Whitlow v. Bradley University
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 8/15/17. Defendant's Motion to Dismiss 18 is GRANTED, and this case is TERMINATED. SEE FULL WRITTEN ORDER. (FDS, ilcd)
E-FILED
Wednesday, 16 August, 2017 09:22:24 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
MICHAEL S. WHITLOW,
Plaintiff,
v.
BRADLEY UNIVERSITY,
Defendant.
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Case No. 1:16-cv-01223-JBM-JEH
ORDER & OPINION
This matter is before the Court on Defendant’s Motion to Dismiss for Failure to
State a Claim (Doc. 18). Plaintiff’s First Amended Complaint (Doc. 16) alleges claims
of sexual harassment and gender discrimination, in violation of 42 U.S.C. § 2000e2(a)(1). For the reasons discussed below, Defendant’s Motion to Dismiss is granted
and the case is terminated.
This is a case of a disgruntled employee, who has had many disagreements
with his manager and has taken issue with her remarks about his second job, as a
parks department police officer. This, however, is not a case of unlawful
discrimination. Title VII is not a general civility code to be used by anyone who is
upset with his coworker or boss. Title VII is meant to protect individuals from
discrimination based on protected immutable traits. While it is clear that Plaintiff
and his manager have a poor working relationship and many disagreements, Plaintiff
simply has not alleged any factual allegations to support his claims of gender
discrimination beyond speculation. Rather, Plaintiff offers only conclusory
statements about gender discrimination and attempts to support his speculations
with factual allegations unrelated to gender. Therefore, Plaintiff simply has not
sufficiently pled his claims and they must be dismissed.
I. BACKGROUND1
The allegations in this case arise from Plaintiff’s employment with Defendant
Bradley University. Around July 30, 2007, Plaintiff began working for Defendant as
a Senior Network Analyst, within the Information Resources and Technology (“IRT”)
group for the Computing Services Department. (Doc. 16 at 3). Plaintiff reports
directly to David Scuffham, the Director of System’s Integration and Security. (Doc.
16 at 3). Mr. Scuffham reports directly to Sandra Bury, the Executive Director of
Computing Services and Interim Chief Information Officer/Associate Provost. (Doc.
16 at 3).
Plaintiff’s Complaint arises from his interactions with Ms. Bury. It is apparent
to the Court that Plaintiff and Ms. Bury have had a very tenuous and contentious
relationship over their nearly ten year work relationship. (See Doc. 16 at 5-6). This
includes issues like Ms. Bury’s alleged intentional scolding of Plaintiff “for network
problems of which he had nothing to do with” (Doc. 16 at 6) and Ms. Bury’s denial of
Plaintiff’s request for an additional employee (Doc. 16 at 6).
However, the primary trigger for Plaintiff’s grievances and this Amended
Complaint arises from some comments that Ms. Bury made about Plaintiff’s second
job around April 2015. Plaintiff alleges that around April 17, 2015, Ms. Bury made
The Court will address the factual allegations pertaining to each claim in greater
detail as the Court analyzes the claim. The Background section serves as a broad
explanation of the events and the procedural history of the case.
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comments about Plaintiff’s second job to Mr. Scuffham, Plaintiff’s direct supervisor.
(Doc. 16 at 9-10). Plaintiff alleges that Ms. Bury said that it was unfair that Plaintiff
had a second job because it would interfere with his duties in his employment for
Defendant and that she discussed implementing a formal “on call” rotation for his
department. (Doc. 16 at 9-10). Plaintiff then emailed Ms. Bury to tell her to stop
making comments about his other job because it was not against any of Defendant’s
policies. (Doc. 16 at 11). Additionally, Plaintiff reported these comments to
Defendant’s Director of Human Resources (“HR”). (Doc. 16 at 11).
On July 15, 2015, Plaintiff requested an “internal restraining order” and a
transfer of his office from Human Resources (“HR”). (Doc. 16 at 39). In denying
Plaintiff’s request to transfer offices, HR informed Plaintiff that “[t]here is no such
thing as an ‘internal restraining order.’ And if there was, [Ms. Bury’s] behavior would
not warrant use of such.” (Doc. 16 at 41).
On July 30, 2015, Plaintiff filed an internal grievance with Defendant based
on Ms. Bury’s behavior. (Doc. 16 at 41). Plaintiff’s grievance was denied after an ad
hoc committee advised Defendant’s Interim Provost and Vice President for Academic
Affairs that they “unanimously concluded that [Plaintiff’s] grievance does not merit
a formal review.” (Doc. 16 at 41). Defendant’s Interim Provost concurred with the
committee’s decision. (Doc. 16 at 41). Furthermore, Defendant’s Interim Provost
stated:
“Your claims reflect management actions or decisions with which you do
not agree and, perhaps, personality or other conflicts within Information
Resources and Technology. However, your characterizations and
conclusions are not supported by the materials you provided.
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It is expected that all Bradley employees will conduct themselves in a
courteous and professional manner and work cooperatively. Your doing
so will help avoid issues such as those you perceived and detailed in your
grievance from arising in the future.”
(Doc. 16 at 41).
On October 26, 2015, Plaintiff brought two claims of retaliation to the Illinois
Department of Human Rights (“IDHR”). (Doc. 13-1 at 9-13).2 On December 3, 2015,
IDHR denied Plaintiff’s claims and informed Plaintiff that: “You have not claimed
that you were discriminated against because of a protected basis. . . .” (Doc. 13-1 at
3).
On April 22, 2016, Plaintiff brought a claim of gender discrimination and
retaliation with the Equal Employment Opportunity Commission (“EEOC”). (Doc. 16
at 20). The EEOC closed Plaintiff’s claims on May 24, 2016, finding that it was
“unable to conclude that the information obtained establishes violations of the
statutes” and issuing Plaintiff a Notice of his Right to Sue. (Doc. 16 at 21).
On June 20, 2016, Plaintiff filed his original Complaint in federal court. (Doc.
1). Plaintiff brought one claim of hostile workplace environment, four claims of
retaliation, and one claim of gender discrimination. (Doc. 1). On August 22, 2016,
The Court takes judicial notice of Plaintiff’s original Complaint (Doc. 1), the exhibits
attached to Plaintiff’s original Complaint (Doc. 1), the exhibits attached to
Defendant’s first Motion to Dismiss (Docs. 13-1, 13-2, 13-3), and the Court’s first
Order granting dismissal. (Doc. 15). See G.E. Capital Corp. v. Lease Resolution Corp.,
128 F.3d 1074, 1081 (7th Cir. 1997) (collecting cases explaining that a district court
may take judicial notice of matters of public record during a motion to dismiss); see
also Olson v. Bemis Co., 800 F.3d 296, 305 (7th Cir. 2015) (upholding a district court’s
judicial notice of its previous order and explaining that “[w]e see no reason why the
court should have feigned ignorance of its own decision in Olson I.”).
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Defendant filed a Motion to Dismiss all of Plaintiff’s claims for failing to state a claim
upon which relief could be given. (Docs. 12, 13).
On February 8, 2017, the Court granted Defendant’s Motion to Dismiss. (Doc.
15). The Court found that Plaintiff had failed to state a claim for any of his six claims.
(Doc. 15 at 17-18). The Court found that Plaintiff had failed to state sufficient factual
details to support a claim of hostile work environment or a claim of Title VII gender
discrimination beyond a speculative level. (Doc. 15 at 18, 39). The Court found that
Plaintiff had failed to state a retaliation claim as a matter of law. (Doc. 15 at 23).
Therefore, the Court dismissed all six claims. (Doc. 15 at 40-41). However, the Court
allowed Plaintiff an opportunity to cure his deficiencies and file amended claims of
hostile work environment and Title VII gender discrimination. (Doc. 15 at 40-41).
On February 23, 2017, Plaintiff filed this Amended Complaint. (Doc. 16).
Plaintiff brings forth two claims. First, Plaintiff alleges that Ms. Bury has created a
hostile work environment. Second, Plaintiff alleges that Ms. Bury discriminated
against him based on his gender. The Court will summarize any further factual
allegations pertaining to each claim during its analysis of the claim.
On March 9, 2017, Defendant filed a Motion to Dismiss Plaintiff’s Amended
Complaint for failure to state a claim upon which relief can be granted. (Docs. 18, 19).
Defendant alleges that Plaintiff has failed to plead sufficient facts to support a hostile
work environment claim beyond speculation. (Doc. 19 at 3). Defendant alleges that
Plaintiff failed to cure the deficiencies of his Title VII discrimination claim and that
Plaintiff failed to allege an adverse employment action. (Doc. 19 at 7). Plaintiff has
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responded to the Motion to Dismiss and the matter is fully briefed.3 (Doc 21). Each
issue will now be addressed in turn.
II. LEGAL STANDARD
In ruling on a motion to dismiss for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6), “the court must treat all well-pleaded allegations as
true and draw all inferences in favor of the non-moving party.” In re marchFIRST
Inc., 589 F.3d 901, 904 (7th Cir. 2009). The complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2).
To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient
detail to give notice of the claim, and the allegations must “plausibly suggest that the
plaintiff has a right to relief, raising that possibility above a ‘speculative level.’” EEOC
v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (emphasis added). The plausibility
standard requires enough facts to “present a story that holds together,” but does not
require a determination of probability. Swanson v. Citibank, N.A., 614 F.3d 400, 404
The Court notes that in Plaintiff’s Response, he spends over four pages discusses
Defendant’s grievance procedure and the errors Plaintiff believes Defendant made
thoroughout that process. (Doc. 21 at 6-10). For example, Plaintiff asserts that
“[i]nstead of doing anything one might expect a Director of Human Resources to do
when an employee of one gender has an issue that is so serious that he asks for an
‘internal restraining order’ against the supervisor of another gender, Ms. Peplow
simply denied the said request and took no further action to try and help the
Plaintiff.” (Doc. 21 at 6). To the extent that Plaintiff is arguing that Defendant
violated his due process in following its grievance procedure, that argument has been
waived. See Kubsch v. Ind. State Police, No. 2:10-cv-495-JTM, 2014 U.S. Dist. LEXIS
180270, at *23 (N.D. Ind. Nov. 3, 2014) (“Additionally, arguments raised for the first
time in a reply brief are generally deemed waived.”) (citing Holman v. Indiana, 211
F.3d 399, 405 n.5 (7th Cir. 2000)).
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(7th Cir. 2010). Though detailed factual allegations are not needed, a “formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
In considering a Rule 12(b)(6) motion to dismiss, the Court may consider any
exhibits that are attached to the pleading, because they are considered part of the
pleading. Fed. R. Civ. P. 10(c). Additionally, the Court may consider any documents
attached to the motion to dismiss, if they are referred to in the complaint and are
central to the complaint. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687,
690 (7th Cir. 2012).
Although the court must take all well-pled allegations as true, when an exhibit
incontrovertibly contradicts the allegations in the complaint, then the exhibit
generally controls, even when the court is considering a motion to dismiss. Bogie v.
Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013). Additionally, the court may
independently examine and form its own opinions about a document, because it is not
bound by the party’s characterization of it. Forrest v. Universal Sav. Bank, F.A., 507
F.3d 540, 542 (7th Cir. 2007).
There are two ways a plaintiff can find his or her case dismissed under a Rule
12(b)(6) motion to dismiss. The first is if the plaintiff did not allege enough facts to
state a claim that would be plausible on its face. Hecker v. Deere & Co., 556 F.3d 575,
580 (7th Cir. 2009) (citations omitted). To be facially plausible, a complaint must
allow 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).
The second is if he or she pled facts that show he or she has no legal claim.
Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011). This includes not only the
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facts alleged within the complaint, but also the facts from documents that were
incorporated into the pleadings. In re Wade, 969 F.2d 241, 249 (7th Cir. 1992). If the
plaintiff voluntarily provides unnecessary facts in his or her complaint, those facts
may be used to show that the plaintiff is not entitled to relief. Tamayo v. Blagojevich,
526 F.3d 1074, 1086 (7th Cir. 2008) (citations omitted).
III.
DISCUSSION
Plaintiff has failed to sufficiently plead either his hostile work environment
claim or his claims of Title VII gender discrimination. Each claim will be examined
separately.
A. PLAINTIFF’S HOSTILE WORK ENVIRONMENT CLAIM
Plaintiff has failed to sufficiently plead a claim of hostile work environment for
three reasons. First, Plaintiff has failed to plead sufficient factual allegations beyond
speculation that the discrimination he faced was because of his gender and not
because of a non-protected trait. Second, Plaintiff has failed to plead sufficient factual
allegations beyond speculation that the discrimination was objectively hostile. Lastly,
Plaintiff has failed to plead sufficient factual allegations beyond speculation that the
discrimination was severe or pervasive. Therefore, Plaintiff has failed to state a claim
for a hostile work environment beyond pure speculation.
i.
HOSTILE WORK ENVIRONMENT CLAIM FACTUAL BACKGROUND
Plaintiff alleges that Ms. Bury has created a hostile work environment.
Plaintiff identifies six types of allegations in his hostile work environment claim.4
Although Plaintiff was warned by the Court not to include random facts in an
Amended Complaint, Plaintiff’s allegations are still full of disjointed accusations,
scattered with a few factual allegations. The Court will do its best to sort through
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First, Plaintiff alleges, generically, that Ms. Bury is hostile towards males and that
more male employees complain about her than female employees. (Doc. 16 at 5-6).
Second, Plaintiff alleges that Ms. Bury has a problem with the amount of his salary
and has made comments to his coworkers about how much he makes.5 (Doc. 16 at 5).
Third, Plaintiff accuses Ms. Bury of “scolding” him for incorrectly performing his work
duties. (Doc. 16 at 6). Fourth, Plaintiff accuses Ms. Bury of denying his team’s request
to hire another person while allowing a female coworker to hire another employee.
(Doc. 16 at 7). Fifth, Plaintiff accuses Ms. Bury of slamming her office door once after
speaking with him. (Doc. 16 at 7).
Lastly, Plaintiff accuses Ms. Bury of making defamatory comments about his
part-time job as a park officer. (Doc. 16 at 9-10). In particular, Plaintiff alleges that
“Ms. Bury made comments to Mr. Scuffham on multiple occasions that the Plaintiff
having a second job ‘on the weekends’ was not ‘fair’ because it would interfere with
Plaintiff’s duties at Bradley.” (Doc. 16 at 10). Plaintiff also alleges that “Ms. Bury
these claims; however, it is not the Court’s responsibility to search through the
pleadings to piece together a sustainable allegation on behalf of a pro se litigant. See
Panko v. United States, No. 86-C-009, 1987 U.S. Dist. LEXIS 4201, at *2 (N.D. Ill.
May 21, 1987) (“[W]e decline to search Plaintiff’s pleadings for every conceivable legal
theory which may help him recover. It is the responsibility of every litigant, even pro
se litigants, to inform the court of the legal theories on which he or she relies.”).
Plaintiff also alleges that Ms. Bury altered his annual employment evaluation to
give him a lower score than his immediate supervisor had given him. The court
rejected this argument from Plaintiff’s original Complaint. (Doc. 15 at 26-27). In an
exhibit attached to the Complaint by Plaintiff, Plaintiff’s supervisor explicitly states
that he wrote the review and that Ms. Bury did not alter it. (Doc. 1 at 38). Bogie v.
Rosenberg, 705 F.3d at 609 (explaining that when an exhibit incontrovertibly
contradicts the allegations in the complaint, then the exhibit generally controls, even
when the court is considering a motion to dismiss). Plaintiff cannot reargue this
rejected argument.
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made comments to Mr. Scuffham on multiple occasions that she might implement a
formal ‘on call’ rotation even though Computing Services had not had one for many
years prior thereto.” (Doc. 16 at 10).
Plaintiff complains that these comments were “hostile because they had to do
with a personal subject matter . . . [that] is a very sensitive area to the Plaintiff
personally” and that they were “intimidating because an on call rotation would
interfere with Plaintiff’s ability to work at both Bradley and his part-time police job.”
(Doc. 16 at 10). Plaintiff also complains that these comments were hostile, harmful,
and illegal in Illinois as “defamation per se.” (Doc. 16 at 10). However, outside from
the generic comments about Plaintiff’s second job being unfair and implementing an
“on call” system, Plaintiff alleges no other specific statements that Ms. Bury has
made.
ii.
HOSTILE WORK ENVIRONMENT LEGAL STANDARDS
Title VII makes it unlawful for an employer to “fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of an individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). Typically, a complaint that alleges harassment is a complaint describing a
hostile work environment. Huri v. Office of the Chief Judge of the Circuit Court of
Cook Cty., 804 F.3d 826, 832 (7th Cir. 2015).
In order to establish a hostile work environment, Plaintiff must allege that: 1)
he was subjected to objective and subjective harassment; 2) the harassment was due
to his gender; 3) the harassment was so severe and pervasive that it altered the
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conditions of his employment; and 4) that there was a basis for employer liability due
to the supervisor participating in the harassment or Defendant’s negligence in
discovering and/or remedying the harassment of Plaintiff. Huri, 804 F.3d at 834. To
survive a motion to dismiss, Plaintiff must make a claim for relief that is plausible
rather than conceivable or speculative. Runnion v. Girl Scouts of Greater Chi. & Nw.
Ind., 786 F.3d 510, 526 (7th Cir. 2015).
Plaintiff has failed to allege facts to support his claim of gender discrimination
beyond a speculative level in regards to several of the elements. First, Plaintiff did
not allege facts to support beyond speculation that the harassment was because of
his gender. Second, Plaintiff did not allege facts to support beyond speculation that
the harassment was severe or pervasive. Last, Plaintiff did not allege facts to support
beyond speculation that his work environment was objectively offensive. Each of
these reasons will be discussed below.
iii.
HARASSMENT WAS NOT BECAUSE OF GENDER
Plaintiff did not allege facts that he was harassed because of his gender
sufficient to raise his claim beyond pure speculation. Rather, Plaintiff’s primary
complaint of harassment revolves around comments made about his second job, his
salary, or his work performance—none of which involved comments about his gender.
Scott v. Int’l Servs., No. 15-cv-8702, 2016 U.S. Dist. LEXIS 56454, at *5 (N.D. Ill. Apr.
28, 2016) (“Alleged harassing or offensive conduct—if gender-natural—is not
actionable under Title VII.”). Therefore, Plaintiff’s factual allegations support a claim
of harassment about traits that were not his gender and are not protected by Title
VII. Plaintiff alleges no factual allegations that his harassment was because of his
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gender; therefore, Plaintiff has alleged no facts to support his claim of a hostile work
environment because of his gender beyond speculation.
Title VII does not protect against “standoffish, rude, or unprofessional behavior
from coworkers.” Byrd v. Wis. Dep’t of Veterans Affairs, 98 F. Supp. 3d 972, 981 (W.D.
Wis. 2015) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) and
Stephens v. Erickson, 569 F.3d 779, 790 (7th Cir. 2009)). See also Holman, 211 F.3d
at 404 (“Title VII is predicated on discrimination. Given this premise, requiring
disparate treatment is consistent with the statute’s purpose of preventing such
treatment . . . to [hold otherwise] would change Title VII into a code of workplace
civility and the Supreme Court has already rejected such an interpretation” (citing
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998))).
Plaintiff misunderstands the scope of Title VII’s protections. Having a second
job is not a Title VII protected trait. Plaintiff was informed of this multiple times. The
Illinois Department of Human Rights informed Plaintiff that his allegations did not
show discrimination because of a protected trait. (Doc. 13-1 at 3). Additionally, this
Court informed him that “[h]aving a second job is not a Title VII protected class.”
(Doc. 15 at 19). The Court granted him leave to file a complaint that articulated
discrimination based on a protected trait and, again, Plaintiff complained that Ms.
Bury made comments about his second job that he perceived as hostile, intimidating,
offensive, illegal, harmful, and extra concerning. Two and a half pages of his Amended
Complaint pertain to these comments. (Doc. 16 at 9-11). Therefore, it is clear that
Plaintiff still does not understand that comments about his second job are not a Title
VII protected trait. While Plaintiff may not like the comments and may be upset by
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them, Title VII is not a general civility code that employees can use when a coworker
has hurt their feelings. In order to bring a Title VII discrimination claim, Plaintiff
must have been discriminated based on a protected trait and Plaintiff’s second job, as
a parks department police officer, is not a protected trait under Title VII.
Plaintiff’s references to his gender come as conclusory allegations without
factual allegations. Plaintiff alleges that “[f]rom on/around the fall of 2007 to April
2015, Ms. Bury intentionally and pervasively harassed the Plaintiff because of his
gender of male which created an ongoing and unpredictable working environment for
the Plaintiff that was offensive, hostile, and unwelcome.” (Doc. 16 at 6). However,
Plaintiff’s factual allegations to support this accusation are that: 1) Ms. Bury made a
comment about his salary to one of his coworkers, 2) Ms. Bury scolded him about his
work performance twice, 3) Ms. Bury denied his request for an additional employee,
and that 4) Ms. Bury once slammed her office door after a conversation with him.
(Doc. 16 at 6).
Although these examples may have been deeply unpleasant to Plaintiff, Title
VII does not protect against any and all harassment, rather it must be because of
Plaintiff’s gender. See Oncale, 523 U.S. at 80-81 (“Whatever the evidentiary route the
plaintiff chooses to follow, he or she must always prove that the conduct at issue was
not merely tinged with offensive sexual connotations, but actually constituted
‘discrimination . . . because of . . . sex.’”); see also Carr v. Allison Gas Turbine Div.,
Gen. Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994) (“The first is whether the
plaintiff was, because of her sex, subjected to hostile, intimidating, or degrading
behavior, verbal or nonverbal, as to affect adversely the conditions under which she
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worked; for Title VII is not directed against unpleasantness per se but only, so far as
relates to this case, against discrimination. . . .”) (emphasis added); Cooper-Schut v.
Visteon Auto. Sys., 361 F.3d 421, 427 (7th Cir. 2004) (explaining that one of the main
flaws in plaintiff’s harassment reporting was “that the majority of conflicts with
coworkers were work-related and did not involve racial or sexual insults. . . .”).
Plaintiff also asserts that “[b]etween January 25, 2015 and present day several
other subordinate employees have complained to the Defendant about unwelcome
treatment subjected upon them by Ms. Bury. The statistical majority of said
complainants were male. At least 6 of said complaints complained about Ms. Bury
between November 2016 and February 2017.” Additionally, in his response to
Defendant’s Motion to Dismiss, Plaintiff cites a series of cases showing that
discrimination can be proven through statistical evidence. (Doc. 21 at 3).
However, Plaintiff has not alleged any statistical evidence. Rather he has
alleged the conclusory statements like “[t]he preponderance of statistical evidence in
possession of the Defendant will reflect that the majority of complaint referenced in
[the previous paragraph] are male.” (Doc. 16 at 5). This is nothing more than a
conclusory statement. The cases Plaintiff cites stand for the rule that discrimination
may be proven by statistics; however, they do not stand for the assertion that
conclusory statements about statistics are sufficient to survive a motion to dismiss.
Therefore, they do not support Plaintiff’s allegations.
Furthermore, these conclusory statements do nothing to support Plaintiff’s
claim of a hostile work environment, because Plaintiff’s assertions that other male
employees complained about Ms. Bury does not provide factual support for his
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allegation that Ms. Bury harassed him because of his sex. Plaintiff admits that he
has no idea how many employees work under Ms. Bury and gives no information
about the percentage of males and females working under her. (Doc. 21 at 3). Instead,
he merely speculates that there is “statistical evidence that Ms. Bury regularly
discriminates against males.” (Doc. 21 at 3). Plaintiff has only brought forth three
accusations of discrimination by Ms. Bury—one from Plaintiff, one from Mr. Ghere,
and one from Ms. Goldberg.6 Three instances is insufficient to rise to the claim of
statistical evidence. Without additional factual allegations, Plaintiff’s claims do not
rise above the speculative level required to survive a motion to dismiss.
Additionally, the Court cannot consider his allegations about the “Red-Purple
List” from November 2016 to February 2017, because they arise after he filed both
the EEOC claim and this case. “[C]laims brought in judicial proceedings must be
within the scope of the charges filed with the EEOC; ‘an aggrieved employee may not
complain to the EEOC of only certain instances of discrimination, and then seek
judicial relief for different instances of discrimination.’” Conner v. Ill. Dep’t of Nat.
Res., 413 F.3d 675, 680 (7th Cir. 2005) (quoting Rush v. McDonald’s Corp., 966 F.2d
1104, 1110 (7th Cir. 1992)). Plaintiff brought his complaint to the EEOC in April of
2016; therefore, he clearly could not have brought these allegations of discrimination
Additionally, Mr. Ghere’s complaints to Defendant about Ms. Bury were not
allegations that Ms. Bury discriminated against him because of gender. (Doc. 16 at
43). Rather, Mr. Ghere alleged that Ms. Bury discriminated against him based off of
medical issues. (Doc. 16 at 43). Additionally, Plaintiff does not allege that Ms. Bury
discriminated against Ms. Goldberg because of gender. Therefore, these examples
provide no factual support for Plaintiff’s conclusory statement that Ms. Bury
discriminates based on gender. Rather, they show that Ms. Bury is a difficult
personality to get along with and that she has managerial disagreements with her
subordinates for a variety of reasons.
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from November 2016 to February 2017 to the EEOC. Because they were not part of
his EEOC complaint, they cannot be considered now.
iv.
WORKPLACE WAS NOT OBJECTIVELY HOSTILE
Plaintiff failed to allege sufficient facts to support beyond speculation that his
work environment was subjectively and objectively hostile. In determining whether
a workplace is objectively hostile, the Court considers the totality of the
circumstances, including: 1) the frequency of the conduct; 2) the severity of the
conduct; 3) whether the conduct was physically threatening or a humiliating, or
merely an offensive utterance; and 4) whether it interferes with the employee’s work
performance. Harris v. Forklift Sys., 510 U.S. 17, 23 (1993).
Even when viewed in their totality, Plaintiff’s allegations are not sufficient to
be objectively hostile. Outside of Plaintiff’s allegations pertaining to Ms. Bury’s
comments on his second job, Plaintiff provides seven examples of harassment that
Ms. Bury allegedly performed over seven and a half years. (Doc. 16 at 6-7). That is
less than one instance per year, which is hardly frequent enough to be considered
objectively hostile. Additionally, both of these remarks were made outside of the
presence of Plaintiff; therefore, they were not told to him directly. Because he heard
them second-hand, it lessens the severity of the comments. See Adusumilli v. City of
Chi., 164 F.3d 353, 362 (7th Cir. 1998) (citing Gleason v. Mesirow Fin., Inc., 118 F.3d
1134, 1144 (7th Cir. 1997)).
Additionally, these examples are not severe enough to be considered objectively
hostile. The allegations include “intentionally scolding” him about his work
performance; remarking to another coworker about Plaintiff’s salary; denying
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Plaintiff’s request for another employee; and objecting to offensive personal items on
Plaintiff’s desk. None of these are physically threatening or humiliating. Plaintiff
alleges only one instance that was physically threatening, which is when Ms. Bury
slammed her office door after speaking to him. However, one door-slamming is
insufficient to sustain an objectively hostile work environment. Saxton v. American
Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993) (citing Weiss v. Coco-Cola Bottling
Co. of Chi., 990 F.2d 333, 337 (7th Cir. 1993) to support that “relatively isolated”
instances of misconduct are not severe enough to support a hostile environment
claim).
As pertaining to his second job, Plaintiff only alleges generally that Ms. Bury
made comments about it being unfair that he had a second job on the weekends and
that she was considering a formal on call system. (Doc. 16 at 10). Just because
Plaintiff believes them to be hostile, intimidating, harmful, and extra concerning,
that does not mean that they rise to the level of objectively hostile. (Doc. 16 at 10).
Plaintiff’s alleged statements by Ms. Bury, as generally phrased in his Amended
Complaint, do not rise to the level of objectively hostile. A reasonable person would
not find a comment by a manager that it was unfair an employee have a second job
because it could interfere with his ability to perform his first job as an abusive or
hostile remark pertaining to Plaintiff’s gender. Likewise, a reasonable person would
not find that a comment about implementing an “on call rotation” as an abusive or
hostile remark pertaining to Plaintiff’s gender. Harris, 510 U.S. at 21 (explaining that
the environment must be one that a “reasonable person would find hostile or
abusive.”). The harassment must be objectively hostile, because the “‘mere utterance
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of an . . . epithet which engenders offensive feelings in an employee’ does not
sufficiently affect the conditions of the employment to implicate Title VII.” Id.
(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 91 (1986)).
While it is clear that Plaintiff and Ms. Bury had a poor work relationship,
Plaintiff has offered no allegations, to support beyond speculation, that he was subject
to an objectively hostile work environment, rather than one that he was upset with.
See Saxton, 20 F.3d at 535 (explaining that a supervisor’s “inaccessibility,
condescension, impatience, and teasing” may make a plaintiff’s work life subjectively
unpleasant, but it was not sufficiently severe or pervasive to alter the conditions of
employment and create a hostile work environment). Plaintiff’s conclusory allegation
that Ms. Bury “has purposely gone into the Plaintiff’s with [sic] the intent to harass
the Plaintiff on an otherwise peaceful day” (Doc. 16 at 6) is insufficient to raise his
claim above speculation. Lanton v. City of Chi., No. 16-C-2351, 2016 U.S. Dist. LEXIS
108805, at *19-21 (N.D. Ill. Aug. 17, 2016).
v.
HARASSMENT NOT ALLEGED TO BE SEVERE OR PERVASIVE
Last, Plaintiff does not allege facts to support beyond speculation that the
harassment was severe or pervasive. Plaintiff has only alleged the comments about
his second job in generalities and his provided no specific comments; however, the
general comments about unfairness and an “on call rotation” were not severe.
Additionally, the severity of the harassment is already diminished because Ms. Bury
did not make the comments about his job directly to him. (Doc. 16 at 10). Therefore,
these comments are “second-hand harassment” and are not as severe as if the
18
comments had been made directly to him. Adusumilli, 164 F.3d at 362 (citing
Gleason, 118 F.3d at 1144).
Furthermore, Plaintiff has not alleged facts to support beyond speculation that
the harassment was pervasive. Plaintiff has alleged that Ms. Bury made a remark
about his second job on or around April 17th, 2015, and again on or around July 14th,
2015 (Doc. 1 at 8-9). Allegations of two comments over the course of four months is
not sufficient to support an allegation of pervasive harassment beyond speculation.
See generally Faragher, 524 U.S. at 788 (“A recurring point in these opinions is that
‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the ‘terms and conditions of
employment’”); see also Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464, 467 (7th Cir.
1998) (“With that in mind, we have said that relatively isolated instances of
nonsevere misconduct will not support a claim of hostile environment.”).
As previously discussed, outside of Plaintiff’s allegations pertaining to Ms.
Bury’s comments on his second job, Plaintiff seven examples of harassment that Ms.
Bury allegedly performed over seven and a half years. (Doc. 16 at 6-7). That is less
than one instance per year, which is hardly frequent enough to be considered
pervasive. Therefore, Plaintiff has failed to allege sufficient factual details to support
his claims of a Title VII hostile work environment beyond a speculative level and the
claim must be dismissed.
B. PLAINTIFF’S ALLEGATIONS OF GENDER DISCRIMINATION UNDER TITLE VII
Plaintiff has also failed to state sufficient facts to raise his allegations of gender
discrimination under Title VII above speculation. Plaintiff only enumerates one
19
claim. However, because the Court reads a pro se complaint with broad leeway, it
appears that Plaintiff alleges two claims of discrimination. Plaintiff’s first allegation
is that Defendant failed to issue him an internal restraining order. However, Plaintiff
has failed to sufficiently state a claim of gender discrimination because he has alleged
no adverse employment action. Plaintiff’s second allegation is that Ms. Bury gives
smaller raises to males than females in her division. However, Plaintiff has plead
himself out of Court because he alleges facts that Ms. Bury thought Plaintiff’s salary
was too high compared to another one of Plaintiff’s male coworkers. Therefore,
Plaintiff has not plead sufficient facts to raise beyond speculation that his gender was
the cause of his lower raise and not his overall salary, which is not a protected trait.
Each of these claims will be discussed in turn.
i. PLAINTIFF’S ALLEGATIONS THAT DEFENDANT DISCRIMINATED AGAINST HIM
BECAUSE THEY DID NOT ISSUE HIM AN “INTERNAL RESTRAINING ORDER”
Plaintiff has failed to states a claim of gender discrimination when Defendant
refused to offer Plaintiff an “internal restraining order” because Plaintiff has not
alleged any adverse employment action. Because he has not alleged an adverse
employment action, he has not stated a claim for gender discrimination and his claim
must be dismissed.
a. LEGAL STANDARDS FOR TITLE VII DISCRIMINATION CLAIMS
Title VII makes it unlawful for an employer to “to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). The United States Court of Appeals for the Seventh Circuit establishes that
20
the legal standard in discrimination cases is “simply whether the evidence would
permit a reasonable factfinder to conclude that the plaintiff’s [sex] caused the
discharge or other adverse employment action.” Ortiz v. Werner Enters., Inc., 834 F.3d
760, 765 (7th Cir. 2016). The Court is instructed to consider the evidence as a whole.
Id.
In order to state a claim for gender discrimination, Plaintiff must allege that
“the employer instituted a (specified) adverse employment action against the plaintiff
on the basis of [his gender].” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 633 (7th
Cir. 2013) (citing Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir.
2013)). An adverse employment action has been defined as a “significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits.” Herrnreiter v. Chi. Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002) (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761)).
b. PLAINTIFF’S FACTUAL ALLEGATIONS PERTAINING
RESTRAINING ORDER”
TO
THE
“INTERNAL
Plaintiff alleges that Defendant discriminated against him based on his gender
because Defendant did not issue him an “internal restraining order” like they issued
a female colleague. (Doc. 16 at 12-13). Plaintiff alleges that Ms. Goldberg complained
about Ms. Bury to Defendant’s former provost, Dr. David Glassman. Plaintiff alleges
that Dr. Glassman made accommodations for Ms. Goldberg in a manner similar to an
“internal restraining order,” preventing Ms. Bury from interacting with Ms.
Goldberg. (Doc. 16 at 13). Dr. Glassman then retired and Defendant replaced him
with Dr. Joan Sattler. (Doc. 16 at 13). Plaintiff requested an “internal restraining
21
order” from Defendant. (Doc. 16 at 13). Plaintiff was informed by the Director of HR
that there was no such thing as an “internal restraining order” and if there was, Ms.
Bury’s behavior would not warrant use of one. (Doc. 16 at 13).
After Plaintiff filed an internal grievance, Plaintiff was then informed by Dr.
Sattler that an ad hoc committee reviewed it and determined that it did not merit a
formal review. (Doc. 16 at 41). Additionally, Dr. Sattler informed Plaintiff that she
agreed with their determination. (Doc. 16 at 41).
Therefore, Plaintiff argues that Defendant discriminated against him by not
offering him the “internal restraining order” and by refusing to investigate his
internal grievance. (Doc. 16 at 17). Additionally, Plaintiff argues that Defendant
“permitted [an] adverse employment action against Plaintiff” because Defendant
promoted Ms. Bury into another management position with more authority over him
and by refusing to move his office. (Doc. 16 at 17).
c. NO ADVERSE EMPLOYMENT ACTION
Plaintiff has not alleged an adverse employment action and therefore has failed
to state a claim for gender discrimination. Courts have found adverse employment
actions in the following types of situations: an employee’s compensation or benefits
are diminished; an employee is fired; where an employee is nominally transferred or
experiences a change in his job that significantly reduces his career prospects; or
where his work conditions are changed so as to subject him to a “humiliating,
degrading, unsafe, unhealthful, or otherwise significantly negative alteration in his
workplace environment.” Nichols v. S. Ill. University-Edwardsville, 510 F.3d 772, 780
(7th Cir. 2007) (quotations omitted).
22
None of these are applicable here. Plaintiff does not allege that he was
demoted, or received a decrease in salary, or was transferred to a new department
where his future job prospects where diminished. Plaintiff alleges that Defendants
did not offer him an “internal restraining order.” However, this has not created an
adverse employment action, which has been defined as a “significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits.” Herrnreiter, 315 F.3d at 744 (quoting Ellerth, 524 U.S. at 761)). Plaintiff
does not allege that any of these occurred.
Plaintiff appears to be upset that Defendants did not take the action he wanted
them to take after filing his complaints and internal grievances. (Doc. 21 at 8 (“In this
case the Defendant does have policies and grievance mechanisms in place, but the
Plaintiff argues to their ‘effectiveness’ as applicable to his situation with Ms. Bury.”)).
However, Plaintiff’s exhibits show that his complaints and grievances were not
ignored by Defendant. Rather, an ad hoc committee investigated his complaints and
determined that they did not warrant further action. (Doc. 16 at 41). Plaintiff’s
unhappiness with the results of his grievance process is not an adverse employment
action.
Additionally, Plaintiff argues that it was an adverse employment action
because Defendant promoted Ms. Bury during this time and gave her greater “official
power to implement her already well known tendencies of harassing behavior on the
Plaintiff and other male subordinates.” (Doc. 16 at 17). However, this is a conclusory
allegation, not a fact. Additionally, Ms. Bury’s promotion was not an adverse
23
employment action against Plaintiff. Ms. Bury’s promotion did not change Plaintiff’s
employment. Additionally, her refusal to change offices is not an adverse employment
action because there was no action taken.
Furthermore, the changed conditions must objectively—not subjectively—
create a hardship, such as moving the employee’s desk into a closet. Herrnreiter, 315
F.3d at 744-45 (citations omitted). As explained in § III.A.iv, Plaintiff’s complaints of
harassment did not create an objective hardship.
d. PLAINTIFF’S FACTUAL ALLEGATIONS OF DECREASED RAISES
Plaintiff has plead himself out of court on any allegation that he received a
lower raise because of his gender. In reading Plaintiff’s Complaint with the leniency
owed to pro se plaintiffs, Plaintiff alleges that Ms. Bury has discriminated against
him by giving him a lower annual salary increase because he is male. (Doc. 16 at 5).
Plaintiff alleges that Ms. Bury modified his annual employment evaluation to give
him a lower score than his immediate supervisor had given him. (Doc. 16 at 5).
Additionally, Plaintiff alleges that Ms. Bury has repeatedly and consistently received
one of the lowest annual salary increases in her department. (Doc. 16 at 5). Plaintiff
also alleges that Ms. Bury has “had a problem with the Plaintiff’s salary from upon
his hiring at Bradley, thinking said salary was too high.” (Doc. 16 at 5).
Lastly, Plaintiff alleges that Ms. Bury discussed Plaintiff’s salary level with
Mr. Ghere, a co-worker of Plaintiff’s. (Doc. 16 at 6). A statement by Mr. Ghere
indicates that Ms. Bury approached Mr. Ghere after Plaintiff was rehired in 2007 and
informed him that “although [Plaintiff and Mr. Ghere] would be performing similar
duties, [Plaintiff’s] starting salary would be significantly higher.” (Doc. 16 at 42). Mr.
24
Ghere also started that Ms. Bury was unhappy with the salary and “wished that she
could make the salary structure more ‘fair.’” (Doc. 16 at 42). Mr. Ghere also indicated
that he had been working for Defendant for a great deal longer than Plaintiff.
e. PLAINTIFF DID NOT RECEIVE A LOWER ANNUAL SALARY INCREASE BECAUSE
OF HIS GENDER
Plaintiff has not alleged facts beyond speculation that would allow a
reasonable factfinder to determine that he received a lower annual salary increase
because of his gender. To prove a Title VII discrimination claim, Plaintiff must show:
“simply whether the evidence would permit a reasonable factfinder to conclude that
the plaintiff’s [sex] caused the discharge or other adverse employment action.” Ortiz,
834 F.3d at 765. However, to survive a motion to dismiss challenge, a plaintiff ‘must
plead some facts that suggest a right to relief that is beyond the ‘speculative level.’”
Atkins, 631 F.3d at 832. “This means that the complaint must contain allegations
plausibly suggesting (not merely consistent with) an entitlement to relief.” Lavalais,
734 F.3d at 633 (quotations omitted). However, Plaintiff has not alleged facts beyond
speculation that his low annual salary increase amounts were because of his gender.7
First, Plaintiff’s low annual salary increase is not an adverse employment
action unless Plaintiff was entitled to the raise. See Rabinovitz v. Pena, 89 F.3d 482,
488-89 (7th Cir. 1996) (“[The] loss of a bonus is not an adverse employment action in
Plaintiff argues in his response that Defendant has failed to exercise reasonable
care to prevent and correct the sexually harassing behavior. (Doc. 21 at 10). However,
the Defendant’s reasonable care is an affirmative defense and affirmative defenses
are not at issue here. The issue before the Court is whether Plaintiff’s Amended
Complaint sufficiently pleads a claim for Title VII discrimination. The deficiencies
lies within Plaintiff’s Amended Complaint and any possible affirmative defenses that
Defendant may have are not currently before the Court.
7
25
a case such as this where the employee is not automatically entitled to the bonus.”);
see also Miller v. Amer. Fam. Mut. Ins. Co., 203 F.3d 997, 1006 (7th Cir. 2000)
(applying Rabinovitz to raises). Plaintiff has not alleged that he was entitled to a
raise. Furthermore, Plaintiff’s contract, which was attached to his Response to the
Motion to Dismiss, does not indicate that he was entitled to a raise. (Doc. 21 at 21).
The contract simply says “[n]otification of any increase to your 2014-2015 salary will
occur after October 1, 2014.” (Doc. 21 at 21). This shows that if Plaintiff were to get a
raise, he would be informed of this sometime in October. This does not state that he
was entitled to a raise.
However, even if Plaintiff was entitled to a raise, Plaintiff’s claim still fails.
Plaintiff alleges that Ms. Bury gave him a low annual salary increase because he was
male. However, Plaintiff’s exhibit contradicts that assertion and indicates that Ms.
Bury was upset that Plaintiff’s salary was higher than another male employee, who
had been working for Defendant longer and who was performing substantially similar
work. (Doc. 16 at 42). Plaintiff’s exhibit indicates that Ms. Bury was not upset with
Plaintiff’s salary because he was male, as Mr. Ghere was also male. (Doc. 16 at 42).
Rather, Plaintiff’s exhibit indicates that Ms. Bury thought it was unfair that Plaintiff
would be paid substantially more than Mr. Ghere for performing the same work when
Mr. Ghere had been employed with Defendant longer. (Doc. 16 at 42). Therefore, it is
pure speculation on Plaintiff’s part that Ms. Bury gave him a low annual salary
increase than others; this is insufficient to survive a motion to dismiss. Bogie, 705
F.3d at 609 (7th Cir. 2013) (explaining that when an exhibit incontrovertibly
26
contradicts the allegations in the complaint, then the exhibit generally controls, even
when the court is considering a motion to dismiss).
Additionally, Plaintiff appears to allege that Ms. Bury altered his annual
review score which, drawing inferences in favor of Plaintiff, resulted in his low annual
salary increase. However, this argument was rejected by the Court in Plaintiff’s
original Complaint. (Doc. 15 at 26-27). In an exhibit attached to the Complaint by
Plaintiff, Plaintiff’s supervisor explicitly states that he wrote the review and that Ms.
Bury did not alter it. (Doc. 1 at 38 (“Once I finished I gave a copy of [Plaintiff’s] review
to [Ms. Bury. Ms. Bury] emailed me later that it was OK with her. I told [Plaintiff]
that I wrote the review, and all of the words were mine.”)). Bogie, 705 F.3d at 609
(7th Cir. 2013) (explaining that when an exhibit incontrovertibly contradicts the
allegations in the complaint, then the exhibit generally controls, even when the court
is considering a motion to dismiss). Therefore, Plaintiff’s low annual review score was
not given by Ms. Bury and cannot support, beyond speculation, an argument that his
low score resulted in a low annual increase amount.
Plaintiff has not alleged facts sufficient to raise his claim of gender
discrimination above speculation. Therefore, his claim must be dismissed for failing
to state a claim upon which relief can be given.
IV.CONCLUSION
Title VII is meant to protect those who are discriminated against because of a
protected, immutable trait. Title VII does not protect against “standoffish, rude, or
unprofessional behavior from coworkers.” Byrd v. Wis. Dep’t of Veterans Affairs, 98 F.
Supp. 3d 972, 981 (W.D. Wis. 2015) (citing Faragher, 524 U.S. at 788 and Erickson,
27
569 F.3d at 790). While it is evident that the working environment that Plaintiff has
is not ideal, a plaintiff is not entitled to cry discrimination simply because he
disagrees with his manager, who is female. Nor is Plaintiff entitled to claim a hostile
work environment because his manager made a comment about his second job—a
second job is a choice, not an protected immutable trait.
Plaintiff was given an opportunity to amend his complaint and cure his
deficiencies. He has not done so. Plaintiff continues to assert discrimination based on
attributes that are not protected traits (i.e. his second job), these are allegations that
cannot be cured by amendment. Therefore, Defendant’s Motion to Dismiss (Doc. 18)
is GRANTED and Plaintiff’s claims are DISMISSED WITH PREJUDICE. See
Jefferson v. Stepp, 16 F. App’x 474, 476 (7th Cir. 2001) (citing Smith-Bey v. Hosp.
Adm’r, 841 F.2d 751, 758 (7th Cir. 1988) (explaining that dismissal with prejudice
under § 1915 is appropriate when the deficiencies in the pleading cannot be cured by
amendment)).
CASE TERMINATED.
Entered this __15th___ day of August, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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