Alanis v. Metra

Filing 44

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 2/8/2016: Defendants' motions to dismiss, 31 , is granted in part and denied in part. Count I of the current complaint is barred by res judicata and is dismissed with p rejudice. Count XI fails to state a proper claim for hostile work environment under the ADA (assuming that such a claim is actionable), and is also dismissed. Because Alanis may be able to cure some of this claim's deficiencies through re-pleading, however, it is dismissed without prejudice. The motion is otherwise denied. [For further detail see attached order.] Notices mailed by Judicial Staff. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELDA ALANIS,
Plaintiff,
v.

No. 13 CV 5962

METRA,

Judge Manish S. Shah
Defendant.

MEMORANDUM OPINION AND ORDER
Elda Alanis works in the Office of Business Diversity and Civil Rights at
Metra, a division of the Regional Transportation Authority that operates commuter
rail lines in the Chicago area. Two years after she started working at Metra, Alanis
began to feel unwell, and her doctors diagnosed her with several medical conditions.
In November 2011, Alanis asked for medical leave to treat her illness, but the
company physician required that she seek psychological treatment instead. Alanis
did not seek such treatment, and after a few weeks, she was disqualified from
working until she obtained psychiatric clearance (which she ultimately did in April
2012).
When she returned to work in 2012, Alanis says she was denied a promotion
that had been promised to her, and was paid less than other employees performing
the same tasks. She began to have reactions to smells in the workplace—i.e., to
odors from perfumes, food items and scented cleaning supplies—and requested as

an accommodation a scent-free workspace. The request was granted, and Metra
instructed the employees in Alanis’s office not to use scented products while at
work. But Alanis claims that several staff members, including her supervisor,
continued to do so.
In September 2012, Alanis filed the first of three suits against Metra,
alleging violations of the Americans with Disabilities Act and the Family and
Medical Leave Act. That case was resolved in Metra’s favor at summary judgment.
The second and third suits—in which Alanis again brought claims under the ADA
and FMLA, as well as under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act—
were consolidated in the present action. Metra moved to dismiss Counts I, VI, and X
of the current complaint on the ground that these claims are barred by res judicata
(or, with respect to Count X, barred in part). Metra also moved to dismiss Count XI,
a hostile-work-environment claim under the ADA, on the ground that this cause of
action is not recognized in the Seventh Circuit. For the reasons discussed below, the
motion is granted in part and denied in part.
I.

Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a claim for

relief contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” The complaint need not include specific facts, but it must provide
the defendant with fair notice of what the claim is, and the grounds upon which it
rests. Olson v. Champaign Cnty., Ill., 784 F.3d 1093, 1098–99 (7th Cir. 2015) (citing
Erickson v. Pardus, 551 U.S. 89, 93 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S.

2

544, 555 (2007)). The complaint must present enough factual matter, accepted as
true, that the claim to relief “is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In considering a motion to
dismiss under Rule 12(b)(6), a district court accepts as true all well-pleaded factual
allegations and draws all reasonable inferences in the plaintiff’s favor. Cincinnati
Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013) (quoting Reynolds v. CB
Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010)).
Affirmative defenses such as res judicata cannot, as a technical matter, be
raised until a motion for judgment on the pleadings under Rule 12(c). Forty One
News, Inc. v. County of Lake, 491 F.3d 662, 664 (7th Cir. 2007); see also Carr v.
Tillery, 591 F.3d 909, 912–13 (7th Cir. 2010). However, when an affirmative defense
is disclosed in the complaint (i.e., the plaintiff has pleaded herself out of court on
that issue), the defense may serve as a proper basis for a Rule 12(b)(6) motion. See
Muhammed v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008).
II.

Facts
A.

Alanis’s Employment and Health Concerns

The Regional Transportation Authority operates commuter rail lines in
Chicago and its surrounding suburbs. [29] ¶ 10.1 Metra, a division of the RTA, hired
Elda Alanis in 2007 as a “DBE Associate” in its Office of Business Diversity and

Unless otherwise indicated, citations to the record are designated by the document
number as reflected on the district court’s docket in case number 13-cv-5962, enclosed in
brackets; referenced page numbers are from the CM/ECF header placed at the top of filings.
Citations to the record from case number 12-cv-7508 or 14-cv-9212 are preceded by “Alanis
I” and “Alanis III,” respectively.
1

3

Civil Rights, which manages Metra’s DBE program in accordance with federal
transportation regulations. Id. ¶¶ 2, 10–12. (“DBE” stands for disadvantaged
business enterprise. Id. ¶ 11.) Alanis was in good health when she started her job at
Metra, but by 2009 she was experiencing stomach pains and nausea, and was
having trouble breathing, on a daily basis. Id. ¶ 13. When symptoms were present,
Alanis felt like she was choking, and it was difficult for her to speak. Id. ¶¶ 13–14.
She saw several doctors, who diagnosed her with a variety of conditions, including
fibromyalgia and vocal-cord dysfunction. Id. ¶¶ 14–15. Alanis sought and obtained
certification under the Family and Medical Leave Act to take time off to treat her
illness, and by the end of 2011, she had missed a substantial amount of work. See
id. ¶¶ 14, 17.
On November 2 of that year, Alanis was at the office when she began to
experience choking sensations. Id. ¶ 20. She asked for FMLA leave but was instead
sent to Metra’s contracted physician, Dr. Steven Hartsock, for a fitness-for-duty
examination. Id. ¶21. Dr. Hartsock concluded that Alanis’s problems were
psychological, and required that she seek counseling by December 2, 2011. Id. ¶ 22.
On November 17, Alanis again began to feel ill at the office and she was again sent
to Dr. Hartsock, who reached the same conclusion he had previously: the cause of
Alanis’s symptoms was psychological. Id. ¶ 24. He disqualified Alanis from working
even though, ten days earlier, one of her own doctors had confirmed to Metra that
Alanis was suffering from respiratory and gastrointestinal problems. See id. ¶¶ 23,
25.

4

On January 6, 2012, while Alanis was on involuntary leave, she delivered to
Metra a note from one of her personal physicians, which explained that Alanis had,
among other illnesses, asthma and fibromyalgia—not a psychological condition—
and that she was able to return to work immediately. Id. ¶ 26. The note requested
several accommodations, including flexible work hours, periodic rest breaks, and a
fragrance-free workplace. Id. Alanis delivered a similar note (from a different
treating physician) two days later, but neither note persuaded Metra to let Alanis
come back to work. Metra continued to insist that she first obtain a psychological
exam, which she ultimately did on April 3, 2012. See id. ¶¶ 27–29. Following
another fitness-for-duty exam on April 27, Alanis was allowed to return to the office
on April 30, 2012. Id. ¶ 29.
After her return, things continued to go poorly for Alanis. She learned that a
promotion promised to her before her medical disqualification had instead been
given to two of Alanis’s co-workers, forcing Alanis to return to her original position
(and thus to forego a pay raise). See id. ¶¶ 43, 67–68, 77–78, 86–87. She spoke with
members of Metra’s Reasonable Accommodations Committee about the possibility of
getting a personal office (to decrease her exposure to odors and fragrances, which
she claims triggered coughing, sneezing, and other symptoms of her medical
conditions), but was told that none was available. See id. ¶¶ 84–85. A private office
did open up a few months later, but it was given to another employee. Id. ¶ 86.
Alanis also spoke with the committee about creating a scent-free workspace,
which Metra agreed to do after it received from her doctors confirmation that this

5

accommodation would positively impact Alanis’s health. See id. ¶¶ 84–85. In July
2012, Metra instructed employees in Alanis’s office not to use hair spray, air
freshener, perfume, cologne, or other scented products in the workspace or
restrooms. Id. ¶ 85. As it turned out, however, food-related smells were also a
problem for Alanis, and in March 2013 Metra moved her to a cubicle that was
farther away from the office microwave and refrigerator. Id. ¶ 88. But the new
cubicle was near the conference room and office sign-in sheet. Id. Despite a memo
from Metra reiterating to office employees that scented products could not be used
in the workspace, several of her co-workers continued to use scented cleaning
supplies in the conference room, and others continued to use perfumes or colognes—
which aggravated Alanis’s symptoms when the employees walked by. Id. ¶¶ 89, 91.
Alanis’s supervisor, Janice Thomas, was among those who continued to wear
perfume at the office. See id. ¶¶ 92–93. In August 2014, after Alanis complained to
another superior about the fragrances in the workplace, Thomas applied heavy
perfume and threatened to formally discipline Alanis for wearing unprofessionallooking shoes at work. Id. ¶ 95. (Alanis had been wearing the same shoes for
months, without comment. Id.) Thomas also permitted employees to eat their
lunches in the conference room next to Alanis’s desk. Id. ¶ 96. Lunches were
delivered to the conference room for monthly staff meetings, and homemade foods
were brought in for holiday celebrations—gatherings that, because of the smells,
Alanis could not attend. Id. ¶¶ 97–98.

6

Alanis also claims that she faced inequities in salary. Though Alanis was
eventually promoted to Compliance Specialist in May 2013, and given a
corresponding raise, she was still earning less than the two individuals who had
been promoted to Specialist during her absence in 2012. Id. ¶ 102. And when Metra
hired other Specialists in 2013 and 2014, they, too, were paid more than Alanis. See
id. ¶¶ 104, 106–07.
B.

Alanis’s Lawsuits

On November 28, 2011, Alanis filed a charge with the Equal Employment
Opportunity Commission, complaining of harassment and discrimination by Metra
because of her disability. See [35-1] at 8. She received from the EEOC a right-to-sue
letter on June 22, 2012, see id. at 7, and on September 19, 2012, she filed a pro se
complaint against Metra under the Americans with Disabilities Act and Family and
Medical Leave Act, see id. at 2–6 (complaint in Alanis v. Metra, 12-cv-7508 (“Alanis
I”)).2 Alanis I concerned Metra’s conduct beginning in 2010, including: Metra’s
alleged failure to accommodate Alanis’s disability with a flexible work schedule, the
ability to work from home, or an office with temperature controls; the company’s
creation of a hostile work environment and interference with Alanis’s FMLA rights
by requiring her to submit to repeated fitness-for-duty examinations; and
retaliation against Alanis for complaining about her treatment at work. See id.;
March 31, 2014 Memorandum Opinion and Order, [35-2] at 60–65. Metra’s motion
for summary judgment was granted on March 31, 2014. See [35-2] at 60–65.
Alanis I was initially before Judge Conlon, but was reassigned to Judge Coleman in June
2013.
2

7

Meanwhile (and before she filed Alanis I), Alanis filed on July 25, 2012 a
second discrimination charge, this time with the Illinois Department of Human
Rights.3 The second administrative complaint, like the first, also alleged
discriminatory conduct based on Alanis’s physical disabilities, but added complaints
of discrimination based on a perceived mental disability (somatization disorder) and
ancestry (Alanis is Hispanic). See [1] at 7–44. The second charge focused on conduct
that took place between January and July 2012. See id. While the investigation of
this complaint was pending, Alanis filed on December 21, 2012 a third
administrative complaint (again with the IDHR), which addressed allegedly
discriminatory conduct from July 2012 until the date of filing. See [35-1] at 23.
In May 2013, Alanis was notified of her right to sue on the second charge,
and she filed (pro se) a second lawsuit against Metra on August 21 of that year. See
[1] at 1–6 (complaint in Alanis v. Metra, 13-cv-5962 (“Alanis II”)). To her complaint
in Alanis II she attached her second IDHR charge, and, relying on the allegations
set forth in that charge, asserted claims under the ADA, FMLA, 42 U.S.C. § 1981,
and Title VII of the Civil Rights Act. See id.4 Alanis filed a third suit against Metra
in November 2014, this time based on her third administrative charge, and again
brought claims under the ADA, FMLA, Section 1981, and Title VII. See Alanis v.

The IDHR automatically cross-files eligible employment charges with the federal EEOC,
and conducts investigations for the EEOC pursuant to agency agreement. See
http://www.illinois.gov/dhr/FilingaCharge/Pages/Federal_Agencies_and_Courts.aspx
(last
visited February 8, 2016).
3

Alanis II was originally assigned to Judge Kendall, but was reassigned to Judge Coleman
in October 2013. In July 2014, the case was reassigned to me.
4

8

Thomas et al., 14-cv-9212 (“Alanis III”), [1] at 1–6.5 Alanis II and Alanis III were
consolidated, and the latter was terminated for administrative purposes. See [25].
Alanis—now with the assistance of counsel—filed a second amended complaint in
the consolidated action. [29]. Metra moves to dismiss from the amended complaint
Counts I (interference with FMLA rights) and VI (discrimination on the basis of
color, in violation of 42 U.S.C § 1981), and Count X in part (retaliation, also in
violation of Section 1981), on the ground of res judicata. [31] ¶¶ 4–6. Metra also
moves to dismiss Count XI, an ADA claim for hostile work environment, because
the Seventh Circuit does not recognize such a cause of action. Id. ¶ 7.
III.

Analysis
A.

Res judicata

Metra argues that Counts I and VI, and part of Count X, of the second
amended complaint are barred by res judicata. Res judicata is a rule of public policy
that protects the finality of judgments and thus prevents parties from re-litigating
claims that have already been decided. See Palka v. City of Chicago, 662 F.3d 428,
437 (7th Cir. 2011) (citation omitted). Where res judicata is based on the preclusive
effect of a federal-court judgment, as in this case, federal common law governs.
Adams v. City of Indianapolis, 742 F.3d 720, 735 (7th Cir. 2014) (citing Taylor v.
Sturgell, 553 U.S. 880, 891 (2008)). A claim is precluded under federal law when
there exists: (1) an identity of the parties (or their privies); (2) an identity of the
cause of action; and (3) a final judgment on the merits in the first suit. Id. at 736
Alanis III was first assigned to Judge Wood, but was later reassigned to Judge Alonso,
and then to me.
5

9

(citing Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 649 F.3d 539, 547 (7th
Cir. 2011)); see also Palka, 662 F.3d at 437 (citing U.S. ex rel. Lusby v. Rolls-Royce
Corp., 570 F.3d 849, 851 (7th Cir. 2009)). The parties agree that the first and third
elements are satisfied here; their dispute turns on the second element.
There is an identity of the cause of action where two claims arise from the
same transaction or set of operative facts—that is, both stem from the same, or
nearly the same, factual allegations. Bernstein v. Bankert, 733 F.3d 190, 226–27
(7th Cir. 2012) (citing Matrix IV, 649 F.3d at 547); Ross ex rel. Ross v. Bd. of Educ.
of Twp. High Sch. Dist. 211, 486 F.3d 279, 283 (7th Cir. 2007) (citation omitted). If
there is an identity between two claims, they must be brought together in the same
suit. See Ross, 486 F.3d at 283; see also Bernstein, 733 F.3d at 227; Palka, 662 F.3d
at 437.
1.

Count I

In Count I of the amended complaint, Alanis alleges that Metra interfered
with her rights under the FMLA, 29 U.S.C. § 2601 et seq., by requiring her in
November 2011 to undergo psychiatric testing before she could return to work—a
requirement that Metra continued to impose in January 2012 even though, on
January 6 and 8, Alanis provided documentation from her personal physicians
stating that her symptoms were physical (not psychological) and were under
control. See [29] ¶¶ 32–35. The operative facts in this complaint involve mandatory
psychiatric testing, and so did Alanis I. In that case, Alanis complained that Metra
had violated her FMLA rights by forcing her to submit to repeated fitness-for-duty

10

examinations in the fall of 2011, and by demanding that she obtain psychiatric
treatment before she could come back to work. See Alanis I, [83] at 11–13.
Alanis argues that the FMLA claim she asserted in Alanis I was limited to
Metra’s conduct in 2011, since that suit was based on her first EEOC charge, which
she filed on November 28 of that year. The present suit, by contrast, addresses what
Metra did beginning in January 2012—or so Alanis says. See [35] at 4–8. But the
EEOC has no authority to enforce the FMLA (it is the Secretary of Labor who has
this power, see 29 U.S.C. §§ 2611(10), 2617(b)), and the temporal boundaries of her
first EEOC complaint thus have no bearing on what Alanis ultimately decided to
allege in support of her initial FMLA claim. That claim was based, at least in part,
on Metra’s repeated insistence that Alanis seek psychiatric treatment before being
allowed to return to work; and that mandate carried over from 2011 to 2012. The
fitness-for-duty requirements of which Alanis complains—whether imposed in late
2011 or early 2012—were all part of the same cluster of events. Count I of the
second amended complaint is barred by res judicata.
2.

Count VI

Count VI of the amended complaint is a discrimination claim brought under
42 U.S.C. § 1981. In support of this claim, Alanis alleges that before she was
medically disqualified from working in November 2011, she was told she would be
promoted from DBE Associate to DBE Compliance Specialist. See [29] ¶ 77. When
she returned from her involuntary leave, however, she discovered that two other
individuals—both Caucasian—had been promoted instead. See id. ¶ 78. Alanis

11

claims that when she came back to the office, she was “demoted” to her original
position, and was prevented from participating in “outreach events” (Alanis does not
explain what these are) because of her color and Hispanic ancestry. See id. ¶¶ 78,
80–82. Metra argues that Count VI is barred because: (1) this claim depends on
facts concerning Alanis’s return to work in April 2012, and claims turning on such
facts have already been litigated (as just discussed); and (2) Alanis in any event
knew about these facts when she filed her first lawsuit, and so could have asserted
Count VI in that action. See [32] at 5; [36] at 8. That Alanis knew about her
“demotion” and inability to participate in outreach events by the time she filed
Alanis I is, without more, insufficient to bar her current discrimination claim: to
avoid the operation of res judicata, two claims must be joined in an earlier action
only if both arise from the same transaction. See Doe v. Allied-Signal, Inc., 985 F.2d
908, 914 (7th Cir. 1993) (citing LaSalle Nat’l Bank of Chi. v. Cnty. of DuPage, 856
F.2d 925, 933–34 (7th Cir. 1988)); Perkins v. Bd. of Trs. of Univ. of Ill., 116 F.3d
235, 236 (7th Cir. 1997).
Joinder was not required here. Whether Alanis was promoted or allowed to
participate in outreach activities has nothing to with the fitness-for-duty or
psychiatric-evaluation requirements discussed above. Metra could have imposed
these requirements but, once they were met and Alanis had returned to work, still
have promoted her or permitted her to participate in outreach events. Each of these
occurrences is a distinct transaction, and claims based on them need not have been
brought together.

12

There were other facts at issue in Alanis I, but a comparison to those yields
the same result. In her first lawsuit Alanis claimed that Metra had failed to
accommodate her disability by denying her request for a reduced and flexible work
schedule, declining to let her work from home, and refusing to provide her an office
with temperature controls. See [35-1] at 5; see also [35-2] at 62. These events, too,
were separate and distinct from the refusal to promote Alanis or to allow her
participation in outreach activities. Alanis did make a cursory reference to outreach
activities in her Local Rule 56.1 Statement of Additional Facts in Alanis I, but that
reference was to Metra’s actions in the spring of 2011. See Alanis I, [84] at 27 ¶ 30.
Count VI of the present complaint concerns Metra’s decision to disallow
participation in outreach events after Alanis came back to work in spring of 2012.
There was also some discussion in Alanis I of promotion decisions. However, those
decisions (i.e., Metra’s decisions to promote individuals other than Alanis) were also
made in 2011. See Alanis I, [26] at 3–4, 13; Alanis I, [89] at 9, 11. The promotion
decisions of which Alanis complains in the current suit took place in early 2012. See
[7] ¶¶ 78, 86–87, 101. Joinder was therefore unnecessary. Cf. Perkins, 116 F.3d at
236–37 (explaining that a discriminatory exclusion in one year is, for purposes of res
judicata, distinct from the same kind of discriminatory exclusion in a later year).
3.

Count X

Alanis claims in Count X that Metra retaliated against her in violation of
42 U.S.C. § 1981. (Alanis also alleges in Count X a violation of Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e et seq., but Metra focuses its motion to dismiss only on

13

the claim arising under Section 1981.) Because she filed charges of discrimination
with the EEOC and IDHR, says Alanis, Metra retaliated against her by paying
other (non-Hispanic) employees more than they did her, and by giving a (nonHispanic) co-worker the private office Alanis had wanted. See [29] ¶ 128. Metra
argues that Alanis knew of this alleged retaliation as early as July 2012, and so
should have included her Section 1981 claim in the complaint she filed a few
months later. See [32] at 5–6; [36] at 8.
That Alanis knew of the factual basis for one suit when filing another is, as
already explained, not enough to trigger res judicata. Moreover, the salary
discrepancies of which Alanis now complains are unconnected to the facts at issue
in Alanis I.6 There was a retaliation claim in Alanis I (brought under the ADA), but
that claim was based on Metra’s decision to change Alanis’s work schedule. See [352] at 63–64. The remaining claims focused on Metra’s imposition of the fitness-forduty and psychiatric-evaluation requirements, and the company’s refusal to give
Alanis an office with temperature controls. See id. at 62–65. It may be that the
latter issue is in some way connected with Metra’s refusal to provide Alanis with a
private office in July 2012, but the factual overlap, if any, is at this stage unclear.
On the current record, the retaliation in Count X stems from a different set of facts
than did Alanis I.

Indeed, some of the salary discrepancies described in the current complaint did not even
arise until 2013 or 2014, see [29] ¶¶ 102–07, so Alanis could not have included those facts in
her 2012 complaint.
6

14

Metra’s motion to dismiss Counts I, VI, and X on the basis of res judicata is
therefore granted in part and denied part. The motion is granted with respect to
Count I, but denied with respect to Counts VI and X.
B.

Hostile Work Environment

In her present suit, Alanis claims that Metra created a hostile work
environment—and thus violated Alanis’s rights under the ADA—by refusing to
make Alanis’s office a scent-free workspace, and by declining to give her a private
office (which, she says, would have solved the odor issue). See [29] ¶¶ 130–33 (Count
XI). Metra argues that this claim should be dismissed because this type of action is
not recognized in the Seventh Circuit. See [32] at 6.
The Seventh Circuit has not yet decided whether hostile-work-environment
claims are actionable under the ADA; the question is an open one. See Lloyd v.
Swifty Transp., Inc., 552 F.3d 594, 603 (7th Cir. 2009) (citing Mannie v. Potter, 394
F.3d 977, 982 (7th Cir. 2005)). However, the court of appeals has observed that if
such a claim did exist, it “would seem to arise under the [statute’s] general
prohibition against discrimination with respect to terms or conditions of
employment.” Silk v. City of Chicago, 194 F.3d 788, 803 (7th Cir. 1999) (quoting
Miranda v. Wis. Power & Light Co., 91 F.3d 1011, 1017 (7th Cir. 1996)). This
statutory language closely resembles language appearing in Title VII, and the
Seventh Circuit has assumed that, to the extent the ADA permits a cause of action
for hostile work environment, the standard for proving such a claim would mirror
that employed in Title VII cases. See Mannie, 394 F.3d at 982 (citing Silk, 194 F.3d

15

at 804; Jeseritz v. Potter, 282 F.3d 542, 547 (8th Cir. 2002)).7 That the court of
appeals has neither endorsed nor rejected a hostile-environment theory under the
ADA is not a basis to dismiss Alanis’s claim. The similarity in statutory language
between the ADA and Title VII, along with the widely accepted notion that creating
a hostile environment on account of a protected classification is a form of
discrimination, together suggest that the claim does exist under the ADA.
But Alanis’s complaint does not state a claim for hostile-environment
discrimination. To state such a claim, the plaintiff must allege that her workplace
was both subjectively and objectively hostile (that is, a reasonable person would find
it hostile). See Silk, 194 F.3d at 804–05. A hostile workplace is a workplace
permeated with insult, ridicule, or intimidation so severe or pervasive that it alters
the conditions of the plaintiff’s employment (i.e., results in a tangible employment
action, such as discharge, demotion, or an undesirable reassignment) or creates an
abusive working environment. See id. In determining whether this standard has
been met, the court considers all of the circumstances, including: the frequency of
the discriminatory conduct; its severity—that is, whether it was physically
threatening or humiliating, or merely an offensive utterance; and whether it

Section 2000e-2(a)(1) of Title VII provides, “It shall be an unlawful employment practice
for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to
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. § 2000e-2(a)(1) (emphasis added). Section 12112(a) of the ADA states,
“No covered entity shall discriminate against a qualified individual on the basis of disability
in regard to job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a) (emphasis added).
7

16

unreasonably interfered with the employee’s work performance. See id. at 804
(quoting Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998)).
Alanis claims that her workplace was hostile because, despite Metra’s
instructions to the contrary, Alanis’s supervisor (Thomas) allowed employees in her
office to wear scented sprays, and to clean the conference room next to Alanis’s
cubicle with scented products. See [29] ¶¶ 85, 89–91. Only a few of Alanis’s coworkers actually continued to wear perfumes or use scented sprays, but this was
enough to affect Alanis, she says, as she could smell the fragrances (and so would
start coughing) when the employees walked past her desk to use the sign-in sheet or
get files stored nearby. See id. ¶ 91. Alanis asked that the files be relocated, but
Thomas denied that request. Id. Thomas, too, continued to wear perfume to work
several times each month, including at staff meetings attended by Alanis. Id. ¶ 93.
Alanis asked Thomas not to use perfume in the office—or, alternatively, to shut her
door when she did—but Thomas denied this request, as well. See id. ¶ 94. On some
occasions (we do not know how many), Thomas intentionally applied the perfume in
Alanis’s presence. See id. ¶ 92. And only two days after Alanis complained to
another superior about the lack of a scent-free workspace, Thomas—who had
learned about the complaint from the other supervisor—applied heavy perfume and
threatened to discipline Alanis for wearing “unprofessional” shoes (which, until
then, had not been a problem). See id. ¶ 95.
Thomas also permitted employees to eat their lunches in the conference room
(which the staff further used to hold lunchtime meetings once each month), and to

17

bring food to the office for occasional holiday celebrations. See id. ¶¶ 96–98. Because
Alanis could not tolerate the smells from the food, she could not participate in the
staff meetings or get-togethers. Id. In addition, says Alanis, two of her co-workers
spoke to her about her sensitivity to smells (though Alanis does not explain what
exactly those employees said); and after Thomas held a staff meeting in response to
Alanis’s complaints about odors, some of the workers gave Alanis “dirty looks.” Id.
¶ 99. Alanis claims that a private office would have solved her problem with smells,
but when one became available, it was given to another employee even though
Alanis had requested it. See id. ¶¶ 84, 86, 132.
These actions are not objectively abusive in the sense prohibited by the
hostile-environment doctrine. There is no suggestion that the co-workers’ comments
were insulting or intimidating, and there were no physical threats.8 Moreover, even
in the context of Alanis’s sensitivity, eating in the workspace and wearing scented
products do not create an objectively hostile environment. Alanis may have been
personally offended that her supervisor did not require her co-workers to abandon
their own, otherwise-reasonable routines to accommodate Alanis’s sensitivities, but
this is not enough to suggest that the consequences of Thomas’s decision were so
Absent certain defenses, employers are vicariously liable for supervisors’ conduct. See
Silk, 194 F.3d at 804 (quoting Adusumilli, 164 F.3d at 361). To hold the employer liable for
a (non-supervisory) co-worker’s actions, however, the plaintiff must show that the employer
was negligent in discovering or remedying the harassment. See id.; Lambert v. Peri
Formworks Sys., Inc., 723 F.3d 863, 866 (7th Cir. 2013) (addressing a hostile-workenvironment claim under Title VII). Specifically, the plaintiff must show that notice of the
harassing conduct was given to someone with the authority to take corrective action, or to
someone who reasonably could have been expected to refer the complaint to another
superior with such authority. Lambert, 723 F.3d at 866–67 (quoting Parkins v. Civil
Constructors of Ill., Inc., 163 F.3d 1027, 1037 (7th Cir. 1998)). For present purposes, I
assume that Alanis’s supervisor had the requisite notice.
8

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severe or pervasive as to be objectively abusive. Nor does Thomas’s other conduct
fill the gap. That Thomas on some (unknown number of) occasions applied perfume
in Alanis’s presence, and once wore heavy perfume (and threatened to discipline
Alanis) after Alanis complained about the scents in the office, does suggest some
hostility toward Alanis because of her medical condition. But these events were not
serious enough, or, as far as may be gleaned from the complaint, frequent enough,
to render Alanis’s work environment an abusive one. Even when taken together
with the co-workers’ behavior, Thomas’s occasional use of perfume and single threat
of discipline do not plausibly suggest the kind of intimidating or derisive
atmosphere indicative of a hostile workplace.9
Assuming that a hostile-work-environment claim is actionable under the
ADA—and the statute’s similarity to Title VII suggests that it is—Alanis has not
alleged enough to state such a claim here. Metra’s motion to dismiss Count XI of the
amended complaint is granted.

At this stage, it would ordinarily be premature to draw a conclusion about the abusiveness
of the work environment. Huri v. Office of the Chief Judge of the Cir. Ct. of Cook Cnty., 804
F.3d 826, 834 (7th Cir. 2015). But here, even assuming Alanis’s allegations are true, there
is nothing objectively severe about them.
9

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IV.

Conclusion

For the reasons discussed above, defendants’ motions to dismiss, [31], is
granted in part and denied in part. Count I of the current complaint is barred by res
judicata and is dismissed with prejudice. Count XI fails to state a proper claim for
hostile work environment under the ADA (assuming that such a claim is
actionable), and is also dismissed. Because Alanis may be able to cure some of this
claim’s deficiencies through re-pleading, however, it is dismissed without prejudice.
The motion is otherwise denied.
ENTER:
___________________________
Manish S. Shah
United States District Judge

Date: 2/8/16

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