Derden v. Cook County Department Of Corrections
Filing
48
MEMORANDUM Opinion and Order:For the foregoing reasons, the Sheriff's motion to dismiss 41 is granted in part and denied in part in accordance with this opinion. Signed by the Honorable Thomas M. Durkin on 11/15/2018:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HAZEL L. DERDEN,
Plaintiff,
No. 17 C 9095
v.
Judge Thomas M. Durkin
SHERIFF OF COOK COUNTY,
Defendant.
MEMORANDUM OPINION AND ORDER
Hazel Derden alleges that she was discriminated and retaliated against by her
employer the Sheriff of Cook County. The Sheriff has filed a motion to dismiss some
of Derden’s claims. R. 41. For the following reasons, that motion is granted in part
and denied in part.
Legal Standard
A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.
Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must
provide “a short and plain statement of the claim showing that the pleader is entitled
to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of
the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
This standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed
factual allegations” are not required, “labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
The complaint must “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. 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.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d
362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws all reasonable inferences
in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).
Analysis
I.
Discrimination
Derden is an African-American woman employed as a correctional officer by
the Sheriff. Derden alleges that she was passed over for promotions in favor of White
candidates several times during the time period of 2008-2016. But Derden did not file
her EEOC charge until March 24, 2017. See R. 45 at 1; R. 41 at 6. For this reason,
any claim about incidents that occurred more than 300 days prior to March 24, 2017—
which is May 28, 2016—is untimely. See Roney v. Ill. Dep’t of Trans., 474 F.3d 455,
460 (7th Cir. 2007) (“Because [the plaintiff’s] EEOC charge was filed on April 28,
1998, any discrete acts that occurred more than 300 days prior to this date, or before
July 2, 1997, cannot be the basis of his Title VII claims.”). Thus, the only timely
discrimination claim Derden makes is the alleged failure to promote that occurred
sometime in October 2016. See R. 38 ¶¶ 50-52, 108-09. Derden does not dispute this
analysis.
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Although the parties do not address it, the Court notes that one of Derden’s
allegations appears to indicate, contrary to her failure to promote claim, that she was
in fact promoted after she passed the commander examination in October 2016.
Specifically, Derden alleges that she “got a ranking for the first time” after passing
that exam. R. 38 ¶¶ 51, 109. But the Court must not understand what Derden means
by “got a ranking,” because she has testified that she was not promoted after passing
the commander examination, R. 45-3 at 25 (91:10-17), and she argues in her brief on
this motion that she was not promoted. See R. 45 at 16. The Sheriff does not argue
otherwise. To the extent Derden’s allegation that she “got a ranking” is relevant to
the case, the Court trusts that the parties will address it in the future.
Therefore, Derden’s discrimination claim is limited to her allegation that she
was wrongfully denied promotion after passing the commander examination in
October 2016. Any other discrimination claim is dismissed.
II.
Retaliation
Derden also alleges that the Sheriff retaliated against her because she was
named as a witness in a colleague’s EEOC complaint. Derden claims that the Sheriff
took the following actions in retaliation: (1) threatening her with “write-ups”; (2)
denying her access to the payroll system; (3) forcing her to work with a reduced staff;
(4) denying her use of her lunch premiums; (5) ordering her to require shift officers
to wear a certain uniform; (6) ordering her to require inmate workers to wear
uniforms; (7) denying her access to “workforce”; (8) forcing her to reschedule her
vacation; (9) disciplining her for failing to perform tasks assigned by an email sent on
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her day-off; and (10) denying her the opportunity to attend certain meetings. R. 38
¶¶ 56-65.
“To state a claim for retaliation under Title VII, a plaintiff must allege that he
engaged in statutorily protected activity and suffered an adverse action as a result of
that activity.” Alamo v. Bliss, 864 F.3d 541, 555 (7th Cir. 2017). An adverse action
must be “materially adverse” to be actionable. Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006). The Sheriff argues that Derden has failed to state a
claim for retaliation because: (1) being named as a witness is not a protected activity;
(2) Derden has not alleged adverse actions; and (3) to the extent she sufficiently
alleged adverse actions, they were not caused by being named as a witness in her
colleague’s EEOC complaint.
A.
Protected Activity
First, the Sheriff merely asserts that Derden “has not engaged in a protected
activity,” R. 41 at 7, but offers no argument in support. This undeveloped argument
is waived. See Bunn v. Fed. Deposit Ins. Corp. for Valley Bank Ill., 2018 WL 5832934,
at *6 (7th Cir. Nov. 8, 2018) (“We have repeatedly and consistently held that
perfunctory and undeveloped arguments, and arguments that are unsupported by
pertinent authority, are waived.”). In any case, Title VII makes it “an unlawful
employment practice for an employer to discriminate against any of his employees . .
. because he had made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e3(a). It is likely that serving as a witness for an EEOC claim falls within this
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definition. See Burlington, 548 U.S. at 67 (“Title VII depends for its enforcement upon
the cooperation of employees who are willing to file complaints and act as
witnesses.”).
B.
Adverse Actions
The Sheriff also argues that Derden’s alleged adverse actions are not
materially adverse because “not everything that makes an employee unhappy is an
actionable adverse action.” R. 41 at 9. “An action is materially adverse if a reasonable
employee . . . would be dissuaded from engaging in the protected activity.” Koty v.
DuPage County, 900 F.3d 515, 520 (7th Cir. 2018). Unlike discrimination claims, in
the context of a retaliation claim, materially adverse actions “are not limited to those
that affect the terms and conditions of one’s employment.” Alamo, 864 F.3d at 555
n..39. Yet, “[b]ecause Title VII does not set forth a general civility code for the
American workplace, its anti-retaliation provision does not protect against petty
slights, minor annoyances, and bad manners.” Boss v. Castro, 816 F.3d 910, 918 (7th
Cir. 2016). Rather, “[a]n employee must suffer something ‘more disruptive than a
mere inconvenience or an alteration of job responsibilities.’” Id. at 918-19 (quoting
Hobbs v. City of Chicago, 573 F.3d 454, 463-64 (7th Cir. 2009)). However, the Supreme
Court has held that requiring an employee to “spend more time performing the more
arduous duties and less time performing those that are easier or more agreeable” can
constitute retaliatory conduct. Burlington, 548 U.S. at 71.
The Sheriff characterizes Derden’s allegations as “mere inconveniences.” The
Court agrees that some of Derden’s allegations do not rise to the level of materially
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adverse actions. As an initial matter, the adverse consequences of Derden’s
allegations regarding uniform policies are entirely unclear. Second, rescheduling of
vacation is a common workplace inconvenience. See Pearson v. Advocate Health Care,
2017 WL 3478815, at *6 (N.D. Ill. Aug. 14, 2017), aff’d, 727 Fed. App’x 866 (7th Cir.
2018). Third, the Seventh Circuit has held that unfulfilled threats of disciplinary
action do not constitute a material adverse action. See Poullard v. McDonald, 829
F.3d 844, 856-57 (7th Cir. 2016). And finally, the lack of any alleged consequences for
the disciplinary write-up Derden received for failing to complete a task on a day-off
means that it does not plausibly constitute an adverse action. See Boss, 816 F.3d at
919 (“Unfair reprimands or negative performance reviews, unaccompanied by
tangible job consequences, do not suffice[.]”).
But Derden’s allegations that she was denied access to a payroll system and
that her shifts were understaffed are sufficient alterations to the conditions of her
employment to allege material adverse actions. The payroll system is plausibly a tool
necessary for Derden to perform her job. Being asked to perform a job while being
denied the necessary tools might well dissuade a reasonable person from filing
complaints about the workplace. More seriously, Derden alleges that the Sheriff
forced her to work with reduced staff. That understaffing would affect the conditions
of a prison guard’s employment needs no explanation. See Dass v. Chi. Bd. of Educ.,
675 F.3d 1060, 1069 (7th Cir. 2012) (allegation of “unsafe . . . or otherwise
significantly negative alteration in [the] workplace environment” plausibly describes
a material adverse action). It may be that this understaffing is endemic to the Cook
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County corrections system and has nothing to do with Derden personally. But Derden
alleges that this action was taken with retaliatory motive. Taking Derden’s
allegations as true at this stage of the proceedings, the safety concerns raised by being
forced to work understaffed shifts would certainly dissuade a reasonable person from
filing complaints. Thus, Derden has plausibly alleged material adverse actions.
C.
Causation
Lastly, the Sheriff argues that Derden’s agreement to serve as a witness for an
EEOC complaint cannot have caused any adverse action because she has not alleged
that the Sheriff knew she had agree to serve as a witness. R. 46 at 4. But Derden
alleges that she was named as a witness in the EEOC complaint. See R. 38 ¶ 54. It is
more than plausible that the Sheriff received notice of the EEOC complaint and its
contents. Thus, the Sheriff’s causation argument is an insufficient basis to dismiss
Derden’s retaliation claim.
Conclusion
For the foregoing reasons, the Sheriff’s motion to dismiss [41] is granted in part
and denied in part in accordance with this opinion.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: November 15, 2018
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