Tarpley v. City Colleges of Chicago

Filing 26

OPINION AND ORDER. City Colleges' motion to dismiss 14 is granted. Tarpley's claims for Title VII constructive discharge in Counts I and II, Title VII retaliation in Count II, Title VII and FMLA failure to accommodate in Count III, and i ntentional infliction of emotional distress (Count IV) are dismissed. City Colleges is given until April 30, 2015 to answer the remaining allegations of the First Amended Complaint. Signed by the Honorable Sara L. Ellis on 4/10/2015:Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELIZABETH A. TARPLEY,
Plaintiff,
v.
CITY COLLEGES OF CHICAGO,
Defendant.

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No. 14 C 6712
Judge Sara L. Ellis

OPINION AND ORDER
Plaintiff Elizabeth Tarpley worked for Defendant City Colleges of Chicago (“City
Colleges”) as the Assistant Dean of Information Technology at its Kennedy-King College
location from May 16, 2011 until her resignation on August 16, 2013. She then filed this suit
alleging that City Colleges discriminated against her on the basis of her race, sex, and disability
in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,
the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Before the Court is City Colleges’ partial
motion to dismiss Tarpley’s First Amended Complaint [14], which is granted. Because Tarpley
has not alleged a Title VII retaliation claim, that claim is dismissed, but she may proceed on her
unchallenged FMLA and ADA retaliation claims. The Title VII constructive discharge claims
are dismissed because Tarpley did not include them in her Equal Employment Opportunity
Commission (“EEOC”) charge nor can they be considered reasonably related to the claims raised
in that charge. Tarpley’s Title VII and FMLA failure to accommodate claims are dismissed
because those statutes do not provide for a claim for the failure to accommodate a disability.

Finally, Tarpley’s claim for intentional infliction of emotional distress (“IIED”) is dismissed as
time-barred.
BACKGROUND 1
Tarpley began working at Kennedy-King College as the Assistant Dean of Information
Technology on May 16, 2011. While in that position, she performed according to expectations
and never received a negative review. But because she suffers from endometriosis, which causes
her severe pain, as well as from depression and anxiety, Tarpley needed time off from work. She
was approved for a four-week medical leave from June 22 to July 20, 2012 while recovering
from a surgery related to her endometriosis. This leave was to be counted towards her annual
entitlement to twelve weeks of leave under the FMLA in 2012. During this time, Tarpley
continued to work from home, monitoring emails and participating in calls as necessary.
In August 2012, Tarpley requested intermittent leave from August 7, 2012 to July 7, 2013
for ongoing treatment and occasional illness related to her endometriosis. City Colleges
approved this leave period in October 2012, indicating that it would be counted towards her
FMLA leave entitlement in 2012 and 2013. Tarpley used approximately one to two days of
leave a month during this period, continuing to work from home if necessary.
Although Tarpley’s work performance and the performance of her department did not
suffer while she used intermittent leave, in May 2013, she noticed that her superiors were
singling her out for using leave time. On May 10, 2013, the Vice Chancellor of Information
Technology, Arshele Stevens, informed Tarpley that City Colleges did not allow employees to
work from home even though she had been told differently in the past and other City Colleges

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The facts in the background section are taken from Tarpley’s First Amended Complaint and the exhibits
attached thereto and are presumed true for the purpose of resolving City Colleges’ motion to dismiss. See
Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011); Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v.
Exelon Corp., 495 F.3d 779, 782 (7th Cir. 2007).

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employees continued to work from home. This meant that Tarpley had to request FMLA time
off for days she otherwise would have worked from home. City Colleges also began to ask for
additional verification for leave time even though Tarpley provided the human resources
department with all the required information. City Colleges also retroactively changed the
method by which it credited Tarpley’s FMLA leave.
On June 5, 2013, Tarpley completed an intake form with the Illinois Department of
Human Rights (“IDHR”), in which she complained about the fact that she could not work from
home and was forced to take FMLA leave as a result. She claimed sex, race, and disability
discrimination and retaliation. On June 11, 2013, Tarpley filled out an intake questionnaire with
the EEOC, which resulted in a June 24, 2013 formal charge alleging ADA discrimination and
retaliation.
Also in June 2013, while Tarpley was on FMLA leave, she responded to an email from a
staff member who inquired about the status of a project. When Stevens learned of this on June
20, she informed Tarpley that Tarpley should not be working while on leave, meaning that she
should not be monitoring or responding to emails. Staff members were also instructed not to
include Tarpley on emails while she was on leave. On June 23, Tarpley learned that City
Colleges had posted an opening for her position online. When Tarpley inquired as to whether
the posting was in error, no one responded. On June 26, Tarpley learned that Stevens had moved
into her office. Tarpley stopped receiving paychecks from City Colleges at the end of June.
These events aggravated Tarpley’s anxiety attacks. She also had a miscarriage, which,
coupled with other complications from her endometriosis, required her to request additional
leave, which was approved through July 12, 2013. On July 15, 2013, Tarpley informed Stevens,
Craig Lynch, and City Colleges’ EEOC Coordinator that she could not return to work under the

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current conditions. But after speaking with Stephanie Tamino, she changed her position,
emailing to say that she was looking forward to returning to work, which she did the following
day.
On July 26, Tarpley learned City Colleges was auditing her records because the time she
took off that summer fell at the same time of year as the time she took off for FMLA leave in
2012. Anxious about her work environment, on July 31, she asked for additional leave and an
accommodation to allow her to work from home. Her intermittent leave request for one to two
days off per month was granted on August 1, 2013, after she provided additional language on the
leave request form. On August 2, Tarpley learned that her doctor would be required to submit an
original signature, instead of a stamp, on all future leave request forms, which her doctor’s office
stated would be burdensome. Ultimately, based on her anxiety and the hostility Tarpley
experienced at work and at her psychiatrist’s recommendation, Tarpley submitted her resignation
on August 5, effective August 16. Tarpley also sought payment for days she worked while on
leave, but City Colleges responded that Tarpley instead owed City Colleges $1,329.60 for pay
she had not earned.
On September 11, 2013, Tarpley filed a charge with the IDHR alleging discrimination
and retaliation based on sex, race, and disability with respect to events that occurred in May
2013. On November 20, 2013, she filed an amended EEOC charge, alleging discrimination and
retaliation based on disability that led to her constructive discharge. On June 9, 2014, she
received a right to sue letter from the EEOC. She then filed suit on August 29, 2014.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.

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1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all wellpleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in
the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a
claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678.
ANALYSIS
I.

Title VII Retaliation Claim (Count II)
In Count II, Tarpley alleges that she was retaliated against in violation of the FMLA,

Title VII, and the ADA. To state a claim for retaliation, Tarpley must allege that “she engaged
in statutorily protected activity and was subjected to an adverse employment action as a result.”
Carlson v. CSX Transp., Inc., 758 F.3d 819, 828 (7th Cir. 2014) (quoting Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1028 n.9 (7th Cir. 2013)). In her Complaint, Tarpley alleges that she
“engaged in protected activity when she reported the harassment and violations of the ADA to
the Defendant City Colleges of Chicago in July 2013.” First Am. Compl. ¶ 100. She also
alleges that she filed charges of discrimination against City Colleges, and that after making these
reports, City Colleges retaliated against her. But City Colleges argues that none of this protected
activity relates to Title VII, and that Tarpley’s first protected activity under Title VII occurred
after she resigned from the City Colleges when she filed her September 2013 EEOC charge, in
which she complained of race and sex discrimination. Because Tarpley does not allege that she

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was subjected to any adverse employment action after she resigned in August 2013, City
Colleges contends that her Title VII retaliation claim must be dismissed.
Tarpley responds not by pointing to protected activity related to her race or sex but rather
by arguing that “she engaged in protected activity under Title VII as she filed complaints at both
the Equal Employment Opportunity Commission (EEOC) and the Illinois Department of Human
Rights (IDHR), alleging that she was discriminated against based upon her disability status and
retaliation when she exercised her rights under the ADA.” Doc. 18 at 4. But Title VII only
covers unlawful employment practices and retaliation on the basis of an individual’s “race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Disability does not fall under any
of these categories but instead is protected by its own separate statute, the ADA, under which
Tarpley also seeks recovery. Tarpley cannot proceed on a retaliation claim based on this ADAprotected activity. Sitar v. Indiana Dep’t of Transp., 344 F.3d 720, 727 (7th Cir. 2003)
(summary judgment properly granted to employer on retaliation claim where plaintiff’s
complaint to employer “did not invoke any action protected by Title VII”)
But Tarpley did attach an intake form that she filed on June 5, 2013 with the IDHR to the
First Amended Complaint. In that form, she stated that she was being discriminated and
retaliated against not only because of her disability but also because of her sex and race. Ex. A
to First Am. Compl. Although filling out this intake form qualifies as protected activity, 2

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City Colleges contends that the intake form does not qualify as protected activity because it explicitly
states that it is not a charge. See Ex. A to First Am. Compl. at 3 (“THIS IS NOT A CHARGE. If IDHR
accepts your claim, we will send you a charge form for signature.”). But protected activity is not limited
to formal charges; it is also unlawful for employers to retaliate against employees for “oppos[ing] any
practice made an unlawful employment practice” and otherwise “assist[ing], or participat[ing] in any
manner in an investigation” under Title VII. 42 U.S.C. § 2000e-3; Casna v. City of Loves Park, 574 F.3d
420, 427 (7th Cir. 2009) (“[A]n informal complaint may constitute protected activity for purposes of
retaliation claims.”). Filling out an intake questionnaire has been recognized as sufficient to constitute
protected activity. See, e.g., Anderson v. Bellsouth Telecomm., No. 2:12-cv-03537-RDP, 2015 WL
461698, at *16 n.16 (N.D. Ala. Feb. 4, 2015) (finding that plaintiff engaged in protected activity by filing

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Tarpley’s allegations are not sufficient to support a Title VII retaliation claim where she has not
alleged that City Colleges was aware of the fact that she completed the intake form in which she
complained of sex and race discrimination and retaliation. See Tomanovich v. City of
Indianapolis, 457 F.3d 656, 668 (7th Cir. 2006) (“It is not sufficient that [an employer] could or
even should have known about [an employee’s] complaint; [the employer] must have had actual
knowledge of the complaints for [its] decisions to be retaliatory.” (alterations in original)
(quoting Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004))); Volling v. Antioch
Rescue Squad, --- F. Supp. 3d ----, 2015 WL 1089440, at *3–4 (N.D. Ill. Mar. 9, 2015)
(dismissing retaliation claim where “[n]othing alleged in the complaint suggests [defendant’s]
knowledge of Plaintiffs’ protected activity or any retaliatory motive”); Owens v. Enable
Holdings, No. 11 C 1703, 2012 WL 3638028, at *3 (N.D. Ill. Aug. 22, 2012) (dismissing
retaliation claim where plaintiff failed to allege that defendant was aware of complaints). Thus,
Tarpley’s Title VII retaliation claim is dismissed. But her ADA and FMLA retaliation claims
contained in Count II, which City Colleges have not challenged, will proceed to discovery.
II.

Title VII Constructive Discharge Claim (Counts I and II)
City Colleges next moves to dismiss Tarpley’s Title VII constructive discharge claims in

both Counts I and II, arguing that Tarpley failed to exhaust her administrative remedies.
Although Tarpley filed a formal charge alleging sex and race discrimination and retaliation on
September 11, 2013, she “may bring only those claims that were included in her EEOC charge,
or that are ‘like or reasonably related to the allegations of the charge and growing out of such
allegations.’” Geldon v. S. Milwaukee Sch. Dist., 414 F.3d 817, 819 (7th Cir. 2005) (quoting
McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 481 (7th Cir. 1996)). This requirement is
EEOC intake questionnaire); Codada v. Grace Adult Day Health Care Inc., No. 13-2003, 2014 WL
988597, at *5 n.2 (E.D. Pa. Mar. 14, 2014) (“Contacting the EEOC and filling out government agency
intake forms alleging discrimination is a protected activity.”)

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intended to provide City Colleges with notice of the nature of the claims against it and provide
the EEOC and City Colleges with the opportunity to settle the dispute before litigation is
instituted. Geldon, 414 F.3d at 819. An allegation in an EEOC charge is reasonably related to a
federal claim if it involves “the same conduct and implicate[s] the same individuals.” Ezell v.
Potter, 400 F.3d 1041, 1046 (7th Cir. 2005). The relevant inquiry is “what EEOC investigation
could reasonably be expected to grow from the original complaint.” Ajayi v. Aramark Bus.
Servs., Inc., 336 F.3d 520, 527 (7th Cir. 2003) (quoting Novitsky v. Am. Consulting Eng’rs,
L.L.C., 196 F.3d 699, 701 (7th Cir. 1999)).
Tarpley’s charge, filed after she resigned from City Colleges, does not include any
mention of her resignation or suggest that the alleged discrimination and harassment based on
her sex and race led her to resign in August 2013. Instead, the charge focuses on harassment,
specifically being given “unfair deadlines which forced [her] to work from home while [she] was
off on FMLA” in May 2013. Ex. C to First Am. Compl. This is not enough to bring her
constructive discharge claims within the scope of the charge, as she was aware of the action and
its potential discriminatory nature at the time she filed the charge and could have asserted it as a
basis for investigation at that time. See Ajayi, 336 F.3d at 530 (where plaintiff was aware of the
action at time of filing of charge, suspected it was discriminatory, but did not include it as part of
charge while including other allegations of discriminatory action, the omitted action was not
actionable as part of Title VII claim); Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 501–02 (7th
Cir. 1994) (finding that claim of sex discrimination based on practice of assigning female
employees to unprosperous sales routes not actionable where EEOC charge was based on
different discriminatory conduct, the practice of requiring employee to pay clients’ insurance
premiums). Because Tarpley’s charge addressing race and sex discrimination did not

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specifically complain of discrimination in connection with her resignation, she may not recover
for constructive discharge under Title VII. 3
III.

Title VII and FMLA Failure to Accommodate Claims (Count III)
Tarpley has asserted a claim for City Colleges’ alleged failure to accommodate her

disability purportedly under the ADA, the FMLA, and Title VII. City Colleges argues that she
may proceed only under the ADA, as the FMLA and Title VII do not provide a right of action for
failure to accommodate. The Court has found cases under Title VII for failure to accommodate
one’s religious practices, see, e.g., Porter v. City of Chicago, 700 F.3d 944, 951 (7th Cir. 2012)
(Title VII “require[s] an employer to make reasonable efforts to accommodate the religious
practices of employees unless doing so would cause the employer undue hardship”), but not for
failure to accommodate one’s disability. 4 Moreover, aside from including Title VII in the
heading of Count III, the First Amended Complaint does not include allegations that tie the
failure to accommodate Tarpley’s disability to one of the protected classes under Title VII. Nor
does Tarpley respond to City Colleges’ argument in her response to the motion to dismiss, which
the Court understands as conceding the point. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466
(7th Cir. 2010) (failure to respond to an argument results in waiver). Thus, the claim for failure
to accommodate under Title VII is dismissed.
As for the FMLA, the Court has been unable to locate a right of action for failure to
accommodate and Tarpley has not responded to City Colleges’ argument to provide authority for
3

As with her retaliation claim, City Colleges does not challenge Tarpley’s ability to recover for
constructive discharge under the FMLA or the ADA, and so those claims remain pending.
4

A race or sex discrimination claim under Title VII may be cognizable where the adverse employment
action is the employer’s failure to accommodate the employee’s disability on the basis of race or sex, but
this is not the claim that Tarpley asserts in Count III. See, e.g., Matthews v. U.S. Steel Corp., No. 2:08CV-37-PRC, 2010 WL 2076814, at *6 (N.D. Ind. May 24, 2010) (considering African American
plaintiff’s claim that defendant discriminated against her in violation of Title VII “by denying her the
same reasonable accommodations as her white co-workers with medical restrictions”).

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her claim, again apparently conceding the argument. Id. It is possible that Tarpley is attempting
to plead an FMLA interference claim. To state such a claim, she must allege that (1) she was
eligible for FMLA protection, (2) City Colleges was covered by the FMLA, (3) she was entitled
to leave under the FMLA, (4) she provided sufficient notice of her intent to take FMLA leave,
and (5) City Colleges denied her FMLA benefits to which she was entitled. Cracco v. Vitran
Express, Inc., 559 F.3d 625, 635–36 (7th Cir. 2009). But because her pleading does not neatly fit
these elements, the Court will not construe her FMLA failure to accommodate claim as an
FMLA interference claim. If Tarpley believes that she has a basis for bringing such a claim, she
may seek leave to amend her complaint to add it. At this stage, however, her FMLA failure to
accommodate claim is dismissed.
IV.

IIED Claim (Count IV)
City Colleges argues that Tarpley’s IIED claim must be dismissed because it is time-

barred. The statute of limitations is an affirmative defense that need not be anticipated in the
complaint in order to survive a motion to dismiss. United States v. Lewis, 411 F.3d 838, 842 (7th
Cir. 2005). But that is not the case where “the allegations of the complaint itself set forth
everything necessary to satisfy the affirmative defense, such as when a complaint reveals that an
action is untimely under the governing statute of limitations.” Id.; see also Brooks v. Ross, 578
F.3d 574, 579 (7th Cir. 2009) (considering statute of limitations defense on motion to dismiss
where relevant dates were set forth in the complaint).
Tarpley’s IIED claim is governed by a one-year statute of limitations. 745 Ill. Comp.
Stat. 10/8-101; Evans v. City of Chicago, 434 F.3d 916, 934 (7th Cir. 2006), overruled on other
grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013). She alleges that the actions of City
Colleges and its employees were extreme and outrageous, but her First Amended Complaint does

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not include allegations of actions taken by City Colleges or its employees after Tarpley resigned
on August 16, 2013. This is the latest date, then, on which her IIED claim accrued. See Cunliffe
v. Wright, --- F. Supp. 2d ----, 2014 WL 2808969, at *5 (N.D. Ill. June 20, 2014) (state law
claims based on how plaintiff was treated during her employment or related to her termination
accrued at the latest on the date plaintiff was terminated). Because Tarpley’s complaint was filed
over a year later on August 29, 2014, her IIED claim is time-barred. 5 Id.
CONCLUSION
For the foregoing reasons, City Colleges’ motion to dismiss [14] is granted. Tarpley’s
claims for Title VII constructive discharge in Counts I and II, Title VII retaliation in Count II,
Title VII and FMLA failure to accommodate in Count III, and intentional infliction of emotional
distress (Count IV) are dismissed. City Colleges is given until April 30, 2015 to answer the
remaining allegations of the First Amended Complaint.

Dated: April 10, 2015

______________________
SARA L. ELLIS
United States District Judge

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Although the Court has found Tarpley’s IIED claim to be time-barred, the Court also notes that she
would be barred from recovering punitive damages against City Colleges for this claim. Section 2-102 of
the Illinois Tort Immunity Act provides that “a local public entity is not liable to pay punitive or
exemplary damages in any action brought directly or indirectly against it by the injured party or a third
party.” 745 Ill. Comp. Stat. 10/2-102; Shaikh v. Watson, No. 10 C 1715, 2011 WL 589638, at *2 (N.D.
Ill. Feb. 8, 2011) (dismissing punitive damages request against City Colleges).

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