citing J.P.
Morgan Chase Bank, N.A. v. Drywall Serv. & Supply Co., 265 F.R.D. 341, 347 (N.D.
Ind. 2010)). It is the party seeking to amend that “has the burden of showing that
undue prejudice will not result to the non-moving party.” Id. (citing King, 26 F.3d at
724). 	“If 	the 	moving party 	fails 	to 	provide 	any 	explanation for not 	filing 	its
amendment sooner or if the explanation it provides is inadequate, that will weigh
towards denying leave to amend.” J.P. Morgan Chase Bank, N.A., 265 F.R.D. at 347
(citing Sanders, et al. v. Venture Stores, Inc., 56 F.3d 771, 775 (7th Cir. 1995)).
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Rule 26(b)(1) of the Federal Rules of Civil Procedure permits a party to obtain
discovery “regarding any nonprivileged matter that is relevant to any party’s claim
or defense.” F ED. R. CIV. P. 26(b)(1). “Information within this scope of discovery need
not be admissible in evidence to be discoverable.” Id. In addition to being relevant,
the discovery sought must be proportional to the needs of the case, “considering the
importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefits.” Motorola Sols., Inc. v. Hytera Commc’ns
Corp., 365 F. Supp. 3d 916, 924 (N.D. Ill. 2019) (citing F ED. R. CIV. P. 26(b)(1)).
Federal Rule of Civil Procedure 37(a)(1) permits a party to “move for an order
compelling disclosure or discovery” provided that the motion includes “a certification
that the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court
action.” This certification is also required by Local Rule 26.1(c)(2) and the Court’s
Case Management Procedures. Rule 37(b) provides that failure to comply with a
discovery order issued by the court is a sanctionable offense, with potential sanctions
including dismissal of the action in whole or in part, default judgment, or holding a
party in contempt of court. See F ED. R. CIV. P. 37(b)(2)(A).
A NALYSIS
I. 	Motion for Leave to File Second Amended Complaint
In his Motion (Doc. 26), Plaintiff Pethtel requests to amend his operative First
Amended Complaint (Doc. 18) to add discrimination, harassment, and retaliation
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claims under the Illinois Human Rights Act, 775 I LL . COMP . STAT . 5 (“IHRA”). (Doc.
26, Ex. A). He alleges that “the IDHR Notice of Opt-Out was only recently received,
preventing the filing of the amendment at an earlier time.” (Id., p. 1).
In opposition, Defendant Veterans Roofing argues that this Court lacks
subject-matter jurisdiction over Plaintiff’s proposed IHRA claims due to Plaintiff’s
purported failure to exhaust administrative remedies. (Doc. 28, p. 1). Defendant
asserts that Plaintiff first filed a charge with the EEOC and failed to provide the
IHDR with the applicable Notice of the EEOC’s Determination within thirty days of
August 5, 2025. (Id., p. 2 (citing 775 ILL . COMP . STAT . 5/7A-102(A-1)(1), (A-1)(1)(iv);
Ball v. Roeslein & Assocs., Inc., No. 20-CV-00045-NJR, 2020 WL 4673136, at *14–15
(S.D. Ill. Aug. 12, 2020); Hickman v. Bd. of Educ. of Hinsdale Twp., No. 1:23-CV-
01102, 2023 WL 9050972, at *9 (N.D. Ill. Dec. 29, 2023); (Doc. 26, Ex. A))). Defendant
argues 	that 	various 	district 	courts, 	including 	former 	Chief 	Judge 	Nancy 	J.
Rosenstengel in this district, have held that compliance with the requisite statutory
time limit is a jurisdictional prerequisite. (Id., p. 2 (citing Donald v. City of Chicago,
539 F. Supp. 3d 912, 921 (N.D. Ill. 2021); Prusaczyk v. Hamilton Cnty. Coal, LLC, No.
3:20-CV-73-NJR, 2020 WL 5981377 (S.D. Ill. Oct. 8, 2020); Ball, 2020 WL 4673136)).
In his Reply (Doc. 30), Plaintiff insists, inter alia, that “Defendant’s argument
improperly focuses on technical compliance with procedural requirements while
ignoring the substantive purpose of those requirements.” (Id., p. 3). This Court notes
that Plaintiff’s Reply was untimely filed (see supra note 1) and does not cite any
caselaw. (See Doc. 30).
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First, both Illinois appellate courts and Illinois-based district courts have
repeatedly held that “an administrative agency . . . can only act ‘pursuant to the
authority conferred on it by statute.’” Donald, 539 F. Supp. 3d at 921 (citing Bumphus
v. Illinois Hum. Rts. Comm’n, 2021 IL App (5th) 200037-U, ¶ 17). These courts have
held that “‘compliance with [a] statutory time limit is a condition precedent to the
right to seek a remedy’ before an administrative body, and that it is a prerequisite to
the acquisition of subject matter jurisdiction.” Bumphus, 2021 IL App (5th) 200037-
U, ¶¶ 17–18 (quoting Weatherly v. Human Rights Comm’n, 788 N.E.2d 1175, 1178
(Ill. App. Ct. 2003)) (citing Pickering v. Human Rights Comm’n, 496 N.E.2d 746, 754
(Ill. App. Ct. 1986)). Additionally, “[t]he administrative closing of a charge by the
IDHR . . . is not a final order, nor does it constitute an exhaustion of administrative
remedies.” Prusaczyk, 2020 WL 5981377, at *3 (citing Falco v. Office Elecs., Inc., No.
97 C 4170, 1997 WL 587660, at *2 (N.D. Ill. Sept. 17, 1997)). Put another way, “[a]
plaintiff cannot file suit in federal court and then, when the IDHR closes her charge
precisely because she filed suit in federal court, argue that she has exhausted all
administrative remedies.” Id.
Considering the above, it is clear that Plaintiff did not forward the EEOC’s
determination to the IDHR within the requisite thirty-day period required by 775 I LL.
COMP . STAT . 5/7A-102. Additionally, Plaintiff’s submitted Notice of EEOC Adopted
Finding (Doc. 26, Ex. C) does not provide proof that he exhausted his administrative
remedies. This Court concurs with Judge Rosenstengel that the failure to precisely
follow the appropriate statutory scheme is an error of jurisdictional proportions.
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Therefore, Plaintiff Pethtel’s Motion for Leave to File Second Amended Complaint
(Doc. 26) shall be denied.
II. 	Motion to Compel
In its Motion to Compel (Doc. 27), Veterans Roofing seeks to compel Plaintiff
Pethtel to respond to a question asked during his Deposition. Counsel for Defendant
asked Plaintiff if anyone else was present when he spoke with his attorney to prepare
for his Deposition; Plaintiff answered that his wife was present. (Id., p. 1 (quoting id.,
Ex. A, 2:4–10)). When defense counsel asked what was discussed, Plaintiff’s counsel
directed him to not answer due to attorney-client privilege and spousal privilege. (Id.,
pp. 1–2 (quoting id., Ex. A, 2:15–24)). Defendant argues that attorney-client privilege
and spousal privilege were both invalidated because (1) Plaintiff’s spouse’s presence
invalidated attorney-client privilege and (2) Plaintiff’s counsel’s presence invalidated
spousal privilege. (Id., p. 4).
In opposition, Plaintiff argues that Plaintiff’s counsel properly asserted both
privileges, the Defendant misapprehends the relevant law, and, separately, that
Defendant failed to abide by this Court’s Local Rules and the Case Management
Procedures. (Doc. 29, pp. 1–2).
Both Local Rule 26.1(c)(3) and this Court’s Case Management Procedures
require the party filing a Rule 37 motion to certify that a good-faith effort was made
to resolve the discovery issue informally prior to seeking this Court’s intervention.
Defendant 	has 	not 	made 	this 	showing. 	Defendant’s 	motion 	is 	bereft 	of 	any
information concerning attempts to meet and confer to resolve this issue. Because
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Defendant’s Motion shall be denied for this reason alone, this Court does not reach
the merits of Defendant’s arguments.
C ONCLUSION
Considering the above, Plaintiff Peter Pethtel’s Motion for Leave to File Second
Amended Complaint (Doc. 26) is DENIED and Defendant Veterans Roofing PLLC’s
Motion to Compel (Doc. 27) is DENIED.
IT IS SO ORDERED.
DATED: March 24, 2026
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge
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