Harris v. Chicago Transit Authority et al

Filing 44

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/10/15Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KAREN HARRIS,
Plaintiff,
v.
CHICAGO TRANSIT AUTHORITY, and
AMALGAMATED TRANSIT UNION
LOCAL 241,
Defendants.

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Case No. 14 C 9106

Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff Karen Harris (“Harris”) filed this lawsuit against Defendants Chicago Transit
Authority (“CTA”) and Amalgamated Transit Union Local 241 (“Local 241”) (collectively
“Defendants”). Harris contends the CTA discriminated against her based on gender, race, and
disability in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 1981 and 1983, the Americans with Disabilities Act (“ADA”), and the International Covenant
on Civil and Political Rights (“ICCPR”). Harris also alleges the CTA engaged in retaliatory
practices against her by denying her medical leave, creating a hostile work environment, and
discharging her in violation of Title VII, the Fair Labor Standards Act (“FLSA”), the Family and
Medical Leave Act (“FMLA”), as well as §§ 1981 and 1983. Harris further contends the CTA
defamed her and engaged in activity in violation of various other state laws. Lastly, Harris
alleges that, pursuant to the Illinois Public Labor Relations Act (“IPLRA”), Local 241 failed to
represent her properly in her interactions with the CTA.
Defendants now move separately to dismiss the actions pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 12(b)(1), maintaining that Harris’ complaint fails to state a claim upon

which relief can be granted and fails to establish this Court’s jurisdiction. For the following
reasons, the Court grants in part and denies in part CTA’s motion and grants Local 241’s motion
in its entirety.
Factual Background
Harris was a bus driver for the CTA and was represented through a collective bargaining
agreement by Local 241. Compl. 2. During her employment with the CTA, Harris drove buses
out of the CTA’s Forest Glen Garage. Id. at 3.
Central to Harris’ complaint are several alleged incidents of harassment related to her
employment with the CTA. For example, on September 20, 2013, Harris was told by her
manager, Ronnie Brown, “Baby, I mean Mrs. Harris you have a lot of fans around here.” Id. at
54.

Approximately one year later on September 27, 2014, an unnamed supervisor stated that

Harris had “2 strikes” against her: “1. [she] was a woman., 2. [she] was a minority.” Id. at 6.
As a result of such incidents, Harris filed multiple internal grievances and charges with
the EEOC and IDHR. Id. at 4, 171–76. On November 22, 2013, Harris filed an EEOC charge
against the CTA for retaliation as part of a continuing action (“EEOC Charge”). Id. at 57. The
EEOC Charge claimed that, on September 20, 2013, Harris was subject to harassment,
complained about the harassment to no avail, and “was subsequently subjected to disciplines and
suspensions.” Id. On January 14, 2014, the EEOC issued a dismissal and notice of right to sue
for the EEOC Charge. Id. at 61. Harris also filed a charge with the IDHR (“IDHR Charge”) for
harassment based on disability and retaliation on January 2, 2014. Id. at 60. Harris, however,
voluntarily withdrew the IDHR Charges in August 2014. Id. at 74–75.
In her complaint, Harris also complains of other incidents involving her employer. In
particular, Harris claims she attended a “stressful[]” meeting with her boss on December 5, 2013.

2

Id. at 9. As she stood up from a seated position during the meeting, she felt lightheaded and
passed out. Id. She was taken to see Dr. Jafri, the CTA’s occupational health doctor, at which
time she overheard Dr. Jafri explain to the emergency room physician that Harris has a glass eye
and should not be driving for the CTA. Id. The following day, Harris received a letter notifying
her of potential FMLA eligibility for this incident. Id. at 36. Harris asserts that all of her
“FMLA was cancelled in lieu of [sic] the retaliation.” Id. at 21.
On June 16, 2014, the signal box in Harris’ bus malfunctioned during operation; she
complained of the problem, but was nevertheless instructed to continue driving the bus. Id. at
137. Harris also complained of problems with the bus’s engine and camera. Id. at 139–40. On
August 24, 2014, the CTA found Harris’ complaints of engine and camera problems lacked
merit. Id. at 140. According to Harris, the more she reported such defects to her employer, the
more she would be subjected to discipline. Id. at 137.
On August 7, 2014, Harris filed unfair labor practice charges (“ILRB Charges”) against
Local 241 and the CTA with the Local Panel of the Illinois Labor Relations Board (“ILRB”). Id.
at 117, 121. The ILRB Charges contain allegations about Local 241’s representation of her on
September 20, 2013 and June 19, 2014, but contain no allegations of discrimination by Local 241
against Harris. Id. at 118. The ILRB Charges also contain allegations that the CTA suspended
her on account of “old grievance[s]” and “report[s]” filed against her manager. Id. at 122. The
ILRB dismissed these charges on October 23, 2014, on the grounds that Harris had failed to
provide requested evidence, the documents that she did provide were irrelevant, and the
allegations were insufficient to infer that Local 241 and CTA had violated the IPLRA in any
way. Id. at 106–14.

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The CTA ultimately terminated Harris’ employment on October 10, 2014. Id. at 146. On
December 10, 2014, Harris filed a complaint with this Court, alleging that Defendants had
discriminated against her on the basis of her race, gender, and disability, failed to reasonably
accommodate her disabilities, failed to stop harassment, and retaliated against her because she
had asserted her protected rights. Id. at 18. The complaint also includes hundreds of pages of
documents and letters, some of which contain Harris’ handwritten notes in an attempt to raise
further claims. In these notes, Harris alleges the CTA denied her medical leave in violation of
the FMLA, defamed her, and violated “Article7/19 of U.S. International Covenant and Civil
Right + Political.” Id. at 6, 21. Harris also generally alleges “failure to prove collusion, acts of
malice, failure to prove injury, injury negligence, failure to prove reckless and intentional
behavior, outrageous and extreme conduct compromising employee safety + health, failure to
stop hostile work environment.” Id. at 18–19. 1
Legal Standard
A motion to dismiss pursuant to Rule 12(b)(1) asserts that the Court lacks the subjectmatter jurisdiction over the claims. Fed. R. Civ. P. 12(b)(1). When ruling on a motion under
Rule 12(b)(1), “[t]he district court may properly look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on the issue to determine whether in
fact subject matter jurisdiction exists.” Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th
Cir. 1993) (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979)). “[I]f the
1

By intertwining voluminous exhibits with the pages of the complaint and handwritten
allegations, Harris makes construing her claims difficult. Rule 8 of the Federal Rules of Civil Procedure
provides that a complaint should contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8. Harris’ 177-page complaint is anything but “short and
plain.” Nor, for that matter, is her 349-page response to Defendants’ motions to dismiss, which is
similarly structured utilizing handwritten notes on countless pages of exhibits. In future submissions,
Harris should keep her exhibits separate from the arguments and allegations contained in the body of the
document and should reference those exhibits only by their respective designation (e.g., Ex. A, Ex. B,
etc.).

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complaint is formally sufficient but the contention is that there is in fact no subject matter
jurisdiction, the movant may use affidavits and other material to support the motion.” United
Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on other
grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 848 (7th Cir. 2012). “The burden of
proof on a 12(b)(1) issue is on the party asserting jurisdiction.” Id.
To survive a Rule 12(b)(6) challenge, a 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), such
that it “give[s] the defendant 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) (internal quotations omitted).
When considering such motions, the Court accepts “all well-pleaded factual allegations as true
and view[s] them in the light most favorable to the plaintiff.” Lavalais v. Vill. of Melrose Park,
734 F.3d 629, 632 (7th Cir. 2013). Although Rule 8 does not require detailed factual allegations,
“it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The claim must be “plausible on its face.”

Twombly, 550 U.S. 544 at 570. “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. The plaintiff “must do more in the complaint than
simply recite the elements of a claim.” Zellner v. Herrick, 639 F.3d 371, 378 (7th Cir. 2011).
Complaints that offer “[t]hreadbare recitals of the elements of the cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Additionally, pro se complaints are held to a less stringent standard than formal pleadings
drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se complaint should be
dismissed pursuant to Rule 12(b)(6) only “if it appears beyond doubt that the plaintiff can prove

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no set of facts in support of her claim which would entitle her to relief.” Henderson v. Sheahan,
196 F.3d 839, 846 (7th Cir. 1999) (internal quotations omitted).

However, unsupported

conclusions of fact and conclusions of law remain insufficient to defeat a motion to dismiss,
Young v. Breeding, 929 F. Supp. 1103, 1106 (N.D. Ill. 1996), and a pro se plaintiff can plead
herself out of court by pleading facts that undermine the allegations set forth in her complaint.
Id. at 846.
Analysis
I.

Local 241’s Motion
Harris attaches to her Complaint the charges she filed with the ILRB. Compl. 117–18.

The Court construes this as an attempt to state a claim against Local 241 for a breach of the duty
of fair representation. However, a breach of the duty of fair representation claim filed by a
public employee is not governed by federal law; instead, “a union’s breach of its duty of fair
representation is an unfair practice within the exclusive jurisdiction of the Illinois Labor
Relations Board.” Tomas v. State Dep’t of Empl. Sec., 2009 WL 2916840, at *3 (N.D. Ill. Sept.
2, 2009) (citing Foley v. AFSCME, 556 N.E.2d 581, 583 (Ill. App. Ct. 1990)). And should
Harris seek judicial review of any final order of the ILRB, Illinois law provides that “such
judicial review shall be afforded directly in the appellate court for the district in which the
aggrieved party resides or transacts business.” 5 Ill. Comp. Stat. 315/11(e) (emphasis added);
see also Bd. of Educ. of Peoria Sch. Dist. No. 150 v. Peoria Fed'n of Support Staff,
Sec./Policeman’s Benev. & Protective Ass’n Unit, 998 N.E.2d 36, 53 (Ill. 2013) (“[T]he
respective statutory schemes governing the ILRB and IELRB provide that final decisions from
those boards are reviewable by direct appeal to the appellate court.”). This Court accordingly
lacks jurisdiction over Harris’ fair representation claims and dismisses them pursuant to Rule

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12(b)(1). See, e.g., Watson v. E. St. Louis Sch. Dist. 189, No. 11 C 0632, 2013 WL 497863, at *2
(S.D. Ill. Feb. 8, 2013) (Because judicial review of her fair representation claim rested solely
with Illinois Appellate Court, the “district court lack[ed] subject-matter jurisdiction over
Plaintiff’s claims against her union.”).
II.

The CTA’s Motion
a. Failure to Exhaust
The CTA asserts that Harris’ race, gender, and disability discrimination claims,

retaliation claims, and disability discrimination claims should be dismissed because Harris did
not exhaust her administrative remedies; that is, Harris failed to file this action within ninety
days of receiving her right to sue letter from the EEOC and voluntarily withdrew her IDHR
claims. Def.’s Mem. 4–5. But “failure to exhaust administrative remedies is an affirmative
defense.” Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997). And thus it would generally be
inappropriate to consider at this stage in the proceedings; “the time to deal with an affirmative
defense is after it has been raised.” Edgenet, Inc. v. Home Depot U.S.A., Inc., 658 F.3d 662, 664
(7th Cir. 2011).

For this reason, the Court declines to dismiss Harris’ gender or race

discrimination and retaliation claims at this preliminary juncture.
With regard to Harris’ claims asserting her discrimination based on a disability, however,
the Court finds that an exception to the general rule makes dismissal appropriate here. The
exception occurs where a plaintiff pleads herself out of court by plainly “set[ting] out all of the
elements of an affirmative defense.” Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d
930, 935 (7th Cir. 2012).
Harris attaches to her complaint a “Voluntary Withdrawal Request Form,” signed by her
and dated August 6, 2014, in which she requests to have her IDHR charges withdrawn. Compl.

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74. On the following page, Harris provides the order confirming her request to withdraw the
IDHR Charge and formally closing it. Id. at 75.

In so doing, Harris admits that she did not

exhaust her administrative remedies as to her disability claims, having withdrawn her claims
before the IDHR and having never raised them before the EEOC. Moreover, because she admits
she did so voluntarily, Harris forfeits her ability to raise some exception to the defense, such as
equitable estoppel or equitable tolling. See Hentosh v. Herman M. Finch Univ. of Health
Scis./The Chi. Med. Sch., 167 F.3d 1170, 1174 (7th Cir. 1999) (equitable estoppel defense
requires wrongdoing by defendant that prevented exhaustion, and equitable tolling requires that
the plaintiff lacked information that prohibited her from exhausting). Accordingly, Harris’
disability discrimination claims, failure to accommodate claims, and retaliation claims based on
protected activity regarding disability are dismissed for failure to exhaust her administrative
remedies.
b. Scope of the Charges
The CTA also argues that, even if the Court declines to dismiss her claims of
discrimination and retaliation based on race and gender for failure to exhaust, these claims still
fall outside of the EEOC complaint and cannot be asserted here. Def.’s Mem 4–6. Generally, a
Title VII plaintiff cannot bring claims in a federal lawsuit that were not included in an EEOC (or
IDHR) charge. Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994); Flores v. Bd. of
Trustees of Cmty. Coll. Dist. No. 508, No. 14 C 7905, 2015 WL 2195090, at *4 (N.D. Ill. May 6,
2015). However, because “‘the Civil Rights Act is designed to protect those least able to protect
themselves,’” the rule for determining the proper scope of a subsequent judicial inquiry is a
forgiving one: “‘the complaint in a civil action . . . may properly encompass . . . any
discrimination like or reasonably related to the allegations of the charge and growing out of such

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allegations.’” Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167–68 (7th Cir. 1976)
(quoting Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971)). Jenkins set forth
a two-part requirement: (1) “there must be a reasonable relationship between the allegations in
the charge and the claims in the complaint,” and (2) “the claim[s] in the complaint [must]
reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.”
Cheek, 31 F.3d at 500.
The November 22, 2013, EEOC Charge claimed that Harris was subject to harassment on
September 20, 2013, when she was called “baby,” and after she complained of the harassment,
she was subjected to discipline and suspension. Compl. 54, 57. The CTA argues Harris’ claims
of race and sex discrimination should be dismissed here because “the Charges do not mention or
hint at any [such] discrimination by CTA.” Def.’s Mem. 5.
As an initial observation, the Court notes that nowhere in the EEOC Charge does Harris
contend the harassment was based on race; the lone allegation of harassment is that she was
referred to as “baby.” Thus, her claims of discrimination or retaliation based on race fall outside
the scope of the EEOC Charge. Her claims of gender-based discrimination and retaliation,
however, pose a closer question.
While an alleged act of sexual harassment may suggest she was working in a “sexually
hostile environment,” it does not automatically follow that she was terminated on the basis of her
gender. See Cheek, 31 F.3d at 503–04 (even though plaintiff’s EEOC claim directly claimed
defendant discriminated against her on basis of race while additionally suggesting her
termination was due to gender, these claims of discrimination were not related to sexual
harassment allegations in the complaint). Sexual harassment involves “‘[u]welcome sexual
advances, requests for sexual favors,’ . . . [or other] ‘conduct [that] has the purpose or effect of

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unreasonably interfering with an individual’s work performance or creating an intimidating,
hostile, or offensive working environment.’” Id. at 504 (quoting 29 C.F.R. § 1604.11(a)). This
differs from a specific act of discrimination that results in an employee’s termination, which is
what Harris alleges in this lawsuit.

See id.

“At a minimum, establishing a reasonable

relationship requires that the two claims involve the same conduct and the same individuals.”
Swearingen-El v. Cook Cnty. Sheriff’s Dep’t, 416 F. Supp. 2d 612, 616 (N.D. Ill. 2006) (citing
Cheek, 31 F.3d at 501). From what Harris has alleged, her discrimination claims asserted here
— that she was fully terminated based upon race and gender — involve neither the same conduct
nor the same individuals as the harassment claims she asserted before the EEOC. Accordingly,
her race and sex discrimination claims fall outside the scope of the EEOC Charges and must be
dismissed.
c. Failure to State a Claim
What remains are Harris’ retaliation claims based on complaints of gender harassment,
hostile work environment claims based on gender, §§ 1983 and 1981 claims, FMLA claims,
FLSA claims, a claim of state law defamation, claims under the ICCPR, and various additional
allegations Harris raises in a paragraph on page 18 of her complaint. The CTA contends that
these remaining claims fail under Rule 12(b)(6).
i. Retaliation Based on Complaints of Gender Harassment
To state a claim of retaliation in violation of Title VII, a plaintiff must plead that (1) she
engaged in statutorily protected activity; (2) she suffered a materially adverse action; and (3) a
causal connection exists between the two. Argyropoulos v. City of Alton, 539 F.3d 724, 733 (7th
Cir. 2008). According to the CTA, to the extent any alleged retaliation was due to filing a
grievance, such claims must fail because the filing of a grievance cannot form the basis for

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protected activity in a subsequent claim for retaliation if the grievance itself did not involve
actions in violation of Title VII. It cites to Eskridge v. Chicago Board of Educaction, 47 F.
Supp. 3d 781, 794 (N.D. Ill. 2014), in support of this notion, but the case is inapposite for two
reasons.
First, Eskridge involved a summary judgment motion — not a motion to dismiss — and
the court had a more developed factual record from which to judge the basis of the grievances.
Id. at 795. Second, from that factual record, the court in Eskridge was able to determine that the
grievances did “not indicate that any discrimination occurred because of [plaintiff’s] age, race or
sex [and could not] form the basis for protected activity.” Id. at 794. That is not the case here.
Construing all allegations and inferences in Harris’ favor, it appears that the grievances were
based upon the September 20, 2013, incident where Harris was allegedly called “baby” by her
manager. Compl. 54, 57. Title VII “protects persons . . . from retaliation for complaining about
the types of discrimination it prohibits.” Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc.,
224 F.3d 701, 704–05 (7th Cir. 2000) (quoting Miller v. American Family Mut. Ins. Co., 203
F.3d 997, 1007 (7th Cir. 2000)). And Title VII prohibits conduct of the very nature Harris
complained about in her grievances. Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464, 467 (7th
Cir. 1998). The Court denies the CTA’s motion to dismiss Harris’ retaliation claims.
ii. Hostile Work Environment Based on Gender
To state a claim for hostile work environment, Harris must plausibly show: (1) her work
environment was objectively and subjectively offensive; (2) she was harassed due to her gender;
(3) the conduct complained of was either severe or pervasive; and (4) there is a basis for
employer liability. Vance v. Ball State Univ., 646 F.3d 461, 469 (7th Cir. 2011). Harris does
allege two incidents of harassment; namely, the events of September 20, 2013, and September

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24, 2014. However, providing two examples separated by a year is not sufficient to allege the
type of “severe or pervasive” conduct required to state a claim for hostile work environment.
See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“offhand comments, and isolated
incidents” insufficient to support claim for hostile work environment); Patt v. Family Health
Sys., Inc., 280 F.3d 749, 754 (7th Cir. 2002) (eight offensive gender-related comments “were too
isolated and sporadic to constitute severe or pervasive harassment”).

Harris’ hostile work

environment claims are therefore dismissed without prejudice.
iii. Section 1983 Claims
The Complaint also alleges a violation of Harris’ rights under § 1983 on the basis of her
race. Compl. 18. Under § 1983, a municipal entity like the CTA may be liable only for their
own illegal acts as distinguished from acts of their employees.

See Pembaur v. City of

Cincinnati, 475 U.S. 469, 479 (1986). Accordingly, a plaintiff seeking to impose liability on a
municipal entity under § 1983 must prove that “action pursuant to official municipal policy” or
“custom” caused the injury. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). A court
cannot infer the existence of a widespread practice or custom absent allegations of discrimination
in addition to a plaintiff’s own isolated experiences. Zubek v. City of Chi., No. 04 C 5399, 2006
WL 1843396, *5 (N.D. Ill. July 5, 2006).
Here, the Complaint contains no allegations that Harris was harmed as a result of an
express policy, a widespread practice or custom, or by any person with final policy-making
authority. 2 Nor does the Complaint contain allegations that the CTA has any formal policy
permitting discrimination against African Americans generally.

At best, the allegations, if

proven, may show a concerted effort by the CTA to harass or discriminate against Harris
2

In the CTA, the Board of Directors retains the final policymaking authority for establishing the
employment practices of the agency. Radic v. Chi. Transit Auth., 73 F.3d 159, 160 (7th Cir. 1996).

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individually, but they do not suggest any institutionalized or widespread custom within the CTA.
Absent such a policy, Harris’ allegations fail to satisfy the pleading requirements for a § 1983
municipal liability claim under Monell, and Harris’ § 1983 claims are dismissed without
prejudice.
iv. Section 1981 Claims
In addition, the complaint alleges violation of Harris’ rights under 42 U.S.C. § 1981 on
the basis of race.

Section 1981 proscribes impairment by discrimination in “the making,

performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981. But the
CTA is a state actor, and the Supreme Court has concluded that § 1983 constitutes the exclusive
federal remedy for the violation of rights guaranteed in § 1981 by state governmental units. Jett
v. Dall. Indep. Sch. Dist., 491 U.S. 701, 733 (1989). The Seventh Circuit has recently affirmed
this holding and joined “the overwhelming weight of authority” by holding that “Jett remains
good law.” Campbell v. Forest Preserve Dist., 752 F.3d 665, 671 (7th Cir. 2014); see also
Rosado v. Chi. Transit Auth., 2014 WL 3687507, *3 (N.D. Ill. July 24, 2014) (Ҥ 1983 provides
the exclusive remedy for violations of § 1981 committed by state actors such as the CTA”)
(emphasis added). Because § 1981 provides no remedy against the CTA, Harris’ § 1981 claims
are dismissed with prejudice.
v. FMLA Claims
According to the CTA, Harris’ FMLA claims must also fail. In her complaint, Harris
contends that “[a]ll of my FMLA was cancelled in lieu of [sic] the retaliation.” Compl. 21. She
also attaches a letter dated December 5, 2013, that says she may be eligible for FMLA leave. Id.
at 36.

The Court construes these allegations as an attempt to state a claim for FMLA

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interference. 3 To state a claim for FMLA interference, the plaintiff must allege that: (1) she was
eligible for the FMLA’s protections; (2) her employer was covered by the FMLA; (3) she was
entitled to leave under the FMLA; (4) she provided sufficient notice of her intent to take leave;
and (5) her employer denied her FMLA benefits to which she was entitled. Burnett v. LFW Inc.,
472 F.3d 471, 477 (7th Cir. 2006). The factual allegations in support of the claim may be sparse,
but Harris does attach a dated letter showing that she was eligible for FMLA leave after she
passed out from a meeting with her boss. Compl. 36. She contends she suffers from stress
disorder and that the CTA wrongly denied her FMLA leave after the incident. Id. at 21.
Viewing all these allegations in Harris’ favor, the Court finds she has stated a claim for FMLA
interference.
vi. Retaliatory Discharge Under FLSA
On an additional page supplementing her form complaint, Harris writes “Retalitory [sic]
Discharge . . . Fair Labor Standards Act.” Compl. 6. A retaliatory discharge claim under the
FLSA requires, among other things, the plaintiff to have engaged in “‘activities that reasonably
could be perceived as directed towards the assertion of rights protected by the FLSA.’” Mousavi
v. Parkside Obstetrics, Gynecology & Infertility, S.C., No. 10 C 4765, 2011 WL 3610080, at *4
(N.D. Ill. Aug. 16, 2011) (quoting McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1486–87 (10th Cir.
1996)). The FLSA governs wages and hours of employment. 29 U.S.C. §§ 201 et seq. Harris
makes no allegations of statutorily protected expression or activity related to wages or hours of
employment and, thus, quite clearly fails to state a claim for retaliatory discharge. Harris’ FSLA
claims are therefore dismissed without prejudice.
3

The CTA’s motion also addresses whether Harris has stated a claim for FMLA retaliation. But
a claim for FMLA retaliation applies to situations where the employer acts in retaliation against an
employee for taking FMLA leave, not a situation where an employer denied FMLA benefits in retaliation
for something else, which is the dispute here. See Burnett v. LFW Inc., 472 F.3d 471, 477–82 (7th Cir.
2006).

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vii. Defamation
In Illinois, a plaintiff claiming defamation must allege: (1) the defendant made a false
statement of fact about her; (2) there was an unprivileged publication to a third party with fault
by the defendant; and (3) the publication damaged the plaintiff. Haywood v. Lucent Techs. Inc.,
169 F. Supp. 2d 890, 915 (N.D. Ill. 2001). Words that impute an “inability to perform, or want
of integrity to discharge duties of office or employment” are said to be defamation per se.
Marczak v. Drexel Nat’l Bank, 542 N.E.2d 787, 789 (Ill. App. Ct. 1989). On page seven of the
Complaint, Harris handwrote the words “defamation/slander – intentionally.” Compl. 6. Harris
does not directly connect this handwritten statement to any of her factual allegations.
Nevertheless, Harris does allege that Dr. Jafri, acting in his role as the CTA’s occupational health
doctor, 4 opined to an emergency room physician that Harris should not be driving for the CTA
because she has a glass eye and falsely claimed she suffered from a stroke. Id. at 8–9. These
allegations are sufficient to state a claim for defamation per se, and the Court denies the CTA’s
motion to dismiss in this regard.
viii. ICCPR
Harris also attempts to bring a cause of action pursuant to Articles 17 and 19 of the ICCPR.
The substantive provisions of the ICCPR are not self-executing and do not provide a private
cause of action. Sosa v. Alvarez-Machain, 542 U.S. 692, 728 (2004) (citing 138 Cong. Rec.

4

While Dr. Jafri is not a named defendant in this matter, “[t]he doctrine of respondeat superior is
fully applicable to suits for defamation,” Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 1140 (7th
Cir. 1985), and “it is sufficient for recovery against a public entity to prove that an identified employee
would be liable even though that employee is not named a defendant in the action.” McCottrell v. City of
Chi., 481 N.E.2d 1058, 1060 (Ill. App. Ct. 1985). Of course, Dr. Jafri’s relationship with the CTA may
not be sufficient to hold the CTA liable for his actions under an agency theory, but this is a factual
determination better suited for later stages of the proceedings. See Spitz v. Proven Winners N. Am., LLC,
759 F.3d 724, 731 (7th Cir. 2014) (“Agency is a notoriously fact-bound question.”).

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8071 (1992)). Thus, to the extent that the Complaint alleges violations of the ICCPR by the
Defendants, these claims are dismissed with prejudice under Rule 12(b)(6).
ix.

Additional Claims

In addition to the claims above, the Complaint alleges and attributes to the CTA “failure
to prove collusion, acts of malice, failure to prove injury, injury negligence, failure to prove
reckless and intentional behavior, outrageous and extreme conduct compromising employee
safety + health.” Compl. 18–19. But this laundry list of claims — some of which are not even
proper causes of action — clearly fails to give the Defendants here “fair notice” of the claims
and “the grounds upon which [they] rest[].” Twombly, at 555. Although Rule 8 does not require
detailed factual allegations, it certainly demands more than Harris has provided, which is nothing
but “an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Iqbal, at 678.

Accordingly, the Court dismisses these additional claims under Rules 8 and 12(b)(6). 5
Conclusion
For the foregoing reasons, the Court grants, in part, and denies, in part, the CTA’s motion
to dismiss [23] and grants in full Local 241’s motion [13]. The Court dismisses with prejudice
Plaintiff’s claims under § 1981 and the ICCPR.

The Court dismisses without prejudice

Plaintiff’s claims of race and sex discrimination under Title VII; retaliation based on complaints
of race and disability discrimination; failure to accommodate and disability discrimination under
the ADA; hostile work environment; race discrimination under § 1983; and retaliatory discharge
under the FLSA. The Court also dismisses without prejudice all of the “Additional Claims”
listed on pages 18 and 19 of the Complaint. Lastly, the Court dismisses all claims against Local
5

In its motion, the CTA also addresses “whether [Harris] asserts a whistleblower cause of
action.” Pl.’s Mem. 12. In her complaint, Harris does not cite to any whistleblower statute, refer to
herself as a whistleblower, or otherwise even appear to assert such a claim. Nor did she otherwise
indicate of her intention to raise such a claim in her response to the motion. The Court thus finds it
unnecessary to address these arguments.

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241, and Local 241 is dismissed as a defendant. Plaintiff may pursue her claims against the CTA
for retaliation based on complaints for gender harassment, FMLA interference, and defamation.

SO ORDERED

ENTER: 9/10/15

__________________________________
JOHN Z. LEE
United States District Judge

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