Powell v. Illinois Department of Corrections
Filing
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ORDER granting in part and denying in part 24 Defendant's Motion to Dismiss for Failure to State a Claim. See full written order. Entered by Chief Judge James E. Shadid on 9/20/2017. (RT, ilcd)
E-FILED
Wednesday, 20 September, 2017 02:00:05 PM
Clerk, U.S. District Court, ILCD
IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CLARENCE POWELL,
Plaintiff,
v.
Case No. 1:16-cv-01452-JES-JEH
ILLINOIS DEPARTMENT OF
CORRECTIONS,
Defendant.
Order
Before the Court is the Defendant, Illinois Department of Corrections’ (“IDOC”), Motion
to Dismiss for Failure to State a Claim (D. 24) 1 and the Plaintiff, Clarence Powell’s, Response.
(D. 29). The Defendant has also provided a supporting memorandum. (D. 25). For the reasons
stated, infra, the Defendant’s motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
In April 2016, the Plaintiff filed his Complaint against the Defendant. (D. 1). His
Amended Complaint, filed the following day, included the following counts: Count I, Harassment
pursuant to Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. § 2000e(5) (“Title VII”)
and 42 U.S.C. § 1981 (“Section 1981”); Count II, Disparate Treatment Under Title VII and Section
1981; and Count III, Retaliation Under Title VII. (D. 5 at pp. 22-24). The Plaintiff has since
1
Citations to the Docket in this case are abbreviated as “D. __.”
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conceded that his section 1981 claims are barred by the Eleventh Amendment and “voluntarily
dismiss[es] those claims.” (D. 29 at pg. 2). Thus, the Plaintiff’s remaining claims are Retaliation,
Disparate Treatment, and Harassment, brought exclusively under Title VII.
The Plaintiff filed an Equal Employment Opportunity Commission (“EEOC”) charge on
November 24, 2015 alleging the Defendant racially discriminated against him, in violation of Title
VII. (D. 25-1). In the particulars, he stated wholly as follows:
I began my employment with Respondent on or about November 8, 1999. My
current position is Correctional Officer. During my employment I was subjected
to continuous racial harassment and disciplined, while other non-Black employees
were not disciplined.
I believe I have been discriminated against based on my race, Black, in violation of
Title VII of the Civil Rights Act of 1964, as amended.
Id. The charge form, EEOC Form 5, has multiple boxes for petitioners to allege the basis for their
discrimination charge. Retaliation was one of the options on the form. The Plaintiff only marked
the box for race discrimination. Id.
In the Plaintiff’s Amended Complaint, he alleged a multitude of facts he claims pertain to
his race-based harassment, disparate treatment, and retaliation by the Defendant between 2006 and
2015 while he was a correctional officer at Defendant’s Pontiac Correctional Facility (“PCF”). (D.
5). The Plaintiff states that he is an African-American and that several of his superiors at IDOC
violated his rights under, inter alia, Title VII. He named the following specific PCF employees as
defendants: “Lieutenant Duane Beal, Lieutenant Benny Dallas, Lieutenant Eugene Masching,
Lieutenant Shawn Holmes, Major James Blackard, Major Susan Prentice, Superintendent Michael
Melvin, Warden Guy Pierce, and Warden Randy Pfister[.]” Id. at pg. 2.
The Plaintiff describes several events during his time as an employee at PCF in his
Amended Complaint. He claims his allegations all support his individual claims of harassment,
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disparate treatment, and retaliation. In particular, he claims: (1) Lieutenant Beal threatened to
lynch him; (2) Lieutenants Masching and Dallas harassed him repeatedly, and eventually retaliated
against him for reporting them; (3) Masching continued to harass him for reporting his behavior
to IDOC authorities; (4) Masching authored and posted a mock memorandum with the Plaintiff’s
picture on it and a racial slur; (5) Superintendent Melvin discriminated against him by disciplining
him for taking leave which he was entitled to take under the Family Medical Leave Act of 1993
(“FMLA”) 29 U.S.C. § 2612; and (6) the harassment against him is part of PCF’s broader scheme
to intentionally discriminate against African-American correctional officers. (D. 5).
First, the Plaintiff alleges that in January 2014, while Beal was his direct supervisor, Beal
told him “he would ‘slap the black off [the Plaintiff’s] face’ and that he would ‘hang [the Plaintiff]
from an oak tree.’” Id. at pg. 4. The Plaintiff also claims Beal consistently made these and other
similar comments to him from January 2013 until January 2014. The Plaintiff eventually reported
Beal to IDOC’s Office of Affirmative Action (“OOAA”). His complaint was substantiated and
IDOC suspended Beal for 20 days.
The Plaintiff also alleges that throughout 2006, Dallas and Masching “repeatedly made
derogatory remarks about [his] race in his presence.” Id. at pg. 6. The Plaintiff asserts that after
he reported Dallas and Masching to the OOAA for their remarks, they retaliated against him in
“mid-2007” by assigning him to a unit where inmates were allowed to smoke, exacerbating his
asthma. Id. at pg. 8. Months later, smoking was banned in the facility.
According to the Plaintiff, however, Masching continued to make racially derogatory
remarks to him. The Plaintiff says he regularly reported Masching for his behavior through
IDOC’s proper channels in the “late spring and summer of 2015,” but his reports resulted in no
discipline and actually intensified Masching’s harassment efforts. Id. at pg. 9. Masching’s
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harassment allegedly involved hiding the Plaintiff’s work equipment and regularly following him
in a “hyper-vigilant[]” manner that was intended to intimidate him. Id. at pg. 10. The Plaintiff
also alleges Masching retaliated against him “for several years, including 2015” by “giving him
negative performance evaluations even though [his] work at IDOC was always exceptional.” Id.
at pg. 12.
In response to the Plaintiff reporting Masching’s behavior, he claims Masching filed a
“false” report against him in August 2015, in which he implicated the Plaintiff for being found “in
a relaxed position” while on duty. Id. at pg. 11. Major Blackard and Major Prentice conducted an
Employee Review Hearing (“ERH”) to assess Masching’s report. The Plaintiff presented evidence
at the hearing suggesting that he was either about to make a phone call or had just completed one
at the time he was accused of being in a relaxed position. The ERH concluded that the Plaintiff
violated IDOC regulations by being in a relaxed position, as alleged, and suspended him for one
day. According to the Plaintiff, his suspension was later rescinded. The Plaintiff also alleges that
sometime in 2014, correctional officer Thomas Scott told him that he heard Masching say he could
“predict how long a black CO would stick around before resigning” once he was done harassing
them. Id. at pg. 12.
Next, the Plaintiff alleges that in September 2015 there was a fake memorandum posted in
a common area at PCF. The memorandum was printed on official IDOC letterhead, the Plaintiff’s
official IDOC identification photograph was printed on it, and there was a handwritten note that
said “fucking nigger” with an arrow drawn from the phrase to the Plaintiff’s photograph. The
memorandum also purported that, per the warden, the Plaintiff was not allowed on the premises
on September 23, 2015. Legitimate memorandums of this kind, minus racial insults and profanity,
are commonly posted to remind on duty supervisors when specific staff members are suspended.
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The Plaintiff reported the fake memorandum immediately after he removed it from the wall
and made himself a copy of it. The matter was investigated, but it was never determined who was
responsible for creating and posting the fake memorandum. The Plaintiff stated that Masching
was present, as an on-duty supervisor, when he found the memorandum. He also claims that only
supervisors can access official IDOC letterhead and identification photographs.
Plaintiff further asserts that from approximately September 2013 to February 2014,
Superintendent Melvin disciplined him for taking time off of work. The Plaintiff claims the time
he took off was approved by virtue of an “FMLA notice” approved by a state of Illinois FMLA
coordinator, which he provided to Melvin. Id. at pg. 15. According to the Plaintiff, Warden Pierce
eventually prevented Melvin from disciplining him and these incidents were expunged from his
record. Id. at pg. 16.
Finally, the Plaintiff also claims Masching, Blackard, and Prentice subjected him to “false
discipline” which was “motivated by animus toward [him] due to his race, and also constituted
retaliation for [his] complaints against white management for the racial discrimination and
harassment directed at him at Pontiac.” (D. 5 at pg. 12). This is part of his broader argument that
PCF is attempting to force African-American correctional officers to quit their jobs. He alleges
they collaborated in their efforts, which “reveals how the all-white, upper-level management
systematically refuses to discipline and, thus, authorizes and encourages racial harassment and
discrimination at Pontiac.” (D. 5 at pg. 12). The Plaintiff also makes several general allegations
about the disparate treatment that African-Americans receive at PCF in comparison to their white
counterparts in terms of promotion, disciplinary treatment, and approval for vacation. Id. at pg.
16-21. He also said that he complained to management “repeatedly” about the regular use of racial
slurs by white supervisors at PCF. The Plaintiff cites no specific instances in this section of his
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Amended Complaint where he personally suffered as a result of the discrepancies he complains
about. The Plaintiff concedes, however, that he is not bringing claims on anyone else’s behalf.
(D. 29 at pg. 15).
In February 2017, the Defendant filed a Motion to Dismiss the Plaintiff’s Amended
Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). (D. 24). The Defendant argues,
inter alia, that the Plaintiff’s Amended Complaint failed to state claims upon which relief can be
granted. Specifically, as it pertains to the Plaintiff’s Title VII counts, the Defendant argues: (1)
the Plaintiff’s retaliation claims should be dismissed because he failed to properly exhaust them;
(2) the Plaintiff’s disparate treatment claims should be dismissed because he does not allege an
actionable adverse employment action within Title VII’s 300 day statute of limitations; and (3) the
Plaintiff’s harassment claim should also be dismissed as it is barred by the 300 day statute of
limitations. (D. 24 at pg. 2-3).
LEGAL STANDARD
In reviewing the Defendant’s Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court accepts the Plaintiff’s factual allegations as true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Allegations stated in the form of legal conclusions, however, are
insufficient to survive a motion to dismiss. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d
873, 885 (7th Cir. 2012). A complaint must contain a short and plain statement of the plaintiff’s
claim, sufficient to show entitlement to relief and to notify the defendants of the allegations against
them. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). This
standard is met if the plaintiff describes in sufficient factual detail enough to suggest a right to
relief beyond a speculative level. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); EEOC v.
Concentra Health Srvs., 496 F.3d 773, 776 (7th Cir. 2007).
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More specifically, a complaint must go beyond “mere labels and conclusions” to contain
“enough to raise the right to relief above the speculative level.” G&S Holdings, LLC v. Cont’l
Cas. Co., 697 F.3d 534, 537-38 (7th Cir. 2012). In short, “the plaintiff must give enough details
about the subject-matter of the case to present a story that holds together. In other words, the court
will ask itself could these things have happened, not did they happen.” Swanson v. Citibank, N.A.,
614 F.3d 400, 404 (7th Cir. 2010) (emphasis in original).
ANALYSIS
A
First, the Court addresses the Defendant’s argument that the Plaintiff’s Title VII retaliation
claim should be dismissed. (D. 25 at pp. 5-7). The Defendant asserts that this count is insufficient
because the Plaintiff did not file an EEOC charge alleging retaliation and therefore failed to
properly exhaust his administrative remedies as required. Id. The Plaintiff responds by arguing
that the Defendant’s point on this issue impermissibly relies on a document outside of his Amended
Complaint, his own EEOC charge. (D. 29 at pg. 8). He asserts that the Defendant’s reliance on
the charge is “entirely improper as a matter of law.” Id. at pg. 8.
Indeed, the Plaintiff did not attach his EEOC charge to his Amended Complaint, but he did
reference it therein. (D. 5 at pg. 3). The Defendant attached the Plaintiff’s EEOC charge to its
Motion to Dismiss. (D. 25-1). As a general rule, motions to dismiss brought pursuant to Federal
Rule of Civil Procedure 12(b) are limited to factual allegations contained in the complaint and the
attached exhibits. See Fed. R. Civ. P. 12(d) (documents outside the complaint may not be
considered without converting the motion to dismiss into a motion for summary judgment). The
Seventh Circuit, however, has already found the Plaintiff’s argument entirely without merit.
Adams v. City of Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014) (calling this precise argument
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“frivolous”). Accordingly, the Court considers the Plaintiff’s EEOC charge in assessing the
Defendant’s Motion.
Plaintiffs are generally limited to bringing Title VII claims against a defendant which were
either: (1) included in their prior EEOC charges; or (2) are similar to or reasonably related to the
allegations from the charge and growing out those allegations. Huri v. Office of the Chief Judge
of the Circuit Court of Cook County, 804 F.3d 826, 831-32 (7th Cir. 2015); Cheek v. Western &
Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). The latter criteria is satisfied when “there
is a reasonable relationship between the allegations in the charge and the claims in the complaint,
and the claim in the complaint can reasonably be expected to grow out of an EEOC investigation
of the allegations in the charge.” Id. At a minimum, this requires that the charge and the complaint
describe the same conduct and implicate the same individuals. McKenzie v. Illinois Dep’t of
Transp., 92 F.3d 473, 481 (7th Cir. 1996).
As discussed above, the Plaintiff did not check the box to allege retaliation on his EEOC
charge. This, in and of itself, is not enough for the Court to find that the Plaintiff failed to allege
retaliation on the charge. Ajayi v. Aramark Bus. Svcs., Inc., 336 F.3d 520, 528 (7th Cir. 2003)
(declining to rest their decision “on an omitted checkmark”). Rather, the Court must also look to
the facts alleged in the charge in order to ascertain whether they are similar or reasonably related
to the Plaintiff’s allegations of retaliation in his Amended Complaint. Huri, 804 F.3d at 831-32.
The Defendant cites McKenzie, arguing that, generally speaking, a plaintiff who did not assert a
retaliation claim in their EEOC charge cannot file a lawsuit based on retaliation. (D. 25 at pg. 6).
More precisely stated, McKenzie stands for the proposition that plaintiffs who allege they suffered
retaliatory acts prior to the filing of their EEOC charge cannot utilize those events—if they were
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not referenced in their charge—as the basis for a retaliation claim in their subsequent complaint.
92 F.3d at 483.
The Plaintiff argues his retaliation claim should proceed because it is reasonably related to
his charge of discrimination and “discovery will reveal that the EEOC investigation unearthed
factual allegations of Masching’s retaliation against” him, which put the Defendant on notice of
the retaliation claim. (D. 29 at pg. 11). The Plaintiff also clarified that the retaliation count in his
Amended Complaint “stem[s] from Masching’s constant race-based harassment of plaintiff, which
led to Masching’s retaliatory conduct against plaintiff (culminating in Masching’s false discipline
of plaintiff and attempts to get plaintiff fired) after plaintiff reported Masching to IDOC’s upper
management.” Id. at pg. 11. By the Plaintiff’s own admission, Masching’s allegedly false
discipline of the Plaintiff occurred before he filed his EEOC charge in November 2015. As a
result, this event cannot form the basis for the Plaintiff’s retaliation claim.
Masching’s alleged attempts to get the Plaintiff fired involve the multiple negative
performance reviews he claims Masching gave him, including one in 2015. (D. 5 at pg. 12). It is
possible that the Plaintiff’s negative performance reviews constitute a retaliatory adverse
employment action. See Brown v. Advocate South Suburban Hosp., 700 F.3d 1101, 1108 (7th
Cir. 2012). As such, the Plaintiff’s retaliation claim is sufficient to survive the Defendant’s
Motion to Dismiss. While the Plaintiff’s vague accusation of racial discrimination in his EEOC
charge does not allege any retaliatory acts of discipline on the part of the Defendant, it is possible
that the Defendant’s allegedly racially discriminating conduct simultaneously involved
retaliatory acts. While racial discrimination under Title VII does not necessarily encompass acts
of retaliation (Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 63 (2006)), such information
could reasonably be expected to come to light during an investigation into the Plaintiff’s racial
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discrimination charge. Thus, the Defendant’s Motion, as it pertains to the Plaintiff’s Title VII
retaliation claims, is DENIED.
B
Next, the Court addresses the Defendant’s argument that the Plaintiff’s disparate treatment
claim should be dismissed. (D. 25 at pp. 7-11). The Defendant asserts that the Plaintiff failed to
allege an actionable adverse employment action within Title VII’s 300-day statute of limitations.
Id. 42 U.S.C. § 2000e-5(e)(1) requires plaintiffs to file a charge of employment discrimination
with the EEOC within 300 days of the alleged unlawful employment practice. In the Defendant’s
view, allegations that the Plaintiff asserts took place before January 28, 2015 are time-barred since
the Plaintiff filed his charge of discrimination with the EEOC on November 24, 2015.
The Plaintiff maintains that his disparate treatment claim is properly stated. (D. 29 at pp.
12-15). First, he argues that the Defendant’s argument on this issue impermissibly relies on his
EEOC charge. (D. 29 at pp. 12-13). For the reasons previously stated, the Court finds this
argument insufficient and will not address it further. The Plaintiff also asserts that his claim is
properly before the Court and should survive on the merits. Id. at pp. 13-15.
According to the Defendant, the Plaintiff is alleging several discrete incidents. If so,
these incidents cannot overcome the 300 day statute of limitations, even if they are related. See
Nat’l Railroad Passenger Corp. v. Abner Morgan, Jr., 536 U.S. 101, 114 (2002). This holds true
in disparate treatment claims regardless of whether the Plaintiff alleged a continuous course of
conduct on the part of the Defendant. Adams v. City of Indianapolis, 742 F.3d 720, 729 (7th Cir.
2014).
The Plaintiff stated in the particulars of his EEOC charge that during his employment he
was continuously racially harassed and disciplined, while other employees that were not African-
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American were not subject to the same treatment. (D. 25-1). In his Amended Complaint, the
Plaintiff specifically alleges the following acts occurred sometime after January 28, 2015: (1)
Masching’s continued harassment of him in the Spring and Summer of 2015; (2) the false report
filed against him for assuming a relaxed position on duty; (3) the fake memorandum posted in a
common area with his picture and a racial slur on it; and (4) the Plaintiff’s repeated complaints to
management about his supervisors’ use of racial slurs while working at PCF.
These accusations could, arguably, constitute acts of disparate treatment. Their presence
allows for the possibility that at least some of the acts which allegedly violated the Plaintiff’s rights
under Title VII after January 28, 2015, subjected him to disparate treatment. Thus, the Plaintiff’s
disparate treatment count is sufficiently pleaded. The Defendant’s Motion, as it pertains to the
Plaintiff’s Title VII disparate treatment claims, is therefore DENIED.
C
Lastly, the Court addresses the Defendant’s argument that the Plaintiff’s harassment claim
should be dismissed. (D. 25 at pp. 11-12). Specifically, the Defendant asserts that the Plaintiff’s
Title VII harassment claims should be dismissed because “the majority of the incidents he pleads
are time-barred, and the remaining incidents do not rise to the level of Title VII harassment.” Id.
at pg. 11. Again, in the Defendant’s view, the allegations the Plaintiff asserts took place before
January 28, 2015 are time-barred.
Unlike disparate treatment claims, harassment claims alleging a hostile work environment,
as the Plaintiff does here, are not subject to the 300-day period. In such claims, incidents outside
the 300 day statute of limitations are allowed “so long as all acts which constitute the claim are
part of the same unlawful employment practice and at least one act falls within the time period.”
Morgan, 536 U.S. at 122; see also Adams, 742 F.3d at 730 (citing same).
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The Plaintiff alleges the Defendant’s racial harassment began as early as January 2014
when he asserts Beal threatened to hang him in such a manner that “carried racially-charged
connotations of intimidation and lynching.” (D. 5 at pg. 4). This is clearly outside the 300 day
statute of limitations. The Plaintiff’s Title VII harassment claim need not stand or fall entirely on
the conduct that he alleges in his complaint occurred between January 28, 2015 and his last day of
employment at PCF, sometime in 2015. As noted earlier, the Plaintiff included in his Amended
Complaint multiple allegations which he claims transpired sometime after January 28, 2015.
Those allegations, are part of the same alleged unlawful employment practices they and, as alleged,
fall within the appropriate time period. As such, the Defendant’s Motion, as it pertains to the
Plaintiff’s Title VII harassment claims, is DENIED.
CONCLUSION
For the foregoing reasons, the Defendant’s Motion (D. 24) is GRANTED in part and
DENIED in part. In summary, the Defendant’s Motion is GRANTED in respect to all counts,
minus the Plaintiff’s Title VII retaliation, disparate treatment, and harassment claims.
It is so ordered.
Entered on September 20, 2017
_s/James E. Shadid
James E. Shadid
Chief United States District Judge
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