Graham v. Econ Inc. et al

Filing 47

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr on 5/8/2015. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEFANY GRAHAM,
Plaintiff,
v.
E-COM DISPATCH CENTER,
Defendant.

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Case No. 14 CV 182
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
The Court previously dismissed without prejudice Plaintiff’s complaint against her
former employer, Defendant E-COM Dispatch Center (“E-COM”). Plaintiff filed an amended
complaint [40] under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., which
E-COM again moves to dismiss. The Court grants in part Defendant’s motion to dismiss [41], as
follows. To the extent that Plaintiff intended to bring a claim against her former supervisor,
Jeanine Chiapano, that claim is dismissed.

With respect to E-COM, the Court dismisses

Plaintiff’s retaliatory discharge claim but concludes that Plaintiff has stated a valid employment
discrimination claim based on race. Also pending before the Court is Plaintiff’s “motion in
response to Defendant’s motion for dismissal” [44]. That pleading is simply Plaintiff’s brief in
opposition to Defendant’s motion to dismiss and is denied as moot in light of the Court’s
disposition of Defendant’s motion.
I.

Background
The facts are drawn from Plaintiff’s amended complaint [40].

For purposes of

Defendant’s motion to dismiss, the Court assumes as true all well-pleaded allegations set forth
therein. See Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007).

Plaintiff Stefany Graham was employed by E-COM for six years until she was terminated on
February 26, 2013. See Am. Compl. 2–3. Plaintiff’s Title VII claims arise from an incident with
her supervisor, Jeanine Chiapano, which allegedly led to Plaintiff’s termination. In particular, on
February 18, 2013, Plaintiff wore a tee-shirt that read “black girls rock” to work. Id. at 1. Ms.
Chiapano told Plaintiff to remove the shirt immediately, even though E-COM does not have a
policy prohibiting particular slogans or labels on clothing. Id. Plaintiff further alleges that
Chiapano told her and other African-American employees that she found the tee-shirt to be
offensive. Id. Plaintiff’s complaints about the incident were ignored. See id. at 2.
Thereafter, and in the days leading up to her termination, Chiapano “seemed to harbor an
ongoing resentment” towards Plaintiff, which “appeared to be race-tinged and motivated”
because Plaintiff had “exhibited racial pride.” See Am. Compl. 2. On February 26, 2013, about
a week after the tee-shirt incident, Chiapano informed Plaintiff that she had been caught on video
listening to music with headphones while on the job. Id. Plaintiff was sent home and suspended.
Id.

Shortly therefore, E-COM’s attorney informed Plaintiff that she was terminated for

“insubordination and the use of social earphone music on the job.” Id. Plaintiff claims that these
stated reasons were pretextual, and she denies ever using earphones while working. See id. at 3.
Plaintiff contends that she actually was terminated because of her race, “especially due to the
subsequent tensions that arose in the job environment following the racial insensitivity she
experienced in the shirt incident.” Id. Plaintiff further alleges that, prior to her termination, she
had never been cited for insubordination (with the exception of one infraction in 2011 that was
quickly rescinded). See id.
Although Plaintiff does not allege that she filed a complaint with the Equal Employment
Opportunity Commission (the “EEOC”), Defendant attached to its motion the Notice of Charge

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of Discrimination that it received from the EEOC on October 21, 2013. The charge alleges that
E-COM discriminated against Plaintiff based on her race (African-American).

See [41-2],

EEOC Notice 2. The amended complaint does not contain particular counts, but its caption
indicates that Plaintiff asserts an employment discrimination claim based on race and a
retaliatory discharge claim. Plaintiff seeks $100,000 in damages. Am. Compl. 4.
II.

Legal Standard
Defendant has moved to dismiss the complaint under Federal Rule of Civil Procedure

12(b)(6). The purpose of a motion to dismiss is not to decide the merits of the case, but instead
to test the sufficiency of the complaint. See Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir.
1990). As noted, when reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as
true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff’s
favor. Killingsworth, 507 F.3d at 618.
To survive a Rule 12(b)(6) motion, the claim first must comply with Rule 8(a) by
providing “a short and plain statement of the claim showing that the pleader is entitled to relief”
(Fed. R. Civ. P. 8(a)(2)), such that the defendant is given “fair notice of what the * * * claim is
and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim
must be sufficient to raise the possibility of relief above the “speculative level,” assuming that all
of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d
773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and
conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However,
“[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what

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the * * * claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). The Court reads the complaint
and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir.
2011).
III.

Analysis
Defendant first argues that any claim that Plaintiff seeks to bring against Ms. Chiapano is

barred because Plaintiff failed to name her in the October 2013 EEOC charge that Plaintiff filed.
It is not clear whether Plaintiff intended to name Chiapano as a defendant in the amended
complaint. Chiapano was not named as a defendant in the original complaint, and the amended
complaint does not contain any allegations specifying that she is a party. In addition, the docket
does not indicate that a waiver of service has been returned for Chiapano or that a summons has
been issued to her. Finally, the only mention of Chiapano as a defendant is contained in the
caption of the amended complaint, which reads “Stefany Graham, Plaintiff vs. Jeanine Chiapano,
E-com dispatch center et al, Defendants.”
Plaintiff does not respond to the argument that Chiapano should be dismissed because she
was not named in the EEOC charge. See [44], Pl.’s Mot. Instead, Plaintiff clarifies in her
opposition brief that “Ms. Chiapano [was] named in the complaint as the plaintiff’s supervisor
for purposes of accurate recounting of the facts.” Id. at 1 (emphasis added). Plaintiff also
omitted Chiapano’s name from the caption of her opposition brief. See id. Based on the
foregoing, the Court concludes that Plaintiff does not wish to pursue a claim against Chiapano at
this time. If Plaintiff wishes to name Chiapano as a defendant in the future, she may seek leave
to do so, at which time Plaintiff will be required to address whether her failure to name Chiapano
in the EEOC charge affects her ability to bring a claim against her. For all of these reasons, any

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claim that Plaintiff intended to bring against Chiapano is dismissed.
The Court now turns to the claims that have been brought against E-COM. For the
reasons that follow, the Court concludes that Plaintiff has adequately alleged an employment
discrimination claim but has failed to state a valid retaliatory discharge claim.
As discussed in the Court’s prior memorandum opinion, Twombly established “two easyto-clear hurdles” for a complaint in federal court: (1) the complaint must describe the claim in
sufficient detail to give the defendant fair notice of the claim and the grounds upon which it rests,
and (2) the allegations must suggest a plausible—not merely speculative—right to relief.
Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (quoting EEOC v. Concentra
Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)). Applying Twombly to employment
discrimination claims, the Seventh Circuit in Tamayo “acknowledg[ed] that a complaint must
contain something more than a general recitation of the elements of the claim,” but “reaffirmed
the minimal pleading standard for simple claims of race or sex discrimination.” 526 F.3d at
1084. Specifically, a complaint alleging employment discrimination “need only aver that the
employer instituted a (specified) adverse employment action against the plaintiff on the basis of
her [race],” id., as such clams may be alleged “quite generally,” id. at 1081. With that said, the
complaint still “must actually suggest that the plaintiff has a right to relief,” as “it is no longer
sufficient for a complaint to avoid foreclosing possible bases for relief.” Id. at 1084 (quoting
Concentra Health Servs., 496 F.3d at 776) (emphasis in original).
The amended allegations meet this pleading standard with respect to Plaintiff’s
employment discrimination claim. Specifically, Plaintiff alleges that her supervisor treated her
unfairly and ultimately terminated her because she had shown pride in being African-American
by wearing a tee-shirt that stated “black girls rock.” Following this incident, Plaintiff alleges that

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was “singled out” and harassed until she was terminated. Am. Compl. 2. Plaintiff also alleges
that the given reasons for her termination—insubordination and wearing headphones while at
work—were fabricated. Finally, Plaintiff alleges that she was fired “because of her race.” Id. at
3. Unlike Plaintiff’s original complaint, these allegations clear the two hurdles that Twombly
described, because they include enough factual detail to provide fair notice and to state a
plausible claim. See Tamayo, 526 F.3d at 1084.
The Court now turns to Plaintiff’s retaliatory discharge claim. “Title VII prohibits
employers from punishing employees for complaining about discrimination or other practices
that violate Title VII.” Moser v. Indiana Dep’t of Corrs., 406 F.3d 895, 903 (7th Cir. 2005
(citing 42 U.S.C. § 2000e-3(a)). Specifically, § 2000e-3(a) states:
It shall be an unlawful employment practice for an employer to discriminate
against any of his employees * * * because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
To ultimately prove retaliation, a plaintiff may rely on either the direct method or the indirect,
burden-shifting method. Moser, 406 F.3d at 903 The direct method requires Plaintiff to show
that: “(1) she engaged in statutorily protected activity; (2) she suffered an adverse employment
action taken by the employer; and (3) a causal connection between the two.” Id. Alternatively, a
plaintiff may establish a prima facie case of retaliation by showing that “(1) she engaged in a
statutorily protected activity; (2) she met the employer’s legitimate expectations; (3) she suffered
an adverse employment action; and (4) she was treated less favorably than similarly situated
employees who did not engage in statutorily protected activity.” Id. The burden then shifts to
the defendant to present evidence of a non-discriminatory reason for its employment action, at
which point the burden shifts back to the plaintiff to demonstrate that the defendant’s reason is

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pretextual. See id. at 904. Under either method, the statutorily protected activity in which the
employee engaged “can range from filing formal charges to voicing informal complaints to
superiors,” Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009) (emphasis omitted)
(quoting Hertz v. Luzenac A., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004)), or may include
testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII,
see § 2000e-3(a).
As discussed above, the Seventh Circuit has reaffirmed the minimal pleading standard
that applies to Title VII claims; a valid claim, however, still “must actually suggest that the
plaintiff has a right to relief, by providing allegations that raise a right to relief above the
speculative level,” Tamayo, 526 F.3d at 1084 (quoting Concentra Health Servs., 496 F.3d at 776)
(emphasis in original). Plaintiff does not meet this pleading standard, with respect to her
retaliatory discharge claim.
To begin, Plaintiff does not sufficiently allege that she engaged in a statutorily protected
activity that somehow was linked to her termination. Plaintiff makes only one vague reference to
“complaints to administration” after the tee-shirt incident, Am. Compl. 2, and there are no
allegations that state or suggest that E-COM’s motive for terminating Plaintiff was retaliatory for
any such complaints. As noted, Plaintiff did file an EEOC complaint, but only after she was
terminated. Finally, in her opposition brief, Plaintiff writes that the statutorily protected activity
in which she engaged “was the exercise of free symbolic speech while on the job.” [44], Pl.’s
Mot. 1. This action does not qualify as a statutorily protected activity under Title VII, however,
as it did not involve a complaint about discrimination, see Casna, 574 F.3d at 427, or one of the
enumerated protected activities set forth in § 2000e-3(a). In sum, because Plaintiff has not
sufficiently alleged that her termination was linked to any protected activity, Plaintiff’s

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retaliatory discharge claim must be dismissed.
IV.

Conclusion
For the reasons stated above, Defendant’s motion to dismiss [41] is granted in part and

denied in part. To the extent that Plaintiff intended to bring a claim against Ms. Chiapano, that
claim is dismissed.

With respect to Defendant E-COM, the Court dismisses Plaintiff’s

retaliatory discharge claim and allows her employment discrimination claim to proceed.
Plaintiff’s pending motion [44] is denied as moot in light of the Court’s disposition of
Defendant’s motion. This case is set for further status hearing on May 27, 2015 at 9:00 a.m.

Dated: May 8, 2015

____________________________
Robert M. Dow, Jr.
United States District Judge

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