Hale v. Board of Trustees of Southern Illinois University School of Medicine
Filing
17
OPINION: Defendant's Motion to Dismiss Pursuant to Rule 12 (b)(6) 8 is GRANTED IN PART. Plaintiff's Title VII claims alleging discrimination for failure to promote and failure to stop harassment and Plaintiff's ADA claim alleging a f ailure to reasonably accommodate Plaintiff's disabilities are dismissed without prejudice for failure to exhaust administrative remedies. This ruling does not affect Plaintiff's claims under 42 U.S.C. § 1981. SEE WRITTEN ORDER. Entered by Judge Sue E. Myerscough on 11/07/2016. (SKN, ilcd)
E-FILED
Tuesday, 08 November, 2016 08:52:46 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
LOUISE HALE,
)
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Plaintiff,
)
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v.
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BOARD OF TRUSTEES OF
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SOUTHERN ILLINOIS UNIVERSITY )
SCHOOL OF MEDICINE,
)
)
Defendant.
)
No. 16-cv-3191
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This matter is before the Court on the Motion to Dismiss
Pursuant to Rule 12(b)(6) (d/e 1) filed by Defendant Board of
Trustees of Southern Illinois University. The Motion is GRANTED
IN PART. Plaintiff Louise Hale’s Title VII claims pertaining to a
failure to promote and a failure to stop harassment and her
Americans with Disabilities Act (ADA) claim alleging a failure to
reasonably accommodate her disabilities are outside the scope of
the charge of discrimination Plaintiff filed with the Illinois
Department of Human Rights (the Department) and the United
States Equal Employment Opportunity Commission (EEOC).
Page 1 of 16
I. BACKGROUND
On June 28, 2016, Plaintiff filed in this Court a pro se
Complaint of Employment Discrimination using a pre-printed form
(d/e 1). The attachments to the Complaint indicate that Plaintiff,
who was born in Mexico, worked as a licensed practical nurse for
Defendant for nearly 20 years until she was allegedly forced to
resign in November 2014.
Plaintiff marked the boxes on the pre-printed complaint form
alleging that Defendant discriminated against her on the basis of
her color, national origin, and race in violation of Title VII of the
Civil Rights Act and discriminated against her on the basis of her
race in violation of 42 U.S.C. § 1981. In particular, Plaintiff alleges
that Defendant intentionally discriminated against her by
terminating Plaintiff’s employment; failing to promote Plaintiff;
failing to stop harassment; failing to reasonably accommodate
Plaintiff’s disabilities; retaliating against Plaintiff; and coercing,
intimidating, threatening, or interfering with Plaintiff’s exercise or
enjoyment of rights. She also alleges that Defendant intentionally
discriminated against her with respect to compensation, terms,
conditions, or privileges of employment.
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In the “facts” section of the form, Plaintiff alleges she was
subjected to a hostile work environment because she was held in a
room against her will. She also alleges she was retaliated against
for being a whistleblower by reporting bed bugs and the improper
cleaning of surgical equipment. Plaintiff further alleges racial
discrimination, noting she was “a member of AFSCME Local 370.”
Compl. ¶ 12. Finally, Plaintiff alleges she is diabetic and had breast
cancer but had a hard time taking time off even with a doctor’s
note. Id. Plaintiff seeks appropriate injunctive relief, lost wages,
liquidated/double damages, front pay, compensatory damages,
punitive damages, prejudgment interest, post-judgment interest,
and costs, including reasonable attorney’s fees and expert witness
fees. Id. ¶ 13(g).
Plaintiff also marked the boxes on the pre-printed complaint
form indicating that she had filed a charge before the EEOC and the
Department. Plaintiff received a Right to Sue Notice on or about
June 1, 2016.
Plaintiff attached various documents to the Complaint,
including the EEOC Right to Sue letter, the amended charge of
discrimination filed December 10, 2015 with the Department, and
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the Department’s investigation report. In the amended charge of
discrimination, Plaintiff listed national origin and retaliation as the
cause of the discrimination. Plaintiff alleged that she was forced to
resign in November 2014 because of her national origin (Mexico)
and in retaliation for previously filing a charge of discrimination
against Defendant.
The investigation report indicates that the Department
investigated Plaintiff’s claim that she was forced to resign in
November 2014 after a co-worker claimed Plaintiff assaulted her.
Plaintiff complained that other employees whose national origin was
the United States did worse things and were not “singled out.” See
d/e 1-3 p. 7 of 8 ¶ 3. Plaintiff also reported that Angie Doolin, the
Assistant Director of Human Resources, once told Plaintiff she
needed to go back to where Plaintiff was raised, which Plaintiff
indicated was Texas. Id. at ¶ 4. The investigation report also
references an earlier suspension of Plaintiff in December 2013 for
failing to follow the chain of command. It appears that this earlier
suspension was the subject of Plaintiff’s March 2014 charge of
discrimination, which formed the basis of Plaintiff’s retaliation
claim.
Page 4 of 16
On September 21, 2016, Defendant filed an Answer to
Complaint of Employment Discrimination (d/e 10). Defendant also
filed the Motion to Dismiss Pursuant to Rule 12(b)(6) at issue herein
(d/e 8). In the Motion to Dismiss, Defendant argues that Plaintiff’s
allegations that Defendant discriminated against her by failing to
promote her, failing to stop harassment, and failing to reasonably
accommodate her disabilities are beyond the scope of the charge of
discrimination and should be dismissed without prejudice for
failure to exhaust administrative remedies.
On October 14, 2016, the Clerk of the Court sent Plaintiff a
Notice (d/e 11) that a case-dispositive motion was filed. The Notice
advised Plaintiff that a response was due within 14 days from
service of the motion and, if Plaintiff did not respond, the motion
may be granted and the case terminated without a trial. The Notice
also indicated that, under the Court’s local rules, a motion is
deemed uncontested if no opposing brief is filed. That same day,
the Court entered a Text Order granting Plaintiff until October 31,
2016 to file a response. Plaintiff has not filed a response to the
Motion to Dismiss.
Page 5 of 16
II. LEGAL STANDARD
A claim that a plaintiff failed to exhaust her administrative
remedies is appropriately addressed in a motion under Rule 12(b)(6)
when the plaintiff pleads facts showing that the claim is outside the
scope of the charge of discrimination. See McQueen v. City of Chi.,
803 F. Supp. 2d 892, 903 (N.D. Ill. 2011) (citing Leskovec v. Circuit
Works Corp., No. 08 C 4846, 2008 WL 5236006, at *2 (N.D. Ill. Dec.
15, 2008)). When considering a motion to dismiss under Rule
12(b)(6), the Court reviews the complaint and the exhibits attached
to the complaint. See Fed. R. Civ. P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading
for all purposes.”); Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir.
2013).
A motion under Rule 12(b)(6) challenges the sufficiency of the
complaint. Christensen v. Cnty. of Boone, 483 F.3d 454, 458 (7th
Cir. 2007). To state a claim for relief, a plaintiff need only provide a
short and plain statement of the claim showing she is entitled to
relief and giving the defendants fair notice of the claims. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The Court
construes the complaint in the light most favorable to the plaintiff,
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accepting all well-pleaded allegations as true and construing all
reasonable inferences in her favor. Id.
III. ANALYSIS
Defendant moves to dismiss Plaintiff’s claims regarding failure
to promote, failure to stop harassment, and failure to accommodate
Plaintiff’s disabilities. According to Defendant, these particular
claims were not raised in Plaintiff’s charge of discrimination and are
not “like or reasonably related” to the claims that Plaintiff presented
in her charge of discrimination. As noted above, Plaintiff has not
responded to the motion.
Before a plaintiff can file a Title VII or an ADA1 claim in federal
court, she must first timely file a charge of discrimination with the
EEOC. 42 U.S.C. § 2000e–5(e)(1); 42 U.S.C. § 12117(a)
(incorporating § 2000e-5(e)(1)); Laouini v. CLM Freight Lines, Inc.,
586 F.3d 473, 475 (7th Cir.2009) (Title VII); Flannery v. Recording
Indus. Ass’n of Am., 354 F.3d 632, 637 (7th Cir. 2004) (ADA).
Filing a charge of discrimination with the Department is considered
1 Although Plaintiff did not explicitly cite the ADA in her Complaint, a plaintiff is not required to
plead a legal theory and a pro se plaintiff is not held to the incorrect theory he did name.
Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005). Instead, the Court asks “whether any set of
facts consistent with the complaint would give [her] a right to recover, no matter what the legal
theory.” Id. Because Plaintiff alleges in her complaint that Defendant failed to accommodate
her disabilities, the Court will treat the Complaint as having included an ADA claim.
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a filing with the EEOC. See Garcia v. Village of Mount Prospect,
360 F.3d 630, 642 n. 13 (7th Cir. 2004) (noting that, under the dual
filing system, “filing a Title VII-based civil-rights claim with the
EEOC is also considered to be a filing with the corresponding state
agency, and vice versa”).
A plaintiff must present in the charge of discrimination any
claim she wants to later pursue in federal court. See Lavalais v.
Village of Melrose Park, 734 F.3d 629, 634 (7th Cir. 2013). This
exhaustion requirement gives the EEOC and the employer a chance
to settle the dispute and also gives the employer notice of the
employee’s grievances. Huri v. Office of the Chief Judge of the
Circuit Court of Cook Cnty., 804 F.3d 826, 831 (7th Cir. 2015).
Because most charges of discrimination are drafted by
laypersons, courts review the scope of the charge liberally. Huri,
804 F.3d at 831. Consequently, a plaintiff need not include in her
charge every fact that forms the basis of a subsequent lawsuit’s
claims. Id. Nonetheless, general allegations of discrimination in
the charge are not sufficient to justify bringing any discrimination
theory in federal court. McQueen, 803 F. Supp. 2d at 902.
Page 8 of 16
In particular, a plaintiff can bring federal court claims that
were not included in the charge of discrimination if the federal
claims are “like or reasonably related to the allegations of the
[EEOC] charge and growing out of such allegations.” Cheek v. W. &
S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). The test is
satisfied if “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. (noting
that the second part of the test is difficult because what might be
discovered during the investigation is speculative and finding that
the court need not so speculate when the plaintiff fails to satisfy the
first part of the test).
Claims are not considered “like or reasonably related” just
because they both assert forms of discrimination. Cheek, 31 F.3d
at 501 (noting that, because an employer can discriminate on the
basis of sex in numerous ways, it is not enough that the complaint
and the charge both allege sex discrimination; there must be a
factual relationship between the claims). To be like or reasonably
related, the federal claim and the claim in the charge of
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discrimination must, at a minimum, describe the same conduct and
implicate the same individuals. Moore v. Vital Prods., Inc., 641
F.3d 253, 258 (7th Cir. 2011).
Whether the federal claims are within the scope of the charge
of discrimination is a question of law. Conner v. Ill. Dep’t of Nat’l
Resources, 413 F.3d 675, 679 (7th Cir. 2005). Because the charge
of discrimination and the investigation report were attached to the
Complaint, this Court will consider both documents to determine
what claims were communicated to the Department and Defendant
during the investigation. See Flores v. Bd. of Trustees of Cmty.
College Dist. No. 508, 103 F. Supp. 3d 943, 950 (N.D. Ill. 2015)
(noting that a plaintiff can also bring in her federal complaint any
discrimination claims communicated during the course of the
investigation); Flower v. City of Chi., 850 F. Supp.2d 941, 944 (N.D.
Ill. 2012) (considering the course of the Illinois Department of
Human Rights’ investigation when determining whether the claim in
the complaint was like or reasonably related to the allegations in
the charge of discrimination).
Plaintiff’s claim in her Complaint that Defendant failed to
reasonably accommodate her disabilities is not like or reasonably
Page 10 of 16
related to the claims raised in the charge of discrimination. Neither
the charge of discrimination nor the investigation report mentioned
anything about a failure to accommodate a disability. Plaintiff’s
charge of discrimination only contained allegations of
discrimination based on national origin and retaliation. Moreover,
nothing was communicated during the investigation that suggested
that Defendant failed to reasonably accommodate Plaintiff’s
disabilities. Therefore, Plaintiff’s claim that Defendant failed to
reasonably accommodate her disabilities is outside the scope of the
charge and is dismissed. See Whitaker v. Milwaukee Cnty., Wis.,
772 F.3d 802, 812 (7th Cir. 2014) (noting that “an ADA plaintiff
must file a charge with the EEOC before bringing a court action
against an employer”); Dibelka v. Repro Graphics, Inc. No. 14 C
3190, 2014 WL 5858553, at *2 (N.D. Ill. Nov. 12, 2014) (finding that
the plaintiff’s Title VII claims were beyond the scope of the charge
where the charge “rested exclusively on discrimination based on a
disability”).
Similarly, the charge and investigation report do not contain
any facts pertaining to a failure to promote. The charge of
discrimination focused solely on the allegedly forced resignation in
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November 2014 based on national origin and retaliation for filing an
earlier charge of discrimination. A failure to promote is a distinct
act of discrimination. See, e.g., National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002). An employee cannot complain
to the EEOC of only certain instances of discrimination and then
seek relief in federal court for different instances of discrimination.
See Geldon v. S. Milwaukee Sch. Dist., 414 F.3d 817, 820 (7th Cir.
2005) (noting that the plaintiff’s initial charge of discrimination
addressed her failure to receive the assistant painter/relief
custodian position and did not put the agencies and the defendant
on notice that she was also complaining about not receiving the
substitute custodian position); Cheek, 31 F.3d at 502 (claim in the
complaint that the district manager had a policy of assigning female
employees to unprosperous sales route and discriminated against
the plaintiff by transferring her to a less-profitable sales route was
outside the scope of the charge of discrimination, which alleged that
plaintiff’s sale’s manager required plaintiff—but not her male
counterparts—to pay clients’ insurance premiums because the
conduct alleged to be discriminatory and the identity of the
individuals involved were both different).
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Finally, Plaintiff’s claim that Defendant discriminated against
her by failing to stop harassment is also beyond the scope of the
charge of discrimination. Nothing in the charge of discrimination or
investigation report refers to facts pertaining to harassment on the
basis of race or national origin. Generally, “retaliation, sex
discrimination, and sexual harassment charges are not ‘like or
reasonably related’ to one another to permit an EEOC charge of one
type of wrong to support a subsequent civil suit for another.” Sitar
v. Ind. Dep’t of Transp., 344 F.3d 720, 726 (7th Cir. 2003) (finding
sexual harassment and sex discrimination claims procedurally
barred where the discrimination and harassment claims involved a
“separate set of incidents, conduct, and people” than the retaliation
claim raised in the charge of discrimination).
In her Complaint, Plaintiff alleges she was subjected to a
hostile work environment by being held in a room against her will.
No such facts are contained in the charge of discrimination or the
investigation report. Nor are there other facts from which it could
be inferred that Plaintiff was complaining about harassment in her
charge of discrimination. Therefore, Plaintiff’s claim that Defendant
failed to stop harassment is not like or reasonably related to the
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discrimination and retaliation claims raised in the charge of
discrimination because the claims are not based on the same
conduct. See Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7th
Cir. 1992) (finding the plaintiff’s racial discrimination claims were
properly preserved but her racial harassment claims were never
properly presented to the EEOC); Cheek v. Peabody Coal Co., 97 F.
3d 200, 202 (7th Cir. 1996) (finding that the plaintiff’s claims in her
EEOC charge “did not in any way advert to sexual harassment”);
Vela v. Village of Sauk Village, 218 F.3d 661, 663-64 (7th Cir. 2000)
(finding that the claim of sexual harassment in the complaint—
which alleged widespread sexual harassment such as jokes,
distribution of pictures, and comments about the plaintiff’s body
and national origin—was not like or reasonably related to the claim
of disparate treatment described in the charge of discrimination—
which listed three incidents of being treated differently than nonMexican male employees); but see Williams v. Phillips 66 Co., 72 F.
Supp. 3d 938, 954 (S.D. Ill. 2014) (finding it clear from the face of
the EEOC charge that the plaintiff was bringing a hostile work
environment claim because he complained of racial harassment by
co-workers).
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This Opinion does not affect Plaintiff’s claims under § 1981.
See 42 U.S.C. § 1981 (making it unlawful to discriminate on the
basis of race when making and enforcing contracts); Saint Francis
Coll. V. Al-Khazraji, 481 U.S. 604, 613 (1987) (defining “race” under
§ 1981 broadly to include “identifiable classes of persons who are
subjected to intentional discrimination solely because of their
ancestry or ethnic characteristics"); Bagwe v. Sedgwick Claims
Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir. 2016) (noting that §
1981 prohibits discrimination on the basis of race or national
origin). Section 1981 does not require the exhaustion of
administrative remedies. Tyson v. Gannett Co., 538 F.3d 781, 783
(7th Cir. 2008) (filing a discrimination charge is not a prerequisite
to pursuing a § 1981 claim in federal court). Therefore, it is
immaterial whether the § 1981 claims were contained in the charge
of discrimination.
IV. CONCLUSION
For the reasons stated, Defendant’s Motion to Dismiss
Pursuant to Rule 12(b)(6) (d/e 8) is GRANTED IN PART. Plaintiff’s
Title VII claims alleging discrimination for failure to promote and
failure to stop harassment and Plaintiff’s ADA claim alleging a
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failure to reasonably accommodate Plaintiff’s disabilities are
dismissed without prejudice for failure to exhaust administrative
remedies. This ruling does not affect Plaintiff’s claims under 42
U.S.C. § 1981.
ENTER: November 7, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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