Collins v. Fox Home Center
MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 2/4/2014. Mailed notice(ef, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
FOX HOME CENTER, INC.,
Judge Joan B. Gottschall
No. 12 C 9555
MEMORANDUM OPINION & ORDER
On June 3, 2013, Plaintiff Veronica Collins filed a nine-count amended complaint against
Defendant Fox Home Center (“Fox Home”), alleging discrimination and retaliation, in violation
of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”), Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1981, the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”), and the Illinois Human
Rights Act (the “IHRA”); harassment and failure to accommodate, in violation of the ADA and
the IHRA; and retaliation, in violation of the Family Medical Leave Act, 29 U.S.C. § 2601 et
seq. Now before the court is Fox Home’s motion to dismiss and strike several counts of the
amended complaint pursuant to Federal Rules of Procedure 12(b)(1), 12(b)(6), and 12(h). Fox
Home argues that the claims in Counts II, IV, V, VI, and VIII were not part of the charge Collins
filed with the Illinois Department of Human Rights (“IDHR”) and the Equal Employment
Opportunity Commission (“EEOC”), and that she has thus failed to exhaust her administrative
remedies as to those claims. Fox Home further argues that Count IX is time-barred. For the
reasons explained below, the court grants the motion to dismiss Counts II, IV (insofar as it
asserts Title VII and IHRA claims), VI, VIII, and IX. The motion is denied as to Count V.
The court assumes the truth of Collins’s factual allegations in the amended complaint.
See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). The court also considers “documents
attached to the complaint, documents that are critical to the complaint and referred to in it, and
information that is subject to proper judicial notice,” along with additional facts set forth in the
brief opposing dismissal, so long as those “new elaborations are consistent with the pleadings.”
Geinosky v. City of Chi., 675 F.3d 743, 745 n.1 (7th Cir. 2012).
Collins is an African-American woman who was born in 1956. She was hired by Fox
Home in September 2005 as a kitchen designer. At the time, she had over four years of
experience and training as a kitchen designer. Collins suffered from arthritis and diabetes that
limited her ability to walk, stand, and climb stairs.
When Collins joined Fox Home in 2005, the company employed two other kitchen
designers, both white and not disabled. One was over forty, but he was soon terminated. The
other kitchen designers employed between 2005 and 2009 were all under forty. Just before
Collins’s termination, Fox Home hired another kitchen designer who was under forty, not black,
and not disabled. Fox Home employed no black employees other than Collins.
Collins assisted Fox Home’s customers with kitchen remodeling projects. Her duties
included measuring kitchen spaces, designing kitchen layouts, and advising customers regarding
kitchen products. She was praised for her work and received no negative reviews or evaluations
between 2005 and 2009. Collins reported to Fox Home’s owners, John and Mike Laird, and to
Jacqueline Laird, who was part of Fox Home’s management team.
Collins alleges that Fox Home denied her an equal opportunity to earn sales
She spent several weeks working at a temporary desk in 2007, while her
colleagues were given new work spaces with functioning computers and telephones. Service
desk personnel referred customers to other kitchen designers, rather than to Collins. Other
designers were also selected to perform design work for Fox Home’s high-volume commercial
Fox Home failed to pay Collins commissions she had earned and gave other
designers commissions for sales for which she was responsible.
Collins also alleges that she was denied reasonable accommodations for her disability. In
2007, she began suffering pain and difficulty walking, standing, and climbing stairs.
Home’s management accused her of scratching the showroom floor with her cane and a walker.
The walker she was using disappeared from her desk and was never found. Because of her
disability, Collins could not rush to greet customers as they entered the store. She asked to be
moved to a desk closer to the front of the store, but the company refused, keeping her desk at the
back of the store. Fox Home hired a new, non-disabled designer and placed her at a desk near
the front of the store.
Collins further alleges that she was subjected to harassment due to her disability,
including through the disappearance of the walker. When she asked a stock employee to escort a
customer to the second floor, the employee yelled at her, “don’t you ever ask me to do your job
again.” (Am. Compl. ¶ 37, ECF No. 40.) Collins complained to Mike Laird, but no action was
taken against the employee. Collins alleges that she was once using a restroom in the back of a
temporary Fox Home building when the lights were turned out. She thought she was being
locked in and called Mike Laird. He responded, “Okay,” but did not come to her assistance.
Collins claims that, given her disability, she could have been injured while attempting to make
her way out in the darkness. She alleges that other employees laughed at her distress and that
Mike and John Laird did nothing to stop them.
Collins repeatedly complained to John and Mike Laird in 2008 and 2009 that she was
being treated unfairly, but they did not investigate her complaints. Collins contends that Fox
Home disciplined her in retaliation for her complaints. She was given a warning letter on April
7, 2009, for failing to attend a training session, which was not mandatory. Other employees who
were white, under forty, and not disabled were not issued a similar warning for not attending
trainings. The letter also accused Collins of yelling and complaining loudly, which she denies
doing, and of achieving only 58% of the sales of the other kitchen designers in January and
February 2009 and only 42% of their sales in 2008. Collins states in her complaint that her sales
“always comprised a percentage of the average sales of her counterparts – due to the systemic
and discriminatory practices designed to prevent [her] from earning more commissions.” (Id. at
¶ 54.) She alleges that similarly situated employees who did not complain of unfair treatment
were not disciplined or written up.
In 2009, Collins requested time off under the FMLA for hip surgery. She took FMLA
leave from May 5-26, 2009, followed by two weeks of part-time work, and from July 1 – August
4, 2009. She timely returned to work after the leave. While she was on leave, Fox Home
reassigned her existing customers to other kitchen designers and credited them for the resulting
sales, without splitting commissions with Collins, as had been the company’s practice in the past.
Collins was placed on a ninety-day probation period on September 1, 2009, and was told
she needed to sell at least 90 percent of the average sales of her two colleagues. She could not
meet this requirement because she had to acquire new customers after her leave, and only sales
that were fully paid for counted toward the requirement. Fox Home also continued to favor the
other kitchen designers with customer assignments. When Collins failed to meet the sales
requirement, she was terminated on December 3, 2009.
Collins filed a charge with the EEOC and the IDHR on May 25, 2010. The charge
alleges that she was discharged because of her age, race, and disability. (Am. Compl. Ex. A
(EEOC/IDHR Charge), ECF No. 40-1.) The charge did not include the words “harassment,”
“retaliation,” or “failure to accommodate.” (See id.) Collins contends that, during intake, she
informed the IDHR representative who typed up the charge of all the claims contained in her
complaint, but that the representative did not include all of these allegations in the charge.
Collins signed the charge as drafted, in reliance on the IDHR representative’s expertise and
“intimation” that the charge was adequate. (Am. Compl. ¶ 71.) In July 2011, Collins attended a
fact-finding conference at the IDHR, where she alleged the facts outlined above. Following the
conference, Collins produced a written account of the treatment she experienced. That summary
is attached to the amended complaint. The IDHR issued Collins a Notice of Dismissal on
January 25, 2012. She requested that the EEOC perform a Substantial Weight Review of the
dismissal and provided the EEOC with another summary of her allegations. She did not attach
that document to the amended complaint. The EEOC issued Collins a Right to Sue notice on
September 7, 2012. She filed a complaint in this court on November 20, 2012. Collins’s motion
for appointment of counsel was granted on March 15, 2013, and her appointed counsel prepared
an amended complaint.
In the amended complaint, Collins alleges discrimination based on her race, age, and
disability, and also alleges that Fox Home failed to reasonably accommodate her disability and to
stop harassment in the workplace. The complaint includes the following counts: (I) Age
Discrimination, in violation of the ADEA and the IHRA; (II) Retaliation, in violation of the
ADEA and the IHRA; (III) Race Discrimination, in violation of Title VII, § 1981, and the IHRA;
(IV) Retaliation, in violation of Title VII, § 1981, and the IHRA; (V) Failure to Accommodate,
in violation of the ADA and the IHRA; (VI) Harassment, in violation of the ADA and the IHRA;
(VII) Discrimination, in violation of the ADA and IHRA; (VIII) Retaliation, in violation of the
ADA and IHRA; and (IX) Retaliation, in violation of the FMLA.
II. LEGAL STANDARD
The court treats the motion to dismiss based on the affirmative defenses of failure to
exhaust administrative remedies and the statute of limitations as a Rule 12(b)(6) motion. See
Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000) (stating that failure to exhaust administrative
remedies is not a jurisdictional requirement, although it is a reason for dismissal); Indep. Trust
Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012) (“A statute of limitations
provides an affirmative defense, and a plaintiff is not required to plead facts in the complaint to
anticipate and defeat affirmative defenses. But when a plaintiff’s complaint nonetheless sets out
all of the elements of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate.”).
For purposes of a Rule 12(b)(6) motion to dismiss, the court takes all facts alleged in the
complaint as true and draws all reasonable inferences from those facts in the plaintiff’s favor,
although conclusory allegations that merely recite the elements of a claim are not entitled to this
presumption of truth. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). A motion to
dismiss should be granted if the plaintiff fails to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Finally, “a plaintiff can plead himself out of court by alleging facts which
show that he has no claim, even though he was not required to allege those facts.” Jackson v.
Marion Cnty., 66 F.3d 151, 153 (7th Cir. 1995).
A. Failure to Exhaust Administrative Remedies
Fox Home argues that the following claims were not part of the charge Collins filed with
the EEOC and the IDHR: Counts II (Retaliation, in violation of the ADEA and the IHRA), IV
(Retaliation, in violation of Title VII, § 1981, and the IHRA), V (Failure to Accommodate, in
violation of the ADA and the IHRA), VI (Harassment, in violation of the ADA and the IHRA),
and VIII (Retaliation, in violation of the ADA and IHRA). Fox Home contends that Collins has
thus failed to exhaust administrative remedies as to those claims and that they should be
A plaintiff is generally required to present in her EEOC/IDHR charge any claim she
wants to pursue in federal court. See Peters v. Renaissance Hotel Operating Co., 307 F.3d 535,
550 (7th Cir. 2002) (“Generally a plaintiff may not bring claims under Title VII that were not
originally brought among the charges to the EEOC.”); Flannery v. Recording Indus. Ass’n of
Am., 354 F.3d 632, 637 (7th Cir. 2004) (“an employee may sue under the . . . ADA only if he
files a charge of discrimination with the EEOC within 300 days of the alleged unlawful
employment practice”). This requirement also applies to IHRA claims. Kaplan v. New Trier
High Sch., No. 11 C 0981, 2011 WL 2148936, at *3 (N.D. Ill. May 31, 2011). The rule gives the
employer notice of the charged conduct and allows the EEOC and the employer a chance to
settle the dispute. Peters, 307 F.3d at 550.
A plaintiff may, however, proceed on claims not explicitly set out in a charge if the
claims are “like or reasonably related” to the claims in the EEOC charge and could “be expected
to grow out of an EEOC investigation of the charge.” Id. (internal quotations marks and citation
omitted). “[T]he EEOC charge and the complaint must, at minimum, describe the same conduct
and implicate the same individuals.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir.
When faced with an exhaustion issue, the court is not necessarily limited to considering
only the body of the charge. Additional documents “may be considered when it is clear that the
charging party intended the agency to investigate the allegations.”
Id. at 502.
“additional allegations cannot expand the scope of the allegations in [the] original charge; they
[may only] ‘clarify or amplify’ the allegations in the charge.” Id. at 503 (quoting 29 C.F.R.
Moreover, the court cannot consider “properly filed” claims that were “orally
communicated to the agency, but omitted through the latter’s fault.” Vela v. Vill. of Sauk Vill.,
218 F.3d 661, 665 n.2 (7th Cir. 2000).
The court begins by examining the EEOC/IDHR charge itself. Collins’s charge states, in
I. . . . DISCHARGE – DECEMBER 3, 2009, BASED ON MY AGE, 53 . . .
1. My age is 53.
2. . . . . My work performance as a kitchen and bath designer met
Respondent’s legitimate expectations.
3. On December 3, 2009, I was discharged. The reason given . . . was
that I failed to meet Respondent’s sales quota.
4. A similarly situated younger, employee, Tammy . . . whose job
performance was comparable to mine was not discharged.
position was given to P. Eka Sukmawati (30’s), Designer. . . . .
IV. . . . DISCHARGE – DECEMBER 3, 2009, BASED ON MY RACE, BLACK
1. My race is black. . . . .
4. A similarly situated non-black employee, Tammy . . . whose job
performance was comparable to mine was not discharged.
position was given to a non-black employee P. Eka Sukmawati.
III. . . . DISCHARGE—DECEMBER 3, 2009, BASED ON MY PHYSICAL
DISABILITY, HIP DISORDER
1. I am an individual with a disability as defined within Section 1- 103(I)
of the Illinois Human Right Act.
2. Respondent is aware of my disability.
3. On December 3, 2009, I was discharged. The reason given . . . was
that I failed to meet Respondent’s sales quota.
4. My disability is unrelated to my ability to perform the essential
functions of my job.
(Am. Compl. Ex. A.)
The EEOC charge does not indicate that Collins made a complaint and suffered
retaliation as a result. Nor does it indicate that she was harassed because of her disability. It
states that she was discharged because of her hip disorder but does not specifically claim that
Fox Home failed to accommodate her disability.
Complaining of disparate treatment or wrongful discharge is insufficient to exhaust
administrative remedies as to retaliation, harassment, or failure-to-accommodate claims. See
Swearingen-El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852, 864-65 (7th Cir. 2010) (“Normally,
retaliation and discrimination charges are not considered like or reasonably related to one
another.”) (internal quotation marks omitted); Green v. Nat’l Steel Corp., Midwest Div., 197 F.3d
894, 897 (7th Cir. 1999) (“A claim for failure to accommodate is separate and distinct under the
ADA from one of disparate treatment because of a disability.”); Kaplan, 2011 WL 2148936, at
*3 (failure to accommodate claim exceeded the scope of EEOC charge alleging discrimination).
Collins points out that she did not type the charge herself and filed it pro se. She later
submitted a summary to the EEOC in an effort to substantiate her claims. The court will
consider whether the allegations in the summary “clarify or amplify” the allegations in the
charge so as to put the EEOC, the IDHR, and Fox Home on notice of Collins’s additional claims.
See Cheek, 31 F.3d at 503.
The court has scrutinized the twenty-page summary of allegations, which lists each date
on which Collins believed she was mistreated and denied opportunities for work. The summary
states that on various dates between April 2008 and November 2009, Collins was passed over for
customer referrals and denied her share of commissions, in favor of other designers, and that
other designers worked with her customers and took her designs. She claims that she was
repeatedly “left out,” was not informed about discounts and what items were in stock, and was
not shown products by representatives during in-store trainings.
Collins also states that on July 19, 2008, she was in the bathroom when the lights were
turned out, and she accuses other staff of turning off the lights. In March 2009, her walker was
missing, and nobody helped her to look for it. She was accused of scratching the show room
floor with a walker and a cane.
Collins further states that she was dissatisfied with the placement of her desk and
concerned that it would affect her sales. Her desk was the last to be moved when the company
relocated to a new building. In October 2009, her computer was not updated with software for
several weeks, and she lost a sale when she was unable to work on a design. On October 2,
2009, another designer took a sales desk located near the front of the store, which Collins
believed would have been better for her, given her disability, than the desk to which she was
assigned. On October 14, 2009, she told John Laird she should have been given the desk
because she was still recovering from hip surgery, and the more prominent location would have
boosted her sales. He responded that the other designer had asked for it first.
On April 7, 2009, John Laird gave Collins a letter accusing her of missing a training,
yelling and having loud conversations, and low sales. Other designers were not written up for
failing to attend the training. On May 4, 2009, John and Mike Laird tried to pressure Collins to
sign a paper, although she did not explain what the paper was. On September 3, 2009, John
Laird told her that her sales were low and that her 90-day probation period had started, and said,
“Don’t let me have to come after you with the greatest vengeance.” On September 15, 2009,
John Laird slammed books down on Collins’s desk while she was talking to a customer.
Even liberally construing this summary of allegations, Collins did not put the EEOC, the
IDHR, and Fox Home on notice that she claimed to have been subjected to harassment or
retaliation. With respect to her harassment claim, Collins lists in the summary various times
when she believes she was mistreated, but she does not connect these incidents to her disability,
so as to suggest that she was subjected to harassment on the basis of her hip disorder. Her
complaints about customer referrals, commissions, and being “left out” are not obviously
connected to her hip disorder, so as to put the EEOC and IDHR on notice that these incidents
should be investigated as “harassment.” To state a claim for harassment that creates a hostile
work environment, a plaintiff “must demonstrate that: (1) she was subject to unwelcome
harassment; (2) the harassment was based on her [protected status]; (3) the harassment was
sufficiently severe or pervasive so as to alter the conditions of her employment and create a
hostile or abusive atmosphere; and (4) there is a basis for employer liability.”
Ameritech Corp., 389 F.3d 708, 713 (7th Cir. 2004) (citing Williams v. Waste Mgmt. of Ill., 361
F.3d 1021, 1029 (7th Cir. 2004)). The only complained-of incidents which, by their nature,
appear arguably related to Collins’s disability are the fact that the lights were turned out while
she was in the bathroom, in July 2008, and the fact that her walker went missing in March 2009.
But these isolated incidents are “insufficient to show a workplace permeated with discriminatory
ridicule, intimidation, and insult.” Id. at 714. In short, the summary Collins submitted to the
EEOC and IDHR by no means made it clear that she was asserting a harassment claim.
Nor is there any suggestion in the summary that Collins engaged in protected conduct by,
for example, complaining about discrimination. Such claims would not naturally grow from the
agency’s investigation of the claims in the charge, which focus on Collins’s termination. The
court therefore finds that Collins’s ADEA, Title VII, and ADA retaliation and harassment claims
in Counts II, IV, VI, and VIII are beyond the scope of her EEOC charge and must be dismissed. 1
The dismissal of the retaliation and harassment claims is without prejudice. According to
the Seventh Circuit, “the proper remedy for a failure to exhaust administrative remedies is to
dismiss the suit without prejudice, thereby leaving the plaintiff free to refile his suit when and if
he exhausts all of his administrative remedies or drops the unexhausted claims.” Greene v.
Meese, 875 F.2d 639, 643 (7th Cir. 1989). As a practical matter, of course, the 300-day window
for Collins to file a charge alleging harassment and retaliation has likely expired. See Nagle v.
Vill. of Calumet Park, 554 F.3d 1106, 1121 n.4 (7th Cir. 2009) (“In Illinois, a complainant must
file a charge with the EEOC within 300 days of the alleged discriminatory act and failure to do
so renders the charge untimely.”).
As to the ADA failure-to-accommodate claim in Count V, the court finds that the
allegations in the charge, as clarified by the summary submitted to the EEOC, could support a
failure-to-accommodate claim. Collins alleges in the charge that she was disabled but was able
to perform the essential functions of her job. She was discharged for failing to meet Fox Home’s
sales quota. In the summary, she explains that she requested to be placed at a desk near the front
of the store to accommodate her limited mobility, but that the request was not granted. Although
the court expresses no opinion on whether Collins can ultimately prevail on her failure-toaccommodate claim, the claim could reasonably have developed from the EEOC’s investigation
Count IV also asserts a retaliation claim pursuant to § 1981, which does not require a
plaintiff to file a charge before bringing a claim in federal court. Fane v. Locke Reynolds, LLP,
480 F.3d 534, 539 (7th Cir. 2007). As Fox Home has not challenged the sufficiency of the
§ 1981 retaliation claim, that portion of Count IV is not dismissed.
of the charges before it. See Cheek, 31 F.3d at 201. Fox Home’s motion to dismiss Count V as
outside the scope of Collins’s charge is therefore denied.
B. Statute of Limitations
Fox Home argues that Collins’s FMLA claim in Count IX should be dismissed because it
was asserted on June 3, 2013, more than three years after her termination on December 3, 2009.
The FMLA provides a two-year statute of limitations, unless the violation was willful, in which
case the statute of limitations is three years. 29 U.S.C. § 2617(c).
Collins argues that the claim relates back to her original complaint, filed on November
30, 2012, within the three-year statute of limitations. Fox Home responds that the claim cannot
relate back because the allegations supporting a claim for FMLA retaliation were not alleged in
the original complaint. The original complaint did not indicate that Collins took FMLA leave or
that Fox Home’s actions resulted from the exercise of her rights under the FMLA.
Collins’s original (form) complaint alleges discrimination based on age, color, disability,
national origin, race, and sex. (Compl., ECF No. 1.) She wrote that Fox Home “discriminated
based on age, sex, race, citizenship status, physical disability, allowing unfair and inhuman
action in the work place[,] hostile intimidating threats.” (Id.) With respect to her medical issues,
she stated, “My disability of needing two Hip replacements wasn’t accommodated[,] my walker
came up missing the day of the Grand Opening,” and a younger designer’s “desk was moved to
the front . . . , which would have accommodated my disability and increased my sales.” (Id.)
Under Federal Rule of Civil Procedure 15(c)(1)(B), a claim may relate back to the date of
an earlier pleading when “the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original
pleading.” Fed. R. Civ. P. 15(c)(1)(B). Here, the complaint mentions that Collins had two hip
replacements but does not mention that she took FMLA leave. Nor does it indicate that Collins
was absent from work or needed surgery during the time period at issue. In other words, nothing
in the original complaint notified Fox Home that it could be subject to an FMLA claim. Thus,
the FMLA claim did not arise out of the conduct at issue in the complaint. Count IX is timebarred and is dismissed accordingly.
Defendant Fox Home’s motion to dismiss the amended complaint is granted in part and
denied in part. Counts II, VI, and VIII are dismissed without prejudice. Count IV is dismissed
without prejudice insofar as it asserts Title VII and IHRA claims. Count IX is dismissed as time
barred. The motion is denied as to Count V.
JOAN B. GOTTSCHALL
United States District Judge
DATED: February 4, 2014
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