Vega v. Chicago Park District

Filing 39

MEMORANDUM Opinion and Order. Signed by the Honorable James B. Zagel on 7/25/2013. (ep, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LYDIA E. VEGA,
Plaintiff,
No. 13-CV-451
Judge James B. Zagel

v.
CHICAGO PARK DISTRICT,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff, Lydia E. Vega (“Vega”), brings seven counts against the defendant, Chicago Park
District (“Park”), alleging unlawful employment discrimination. Count I claims discrimination
on the basis of national origin in violation of 42 U.S.C. § 1981 (“§ 1981”). Counts II and V claim
retaliatory action in violation of § 1981 and Title VII of the Civil Rights Act of 1964, as
amended 42 U.S.C. §§ 2000e et seq., as amended by the Civil Rights Act of 1991 (“Title VII”).
Count III alleges discrimination based on national origin and gender in violation of Title VII.
Count IV alleges a violation of Title VII based on gender discrimination for sex stereotyping.
Lastly, Vega seeks redress based on state law claims for intrusion upon seclusion in Count VI
and violation of the Illinois Eavesdropping Act, 720 ILCS 5-14/1 et seq., in Count VII. I granted
summary judgment for defendants on Count VII, so only Counts I through VI remain. For the
following reasons, Park’s motion to dismiss is denied in part and granted in part.
I.

Background

Vega is an openly gay Hispanic female who worked for Park for twenty-two years before her
termination on September 10, 2012, for allegedly falsifying work hours on her timesheet. Park
divides its facilities into areas and further divides the areas into regions. Each park within an area

1

that contains a Class A or Class B facility has a supervisor, and all supervisors report to the same
manager. Bessemer Park (“Bessemer”) is located in the South Region of Area 6. In 2003, Park
appointed Vega as a Class A park supervisor at Bessemer and she held that position until her
employment ended. Throughout her career with Park, Vega received satisfactory or better
performance reviews and, prior to the acts complained of herein, was never disciplined.
A central component to this case is the alleged Park timesheet practice. Vega describes the
practice as a “one sheet only” paper system that requires employees to manually fill out their
timesheets. The system uses one timesheet per employee, and the timesheet is permanently
located at the employee’s assigned park for each pay period. This practice, Vega claims,
sometimes requires employees to fill out their timesheets prior to the end of the pay period, thus
anticipating their work hours for the remainder of the pay period. Vega alleges that all of the
Class A and B park supervisors in her region followed this timesheet practice.
At some point during Vega’s employment, Shereece Childs (“Childs”), an African
American Park employee, called Park’s hotline and complained that Vega was often absent from
work. Childs was allegedly performing poorly at the time of the complaint and a subordinate of
Vega. Kenneth Teal, a friend of Childs, made another complaint when he expressed concern
about African American children’s access to park facilities used by a Hispanic organization.
Later, in July of 2012, another subordinate African American employee reported a “false”
complaint, stating Vega’s park was unorganized and a child had been lost at the park’s day camp.
A fourth complaint was made in early September 2012 to report Vega’s park was not open an
hour after scheduled. Vega alleges she was at the park entrance when the call was made.
According to Vega, all the complaints made against her came from racially-motivated African
Americans.

2

In or around September 2011, Park assigned Michael Hester (“Hester”) and Leroi Catlin
(“Catlin”), both African American, to investigate Vega for her alleged failure to be present
during claimed work hours at Bessemer. As part of the investigation, Hester and Catlin
conducted surveillance on Vega, which involved following her vehicle (or vehicles thought to be
owned by her) and using audio and video recording devices. At some point in the investigation,
the device recorded an investigator saying Vega “looks like a guy.”
Vega accuses the investigators of intrusive behavior, including “peering through the
windows” of her home, asking invasive questions regarding family and friends, pulling her out of
a scheduled training session, and telling other Park employees that Vega was not working all the
hours she claimed. Vega states the manner in which she was investigated caused her to
experience severe health problems. On one particular occasion, Vega claims she met with her
manager and Hester at Bessemer and Hester said, “Well, I got you, I got you. So do you want to
say something before I leave, because after I leave, I am closing the case and that’s it.”
Shortly after that encounter, Hester and Catlin interviewed Vega at Park headquarters, where
she states she provided documentation of her whereabouts for most dates in question. Vega
alleges the investigation was done in bad faith and caused her to experience severe health
repercussions.
Following the investigation, Corrective Action Meetings were held on July 26, 2012, and
August 23, 2012, to address Vega’s purported failure to be at her assigned park during work
hours on fifteen dates from October 11, 2011, to January 31, 2012. Vega claims she provided
written documentation verifying her work hours, including names of witnesses. She believes her
verification documents were discounted and dismissed by Park. On September 10, 2012, Park
issued a Corrective Action Meeting Disposition letter that terminated Vega’s employment. Vega

3

alleges the reasons given for her termination were pretextual, discriminatory, and not supported
by the investigation results.1 She further claims that, at a post-termination appeal hearing, Park
attorneys asked questions about the length and style of her hair and style of her dress.
During the investigation, Vega’s attorney contacted Park’s legal counsel to “inquire about
what appeared to be unprofessional and prejudicial behavior of [Hester and Catlin] and to state
that [Vega] felt she was experiencing discriminatory treatment.” After the second Corrective
Action Meeting, and six days before her termination notice, Vega sent a letter to Park’s Director
of Human Resources explaining she felt discriminated against based on her national origin and
because African Americans investigated her after other African Americans made complaints. She
claims the basis for the investigative findings that she was not at Bessemer during work hours
was that Hester and Catlin could not locate her car at the park. Vega contends her responsibilities
had actually taken her elsewhere. She states that no Caucasian or African American Class A or B
park supervisor has been “investigated or terminated for failure to be as [sic] their assigned park
while performing Park responsibilities at other locations or because their vehicles were not in the
parking lot of the park at which they worked.”
Vega provides the following statistics and examples to support her claims: From January
2008 to the present, Park has employed approximately seventy-six Class A park supervisors and
twenty-eight Class B park supervisors.2 In 2008, Hispanic female supervisor Maria Ortiz
(“Ortiz”) was investigated and terminated by Park and is currently contesting that termination.
During 2010, Park employed seven Class A and B park supervisors who were Hispanic females.

1

The reasons given for Vega’s termination were: “failure to be present for duty at assigned times and places, failure
to be truthful in all statements signed by her in connection with Park employment, and failure to be truthful in any
testimony or other statements made during a disciplinary hearing, pre-suspension meetings, or any other proceeding
at any point in the disciplinary process.”
2
Park argues Vega’s statistics “drastically understate[]” the actual number (206) of park and playground
supervisors.

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From 2010 to September 2012, Park investigated and terminated Nereida Avile (“Avile”), a
Hispanic female supervisor. Martha Ramirez (“Ramirez”), a Hispanic female supervisor, retired
in 2011 while under investigation. Ramirez experienced “severe health issues” resulting from her
investigation that forced her into retirement, Vega alleges. Of the preceding supervisors, none
were replaced by a Hispanic female and, since 2008, Park has not appointed a Hispanic female to
a Class A or B park supervisor position.
During the time of the acts of which Vega complains, Park employed four Class A and six
Class B park supervisors in South Region, Area 6. Of the ten supervisors, two were Hispanic
females (Vega and Ramirez). Vega argues that other Class A and B park supervisors in her
region worked away from their assigned parks and followed the timesheet practice, but the only
supervisors investigated by Park for inaccurate timesheets were Vega and Ramirez. She claims
that, although Park could have terminated all Class A and B park supervisors in her region for
her alleged infractions, no such supervisor has even been investigated in the past five years.
Vega filed charges against Park with the Equal Employment Opportunity Commission
(“EEOC”) on or around October 12, 2012, alleging acts of discrimination based on gender, age,
and national origin. The EEOC issued Vega a Right to Sue letter, which she received on October
24, 2012. Vega filed a second charge against Park with the EEOC on or around November 21,
2012, alleging Park engaged in retaliatory action. Vega received a Right to Sue letter on her
retaliation charge dated December 21, 2012. Vega filed this complaint on January 18, 2013.
II.

Standard of Review

A party may motion the court to dismiss a complaint for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). In reviewing a complaint for dismissal, the
allegations are viewed “in the light most favorable to the plaintiff” with “all possible inferences”

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drawn in the plaintiff’s favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The
complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement seeks to provide the defendant with
“fair notice of what the … claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Additionally, factual allegations must only “state a claim to relief that is plausible on its face”
and “above the speculative level.” Twombly, 550 U.S. at 555, 570. A claim is facially plausible
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
The Seventh Circuit has interpreted the “fair notice” and plausibility requirements as “two
easy-to-clear hurdles” in the pleadings stage. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d
773, 776 (7th Cir. 2007); Tamayo, 526 F.3d at 1084 (discussing the “minimal pleading standard
for simple claims of race or sex discrimination”). Pleading “a short and plain statement of the
claim” requires only “very minimal” factual detail. Concentra, 496 F.3d at 779.
III.

Discussion

A. Counts I and III Alleging Discrimination Satisfy Federal Pleading Standards
The first issue to address is whether Vega has pled plausible discrimination claims under §
1981 and Title VII.
In Count I, Vega alleges that Park discriminated against her based on her national origin
(Hispanic) in violation of § 1981. To state a claim under § 1981, Vega must plead (1) she is a
“member[] of a racial minority;” (2) Park intended to discriminate against her based on race; and
(3) the discrimination concerned activities listed in the statute, including “the making,

6

performance, modification, and termination of contracts, and the enjoyment of all benefits … of
the contractual relationship.” Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996); 42
U.S.C. § 1981.
Because Park is a public employer, Vega must also allege that her injury resulted from a
municipal custom or policy. Simmons v. Chi. Pub. Library, 860 F. Supp. 490, 492 (N.D. Ill.
1994). Alleging an express city policy is not necessary; rather, “a pattern of conduct by nonpolicy-making municipal employees may rise to the level of a city policy, custom or usage which
is sufficient to give rise to municipal policy.” Id. (quoting McLin v. City of Chi., 742 F. Supp.
994, 997-98 (N.D. Ill. 1990)). Pleading “a series or pattern of misconduct” allows an inference
“that the municipality was aware of a problem but acted with deliberate indifference by ignoring
it.” Jones v. Vill. of Villa Park, 784 F. Supp. 533, 535 (N.D. Ill. 1992). Similarly, alleging that
the municipality has tacitly authorized the pattern or custom shown as its policy may create an
inference of a custom or policy. Id.
Here, Vega has satisfied the first and third elements of the test by pleading she is a member
of a protected class (Hispanic) and that her employment termination constitutes the “termination
… of the contractual relationship.” See Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369, 37273 (2004). Vega sufficiently pleading a plausible claim establishing a municipal policy, practice,
or custom of discrimination against Hispanics would, on its face, satisfy the second element.
Vega’s allegations list numerous instances of discrimination and create a possible inference
that Park “was aware of the misconduct and tacitly authorized and/or condoned it.” Cf. Simmons,
860 F. Supp. at 493 (“Because Count IV describes a number of allegedly discriminatory
incidents, rather than a single such event, it is possible to infer that the City was aware of the
misconduct and tacitly authorized and/or condoned it.”). In Simmons, the plaintiff’s allegations

7

that the city’s failure to investigate her complaint and other unequal treatment constituted
discrimination was sufficient to survive a motion to dismiss. Here, in addition to claiming Park’s
failure to investigate her complaints was discriminatory, Vega also alleges the decisions to
investigate and terminate her were discriminatory. She argues that the complaints prompting the
investigation were unfounded and that she was terminated for engaging in a timecard practice
that all other supervisors, including Caucasians and African Americans, took part in. Although
Park was aware all supervisors engaged in this practice, it chose only to investigate Vega and
Ramirez (another Hispanic supervisor) for the infraction, and no other supervisors in the region
have been investigated in the past five years. Accepting Vega’s allegations as true, the decision
to investigate only Hispanics for the timecard practice creates a possible inference that Park was
aware of discriminatory behavior and acted with “deliberate indifference” or “tacitly authorized”
the practice. Cf. Moore v. City of Chi., No. 97-C-2170, 1998 WL 160891, *6 (N.D. Ill. Mar. 31,
1998) (allegations that plaintiff and other African Americans were subjected to random drug
tests and unequal treatment compared to Caucasian officers created an inference of city
awareness and authorization).
Park puts forward two main arguments as to why Vega has not pled a plausible
discrimination claim under § 1981. First, gender is not a protected class under § 1981, and
Vega’s claims and statistics rely on her status as a “Hispanic female.” See Friedel v. Madison,
832 F.2d 965, 966 n. 1 (7th Cir. 1987) (noting that “claims of sex discrimination are not
cognizable under section 1981”). Park cites to Vasquez v. City of Reno, 461 F. Supp. 1098 (D.
Nev. 1978) to argue that Vega’s discrimination claim under § 1981 must be based solely on
national origin rather than a hybrid form of discrimination. In Vasquez, the court dismissed the
plaintiff’s claim because it “inextricably intertwine[d]” a scheme of race, age, and sex

8

discrimination. Id. at 1100.
While Vasquez calls into questions Vega’s use of statistics to prove her claim, her allegations
of discriminatory investigations remains plausible. Contrary to Vasquez, Vega only alleges
discrimination based on national origin under her § 1981 claim. In Moore, allegations that other
African Americans were subjected to unequal treatment compared to Caucasian officers was
sufficient to survive a motion to dismiss. 1998 WL 160891, *6. Similarly, Vega alleges that only
Hispanics, albeit Hispanic females, were investigated for infractions that other non-Hispanics
practiced. Thus, those employees outside her protected class were treated more favorably. At this
stage of the pleadings, where all possible inferences are drawn in Vega’s favor, she has pled a
plausible claim of discrimination against Hispanics.3
Second, Park argues that Vega’s claim of a pattern or practice of discrimination rests on her
investigation alone, and only one instance of discrimination is not enough to establish a pattern
or practice. In support, Park cites Davis v. Metro. Pier & Exposition Auth., No. 11 C 9018, 2012
U.S. Dist. LEXIS 91710 (N.D. Ill. July 3, 2012) and Johnson v. Hart, No. 10 C 240, 2011 U.S.
Dist. LEXIS 48397 (N.D. Ill. May 5, 2011). In Davis, the court dismissed the plaintiff’s
discrimination claim because there were no allegations “that the Defendants acted on a
discriminatory basis towards any other employees.” 2012 U.S. Dist. LEXIS 91710, *36. In
Johnson, the court held that more than a single incident is needed to establish a policy or practice
claim. 2011 U.S. Dist. LEXIS 48397, *16 (claim dismissed where inmate alleged a policy or
practice of discrimination based solely on his dissatisfaction with the medical care he received).
Contrary to Davis, Vega pleads that three other Hispanics (Ortiz, Avile, and Ramirez) were

3

It should be noted that, moving forward, if Vega wants to prove her claim through the use of statistics, she must
use the relevant proportion of supervisors, which would include Hispanic males. Cf. E.E.O.C. v. Chi. Miniature
Lamp Works, 947 F.2d 292, 305-06 (7th Cir. 1991) (reversing district court judgment for relying on skewed
statistics).

9

subjected to investigations. Of these three employees, Ortiz is currently contesting her
termination and the manner in which Ramirez was investigated drove her into retirement. Vega
specifically claims that Park investigated Ramirez for alleged time sheet infractions. Unlike the
plaintiff in Johnson, Vega is not attempting to prove a policy or practice of discrimination based
solely on the decision to investigate her. In addition to providing various statistics and naming
other Hispanics who possibly experienced discriminatory treatment, she also alleges that the
decisions to terminate her and not respond to her complaints constituted discriminatory behavior.
Vega has pled sufficient facts for a plausible discrimination claim under § 1981 and provided
fair notice to Park of her claim and the grounds upon which it rests. Accordingly, Park’s motion
to dismiss Count I is denied.
Next, Vega alleges in Count III that Park discriminated against her based on national origin
and gender in violation of Title VII. Under Title VII, an employer may not “discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). Unlike a § 1981 claim, a plaintiff does not need to plead the existence of a pattern or
practice of discrimination under Title VII. See Faragher v. City of Boca Raton, 524 U.S. 775,
807 (1998) (explaining how an employer is subjected to vicarious liability).
The Seventh Circuit has repeatedly held “that a plaintiff alleging employment discrimination
under Title VII may allege these claims quite generally.” Tamayo, 526 F.3d at 1081. While “a
complaint must contain something more than a general recitation of the elements of the claim,”
there is a “minimal pleading standard for simple claims of race and sex discrimination.” Id.
(citing Concentra, 496 F.3d at 781-82); see Davis, 2012 U.S. Dist. LEXIS 91710, *19-20
(discussing minimal pleading standards in race and sex discrimination cases).

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Here, Vega alleges that Park has discriminated against employees based on national origin
(Hispanic) and gender (female). Park has spent a better part of its Motion to Dismiss and Reply
on this count arguing that Vega has failed to make a “similarly situated” argument (i.e., that
similarly situated employees were treated more favorably than Vega). However, the “similarly
situated” argument is an evidentiary standard applicable at the summary judgment stage; it is not
a requirement in reviewing the sufficiency of a complaint. See Bennett v. Schmidt, 153 F.3d 516,
518 (7th Cir. 1998) (“[c]omplaints need not plead law or match facts to every element of a legal
theory”).
More specifically, courts in the Seventh Circuit have interpreted the “similarly situated”
argument as a method to prove discrimination through indirect evidence and the burden-shifting
method laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Ballance v.
City of Springfield, 424 F.3d 614, 617 (7th Cir. 2005); Ineichen v. Ameritech, 410 F.3d 956, 959
(7th Cir. 2005); Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1034 (7th Cir. 2004). The
plaintiff’s requirement to establish a prima facie case under McDonnell Douglas is an
evidentiary standard, not a pleading standard. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510
(2002). The Supreme Court has “never indicated that the requirements for establishing a prima
facie case under McDonnell Douglas also apply to the pleading standard that the plaintiffs must
satisfy in order to survive a motion to dismiss.” Id. at 511.
In Swierkiewicz, the plaintiff’s allegations “easily satisfie[d]” pleading requirements. The
plaintiff alleged he was terminated based on his national origin, included relevant events and
dates leading up to his termination, and listed the nationalities of some of the people involved in
his termination. Id. at 514. Similarly, Vega claims her investigation and termination resulted
from her national origin and gender. She lays out specific instances, dates included, of alleged

11

discriminatory behavior, ranging from the complaints that prompted the investigation, to Park’s
failure to investigate her complaints, and ultimately her termination. She pleads the names and
nationalities of those who made complaints against her and investigated her. Similar to the
plaintiff in Swierkiewicz, Vega has given Park notice of her claims and the grounds upon which
they rest, perhaps in more detail than needed.
Although, as noted above, Vega is not yet required to establish a prima facie case of
discrimination under the McDonnell Douglas framework, my analysis of the sufficiency of her
pleadings may still be informed by the requirements of the test. The McDonnell Douglas
framework requires a plaintiff to prove (1) she is in a protected class; (2) she was meeting
employer expectations; (3) she was the recipient of an adverse employment action; and (4)
similarly situated employees outside her protected class were treated more favorably. Ballance,
424 F.3d at 617.
Here, Vega pleads she is a member of a protected class (both Hispanic and female). Prior to
the events complained of, she received satisfactory or better performance reviews and was never
subjected to discipline. Thus, she was meeting Park’s expectations. As a result of her
termination, Vega suffered an adverse employment action. See Tomanovich v. City of
Indianapolis, 457 F.3d 656, 664 (7th Cir. 2006) (“[f]iring Tomanovich … clearly constituted a
materially adverse action”). She alleges that all supervisors in her region reported to the same
manager and all supervisors followed the same timesheet practice, which involved filling our
hours other than those actually worked. Even though Park was aware that all supervisors
engaged in this practice, it chose only to investigate Hispanics and females. In support, Vega
provides the name of another Hispanic female (Ramirez) who was investigated for the timesheet
practice. Vega further alleges that Park has not terminated Caucasian or African American

12

supervisors for the reasons given for her termination, even though these supervisors engage in
the same behavior. These allegations create at least a plausible claim that similarly situated
supervisors were not disciplined similarly.
Park puts forward numerous arguments questioning the sufficiency of Vega’s pleadings.
First, Park argues that Vega has not provided any specific individual comparisons in proving a
“similarly situated” argument. Second, Park again argues that any “similarly situated” argument
fails because Vega does not allege other supervisors who received complaints against them were
not investigated. Third, Vega has not provided statistics showing that all or most women, not just
Hispanic women (or all or most Hispanics, not just Hispanic women), are more harshly treated
for timecard infractions.
As addressed above, there is no requirement at this stage in the pleadings to prove that
“similarly situated” employees were treated more favorably than Vega. Regardless, a plaintiff
attempting to prove this element “need not demonstrate complete identity” of similarly situated
individuals. Luster v. Ill. Dept. of Corrections, 652 F.3d 726, 730 (7th Cir. 2011). Additionally,
Vega has pled that the complaints made against her were unfounded and racially-driven, which
discounts the argument that she was not similarly situated to supervisors receiving no
complaints. Likewise, Vega is not required to plead that all women, or all Hispanics, experienced
similar discrimination. See Diaz v. Kraft Foods, 653 F.3d 582, 587 (7th Cir. 2011) (“the principal
focus of [Title VII] is the protection of the individual employee, rather than the protection of the
minority group as a whole”) (quoting Connecticut v. Teal, 457 U.S. 440, 453-54 (1982)).
“Discrimination against one Hispanic [or female] employee violates the statute . . . .” Diaz, 653
F.3d at 588.
At this stage, Vega is allowed to plead her claims “quite generally,” which she has done by

13

arguing that non-Hispanics and males followed the exact practices she did, with Park’s
knowledge, but were not investigated or terminated. She need not plead all facts that are entailed
in her claim and she has met the minimal pleading requirements for a race and sex discrimination
case.4
Accordingly, Park’s motion to dismiss Count III is denied.
B. Counts II and V Alleging Retaliation Satisfy Federal Pleading Standards
The next issue to address is whether Vega has pled plausible retaliation claims under § 1981
and Title VII.
A plaintiff is entitled to bring a retaliation claim under § 1981 against a municipality. Smith
v. Bray, 681 F.3d 888, 896 (7th Cir. 2012). A retaliation claim “occurs when an employer takes
an adverse employment action against an employee for opposing impermissible discrimination.”
Id. Similarly, it is unlawful “for an employer to discriminate against any of his employees or
applicants for employment … because he has opposed any practice made an unlawful
employment practice by [Title VII]. 42 U.S.C. § 2000e-3(a). Methods of proof and substantive
standards applying to Title VII retaliation claims also apply to § 1981. Smith, 681 F.3d at 896;
Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009).
Under both statutes, a plaintiff may plead a retaliation claim through either the direct or
indirect methods of proof. Smith, 681 F.3d at 896. Vega’s complaint does not specify whether
she is proceeding under the direct or indirect method, but her allegations appear to follow the
direct method. Under the direct method, Vega must plead (1) that she “engaged in a statutorily
protected activity; (2) “suffered a materially adverse action” by Park; (3) and a causal connection
between the two. Stephens, 569 F.3d at 786. Vega can plead causation through circumstantial

4

If Vega wishes to prove her claims after pleadings by the use of statistics, she may have difficulty doing so without
a complete breakdown of the genders and national origins of all the supervisors.

14

evidence that would permit an inference of retaliation absent an employer’s admission. Coleman
v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012). Types of circumstantial evidence include
“suspicious timing” and “pretextual reason[s] for an adverse employment action.” Id. Vega is not
required to prove a prima facie retaliation claim; she must only plead facts to create an inference
of a plausible claim. See Compton v. Lowe’s Cos., No. 08-cv-809-JPG, 2010 U.S. Dist. LEXIS
71182, *9-10 (S.D. Ill. July 15, 2010) (explaining how a plaintiff may plead less for a retaliation
claim at the pleadings stage compared to the summary judgment stage).
First, Vega claims she engaged in statutorily protected activity when her counsel, on her
behalf, called Park’s counsel to advise of the discriminatory treatment Vega felt she was
experiencing. Later, Vega sent a detailed letter directly to the Deputy Director of Human
Resources and the Inspector General that specifically stated she felt she was experiencing
harassment and discrimination based on her national origin (Hispanic) and requested an
investigation.
The first complaint to Park’s counsel, standing alone, would likely be insufficient to satisfy
the first element because it was never specified that Vega felt the discriminatory treatment was
due to the fact she is Hispanic. See Tomanovich, 457 F.3d at 663 (“Merely complaining in
general terms of discrimination or harassment, without indicating a connection to a protected
class or providing facts sufficient to create that inference, is insufficient.”). However, in Vega’s
second complaint via letter, she specifically states that she believed “the harassment [was] due to
the fact that [she is] a Hispanic ….” Because Vega pleads the harassment resulted from her
Hispanic origin, the allegation is sufficient to satisfy the first element. See id. at 664 (holding
certain internal reports did not satisfy the first element because they did not specify that the
plaintiff felt his discrimination resulted from his national origin).

15

Park argues that, in order for Vega to allege she engaged in a statutorily protected activity
she believed violated Title VII, the belief must be reasonable. Compton, 2010 U.S. Dist. LEXIS
71182, *10. In order for the belief to be reasonable, the opposed and reported behavior “must
actually be prohibited by Title VII.” Id. In Compton, an African American alleged she was
wrongfully written-up by her Caucasian, male supervisor after complaining that the supervisor
was a racist and chauvinist. Id. The court held that it was reasonable to infer that her complaints
were based on her belief that violations of Title VII had occurred, specifically race and gender
discrimination. Id. at *10-11.
In the instant case, Vega alleges the decision to investigate her was discriminatory because
she had performed satisfactory or better until the events in question but was investigated based
on unfounded, racially-motivated complaints. Her allegation she was discriminatorily targeted is
further supported by her assertion that all supervisors, including Caucasians and African
Americans, were following the timecard practice, but only Hispanics were investigated for the
actions. These allegations are sufficient to support a reasonable belief of unlawful behavior.
Next, Vega’s termination is sufficient to constitute a “materially adverse employment action”
taken by Park. See Tomanovich, 457 F.3d at 664 (“[f]iring Tomanovich … clearly constituted a
materially adverse action”). The question is whether Vega has pled sufficient facts to create an
inference of causation under the third prong.
Generally, “temporal proximity between an employee's protected activity and an adverse
employment action is rarely sufficient to show that the former caused the latter.” O’Leary v.
Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011). However, “[c]lose temporal proximity
provides evidence of causation and may permit a plaintiff to survive summary judgment
provided that there is other evidence that supports the inference of a causal link.” Scaife v. Cook

16

Cnty., 446 F.3d 735, 742 (7th Cir. 2006) (quoting Lang v. Ill. Dept. of Children and Family
Servs., 361 F.3d 416, 419 (7th Cir. 2004).
Most cases in the Seventh Circuit holding that suspicious timing was not enough to establish
a causal connection of retaliation involved timeframes lasting longer than a month. See, e.g.,
O’Leary, 657 F.3d at 635 (two-month timeframe failed to establish a causal connection);
Longstreet v. Ill. Dept. of Corr., 276 F.3d 379, 384 (7th Cir. 2002) (four-month timeframe failed
to establish a causal connection); Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 919 (7th Cir.
2000) (three-month timeframe failed to establish a causal connection). Vega alleges she was
terminated within one week of her written complaint to Park. In any event, Scaife dealt with
evidence allowing a plaintiff to survive summary judgment; as noted several times above, Vega
is only trying to survive a motion to dismiss, where considerably less is required.
In addition, Vega claims the reasons given for her termination were pretextual and
“admittedly not supported by the report of the Defendant’s Investigators.” As evidence of
pretext, Vega claims she provided Park with documentation and names of witnesses confirming
she was working on the dates in question. Vega further claims she performed satisfactorily or
better and was never disciplined before the events in question. She also pleads that the only
complaints made against her were unfounded and racially-driven. Lastly, Vega specifically
requested an investigation in her written complaint and, rather than investigating, Park
terminated Vega’s employment. These allegations, taken together, create a reasonable inference
of causation and satisfy minimal pleading standards.
Park cites to Tomanovich to argue that Vega failed to claim that supervisors outside her
protected class were treated more favorably when opposing discriminatory behavior. As
discussed, proving a “similarly situated” argument is an evidentiary standard and used under the

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indirect method; Vega’s retaliation claim is facing a motion to dismiss and proceeding under the
direct method. Park then cites to Green v. Scurto Cement Constr., Ltd., 820 F. Supp. 2d 854, 857
(N.D. Ill. 2011) to argue that Vega must allege Park “systematically retaliated against employees
of any national origin or gender or race who opposed discriminatory practices involving race or
national origin.” Park’s argument is not clearly supported by Green, a case in which the court
discussed minimum pleading requirements for a retaliation claim and found the defendants
“ask[ed] too much at the pleading stage.” Green, 820 F. Supp. 2d at 858.
Accordingly, Park’s motion to dismiss Counts II and V is denied.
C. Count IV Alleging Sex Stereotyping Satisfies Federal Pleading Standards
The next issue to address is whether Vega has sufficiently pled a sex stereotyping claim
under Title VII.
In addition to sexual discrimination or harassment, a plaintiff may also allege a sex
stereotyping claim under Title VII. See generally Price Waterhouse v. Hopkins, 490 U.S. 228,
250-51 (1989) (discussing sex stereotyping claims). Remarks in the workplace based on sex
stereotypes do not “inevitably prove that gender played a part in a particular employment
decision.” Id. at 251. A “plaintiff must show that the employer actually relied on … gender in
making its decision.” Id. However, “stereotyped remarks can certainly be evidence that gender
played a part.” Id. (emphasis in original).
In sex stereotyping cases, Justice O’Connor’s concurring opinion in Price Waterhouse is
often cited to help explain the law:
Thus, stray remarks in the workplace … while perhaps probative of sexual harassment,
cannot justify requiring the employer to prove that its hiring or promotion decisions were
based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff's
burden in this regard.

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Id. at 277 (O’Connor, J., concurring).
Vega claims Park discriminated against her because her physical appearance does not
conform to the female stereotype. She further claims her unconventional appearance factored
into Park’s decision to investigate and terminate her employment. Vega puts forward two
occasions as evidence. First, the investigator’s comment that Vega “looks like a guy.” Second,
the questions Park’s attorney asked Vega about the length and style of her hair and the style of
her dress.
The workplace comments in the instant case do not rise to the level of those in Price
Waterhouse. See id. at 235 (sex stereotyping found where female plaintiff denied partnership and
employer relied on gender stereotyped comments as motivating factor in decision, including
comments that plaintiff was “macho,” “overcompensated for being a woman,” and was told to
“walk more femininely, talk more femininely, dress more femininely, wear make-up, have her
hair styled, and wear jewelry”). However, Price Waterhouse dealt with requirements for a
plaintiff to prove a prima facie case, which is not the pleading standard at the motion to dismiss
stage. Vega is only required to plead enough facts for a plausible claim, with reasonable
inferences drawn in her favor.
Standing alone, the comment by the investigator would not create an inference that Park
investigated and terminated Vega because of her noncompliance with the female stereotype. As
pointed out by Park, the investigation had already commenced by the time the investigator made
the comment. It is the questions by Park’s attorney at the post-termination hearing that presents
more probative evidence that Vega’s unconventional physical characteristics possibly played at
least some role in the decision to terminate her. There is, in fact, little explanation as to why else
the attorney asked the questions.

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Park argues that Vega has failed to create an inference of causation between her alleged
instances of sex stereotyping and the decision to investigate then terminate her. By providing at
least two instances of stereotypical comments and questions, Vega’s claim exceeds the
speculative level. She has put forward at least some evidence to allow her to explore the claim
further.5 See Creed v. Family Express Corp., No. 3:06-CV-465RM, 2007 U.S. Dist. Lexis 57680,
*11 (N.D. Ind. Aug. 3, 2007) (“[W]hether [defendant] acted with a stereotypical motivation
needn’t be determined at [the motion to dismiss] stage…. [Plaintiff’s] factual allegations
supporting her claim she was terminated because of her failure to comply with male stereotypes
supports a plausible claim she suffered discrimination because of her sex.”); see also Lust v.
Sealy, Inc., 277 F. Supp. 2d 973, 981 (W.D. Wis. 2003) (whether supervisor’s decision to not
recommend plaintiff was based on sex stereotypes under Title VII action was a question for the
jury).
Accordingly, Park’s motion to dismiss Count IV is denied.
D. Count VI Alleging Intrusion Upon Seclusion Partially Satisfies Federal Pleading
Standards
The final issue to address is whether Vega has pled a plausible state law claim for intrusion
upon seclusion.
The elements to state a claim for intrusion upon seclusion are: (1) an unauthorized intrusion
or prying into a plaintiff’s seclusion; (2) the intrusion would be “highly offensive or
objectionable to a reasonable person;” (3) the matters upon which the intrusion occurred were
private; and (4) the intrusion caused anguish and suffering. Busse v. Motorola, Inc., 813 N.E.2d
1013, 1017 (Ill. App. Ct. 2004). The third element requiring allegations of private facts is a
5

It should be noted that moving forward Vega must produce evidence showing those responsible for terminating her
employment considered her nonconformity with the female stereotype in their decision (illegitimate reason), rather
than strictly the reasons given in her termination letter (legitimate reasons).

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“predicate for the other three.” Id. (“Without private facts, the other three elements of the tort
need not be reached.”). Thus, it is not sufficient if the behavior complained of only intrudes into
personal, rather than private, matters. Id.
While personal information can include names and social security numbers, private facts are
“facially embarrassing and highly offensive if disclosed.” Cooney v. Chi. Pub. Sch., 943 N.E.2d
23, 32 (Ill. App. Ct. 2010). Examples of private facts include “family problems, romantic
interests, sex lives, health problems, future work plans and criticism of [an employer].” Busse,
813 N.E.2d at 1018. Other examples of prying into private matters are opening a person’s mail,
searching a person’s safe or wallet, and reviewing a person’s banking information. Lawlor v. N.
Am. Corp. of Ill., 983 N.E.2d 414, 424 (Ill. 2012) (citing Restatement (Second) of Torts § 652B
cmt. b (1977)).
In this case, only the second and third elements are contested. Vega alleges that Park
investigators intruded into her seclusion through the following activities: using audio and video
recording devices to record her and vehicles believed to be owned by her at home, work, and
elsewhere; peering into the windows of her home; following Vega and various vehicles believed
to be owned by Vega; making untruthful statements to other employees that Vega was not
working all the hours she claimed; following Vega and tracking her off-duty affairs; questioning
Vega in a hostile manner about family and friends and their vehicles; and threatening Vega in the
course of the investigation.
Of all Vega’s allegations, the only one that involves “highly offensive” intrusion into private
matters is her claim that the investigators peered into the windows of her private residence.
Jorgan v. Simmons, 704 F. Supp. 2d 814, 822 (N.D. Ill. 2010) (“examples of actionable intrusion
upon seclusion would include … peering into the windows of a private home”) (quoting Benitez

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v. KFC Nat’l Mgmt. Co., 714 N.E.2d 1002, 1006 (Ill. App. Ct. 1999)). Indeed, “the core of
[intrusion upon seclusion] is the offensive prying into the private domain of another.” Lovgren v.
Citizens Nat’l Bank of Princeton, 534 N.E.2d 987, 989 (Ill. 1989) (citing Restatement (Second)
of Torts § 652B cmt. a, b (1977)).
In its defense, Park argues that the peering was done from a public space and cites two cases
in support. First, Park relies on Schiller v. Mitchell to argue that the peering was lawful if it was
done from a public location. 828 N.E.2d 323, 329 (Ill. App. Ct. 2005) (camera “aimed at
plaintiffs’ garage, driveway, side-door area, and backyard” from a public space not an actionable
intrusion upon seclusion claim). Second, Park cites Bahrs v. Blakey to provide more support for
its argument that peering from a public location is lawful. 2012 IL App. (4th) 110940-U, ¶19 (Ill.
App. Ct. 2012) (“watching from a distance” and looking into publically parked van insufficient
to state an intrusion upon seclusion claim).
The instant case is distinguishable from Schiller and Bahrs in that Vega does not allege the
investigators viewed her in areas immediately surrounding her home (i.e., a garage, driveway,
etc.) or in other public areas; rather, she claims the investigators actually peered into her private
residence. While Park argues that Vega did not plead that any “facially embarrassing” or
“offensive behavior” was witnessed, peering into windows of a person’s residence is precisely
the type of activity that leads to observing this private behavior. Cf. Benitez, 714 N.E.2d at 1006
(poking holes in ceiling of women’s restroom and viewing plaintiffs is sufficient intrusion upon
seclusion claim); Acuff v. IBP, Inc., 77 F. Supp. 2d 914, 927 (C.D. Ill. 1999) (videotaping of
medical examination found to be “highly offensive” behavior). Similar to a bathroom or
operating room, a person’s residence is a location where one expects a certain degree of privacy.
Vega’s claim that the investigators peered into her windows is conceivable because part of the

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investigation admittedly entailed determining her location at different times.
Park argues that in Vega’s Response she added allegations, stating the investigators “walked
up to and peered through the windows of [Vega’s] home,” even though the Amended Complaint
only alleged the investigators “peer[ed] through the windows.” Any possible defenses to Vega’s
claim, such as the peering being done lawfully from a public location or the investigation being
carried out in good faith, should be raised at the evidentiary stage.
None of the other allegations made by Vega relating to the methods used by Park to carry out
the investigation rise to the level of “highly offensive” behavior or intrude into private matters.
The simple fact that the investigators followed Vega and tracked her throughout the day does not
suggest there was an intrusion into private matters. See Bahrs, 2012 IL App. (4th) 110940-U, ¶19
(watching someone from a distance not sufficient to state a cause of action for intrusion upon
seclusion). Any videotaping done from a public location is lawful as long as the person being
videotaped is not in a private location, such as her personal residence. See Schiller, 828 N.E.2d at
328-29. Likewise, general questions about family and friends and their vehicles do not intrude
into any “facially embarrassing” or private information.
Vega cites to Johnson v. K-Mart to argue that the investigators falsely telling other
employees that Vega was not at work when she claimed to be constitutes actionable intrusion
upon seclusion behavior. 723 N.E.2d 1192, 1196-97 (Ill. App. Ct. 2000) (finding genuine issues
of fact remained as to whether there was an intrusion upon seclusion when detectives disguised
as employees gathered “highly personal information” about employees). An investigation
commenced for clear business reasons, Vega argues, that also elicits private facts is actionable
intrusion upon seclusion. In Johnson, the disguised investigators gathered information related to
“employees' family problems, health problems, sex lives, future work plans, and attitudes about

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defendant and reported this extremely personal information to defendant.” Id. at 1196. Here, the
investigators telling other employees Vega was not at work when she claimed to be falls
drastically short of the personal information reported in Johnson. Any argument that the
investigators’ report contained private facts outside of information related to the charges brought
against Vega rests on pure speculation and must be dismissed.
Aside from peering into the windows of Vega’s private residence, none of the other
allegations are sufficient to state a plausible claim for intrusion upon seclusion. Accordingly,
Park’s motion to dismiss Count VI is granted for all claims except the claim that the investigators
peered into Vega’s windows. With respect to that allegation, Park’s motion to dismiss Count VI
is denied.
I note that, in light of the preceding discussion, the issues raised in this case may be more
properly addressed at the summary judgment stage.
IV.

Conclusion

For the foregoing reasons, Park’s motion to dismiss is denied in part and granted in part. The
motion to dismiss Counts I through V is denied. All allegations under Count VI are dismissed
except the allegation that the investigators peered through the windows of Vega’s private
residence. With respect to that allegation, Park’s motion to dismiss Count VI is denied.

ENTER:

James B. Zagel
United States District Judge

DATE: July 25, 2013

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