Brown v. United Airlines, Inc.

Filing 20

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 9/2/2015.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELLA BROWN,
Plaintiff,
vs.
UNITED AIRLINES, INC.,
Defendant.

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15 C 2751
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Ella Brown brought this pro se suit against her employer, United Airlines, Inc., alleging
wrongful termination, retaliation, and harassment based on race and sex under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and based on race under 42 U.S.C. § 1981.
Doc. 1. United has moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the
complaint. Doc. 12. The motion is granted in part and denied in part.
Background
On a Rule 12(b)(6) motion, the court must accept as true the complaint’s well-pleaded
factual allegations, with all reasonable inferences drawn in Brown’s favor, but not its legal
conclusions. See Smoke Shop, LLC v. United States, 761 F.3d 779, 785 (7th Cir. 2014). The
court must also consider “documents attached to the complaint, documents that are critical to the
complaint and referred to in it, and information that is subject to proper judicial notice,” along
with additional facts set forth in Brown’s brief opposing dismissal, so long as those additional
facts are “consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017,
1020 (7th Cir. 2013) (internal quotation marks omitted). The facts are set forth as favorably to

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Brown as those materials permit. See Meade v. Moraine Valley Cmty. Coll., 770 F.3d 680, 682
(7th Cir. 2014).
Brown started work as a ramp service agent at United in June 2005. Doc. 1 at 7. After
complaining to United in December 2012 about race and sex discrimination, Brown was
harassed and given more difficult work assignments, and eventually was fired on March 2, 2013.
Id. at 5, 7. United reinstated her on April 4, 2013, but the harassment continued after she
returned. Id. at 5.
On December 17, 2014, Brown filed an administrative charge with the Equal
Employment Opportunity Commission (“EEOC”) complaining only of sex discrimination and
retaliation. Id. at 7. The narrative portion of the charge alleges that after she complained to
management, she “was harassed and subjected to different terms and conditions of employment,
including, but not limited to, being discharged and being given more difficult work
assignments.” Ibid. The EEOC issued Brown a right-to-sue letter on December 30, 2014. Id. at
8. Brown filed this suit on March 30, 2015. Doc. 1.
Discussion
United seeks dismissal on the ground that Brown failed to file her EEOC charge within
300 days of her March 2013 termination and also because the charge does not allege race
discrimination. Doc. 14 at 4-8. A plaintiff in Illinois who wishes to bring a Title VII claim in
federal court must first file an administrative charge with the EEOC within 300 days of the
alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e); Bass v. Joliet Pub. Sch.
Dist. No. 86, 746 F.3d 835, 839 (7th Cir. 2014); Hentosh v. Herman M. Finch Univ. of Health
Scis./The Chi. Med. Sch., 167 F.3d 1170, 1173 (7th Cir. 1999); Lorance v. AT&T Techs., Inc.,
827 F.2d 163, 165 (7th Cir. 1987), aff’d, 490 U.S. 900 (1989). Failure to file a charge within that

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time renders the claim untimely. See Hentosh, 167 F.3d at 1174. The plaintiff must present in
the EEOC charge any claim she later wants to pursue in federal court. See McKenzie v. Ill. Dep’t
of Transp., 92 F.3d 473, 481 (7th Cir. 1996) (“Generally, a Title VII plaintiff may bring only
those claims that were included in her EEOC charge ….”). This exhaustion rule “serves the dual
purpose of affording the EEOC and the employer an opportunity to settle the dispute through
conference, conciliation, and persuasion, and of giving the employe[r] some warning of the
conduct about which the employee is aggrieved.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497,
500 (7th Cir. 1994) (citation omitted).
When discriminatory conduct occurs outside of the 300-day limitations period, a Title
VII plaintiff may still proceed in court if she is entitled to equitable tolling, see Hentosh, 167
F.3d at 1174 (“The timely filing of an EEOC charge is not a jurisdictional prerequisite to filing a
federal lawsuit, but rather, is more akin to a statute of limitations and subject to waiver, estoppel,
and equitable tolling under appropriate circumstances.”), or if, under the continuing violation
theory, the alleged conduct has a sufficient connection to a discriminatory act that took place
within the limitations period, see Place v. Abbott Labs., 215 F.3d 803, 807 (7th Cir. 2000).
Brown filed her EEOC charge 655 days after her March 2013 termination. It follows that her
charge is untimely as to her termination—as well as to any retaliation or other unequal treatment
outside of the 300-day period preceding her charge—unless she can invoke the equitable tolling
or continuing violation doctrines.
The Seventh Circuit recognizes three circumstances where equitable tolling might be
available:
In discrimination cases[,] equitable tolling extends filing deadlines in only
three circumstances: when a plaintiff exercising due diligence cannot within
the statutory period obtain the information necessary to realize that she has a
claim; when a plaintiff makes a good-faith error such as timely filing in the

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wrong court; or when the defendant prevents a plaintiff from filing within the
statutory period.
Porter v. New Age Servs. Corp., 463 F. App’x 582, 584 (7th Cir. 2012) (citations omitted); see
also Shropshear v. Corp. Counsel of City of Chi., 275 F.3d 593, 595 (7th Cir. 2001) (describing
the third circumstance as equitable estoppel rather than equitable tolling). Brown does not assert
that she was unaware of her Title VII claim at the time of her termination or that her employer
prevented her from timely filing.
As for “good-faith error,” Brown says that she believed that “she needed to wait until the
conclusion of Workers Compensation settlement before it was clear when she was actually
terminated from her job as ramp service agent.” Doc. 16 at 1. This excuse is unavailing. The
Supreme Court has held that “the pendency of a grievance, or some other method of collateral
review of an employment decision, does not toll the running of the limitations periods.” Del.
State Coll. v. Ricks, 449 U.S. 250, 261 (1980); see also Vaught v. R.R. Donnelley & Sons Co.,
745 F.2d 407, 412 (7th Cir. 1984); Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1179
(10th Cir. 2011); Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1009 (9th Cir. 2011); Currier v.
Radio Free Eur./Radio Liberty, Inc., 159 F.3d 1363, 1368 (D.C. Cir. 1998). To the extent Brown
is saying that she did not know that she could file her EEOC charge before the workers
compensation matter concluded, her ignorance of the law does not excuse her untimely filing.
As the Seventh Circuit has held, “reasonable mistakes of law are not a basis for equitable
tolling,” even if the plaintiff is pro se. Williams v. Sims, 390 F.3d 958, 963 (7th Cir. 2004); see
also Schmidt v. Wis. Div. of Vocational Rehab., 502 F. App’x 612, 614 (7th Cir. 2013)
(“[A]lthough Schmidt did not have legal representation, mistakes of law (even by plaintiffs
proceeding pro se) generally do not excuse compliance with deadlines or warrant tolling a statute
of limitations.”). For these reasons, Brown is not entitled to equitable tolling. See Grzanecki v.

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Bravo Cucina Italiana, 408 F. App’x 993, 995-96 (7th Cir. 2011) (rejecting equitable tolling and
dismissing a pro se employment discrimination suit because the federal rules clearly delineated
how to count weekends and holidays and “neither the court nor any of the defendants had misled
[the plaintiff] into filing late”).
Nor is Brown entitled to benefit from the continuing violation doctrine. A continuing
violation is “one that could not reasonably have been expected to be made the subject of a
lawsuit when it first occurred because its character as a violation did not become clear until it
was repeated during the limitations period.” Dasgupta v. Univ. of Wis. Bd. of Regents, 121 F.3d
1138, 1139 (7th Cir. 1997). The Seventh Circuit recognizes three types of continuing violations:
where the exact day of the violation is difficult to pinpoint because the
employer’s decisionmaking process takes place over a period of time; where
the employer has a systematic, openly espoused policy alleged to be
discriminatory; and where the employer’s discriminatory conduct is so covert
that its discriminatory character is not immediately apparent.
Place, 215 F.3d at 808. Brown’s March 2013 termination was a discrete and significant act, so
the termination claim cannot be saved by the continuing violation doctrine. See ibid. (holding
that “being fired … is a single, significant event, not a continuing act”).
As for the harassment that Brown allegedly suffered outside the 300-day limitations
period, she might have attempted to invoke the continuing violation doctrine in an effort to save
that portion of her harassment claim. Brown’s response brief makes no such argument, however,
which results in a forfeiture. See G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538
(7th Cir. 2012) (“We have repeatedly held that a party waives an argument by failing to make it
before the district court. That is true whether it is an affirmative argument in support of a motion
to dismiss or an argument establishing that dismissal is inappropriate.”) (citations omitted);
Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 386 (7th Cir. 2012) (“[T]he forfeiture

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doctrine applies not only to a litigant’s failure to raise a general argument … but also to a
litigant’s failure to advance a specific point in support of a general argument ….”); Alioto v.
Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (“Our system of justice is adversarial, and our
judges are busy people. If they are given plausible reasons for dismissing a complaint, they are
not going to do the plaintiff’s research and try to discover whether there might be something to
say against the defendants’ reasoning.”) (internal quotation marks omitted).
For these reasons, Brown’s Title VII claims are dismissed to the extent they pertain to
conduct that occurred outside the 300-day window preceding the filing of her EEOC charge. See
Porter, 463 F. App’x at 584-85 (affirming summary judgment for the defendant where the ADA
plaintiff filed her EEOC charge one month too late and failed to demonstrate an entitlement to
equitable tolling); Stepney v. Naperville Sch. Dist., 203, 392 F.3d 236, 241 (7th Cir. 2004)
(“Stepney’s EEOC charge, filed more than 600 days after the accrual of his claims, was untimely
and that untimeliness bars the present action.”); Bilow v. Much Shelist Freed Denenberg Ament
& Rubenstein, P.C., 277 F.3d 882, 892-93 (7th Cir. 2001) (“[t]he district court correctly found
that these claims were barred by the Title VII statute of limitations” where the plaintiff=s
“complaint to the EEOC was filed more than 300 days” after the plaintiff should have known of
the alleged discrimination). Brown’s Title VII claims also are dismissed to the extent they allege
race discrimination or retaliation due to her complaining about race discrimination, as her EEOC
charge alleges only sex discrimination and retaliation, saying nothing about race. See Ajayi v.
Aramark Bus. Servs., Inc., 336 F.3d 520, 527-28 (7th Cir. 2003) (holding that the plaintiff could
not proceed with an age discrimination claim where the EEOC charge alleged only national
origin discrimination); Massenberg v. A & R Sec. Servs., Inc., 2011 WL 1792735, at *4 (N.D. Ill.
May 11, 2011) (dismissing Title VII claims based on sex because the plaintiff’s EEOC charge

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did “not include any specific factual allegations related to sexual harassment or discrimination”);
Zubek v. City of Chicago, 2006 WL 1843396, at *3 (N.D. Ill. July 5, 2006) (precluding the
plaintiff from raising claims based on race or national origin discrimination where, “[e]ven
construing Plaintiff’s EEOC charge liberally, it focuses exclusively on religious discrimination”).
Being grounded in failure to exhaust, the dismissal is without prejudice. The Seventh
Circuit has explained that “the proper remedy for a failure to exhaust administrative remedies is
to dismiss the suit without prejudice, thereby leaving the plaintiff free to refile his suit when and
if he exhausts all of his administrative remedies or drops the unexhausted claims.” Greene v.
Meese, 875 F.2d 639, 643 (7th Cir. 1989); see also Ford v. Johnson, 362 F.3d 395, 401 (7th Cir.
2004); Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Donnelly v. Yellow Freight
Sys., Inc., 874 F.2d 402, 410 n.11 (7th Cir. 1989). This principle applies to dismissals for failure
to bring an employment discrimination claim in an EEOC charge; such dismissals are without
prejudice to the plaintiff pursuing her claim in federal court upon properly exhausting the
unexhausted claims, subject of course to the statute of limitations and any other applicable
defenses. See Teal v. Potter, 559 F.3d 687, 693 (7th Cir. 2009) (“Because Teal failed to exhaust
administrative remedies, her complaint must be dismissed without prejudice.”). That said, “[t]he
determination that [Brown] had failed to exhaust [her] administrative remedies [is] … preclusive
with respect to an attempt by [her] to relitigate the question whether [she] had exhausted his
administrative remedies before filing [this] … suit.” Hill v. Potter, 352 F.3d 1142, 1146 (7th Cir.
2003). Moreover, because the time for Brown to exhaust clearly has expired, there is no
practical distinction between a dismissal without prejudice and a dismissal with prejudice.
The timing and content of Brown’s EEOC charge do not impact her Title VII claims to
the extent they pertain to sex discrimination and retaliation occurring during the 300-day period

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preceding her EEOC charge. The same holds for Brown’s § 1981 race discrimination and
retaliation claims, as § 1981 claims need not be exhausted with an EEOC charge. See Randolph
v. IMBS, Inc., 368 F.3d 726, 732 (7th Cir. 2004). This leads to United’s final argument, which is
that even putting aside exhaustion, Brown has failed to allege any facts to support her
discrimination and retaliation claims. Doc. 14 at 8.
To survive a Rule 12(b)(6) motion, a complaint “must contain ‘enough facts to state a
claim to relief that is plausible on its face’ and also must state sufficient facts to raise a plaintiff’s
right to relief above the speculative level.” Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602
(7th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.’” Ibid. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Seventh Circuit has made clear that neither
Twombly nor Iqbal “cast doubt on the validity of Rule 8 of the Federal Rules of Civil
Procedure,” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010), which provides in
relevant part that “[a] pleading that states a claim for relief 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).
Exactly what “a short and plain statement” must contain to clear the plausibility threshold
varies from case to case. As the Seventh Circuit explained in Swanson, “[a] more complex case
involving financial derivatives … or antitrust violations will require more detail, both to give the
opposing party notice of what the case is all about and to show how, in the plaintiff’s mind at
least, the dots should be connected.” 614 F.3d at 405. In a more “straightforward” case
involving discrimination, by contrast, “[a] plaintiff who believes that she has been passed over
for a promotion because of her sex will be able to plead that she was employed by Company X,

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that a promotion was offered, that she applied and was qualified for it, and that the job went to
someone else. That is an entirely plausible scenario, whether or not it describes what ‘really’
went on in this plaintiff’s case.” Id. at 404-05.
Brown has pleaded facts sufficient to satisfy this standard. She alleges that she was
harassed and given more difficult work assignments in retaliation for complaining about
discrimination at work and that the harassment continued even after United reinstated her. Doc.
1 at 5, 7. That is enough to survive a Rule 12(b)(6) motion. See Carlson v. CSX Transp., Inc.,
758 F.3d 819, 827 (7th Cir. 2014) (“[Plaintiff] alleged which positions she sought and was
denied, and she attributed the denial to sex discrimination, satisfying the standard applied in
Swanson ….”); Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 633 (7th Cir. 2013).
Conclusion
For the foregoing reasons, United’s motion to dismiss is granted in part and denied in
part. Brown’s Title VII claims are dismissed without prejudice to the extent they allege race
discrimination and retaliation due to complaining about race discrimination, and also to the
extent they allege conduct more than 300 days prior to the December 17, 2014 filing of her
EEOC charge. The motion to dismiss is denied as to Brown’s § 1981 race discrimination and
retaliation claim, and also as to her Title VII claim to the extent it alleges sex discrimination and
retaliation due to complaining about sex discrimination within the 300-day window preceding
her EEOC charge. United shall answer the surviving portions of the complaint by September 16,
2015.

September 2, 2015
United States District Judge

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