Smith V. Rosebud Farmstand et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 11/15/2012. Mailed notice(tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT SMITH,
Plaintiff,
v.
ROSEBUD FARMSTAND, ET AL.,
Defendant.
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CASE NO. 11-cv-9147
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Smith has sued Defendants Rosebud Farmstand, Rocky Mendoza, and
Carlos Casteneda for sexual and racial harassment (Counts I and II), retaliation (Count III), and
constructive discharge (Count IV) pursuant to Title VII of the Civil Rights Act of 1964 (“Title
VII”), a violation of the Illinois Gender Violence Act (Count V), and for violating 42 U.S.C. §
1981 (Count VI). Before the Court is Defendants’ motion to dismiss [12] parts of Plaintiff’s
complaint. Defendants move to dismiss all claims except Plaintiff’s sexual harassment claim
against Defendant Rosebud. For the reasons set forth below, the Court grants in part and denies
in part Defendants’ partial motion to dismiss [12].
I.
Background
Plaintiff worked as a butcher for Rosebud Farmstand from November 14, 2003 until June
2008. Plaintiff alleges that he was subjected to repeated sexual harassment by his co-workers,
including co-workers grabbing and touching his penis and grabbing and slapping his buttocks.
He also maintains that co-workers used racial and sexual slurs around him. Plaintiff alleges that
he complained to his managers—Defendants Rocky Mendoza, and Carlos Casteneda—about the
ongoing racial and sexual harassment, but that they did nothing to stop the harassment and
instead participated in the harassment. He also alleges that he was suspended for nine days for
failing to report to work on December 13, 2007, even though he had previously requested the day
off. Finally, Plaintiff alleges that Rosebud reduced Plaintiff’s average weekly hours from 34 to
30 hours per week.
On January 7, 2008, Plaintiff filed a Charge of Discrimination (“Charge”) with the
Illinois Department of Human Rights and the Equal Employment Opportunity Commission. In
his Charge, Plaintiff maintained that he had been sexually harassed by male co-workers,
including Defendants Mendoza and Castaneda, from July 2007 through January 6, 2008. He also
maintained that he had been subjected to race discrimination because he was sent home for nine
days without pay after failing to report to work on December 13, 2007, and because his work
hours were reduced from thirty-four to thirty hours per week.
Plaintiff continued to work for Rosebud Farms until June 2008, when he terminated his
employment due to “intolerable” working conditions. On September 26, 2011, the EEOC issued
a Notice of Right to Sue with respect to Plaintiff’s Charge, stating conciliation failure. On
December 23, 2011, Plaintiff filed his complaint in this action, alleging same-sex sexual
harassment (Count I); racial harassment (Count II); retaliation (Count III); constructive discharge
(Count IV); violation of the Illinois Gender Violence Act (Count V); and violation of § 1981 of
the Civil Rights Act (Count VI).
II.
Legal Standard for Rule 12(b)(6) Motions to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d
1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first
must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that
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the pleader is entitled to relief” (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given “fair
notice of what the * * * claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief
above the “speculative level,” assuming that all of the allegations in the complaint are true.
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly,
127 S.Ct. at 1965, 1973 n.14). “[O]nce a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in the complaint.” Twombly, 127
S.Ct. at 1969. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and
all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677
(7th Cir. 2005).
III.
Analysis
Defendants contend that multiple shortcomings in Plaintiff’s complaint warrant
considerable pruning of the claims at the outset of the case. Defendants make several arguments:
(1) Plaintiff’s racial harassment, retaliation, and constructive discharge claims exceed the scope
of his EEOC Charge (and thus were not properly exhausted before filing federal suit), (2) the
claims against Mendoza and Castaneda must be dismissed because individual defendants cannot
be held liable under Title VII, (3) Illinois law does not recognize a common law cause of action
for constructive discharge, (4) Plaintiff’s Illinois Gender Violation Act claim should be
dismissed for failure to state a claim upon which relief can be granted; and (5) Plaintiff’s
allegations in Count VI fail to state a claim under § 1981. The Court takes up each argument in
turn.
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A.
Scope of the EEOC Charge
The scope of a judicial proceeding subsequent to an EEOC charge “is limited by the
nature of the charges filed with the EEOC.” Rush v. McDonald’s Corp., 966 F.2d 1104, 1110
(7th Cir. 1992). The limitation, like the statutory limitations period, is not jurisdictional, but is a
condition precedent to recovery. See id. & n.20. “To determine whether the allegations in the
complaint fall within the scope of the earlier EEOC charge,” a court must decide whether “the
allegations are like or reasonably related to those contained in the [EEOC] charge.” Kersting v.
Wal-Mart Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001). The rule is designed at once to give
notice to the employer of the nature of the claims against it and to provide an opportunity for the
EEOC and the employer to settle the dispute. Geldon v. S. Milwaukee Sch. Dist., 414 F.3d 817,
819 (7th Cir. 2005). Nonetheless, the standard is a liberal one. Miller v. Am. Airlines, Inc., 525
F.3d 520, 525-26 (7th Cir. 2008). Claims are reasonably related—and hence properly raised in a
subsequent lawsuit—“if there is a factual relationship between them.” Kersting, 250 F.3d at 118.
The factual information provided in the charge is “[m]ore significant” than “technical defect[s].”
Cable v. Ivy Tech State College, 200 F.3d 467, 477 (7th Cir. 1999); Ajayi v. Aramark Bus. Svcs.,
Inc., 336 F.3d 520, 528 (7th Cir. 2003) (“we do not rest our decision here on an omitted
checkmark”). In short, the pertinent inquiry is “what EEOC investigation could reasonably be
expected to grow from the original complaint.” Ajayi, 336 F.3d at 527.
Although Plaintiff’s EEOC charge is not attached to the complaint, it is referenced in the
complaint and central to the allegations contained in Plaintiff’s complaint. It is well-established
that a court may consider documents that are concededly authentic, referenced in a plaintiff’s
complaint, and central to a plaintiff’s claims, even if those documents are not attached to the
complaint. See Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir.2009) (“This court has been
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relatively liberal in its approach to the rule articulated in Tierney and other cases.”); see also
Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994) (upholding consideration of
an agreement quoted in the complaint and central to the question whether a property interest
existed for purposes of 42 U.S.C. § 1983); Venture Associates v. Zenith Data Sys., 987 F.2d 429,
431 (7th Cir. 1992) (admitting letters, to which the complaint referred, that established the
parties’ contractual relationship); Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732,
739 (7th Cir. 1986) (permitting reference to a welfare plan referred to in the complaint in order to
decide whether the plan qualifies under ERISA).
Because Plaintiff’s EEOC charge was
referenced in his complaint and is central to his claims, the Court may (and will) consider it
when evaluating Plaintiff’s prospects on a motion to dismiss. See Hecker, 556 F.3d at 582; see
also Kuhn v. United Airlines, 2012 WL 3582209, at *2 (N.D. Ill. Aug. 17, 2012).
1.
Plaintiff’s claim of racial harassment
Defendants contend that Plaintiff’s racial harassment claim exceeds the scope of his
EEOC Charge. “Normally, 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. Indiana Dept. of Transp., 344 F.3d 720, 726
(7th Cir. 2003); see also Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir.
1994) (“Because an employer may discriminate on the basis of sex in numerous ways, a claim of
sex discrimination in an EEOC charge and a claim of sex discrimination in a complaint are not
alike or reasonably related just because they both assert forms of sex discrimination.”); see also
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110-15, 122 S.Ct. 2061, 153
L.Ed.2d 106 (2002) (emphasizing the separate nature of claims based on specific discriminatory
or retaliatory acts for purposes of the limitations period). Plaintiff’s EEOC Charge describes
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sexually offense conduct by male co-workers that created “a hostile and intimidating work
environment.”
He also describes two specific instances in which he was prevented from
working—being sent home for nine days without pay and having his hours reduced—due to his
race.
Nothing in the Charge suggests that Plaintiff was alleging that he was the victim of racial
harassment (as opposed to racial discrimination, a claim clearly set forth in his EEOC charge but
not included as a claim in his complaint). Plaintiff makes no mention of harassment on account
of race in either his statement of the bases for his Charge or the body of the Charge. He does not
mention any of the alleged comments (racial slurs, racial remarks, and racial epithets), conduct,
or incidents that he now alleges in Count II of his complaint. Instead, Plaintiff specifically
alleges that he was “sent home * * * due to his race” and that he had a “reduction in hours * * *
due to his race.” Being sent home from work and suffering a reduction in hours are classic
examples of race discrimination, which is a different claim from being harassed with racial
epithets, slurs, and comments. See Rush v. McDonald’s Corp., 966 F.2d 1104, 1110-1111 (7th
Cir. 1992) (concluding that racial harassment claim was beyond the scope of plaintiff’s charge
where plaintiff included a specific race discrimination claim in her charge, but failed to include
any reference to racial harassment).
The specificity in Plaintiff’s Charge with respect to his claims for sexual harassment and
race discrimination belie his argument that he did not understand how to plead a racial
harassment claim.
He set forth detailed facts to support both sexual harassment and race
discrimination claims, yet failed to include any reference to conduct that would support a racial
harassment claim. To allow him now to claim additional instances of racial harassment would
not be consistent with Title VII’s goal of providing notice to an employer of the nature of the
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claims. See Rush, 966 F.2d at 1110 (“In many cases challenging the allegations in the complaint
for failure to come within the charge filed with the EEOC, the question of congruence arises
because the charge was fairly detailed and the subsequent complaint deviated form the specific
instances of discrimination.”).
Plaintiff also maintains that his allegations of sexual harassment and racial harassment
are intertwined and that his racial harassment claims “grew from” the sexual harassment. While
Plaintiff has connected these claims in his complaint, the Charge allegations do not support this
connection. None of the alleged racial remarks appear, directly or indirectly, in his Charge,
despite his very specific sex and race allegations. Thus, the Court concludes that Plaintiff’s
racial harassment claim (Count II) falls outside the scope of his EEOC charge and is barred.
2.
Plaintiff’s claims of retaliation and constructive discharge
Defendants also allege that Plaintiff’s claims of retaliation (Count III) and constructive
discharge (Count IV) exceed the scope of the Plaintiff’s EEOC charge. Although these claims
have similarities, Title VII treats them as discrete causes of action. Title VII provides that an
employer may not “discharge any individual * * * because of such individual’s race, color,
religion, sex or national origin.” 42 U.S.C. § 2000e–2(a)(1). A constructive discharge occurs
where an employer “makes an employee’s working conditions so intolerable that the
[reasonable] employee is forced into an involuntary resignation.” Saxton v. American Tel. & Tel.
Co., 10 F.3d 526, 536–37 (7th Cir. 1993) (quoting Weihaupt v. American Medical Ass'n, 874
F.2d 419, 426 (7th Cir. 1989)). In order to recover under a constructive discharge theory of
discrimination, the plaintiff must show that (1) he was actually constructively discharged; and (2)
that the constructive discharge resulted from his membership in a protected class. Saxton, 10
F.3d at 526. On the other hand, a Title VII retaliation charge requires the following three
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elements of proof: “(1) [the plaintiff] must show that she engaged in statutorily protected
expression; (2) [the plaintiff] suffered an adverse action by her employer; and (3) there is a
causal link between her protected expression and the adverse action.” McKenzie v. Illinois Dep't
of Transportation, 92 F.3d 473, 483 (7th Cir. 1996). A plaintiff can prove the “causal link” by
demonstrating that her employer would not have acted adversely “but for” the protected
expression. Id.
Defendants correctly point out that Plaintiff’s EEOC Charge does not refer to or allege
any instances of retaliation and constructive discharge. However, with respect to a retaliation
claim, it is “the nature of retaliation claims that they arise after the filing of the EEOC charge.
Requiring prior resort to the EEOC would mean that two charges would have to be filed in a
retaliation case—a double filing that would serve no purpose except to create additional
procedural technicalities when a single filing would comply with the intent of Title VII.”
McKenzie, 92 F.3d at 482 (quoting Gupta v. East Texas State University, 654 F.2d 411, 414 (5th
Cir. 1981)); see also Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066 (2d Cir. 1980) (holding that
the act of retaliation was “directly related” to plaintiff’s initiation of litigation and that no second
EEOC charge was necessary); Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992) (holding that
retaliation claim may be raised for the first time in federal court); Bouman v. Block, 940 F.2d
1211 (9th Cir. 1991) (holding that retaliation claim was “reasonably related” to prior sex
discrimination claim); Brown v. Hartshorne Public Sch. Dist. No. 1, 864 F.2d 680 (10th Cir.
1988) (holding that retaliation arising out of first EEOC filing was “reasonably related” to that
filing, obviating the need for a second EEOC charge).1 Here, the only incidents of retaliation
1
The Seventh Circuit has identified a limit to this reasoning. In Steffen v. Meridian Life Ins. Co., 859
F.2d 534 (7th Cir. 1988), the court noted that Gupta and similar cases “all involved situations where the
alleged retaliation arose after the charge of discrimination had been filed.” Id. at 545. In such cases, only
a single filing was necessary to comply with the intent of Title VII; a double filing “would serve no
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alleged by Plaintiff occurred after the filing of his EEOC charge, and therefore those incidents
(occurring between January 2008 and June 2008) may be considered as evidence of Plaintiff’s
retaliation claim, despite the fact that “retaliation” was not alleged in his administrative filing.2
Turning to his constructive discharge claim, Plaintiff’s EEOC Charge does not allege that
sexual harassment prompted him to leave his job in June 2008. Indeed, it would have been
impossible for his EEOC charge to have mentioned his departure from Rosebud or to have
alleged a constructive discharge because his EEOC Charge preceded his resignation from
Rosebud. But the Seventh Circuit does not treat retaliation and constructive discharge claims in
the same manner. In Herron v. DaimlerChrysler Corp., 388 F.3d 293 (7th Cir. 2004), the
Seventh Circuit held that EEOC charges alleging “racial discrimination, retaliation, and
harassment, [but] not constructive discharge,” were an insufficient predicate for bringing a
constructive discharge claim in federal court. Id. at 303 n. 2; see also Dixon v. Americall Grp.,
Inc., 390 F.Supp.2d 788, 791 (C.D. Ill. 2005) (“when a plaintiff’s EEOC charge alleges
discrimination, but does not state that his decision to stop working is based on that
discrimination, the charge does not support a constructive discharge claim”).
This was
particularly so because the EEOC charges in Herron preceded the plaintiff's resignation; as the
purpose except to create additional procedural technicalities.” But in instances where incidents of
retaliation could have been—and should have been—included in the administrative charge, those
incidents cannot serve as the basis of a retaliation claim alleged in a federal complaint.
2
Defendants argue in their reply brief that “Plaintiff claims he was retaliated against for allegedly
complaining internally about alleged harassment” and therefore his claims of retaliation stem from
conduct that occurred prior to the filing of the EEOC Charge in early 2008. This argument is
unpersuasive and directly contrary to the allegations in Plaintiff’s complaint. In his complaint, Plaintiff
specifically alleges that “[i]n 2008 after the plaintiff’s EEOC charge of 7 January 2008, until the plaintiff
terminated his employment in June 2008, the defendants would ignore the plaintiff, give him the cold
shoulder, exclude him from meetings, scratch his car, slash his tires, expose meat knives threateningly
and so forth.” See Compl. at ¶ 25 (emphasis added). Plaintiff’s response brief confirms that his
retaliation claim centers on “retaliatory behavior that results from filing an EEOC charge.” Pl.’s Resp. at
7. Thus, Plaintiff’s retaliation claim is limited to instances of retaliation which occurred after the filing of
his EEOC charge (or to ongoing sexual harassment and race discrimination).
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Seventh Circuit explained, the “delay between [the] EEOC complaint and [the plaintiff's]
decision to leave was inconsistent with notice [in the EEOC charge] of constructive discharge.”
Herron, 388 F.3d at 303 n. 2; see also Conner v. Ill. Dep't of Natural Res., 413 F.3d 675, 680
(7th Cir. 2005) (holding that discriminatory non-promotion claim could not have been exhausted
in the EEOC charge where the non-promotion occurred one month after the charge was filed);
Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000) (holding that
discriminatory failure to rehire claim was not exhausted where the EEOC charge was filed prior
to the plaintiff's applying for the position).
Plaintiff’s constructive discharge claim suffers from the same infirmities as those in
Herron and the cases cited above. It might have been a different case if Plaintiff alleged that the
sexually harassing conduct continued until he resigned in June 2008, but his complaint clearly
states that following the filing of his EEOC Charge, the complained of conduct was that
“defendants would ignore the plaintiff, give him the cold shoulder, exclude him from meetings,
scratch his car, slash his tires, expose meat knives threateningly and so forth,” not that
Defendants continued to sexually harass him and cut his pay and hours. The post-EEOC filing
conduct is different from both the sexually harassing conduct and the racially discriminatory
conduct alleged in his EEOC Charge. Therefore, Plaintiff cannot argue that his constructive
discharge claim is “like or reasonably related to those contained in the [EEOC] charge.”
Kersting, 250 F.3d at 1118. In short, Plaintiff has not exhausted his administrative remedies with
respect to his constructive discharge claim.
At the end of the day, the decision to allow Plaintiff’s retaliation claim to go forward,
while dismissing his constructive discharge claim for failure to exhaust, may have little effect on
the litigation of this case. This is so because Plaintiff may argue that Defendants constructively
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discharged him in retaliation for his complaints of sex discrimination. See Fischer v. Avanade,
Inc., 519 F.3d 393, 408-09 (7th Cir. 2008); Williams v. Waste Mgmt. of Ill., Inc., 361 F.3d 1021,
1032 (7th Cir. 2004) (discussing how constructive discharge can serve as the adverse
employment action in a retaliation claim). Constructive discharge does constitute an adverse
employment action and is deemed to have occurred when the plaintiff shows that he was forced
to resign because his working conditions, from the standpoint of the reasonable employee, had
become unbearable. EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 331 (7th Cir. 2002).
Here, one could reasonably infer from the allegations in Plaintiff’s complaint that he engaged in
protected activity, which led to Plaintiff’s constructive discharge from Rosebud. Therefore,
while Plaintiff’s legal claims have been truncated, the factual presentation of the evidence may
well proceed as he originally intended.
In sum, the Court grants Defendants’ motion to dismiss as to Plaintiff’s racial harassment
and constructive discharge claims (Counts II and IV), but denies Defendants’ motion as it
pertains to Plaintiff’s retaliation claim (Count III).
B.
Title VII claims against Mendoza and Castaneda
In his response brief, Plaintiff asserts that he is not suing Defendants Mendoza and
Castaneda as individuals under Title VII, but rather sues them only under § 1981 and the Illinois
Gender Violence Act. Therefore, Defendants’ motion to dismiss the Title VII claims against
Defendants Mendoza and Castaneda is denied as moot.
C.
Constructive Discharge under Illinois Law
In both his complaint and his response brief, Plaintiff asserts that his constructive
discharge claim is brought pursuant to Title VII, not Illinois state law. The Court takes no
position on whether Plaintiff could state a claim for constructive discharge under Illinois law
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because Plaintiff maintains that “count VI, constructive discharge, is not under Illinois State
law.” See Pl.’s Resp. at 3. As previously set forth, Plaintiff cannot sustain a claim that he was
constructively discharged in violation of Title VII because Plaintiff did not file a charge of
discrimination relating to his separation from employment or seek to amend his original charge
to encompass discharge claims. Therefore, Count IV is dismissed.3
D.
Illinois Gender Violence Act
In his complaint, Plaintiff alleges that Defendants Rosebud, Castaneda, and Mendoza
violated the Illinois Gender Violence Act. Section 10 of the Act provides a civil cause of action
for victims of gender-related violence:
Any person who has been subjected to gender-related violence as defined in
Section 5 may bring a civil action for damages, injunctive relief, or other
appropriate relief against a person or persons perpetrating that gender-related
violence. For purposes of this Section, ‘perpetrating’ means either personally
committing the gender-related violence or personally encouraging or assisting the
act or acts of gender-related violence.” 740 ILCS 82/10 (West 2008).
Section 5 of the Act defines “gender-related violence” to include: “[o]ne or more acts of violence
or physical aggression satisfying the elements of battery under the laws of Illinois that are
committed, at least in part, on the basis of a person’s sex” and “[a] physical intrusion or physical
invasion of a sexual nature under coercive conditions satisfying the elements of battery under the
laws of Illinois.” 740 ILCS 82/5.
Plaintiff has pleaded facts that lead to an inference that Rosebud (via its managers and
supervisors) received Plaintiff’s complaints of sexual harassment or assault by its managers and
employees and that it took no action against these managers and employees as a result of the
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Count IV is dismissed without prejudice. To the extent that Plaintiff is able to marshal evidence that
the sexual harassment or racial discrimination continued after the filing of his EEOC Charge and that this
conduct, rather than the conduct alleged in ¶ 25 of the complaint, made his working conditions too
intolerable, Plaintiff may seek leave of court to amend his complaint. However, at this time, the
allegations in the complaint do not support a separate constructive discharge claim.
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complaints, choosing to punish Plaintiff instead. There is no question that the alleged conduct of
Defendants Castaneda and Mendoza—if supported by evidence—would be considered acts of
gender-related violence, and Defendants’ one-sentence support for dismissal inherently suggests
tacit agreement with this conclusion. It is less clear whether Rosebud is susceptible to liability,
but once again Defendants provide the Court with minimal support for dismissal. Defendants
appear to argue that Rosebud cannot be held liable for a violation of the Act because Plaintiff has
not sufficiently alleged that Rosebud was personally involved in an act of gender-related
violence on account of Rosebud’s corporate identity (see Defs.’ Mem. at 8 (“Plaintiff is unable to
demonstrate * * * that Rosebud personally committed gender-related violence or personally
encouraged or assisted the acts of gender-related violence”)), although the one case cited by
Defendants addresses only with whether the Act applies retroactively. (It does not, but that is not
at issue here.) Defendants have not provided any other basis for dismissing Plaintiff’s Gender
Violence Act claim. Thus, Plaintiff’s allegations are enough to state a claim against Rosebud for
encouraging or assisting the individual Defendants’ acts of gender-related violence and against
Plaintiff’s manager and assistant manager for perpetrating the violence.
See also Cruz v.
Primary Staffing, Inc., 2011 WL 1042629, at *1-2 (N.D. Ill. Mar. 22, 2011).
E.
Section 1981
In Count VI, Plaintiff alleges that Defendants discriminated against him on the basis of
his race in the terms and conditions of his employment and thus violated 42 U.S.C. § 1981, as
amended by the Civil Rights Act of 1991. The legislative history of the Civil Rights Act of 1991
indicates that it was enacted in response to a number of decisions by the United States Supreme
Court that were perceived to sharply cut back on the scope and effectiveness of federal civil
rights laws. See H.R.Rep. No. 102–40(I), at 18, reprinted in 1991 U.S.C.C.A.N. 549, 556. The
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Act overruled the Supreme Court’s decision in Patterson v. McLean Credit Union, 491 U.S. 164
(1989), in which the Court held that § 1981 did not apply to conduct after a contractual
relationship had been established. 491 U.S. at 171. Section 12 of the Act amended § 1981 to
reaffirm that the right “to make and enforce contracts” includes the enjoyment of all benefits,
privileges, terms and conditions of the contractual relationship. See H.R. Rep. 102–40(II), at 37,
reprinted in 1991 U.S.C.C.A.N. 549, 730–31. Specifically, Congress added subsection (b) to §
1981: “For the purposes of this section, the term “make and enforce contracts” includes the
making, performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.” H.R. Rep. 102–40(II),
at 37, reprinted in 1991 U.S.C.C.A.N. 549, 730–31; see also Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 383 (2004) (“The 1991 Act overturned Patterson by defining the key ‘make
and enforce contracts' language in § 1981 to include the ‘termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.’”);
Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012). Thus, a plaintiff bringing a Title VII claim
often includes a § 1981 claim as well. The substantive standards and methods of proof that apply
to claims of racial discrimination and retaliation under Title VII also apply to claims under §
1981. See Humphries v. CBOCS West, Inc., 474 F.3d 387, 403–04 (7th Cir. 2007), aff'd, 553
U.S. 442 (2008).4
4
One key difference between § 1981 and Title VII is that the latter authorizes suit only against the
employer as an entity rather than against individual people who are agents of the employer. Under §
1981, individuals may be liable. Compare Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995)
(holding that supervisor may not held liable in his individual capacity for discrimination under Title VII),
with Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) ( “individuals may be held liable
under §§ 1981 and 1983 for certain types of discriminatory acts”). Other important differences are that
claims under § 1981 have a relatively long four-year statute of limitations, see Jones v. R.R. Donnelley &
Sons Co., 541 U.S. 369, 382 (2004); Dandy v. United Parcel Service, Inc., 388 F.3d 263, 269 (7th Cir.
2004), are not subject to the damage caps enacted in the Civil Rights Act of 1991, see 42 U.S.C. §
14
In briefing their motion to dismiss, Defendants acknowledge that “there can be scenarios
where Title VII and Section 1981 claims might factually overlap,” but contend that Plaintiff has
failed to allege that “Defendants had intended to discriminate against him on the basis of race in
the making or enforcing of a contract of for ‘asserting the right to substantive contractual
equality provided by § 1981.’” Defs’ Reply at 8-9. Defendants interpret the term “contract” too
narrowly.
As the Seventh Circuit explained in Walker v. Abbott Laboratories, “at-will
employment, though capable of being terminated by either party at any time, is nonetheless a
contractual relationship.” 340 F.3d 471, 476 (7th Cir. 2003). Moreover, the court noted,
excluding at-will employment relationships from the ambit of § 1981 would “contravene
Congress’s intention [that] the Civil Rights Act of 1991 * * * restore the broad scope of Section
1981 to ensure that all Americans may not be harassed, fired or otherwise discriminated against
in contracts because of their race.” Id. at 477 (quotation omitted). Thus, the Seventh Circuit has
concluded that at-will employment relationships are governed by § 1981. See id. at 476-77. In
his complaint, Plaintiff clearly has alleged facts that give rise to an inference that he was an “atwill” employee of Rosebud and that Defendants discriminated and retaliated against him on the
basis of his race. Therefore, Defendants sole argument for dismissal of Plaintiff’s § 1981
claim—that he has failed to plead a contractual relationship—fails.
IV.
Conclusion
For these reasons, the Court grants in part and denies in part Defendants’ motion to
dismiss [12]. The Court grants the motion with respect to Plaintiff’s claims of racial harassment
(Count II) and constructive discharge (Count IV) and dismisses those claims without prejudice.
The Court denies the motion in all other respects, and Plaintiff may proceed with his claims of
1981a(b)(4), and do not require exhaustion of administrative remedies. See, e.g., Fane v. Locke Reynolds,
LLP, 480 F.3d 534, 539 (7th Cir. 2007).
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sexual harassment (Count I), retaliation (Count III), violation of the Illinois Gender Violence Act
(Count V), and violation of § 1981 of the Civil Rights Act (Count VI).
Dated: November 15, 2012
______________________________
Robert M. Dow, Jr.
United States District Judge
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