Brownlee et al v. Catholic Charities of The Archdiocese of Chicago
Filing
33
MEMORANDUM and Order Signed by the Honorable Joan B. Gottschall on 2/28/2017.Mailed notice(mjc, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ESTHER BROWNLEE, JACKIE TATE,
AND JOANIE FLEMING,
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Plaintiffs,
v.
CATHOLIC CHARITIES OF THE
ARCHDIOCESE OF CHICAGO,
Defendant.
Case No. 16-CV-00665
Judge Joan B. Gottschall
MEMORANDUM AND ORDER
The three plaintiffs, Esther Brownlee (“Brownlee”), Jackie Tate (“Tate”), and Joanie
Fleming (“Fleming”), worked 1 as mobile outreach workers for the defendant, Catholic Charities
of the Archdiocese of Chicago (“Catholic Charities”). (See Ans. & Aff. Defenses ¶¶ 20–22
[hereinafter “Ans.”], ECF No. 16.) All three plaintiffs are female. (Ans. ¶¶ 17–19.) The first
nine counts of the plaintiffs’ first amended complaint 2 (ECF No. 8) (referred to for simplicity’s
sake as “the complaint”) arise under Title VII of the Civil Rights Act of 1964, as amended,
(“Title VII”), 42 U.S.C. § 2000e et seq. Each count concerns only one of the plaintiffs and a
single Title VII theory: “sexual harassment” as to each plaintiff (Counts One, Two, and Three);
“sex discrimination” as to each plaintiff (Counts Four, Five, and Six); retaliation as to Brownlee
and Fleming (Counts Seven and Eight), and a “constructive discharge” count brought by Tate in
Count Nine. In the complaint’s final two counts (Ten and Eleven), Brownlee brings claims
under Illinois law respectively for battery and intentional infliction of emotional distress
1
The complaint does not make clear whether Fleming still works for Catholic Charities. (See 1st Am. Compl. ¶¶
13–15 (alleging only that Catholic Charities employed each plaintiff “at all times pertinent herein”).) Tate resigned
on October 31, 2014, (Compl. ¶ 269), and Catholic Charities fired Brownlee on June 25, 2015 (Compl. ¶ 139).
2
The plaintiffs amended their complaint as a matter of course before Catholic Charities answered it. See Fed. R.
Civ. P. 15(a)(1).
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(“IIED”). Before the court is Catholic Charities’ motion to dismiss six counts of the complaint
for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). For
the following reasons, the court grants the motion in part and denies it in part.
I. BACKGROUND
For purposes of deciding a Rule 12(b)(6) motion, the court assumes that all of the wellpleaded allegations in the complaint are true and draws all reasonable inferences in the plaintiff’s
favor. Manistee Apts., LLC v. City of Chi., 844 F.3d 630, 633 (7th Cir. 2016). In addition, the
court notes the allegations Catholic Charities has admitted in its answer (ECF No. 16).
The plaintiffs’ duties as mobile outreach workers included driving with a partner to
deliver meals and services to people in the community. (Ans. ¶¶ 26, 28, 30.) Duane Washington
“Washington”), a male mobile outreach worker during the relevant time periods, figures
prominently in all three plaintiffs’ claims.
A. Brownlee
Brownlee and Washington drove as partners from approximately May 18–June 16, 2015.
During that time, Washington sexually harassed her verbally and physically. (See Compl. ¶ 33–
34.) For example, Washington told Brownlee more than once that she looked good (¶ 35), “I
know Ray would like to fuck you” (¶ 38), and “[i]f I was your man, you wouldn’t talk unless I
told you to” (¶ 42). Washington also “rubbed Brownlee’s shoulders and thighs on at least five
occasions.” (Compl. ¶ 44.) Brownlee pushed Washington’s hand away each time and told him
to stop. (Compl. ¶ 45.) She complained to her supervisor, Ray Lee (“Lee”), and said that she did
not want to work with Washington anymore. (Compl. ¶¶ 46–47.) Lee responded “[W]e put you
with him because you can handle him.” (Compl. ¶ 48.) Catholic Charities did not investigate
Washington’s conduct or adequately discipline him. (Compl. ¶¶ 50–51.)
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On June 16, 2015, Washington yelled and cursed at Brownlee while the two were
delivering a meal. The client to whom they were delivering the meal refused to open the door
for them as a result, and Lee ordered the pair to return to the office to discuss what happened.
(See Compl. ¶¶ 123–25.) During the drive back to the office, Washington struck Brownlee on
her arm with the back of his hand. (Compl. ¶¶ 126, 274.) He also threatened Brownlee, saying
“I’ll have someone meet you at 10 S. Kedzie and hurt you.” (Compl. ¶ 127.)
The pair met with management when they arrived at the office. Washington admitted to
striking Brownlee, and though Lee said at one point that he could not “have [the] two working
together anymore,” (Compl. ¶ 214) Renee Rouse (“Rouse”), another supervisor, later told
Brownlee that she could not be reassigned despite Washington’s conduct (Compl. ¶ 215).
Brownlee was told to leave a meeting so that Lee and a third supervisor could speak with
Washington alone. (See Compl. ¶¶ 216–17.) After the three met in private, Lee warned
Brownlee that she would be written up if she missed four more days of work. (Compl. ¶ 217.)
Rouse assigned Brownlee and Washington to again work together on June 18, 2015.
(Compl. ¶ 220.) That same day, Brownlee called Cynthia Guerrero to report that she was
subjected to a hostile work environment. (Compl. ¶ 219.) Brownlee also told Lee that she was
afraid to work with Washington after he struck her, and Lee assigned her to work with another
employee. (Compl. ¶ 221.)
On June 23, 2015, Brownlee filed a police report regarding Washington’s conduct and
attempted to obtain a restraining order. (Compl. ¶ 223.) Two days later, Catholic Charities’
Executive Director terminated Brownlee’s employment “due to unprofessional behavior related
to the June 16, 2015 incident.” (Compl. ¶ 225.)
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B. Tate
Washington made harassing comments similar to those he made to Brownlee to Tate on a
daily basis between October 2012 and October 2014. (See Compl. ¶¶ 60–64.) He also made
homophobic comments Tate overheard. (Compl. ¶ 65.) Tate reported Washington’s conduct to
three supervisors, including Lee, but Washington was not adequately disciplined. (Compl. ¶¶
66–68.) Sometime in the fall or winter of 2013, Washington showed Tate a pornographic video,
which she found offensive. (Compl. ¶¶ 69–70.) She immediately reported the incident to Lee,
who responded “[Y]ou know how he is.” (Compl. ¶ 72.)
Tate resigned on October 31, 2014. (Compl. ¶ 269.) She pleads that the ongoing
harassment and discrimination caused her to resign. (See Compl. ¶¶ 268–69.)
C. Fleming
Washington began making harassing comments to Fleming and homophobic comments
in her presence in September 2012 and continued until Fleming left Catholic Charities. (See
Compl. ¶¶ 82–83, 88.) Fleming advised Washington of Catholic Charities’ policy forbidding
sexual harassment when his behavior persisted (Compl. ¶ 85), and she filed a grievance with Lee
in November 2012 in which she stated that she was uncomfortable being alone with Washington
(Compl. ¶ 86). “Lee did not conduct any meaningful investigation after receiving Fleming’s
complaint.” (Compl. ¶ 87.)
Fleming also describes an incident in which a vendor commented “You must have a
happy husband.” (Compl. ¶ 89.) When Fleming told the vendor that she was a married lesbian,
the vendor responded, “I wonder how she fucks you.” (Compl. ¶ 90.) Fleming complained to
Lee and another supervisor about this incident in November 2012, but she had to continue
working with the vendor until May 2014. (Compl. ¶¶ 91–92.)
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In May 2015, Fleming began working as an administrative assistant. (Compl. ¶ 239.)
Fleming was relocated in September 2015 to “a desk located in an open area of the office space.”
(Compl. ¶ 241.) From her new location, Fleming could see Washington come and go from the
office every day. (Id.) Because of the relocation Fleming “was placed in close proximity to
Washington on a regular basis causing her to experience stress and anxiety at work.” (Compl. ¶
242.) Fleming also alleges that she “was intentionally excluded from attending a supervisor
meeting where she planned on providing important information.” (Compl. ¶ 243.) The program
director admonished Fleming after the meeting, telling her that she “needed to be present during
the meeting in order to effectively contribute her findings regarding a report she compiled.”
(Compl. ¶ 244.)
II. RULE 12(b)(6) STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a complaint must “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570, (2007)); Katz-Crank v. Haskett, 843 F.3d 641, 646 (7th Cir.
2016) (quoting Twombly, supra). A complaint satisfies this standard when its factual allegations
“raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56; see also
Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011) (“[T]he complaint taken as a whole must
establish a nonnegligible probability that the claim is valid, though it need not be so great a
probability as such terms as ‘preponderance of the evidence’ connote.”); Swanson v. Citibank,
N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough details about the subjectmatter of the case to present a story that holds together.”). When deciding a motion to dismiss
under Rule 12(b)(6), the court takes all facts alleged by the plaintiff as true and draws all
reasonable inferences from those facts in the plaintiff's favor, although conclusory allegations
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that merely recite the elements of a claim are not entitled to this presumption of truth. KatzCrank, 843 F.3d at 646 (citing Iqbal, 556 U.S. at 662, 663); Virnich v. Vorwald, 664 F.3d 206,
212 (7th Cir. 2011).
III. TITLE VII SEX-DISCRIMINATION CLAIMS
“A complaint alleging sex discrimination under Title VII need only aver that the
employer instituted a (specified) adverse employment action against the plaintiff on the basis of
her sex.” Cox v. Calumet Pub. Sch. Dist., 180 F. Supp. 3d 556, 561 (N.D. Ill. 2016) (quoting
Carlson v. CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014)). Catholic Charities focuses its
motion to dismiss several of the claims pleaded in the complaint on the adverse-employmentaction element. It first argues that Tate and Fleming’s claims of “sex discrimination” pleaded in
Counts Five and Six should be dismissed because they allege no adverse employment action
separate from the “sexual harassment” allegations of Counts Two and Three. Also, maintains
Catholic Charities, Tate’s constructive discharge claim fails because she does not allege working
conditions so intolerable that a reasonable person would feel compelled to resign. Finally,
Catholic Charities attacks Fleming’s retaliation count.
A. Tate and Fleming’s “Sex Discrimination” Counts Are Redundant of Their Harassment
and Constructive Discharge Counts
Tate and Fleming’s “sexual harassment” and “constructive discharge” Counts are ways to
prove prohibited sex discrimination in violation of a single statutory provision, 42 U.S.C. 2000e2(a); they are not distinct statutory claims. In 42 U.S.C. § 2000e-2(a)(1), Title VII prohibits an
employer from “fail[ing] or refus[ing] 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 . . . sex.” 42 U.S.C. § 2000e-2(a) (West
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2017). The Supreme Court has construed § 2000e-2(a)(1) as allowing “a plaintiff [to] establish a
violation of Title VII by proving that discrimination based on sex has created a hostile or abusive
work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986); see also id. at
64–67 (quoting § 2000e-2(a)(1) and tying this holding to its language); E.E.O.C. v. Mitsubishi
Motor Mfg. of America, Inc., 990 F. Supp. 1059, 1071 (citing Meritor for the proposition that
“[i]t is now well-established that ‘sex discrimination’ includes claims for sexual harassment,
both for quid pro quo harassment and for hostile environment harassment.”). As for constructive
discharge, the Supreme Court has held that “a hostile work-environment-claim is a ‘lesser
included component’ of the ‘graver claim of hostile-environment constructive discharge.’”
Green v. Brennan, 136 S. Ct. 1769, 1779 (2016) (quoting Pa. State Police v. Suders, 542 U.S.
129, 149 (2004)). As this suggests, Title VII’s constructive discharge doctrine also finds its
textual footing in § 2000e-2(a)’s prohibition of “discrimination based on . . . sex.” See Suders,
549 U.S. at 143 (quoting Meritor’s construction of “[t]he phrase ‘terms, conditions, or privileges
of employment’ [in § 2000e-2(a)(1)]” when holding that the constructive discharge theory is
available in Title VII actions); Chapin v. Fort–Rohr Motors, Inc., 621 F.3d 673, 679 (7th Cir.
2010) (citing Suders for the proposition that “[a] constructive discharge constitutes an adverse
employment action”).
Accordingly, Counts Five and Six wholly duplicate facts and legal theories pleaded in
other counts of the complaint; they add nothing new. See Sassaman v. Heart City Toyota, 879 F.
Supp. 901, 916 (N.D. Ind. 1994) (“the legal theories in [the plaintiff]’s claims for sexual
harassment and sexual discrimination were the same”). In the complaint itself, Tate and Fleming
rely on the same legal theories and facts for Counts Five and Six as their sexual harassment and
constructive discharge counts, substituting “sex discrimination” for the more specific legal
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theories of harassment and constructive discharge. Indeed, their response to Catholic Charities’
motion to dismiss cites the factual and legal allegations in the complaint they argue show they
experienced “sexual harassment” and arguing that the complaint, taken as a whole, gives
Catholic Charities fair notice of their claims. (Pls’ Resp. to Mot. to Dismiss 4–5, ECF No. 18.)
Tate also points to her constructive discharge claim as an additional reason why her “sex
discrimination claim” should not be dismissed. (Id. at 4–5.)
That Counts Five and Six are redundant does not mean that they should be dismissed
under Rule 12(b)(6), however. If Tate and Fleming’s harassment claims are properly pleaded
(and Catholic Charities does not challenge those counts), Counts Five and Six are as well, for the
Rule 12(b)(6) analysis requires the complaint to be “taken as a whole” when evaluating the
probability that relief can be granted on each claim. Atkins, 631 F.3d at 832. Instead, truly
redundant counts—those that duplicate a legal theory and add no new facts underpinning it—
should be stricken rather than dismissed. See Fed. R. Civ. P. 12(f)(1) (allowing the court to
“strike from a pleading . . . any redundant . . . matter . . . on its own” motion).
B. The Complaint Gives Fair Notice of Tate’s Constructive Discharge Claim
Catholic Charities also contends that Tate has failed to state a discrimination claim based
on constructive discharge in Count Nine. Constructive discharge “occurs when the plaintiff
shows that he was forced to resign because his working conditions, from the standpoint of the
reasonable employee, had become unbearable.” Chapin, 621 F.3d at 679 (citing Suders, 542
U.S. at 147) (other citations omitted). Catholic Charities maintains that Tate’s allegations of
Washington’s harassing comments “sometime between 2012 and 2014” and the fact that he
showed her a pornographic video in 2013 do not plausibly allege sufficiently unbearable
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conditions. (Mem. Supp. Mot. to Dismiss 9, ECF No. 14.) Tate has to plead “clear factual
allegations in the year before [her] resignation,” according to Catholic Charities. (Id.)
No party cites the Seventh Circuit’s opinion in Carlson holding that the plaintiff’s
complaint stated a constructive discharge claim. The complaint in Carlson included allegations
that the plaintiff entered a manager training program, but “her superiors . . . made the training
program intolerable by belittling her, assigning her extra work, and giving her unjustifiably poor
evaluations, leaving her no viable choice but to drop out.” Carlson, 758 F.3d at 822. The
Carlson court concluded that the district court “applied the wrong standard” at the pleading stage
by “repeatedly fault[ing] her for not providing ‘evidence’ in support of her claims . . . [and]
rel[ying] on summary judgment decisions that addressed not the content of complaints but the
evidence needed to take a claim to a jury.” Id. at 827 (citations omitted). The Carlson court
reasoned:
Even if a claim might theoretically be too “conclusory”—a theory
hard to square with Swierkiewicz and Swanson, at least where the
situation is identified and unlawful motivation alleged—Carlson
included specific examples of poor treatment. A work
environment, it is true, must be “intolerable” to support a
constructive discharge claim. See Chapin v. Fort–Rohr Motors,
Inc., 621 F.3d 673, 679 (7th Cir. 2010). The conditions Carlson
described in her complaint may not ultimately qualify as
intolerable, but we cannot say so definitively at the pleading stage,
which (we stress again) is before any evidence is required.
Id. at 830.
Tate’s constructive discharge allegations pass muster under this standard. Tate provides
several “specific examples of poor treatment” based on her sex, Carlson, 758 F.3d at 830,
including specific incidents of Washington’s verbal harassment and the 2013 incident in which
Washington showed her a pornographic movie. Thus, Tate alleges considerably more than a
bare conclusion that Washington’s conduct and management’s responses to her complaints about
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it made conditions so intolerable that she had no choice but to resign. See id.; Tamayo v.
Blagojevich, 526 F.3d at 1079, 1085 (holding allegations that plaintiff “was given routine work
assignments, banned from important . . . meetings, prohibited from working on any licensing
matters and prohibited from attending staff meetings” stated Title VII discrimination claim);
Contrast Gilhooly v. UBS Securities, LLC, 772 F. Supp. 2d 914, 917–18 (holding that threadbare
allegation that employer’s “constant criticism and harassment about her work left her with little
choice but to resign” did not state a claim for constructive discharge).
Tate also alleges that the harassment she experienced occurred on a daily basis and
persisted until the day she quit. Catholic Charities would have the court infer that the harassment
stopped after the last incident associated with a date in Tate’s complaint: Washington showing
her a pornographic movie in 2013. Tate specifically alleges that “beginning in October 2012 and
continuing through October 2014, Washington made sexual and homophobic comments to and
around Tate.” (Compl. ¶ 254.) Tate consistently characterizes Washington’s harassment as
“severe,” “persistent,” “ongoing,” and “continuous.” (See Compl. ¶¶ 264–68.) Because Tate
describes specific incidents of Washington’s harassment, these allegations are not too
conclusory, and they must be accepted as true at the Rule 12(b)(6) stage. See Carlson, 758 F.3d
at 827. Thus, as pleaded in the complaint, this is not a case of a single incident that would not
rise to the level of a hostile work environment. See Anzaldua v. Chi. Transit Auth., No. 02 C
2902, 2002 WL 31557622, at *3 (N.D. Ill. Nov. 15, 2002) (holding decision to transfer employee
did not support constructive discharge claim where it did not support a hostile work environment
harassment claim). Notably, Catholic Charities does not move to dismiss Tate’s harassment
count, which is based on the same factual allegations about Washington. In effect, Catholic
Charities wants Tate to plead additional evidence supporting her constructive discharge claim
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between 2013 and 2014, but Tate does not have to do that at the pleading stage. Catholic
Charities’ focus on what it deems potential evidentiary deficiencies in Tate’s case shows that the
complaint “provide[s] the defendant[ ] with sufficient notice to begin to investigate and defend
against her claim,” which is all that it is required to do. Tamayo, 526 F.3d at 1085; see Carlson,
758 F.3d at 830 (“The conditions Carlson described in her complaint may not ultimately qualify
as intolerable, but we cannot say so definitively at the pleading stage, which (we stress again) is
before any evidence is required.”).
The cases on which Catholic Charities relies do not compel a different conclusion. In
Barnard v. City of Chicago Heights, No. 91 C 3626, 1992 WL 309567, at *6–7 (N.D. Ill. Oct.
22, 1992), a Title VII constructive discharge claim was dismissed where the complaint did not
describe any incidents of harassment in the five months before the plaintiff resigned. As just
explained, Tate’s complaint includes allegations of persistent and continuous harassment.
Further, Barnard predates Carlson, Taymayo, and the Supreme Court’s decision rejecting
heightened pleading standards in Title VII cases in Swierkiewicz v. Sorema N.A., 534 U.S. 506,
511–12 (2002). See Carlson, 828 F.3d at 827 (collecting cases holding that Swierkiewicz
survived Twombly and Iqbal). The balance of Catholic Charities’ cases concern what evidence
must be produced at summary judgment or trial on a constructive discharge claim. See Chapin,
621 F.3d at 674, 679 (holding district court should have entered judgment as a matter of law for
defendant at trial); E.E.O.C. v. Univ. of Chi. Hosp., 276 F.3d 326, 328, 332 (7th Cir. 2002)
(reversing summary-judgment decision); Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 886–
87 (7th Cir. 1998) (same). The question here is not whether Tate’s constructive discharge claim
should go to a jury; it is whether her complaint states a claim upon which relief can be granted.
See Carlson, 758 F.3d at 828 (castigating district court because it “relied on summary judgment
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decisions that addressed not the content of complaints but the evidence needed to take a claim to
a jury”).
C. The Complaint Leaves the Thirty-Month Delay Between Fleming’s Grievance and the
Alleged Retaliatory Conduct Unexplained
“Title VII also prohibits discriminating against an employee ‘because [she] has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.’” Volling v. Kurtz Paramedic Services, Inc., 840 F.3d 378, 382
(quoting 42 U.S.C. § 2000e–3(a)) (alteration in original). “To state a claim for retaliation under
Title VII, a plaintiff must allege that he engaged in protected activity, and, as a result, was
subjected to an adverse employment action.” Lugo v. IBEW Local #134, 175 F. Supp. 3d 1026,
1037 (citing Carlson, 758 F.3d at 828); see also, e.g., Lord v. High Voltage Software, Inc., 839
F.3d 556, 563 (7th Cir. 2016), cert. denied, 2017 WL 77803 (Feb. 21, 2017) (citing Castro v.
DeVry Univ., Inc., 786 F.3d 559, 564 (7th Cir. 2015)) (holding employee must establish that “he
engaged in protected activity and suffered an adverse employment action, and that there is a
causal link between the two” at summary judgment). Catholic Charities argues both that
Fleming fails to allege a plausible causal link given the amount of time between her complaint
and the retaliatory conduct and that the retaliatory acts Fleming pleads—moving her desk to an
open area where she saw Washington daily and denying her access to a meeting and then
reprimanding her for not being present at it—“are too trivial” to be retaliatory adverse
employment actions. (Mem. Supp. Mot. to Dismiss 6.) Because the court agrees that no causal
link has been alleged, it need not reach the question of whether Fleming adequately alleges an
adverse employment action.
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According to the complaint, Fleming filed a grievance with Lee about Washington’s
harassment “in approximately November 2012.” (Compl. ¶ 237.) Lee did not investigate.
(Compl. ¶ 238.) The complaint then jumps ahead approximately thirty months to May 2015
when Fleming started to work as an administrative assistant and got her own office. (See Compl.
¶¶ 239-40.) The first allegedly retaliatory act occurred four months (now thirty-four months
after the complaint) later when Fleming was relocated to a desk in an open area of the office near
Washington’s office. (See Compl. ¶¶ 241–42.) The complaint does not specify when the second
act–excluding Fleming from a meeting—occurred, but due to the nature of the contribution
Fleming alleges she would have made, she must have worked as an administrative assistant at the
time. (See Compl. ¶ 243 (alleging that Fleming intended to present “important information
concerning a shelter bed report to representatives from the City of Chicago”).) Additionally,
Rouse, not Lee, supervised Fleming when the retaliation occurred. (See Compl. ¶ 243.)
Because the complaint does not explain the delay of at least thirty months between
Fleming’s grievance to Lee and the allegedly retaliatory conduct, it does not state a plausible
claim of a causal connection based on temporal proximity. Even at the pleading stage, “a
retaliation claim can indeed be so bare-bones that a lengthy time period between the protected
activity and the alleged retaliation will make any causal connection between the two
implausible.” Carlson, 758 F.3d at 828 (citing Carmody v. Bd. of Trs. of Univ. of Ill., 747 F.3d
470, 480 (7th Cir. 2014)). In her response to Catholic Charities’ motion to dismiss, Fleming
points to paragraph 247 of the complaint (and nothing else) to show that she has adequately
alleged a causal connection. (ECF No. 18 at 7.) But that paragraph pleads the legal element in
wholly conclusory fashion–“the proximity in time between my protected activity and the adverse
employment actions . . . experienced through Defendant’s conduct raises an inference of
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retaliatory intent.” (Compl. ¶ 247.) The complaint gives no indication that ongoing retaliation
was occurring. See Carlson, 758 F.3d at 829 (holding plaintiff adequately alleged causal
connection where the complaint “described an ongoing campaign of retaliation, and her claims
must be viewed through that lens”); see also Lugo, 175 F. Supp. 3d at 1037 (analyzing retaliation
claim “based on a single incident”). Instead, the complaint, even viewed in the light most
favorable to Fleming, includes no facts explaining the delay of at least thirty months between
Fleming’s grievance and the allegedly retaliatory conduct. Consequently, the complaint’s wellpleaded facts do not plausibly give rise to the inference of a causal connection between the
grievance and the allegedly retaliatory conduct. See Carmody, 747 F.3d at 480 (affirming
dismissal under Rule 12(b)(6) of retaliation claim based on unexplained three-year delay
between protected activity and allegedly retaliatory termination because the plaintiff provided
“no potential explanation for the long delay”); see also O'Leary v. Accretive Health, Inc., 657
F.3d 625, 635 (7th Cir. 2011) (stating, on review of summary judgment ruling, that two-month
delay between protected activity and adverse action was “not strongly suggestive of
retaliation”); Martinez v. Nw. Univ., 173 F. Supp. 3d 777, 788 (N.D. Ill. 2016) (holding at
summary judgment that unexplained two-year delay between protected activity and retaliation
did not create genuine fact issue for trial).
IV. Brownlee’s Battery And IIED Claims
Catholic Charities offers a host of reasons why it believes that Brownlee’s battery and
IIED claims should be dismissed. Two suffice.
First, as to Brownlee’s battery claim, Catholic Charities asserts that it cannot be held
responsible for Washington slapping her on the arm under the respondeat superior doctrine. For
Catholic Charities to be held vicariously liable for Washington’s battery, which is an intentional
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tort, he must have been acting in the course and scope of his employment. See, e.g., Doe v.
Sperlik, No. 05 C 1277, 2005 WL 3299818, at *3 (N.D. Ill. Nov. 30, 2005) (citing Bates v.
Doria, 502 N.E.2d 454, 457 (Ill. App. Ct. 1986)) (“Respondeat superior liability hinges upon a
finding that the employee acted in furtherance of his employer's interest when committing the
acts complained of.”). Catholic Charities correctly observes that the complaint’s respondeat
superior claim on this score recites the legal doctrine in threadbare fashion. (See Compl. ¶ 271
(“while acting within the scope of his employment with Defendant, Dwayne Washington
(“Washington”), Mobile Outreach Worker, subjected Brownlee to a battery”).) In her response
to the instant motion, Brownlee does not address Catholic Charities’ respondeat superior
argument. (See ECF No. 18 at 8–13.) As Washington’s motives for slapping Brownlee were
apparently personal, the court dismisses Brownlee’s battery claim. See Doe, 2005 WL 3299818,
at *3 (“When the motive for an employee's intentional tort is personal . . . it is necessarily
unrelated to his employer's objectives.” (citing Sobieski v. Ispat Island, Inc., 413 F.3d 628, 635
(7th Cir. 2005))).
Catholic Charities also argues that the Illinois Human Rights Act (“IHRA”) preempts
Brownlee’s battery and IIED claims. As presently pleaded and described in her response, she
seeks to impose liability upon Catholic Charities for its supervision and continued retention of
Washington in her IIED claim. The IHRA therefore preempts Brownlee’s IIED claim as
presently pleaded.
The IHRA provides that “[e]xcept as otherwise provided by law, no court of this state
shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth
in this Act.” 775 ILCS § 5/8–111(D). Whether the IHRA preempts a claim depends on the
source of the duty allegedly breached: “if the conduct would be actionable even aside from its
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character as a civil rights violation because the IHRA did not furnish the legal duty that the
defendant was alleged to have breached, the IHRA does not preempt a state law claim seeking
recovery for it.” Naeem v. McKesson Drug Co., 444 F.3d 593, 604 (7th Cir. 2006) (quoting
Krocka v. City of Chi., 203 F.3d 507, 516-17 (7th Cir. 2000) (alteration omitted); accord. Blount
v. Stroud, 904 N.E.2d 1, 8 (Ill. 2009) (quoting Geise v. Phoenix Co. of Chi., 639 N.E.2d 1273,
1276 (Ill. 1994)). To determine whether the IHRA preempts a tort claim, the court asks
“whether the tort claim is inextricably linked to a civil rights violation such that there is no
independent basis for the action apart from the [IHRA] itself.” Maksimovic v. Tsogalis, 687
N.E.2d 21, 23 (Ill. 1997). The common law independently creates the duty to refrain from
intentionally engaging in the extreme and outrageous behavior that constitutes the IIED tort
regardless of whether the conduct also happens to constitute sexual harassment under the IHRA.
Zuidema v. Raymond Christopher, Inc., 866 F. Supp. 2d 933, 940 (holding sexual harassment
claim of IIED not preempted, collecting authority, and stating that “the duty not to commit the
intentional tort of intentional infliction of emotional distress exists on its own.”); see Bannon v.
Univ. of Chi., 503 F.3d 623, 630 (7th Cir. 2007) (recognizing possibility that IIED claim could
be premised on harm caused by coworker’s racial slurs “regardless of his [discriminatory]
motivation”). Likewise, the common law of battery independently imposes a duty to refrain
from intentional, offensive touching. See Zuidema, 866 F. Supp. 2d at 940 (citing Maksimovic,
687 N.E.2d at 23) (other citations omitted) (holding IHRA did not preempt battery claim that
coworker engaged in unwanted sexual touching of the plaintiff).
Here, however, Brownlee alleges that: (1) Washington committed IIED and battery by
harassing Brownlee; and (2) Catholic Charities is liable for failing to supervise Washington or
for retaining him. Brownlee predicates her IIED count on Washington’s “subject[ing] [her] to
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sexual harassment and battery during her employment.” (Compl. ¶ 278.) She attributes her
damages, such as fright, emotional distress, and physical illness, to “Washington’s conduct.”
(Compl. ¶ 282 (alleging damaged experience “[a]s a result of Washington’s conduct”).)
Washington is not named as a defendant, however, as in the principal case on which Brownlee
relies; the analysis would be different if he were. See Benitez v. Am. Standard Circuits, Inc., 678
F. Supp. 2d 745, 768 (N.D. Ill. 2010) (holding IIED and battery claims against employee who
harassed plaintiff were not preempted). Brownlee pleads that Catholic Charities “could have
prevented the aforementioned extreme and outrageous conduct Washington imposed upon
Brownlee by taking reasonable care in supervising or disciplining Washington.” (Compl. ¶ 283.)
In her response to the instant motion, Brownlee essentially frames her theory of Catholic
Charities’ liability in terms of negligent supervision and retention. (See ECF No. 18 at 11
(describing Washington’s conduct and stating that Brownlee “further alleged that the Defendant
failed to provide reasonable care in the retention or supervision of its employee, Washington,
that resulted in Plaintiff being subjected to . . . battery” and IIED).) Catholic Charities’ duty to
supervise Washington so as to prevent sexual harassment exists, from an Illinois law perspective,
because the IHRA prohibits sexual harassment, so Brownlee’s IIED claim is inextricably
intertwined with that prohibition because the IHRA, unlike Title VII, imposes strict liability on
employers for workplace harassment, making claims based solely on the employer’s retention
and supervision of a harasser based on the same conduct redundant of the IHRA remedy. See
Geise, 639 N.E.2d at 1277–78 (holding IHRA preempted negligent hiring and negligent
supervision claims against employer and explaining that unlike Title VII liability for sexually
harassment, the IHRA “imposes strict liability on the employer, regardless of whether the
employer knew of the offending conduct” (citation omitted)); Carwyle v. Anna Hosp. Corp., 102
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F. Supp. 3d 1024, 1027 (S.D. Ill. 2015) (holding IHRA harassment and retaliation claims
preempted IIED claims based on same alleged conduct by coworker); Hernandez v. Partners
Warehouse Supplier Servs., LLC, 890 F. Supp. 2d 951, 963 (N.D. Ill. 2012) (holding IHRA
preempted IIED claim against employer for “fail[ing] to take appropriate measures to rectify [a
coworker]’s . . . sexual harassment, sexual assault and battery”).
V. CONCLUSION
Based on the foregoing analysis, Catholic Charities’ motion to dismiss (ECF No. 13) is
granted in part and denied in part. Pursuant to Rule 12(f), Counts Six and Seven of the plaintiffs’
amended complaint (ECF No. 8) are stricken as redundant. Counts Nine, Ten, and Eleven are
also dismissed. The court grants the plaintiffs leave to amend their complaint to replead those
counts, if they wish, by 03/21/17. See Fed. R. Civ. P. 15(a)(2). As discovery remains ongoing,
the parties should advise if they believe a status conference before the current setting of 6/2/17 is
needed.
The stricken counts are not the only redundancies in the complaint. Any amended
complaint should strive to eliminate repetition of factual allegations. See Fed. R. Civ. p. 8(a)(2).
Date: February 28, 2017
/s/
Joan B. Gottschall
United States District Judge
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