Garner v. The National Railroad Passenger Corporation

Filing 33

MEMORANDUM AND OPINION ORDER Signed by the Honorable Robert M. Dow, Jr. on 2/1/2019. Before the Court is the motion to dismiss 16 filed by Defendant National Railroad Passenger Corporation (d/b/a Amtrak). For the reasons set forth below, the motion 16 is granted in part and denied in part. The case is set for further status on February 12, 2019 at 9:00 a.m.Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAWN GARNER,

)
)
Plaintiff,
)
)
Case No. 18-cv-3789
v.
)
)
Judge Robert M. Dow, Jr.
NATIONAL RAILWAY CORPORATION
)
(d/b/a AMTRAK),
)
)
Defendant.
)
)
MEMORANDUM AND OPINION ORDER
Before the Court is the motion to dismiss [16] filed by Defendant National Railroad
Passenger Corporation (d/b/a Amtrak). For the reasons set forth below, the motion [16] is granted
in part and denied in part. The case is set for further status on February 12, 2019 at 9:00 a.m.
I.

Background
Plaintiff Dawn Garner, an African-American female and former employee of Defendant

National Railroad Passenger Corporation (d/b/a Amtrak), filed this action bringing sexual
harassment, racial discrimination, hostile work environment, and retaliation claims against
Defendant under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Illinois Human Rights
Act (“IHRA”), and Section 1981 of the Civil Right Act of 1866 (“Section 1981”). [1, at ¶ 1.]
Plaintiff alleges that from approximately May 1999 through her termination on or about June 26,
2017, she continuously was subjected to unwelcome, unwanted, and offensive sexual harassment.
[Id. at ¶ 23.] Plaintiff identifies numerous examples of the kind of sexual harassment she
challenges. [Id. at ¶ 23(a)-(l).] For example, Plaintiff alleges that a male conductor referred to
Plaintiff as “Buffalo Butt,” commented that her “butt was as big as a dining room table,” and told
Plaintiff that “women aren’t built to work on the railroad.” [Id. at ¶ 23(a).] By way of another

example, Plaintiff alleges that a human resources representative for Defendant made sexually
suggestive comments towards Plaintiff from 2000 through 2016. [Id. at ¶ 23(b).] Specifically, the
HR representative repeatedly commented on Plaintiff’s physical appearance, asked about her
marital status, and asked Plaintiff to turn around so he could look at her. [Id.] Plaintiff also alleges
that she did not pass an aptitude test necessary for a promotion in direct retaliation for denying the
HR representative’s sexual advances.

[Id.]

Plaintiff also alleges that she witnessed other

inappropriate behavior. For example, Plaintiff witnessed other employees place bets on who first
would have sexual relations with another employee. [Id. at ¶ 23(l).] Throughout her employment,
Plaintiff complained of this alleged misconduct to Assistant Superintendent Scott Kenner,
Superintendent Harold Kirman, Assistant Superintendent Jason Harrell, EAP Greg Williams,
Brendan Mulcrone, Gary Isrealson, Lisa Simane, Will Carney, Joe Morris, Rachel Phillips, Tracy
Prentiss, Jackie Clay, Shazrae Mian and Arlette Davenport. [Id. at ¶¶ 25-26.]
Plaintiff also alleges that she was subjected to severe or pervasive racial discrimination
throughout the duration of her employment. [Id. at ¶ 28.] For example, Defendant’s employees
repeatedly and frequently referred to Plaintiff using a highly-offensive racist term. [Id. at ¶ 29.]
Plaintiff overheard an engineer working for Defendant use the same racist term to refer to other
African Americans. [Id. at ¶ 30.] Another employee of Defendant told Plaintiff and other African
American employees that he was going to attend a Ku Klux Klan rally in Tennessee. [Id. at ¶ 30.]
Other employees and passengers made similar racist comments. [Id. at ¶¶ 29-37.] Plaintiff
complained of this alleged misconduct to Assistant Superintendent Scott Kenner, Superintendent
Harold Kirman, Assistant Superintendent Jason Harrell, EAP Greg Williams, Brendan Mulcrone,
Gary Isrealson, Lisa Simane, Will Carney, Joe Morris, Rachel Phillips, Tracy Prentiss, Jackie Clay,
Shazrae Mian and Arlette Davenport, among others. [Id. at ¶ 39.] Despite Plaintiff’s repeated

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complaints and reports, Defendant failed to remediate, stop, prevent, or otherwise address the
ongoing discrimination and harassment. [Id. at ¶ 40.]
On or around March 29, 2016, Plaintiff made a formal complaint to Defendant’s Equal
Employment Opportunity Compliance Office (“EEO”). [Id. at ¶ 41.] Plaintiff was never given
information regarding the need to contact the Equal Employment Opportunity Commission
(“EEOC”) and was made to believe that the EEO and the EEOC were the same agency. [Id. at
¶ 41.] Around March or April 2016, Plaintiff was subject to a formal investigation for allegedly
delaying a train to assist a disabled passenger. [Id. at ¶ 43.] Plaintiff alleges this investigation was
in direct retaliation to at least three complaints Plaintiff made regarding sexual harassment and/or
race discrimination. [Id.] From approximately March 2016 until her termination on or around
June 26, 2017, Plaintiff also received several formal and informal employee counseling/“writeups.” [Id. at ¶ 45.] Before Plaintiff began reporting the alleged misconduct, Plaintiff had not
received any such “write-ups.” [Id. at ¶ 46.] On June 26, 2017, Plaintiff was terminated. [Id. at
¶ 47.] Plaintiff alleges that she “was terminated due to Defendant’s failure to stop the ongoing
sexual harassment and racial discrimination.” [Id. at ¶ 122.]
II.

Legal Standard
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief

can be granted, the complaint first must comply with Rule 8(a) by providing “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 the defendant is given “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) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)) (alteration in original). Second, the factual allegations in the complaint must be
sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra

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Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A
pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause
of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555). Dismissal for failure to state a claim under Rule 12(b)(6) is proper “when the allegations
in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S.
at 558. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all
of Plaintiff’s well-pleaded factual allegations and draws all reasonable inferences in Plaintiff’s
favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007).
III.

Discussion
A.

Failure to Exhaust Administrative Remedies

Defendant moves to dismiss Plaintiff’s claims under the Illinois Human Rights Act
(“IHRA”) for failure to exhaust administrative remedies. Plaintiff concedes that her claims under
the IHRA should be dismissed for failure to exhaust administrative remedies.

[23, at 1.]

Accordingly, the Court grants Defendant’s motion to dismiss Counts II, IV, and VII.
B.

Time-Barred

Defendant moves to dismiss certain of Plaintiff’s claims under Title VII and Section 1981
as time-barred. Specifically, Defendant seeks to dismiss (1) Plaintiff’s Title VII claims based on
discrete acts of alleged discrimination, harassment, and/or retaliation occurring before May 6, 2017
(i.e., more than 300 days before Plaintiff filed her charge of discrimination with the EEOC), and
(2) Plaintiff’s Section 1981 claims based on alleged actions occurring before May 30, 2014 (i.e.,

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more than four years before the filing of this lawsuit). The Court addresses each of these arguments
in turn.
i.

Title VII Claims

“Before challenging an unlawful employment practice under Title VII, an employee must
first file a timely EEOC charge. Such a charge must be filed within 300 days after the alleged
unlawful employment practice occurred or else the employee may not challenge the practice in
court.” Chaudhry v. Nucor Steel-Indiana, 546 F.3d 832, 836 (7th Cir. 2008) (internal citations
omitted); see also 42 U.S.C. § 2000e-5(e)(1). For this 300-day limitation period, “[e]ach incident
of discrimination and each retaliatory adverse employment decision constitutes a separate
actionable ‘unlawful employment practice[.]’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 114 (2002).
Plaintiff argues that her claims relating to alleged conduct falling outside of the 300-day
limitations period are not time-barred under the continuing violation doctrine. This is an exception
to the 300-day charging period that “allow[s] a court to consider acts that occurred outside of the
limitations period if ‘related closely enough’ to the acts occurring within the established time frame
‘to be considered one ongoing violation.’” Nagle v. Village of Calumet Park, 554 F.3d 1106, 1121
n. 4 (7th Cir. 2009) (quoting Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 396 (7th Cir.
1999)). The Seventh Circuit described the doctrine as somewhat of a misnomer because “[d]espite
its name, it is a doctrine about cumulative rather than continuing violation.” Lewis v. City of
Chicago, 528 F.3d 488, 493 (7th Cir.2008), rev’d on other grounds by 560 U.S. 205 (2010); see
also Limestone Development Corp. v. Village of Lemont, Ill., 520 F.3d 797, 801 (7th Cir. 2008).
In Lewis, the Seventh Circuit explained that the “doctrine of continuing violation allows you to
delay suing until a series of acts by a prospective defendant blossoms into a wrongful injury on

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which a suit can be based.” 528 F.3d at 493 (“A typical case is workplace harassment on grounds
of sex. The first instance of a coworker’s offensive words or actions may be too trivial to amount
to actionable harassment, but if they continue they may eventually amount to an actionable pattern
of harassing behavior. And then the entire series is actionable.” (citations omitted)); see also
Stepney v. Naperville School Dist. 203, 392 F.3d 236, 240 (7th Cir. 2004) (“The doctrine applies
to claims like sexual harassment * * * [because] [i]n those cases, duration and repetition are
necessary to convert merely offensive behavior into an actionable change in the plaintiff’s working
conditions.”). “Under the ‘continuing violation’ doctrine, a Title VII plaintiff may recover for
otherwise time-barred conduct that is part of a single, ongoing unlawful employment practice if at
least one related act occurs during the limitations period.” Barrett v. Illinois Dep’t of Corr., 803
F.3d 893, 898 (7th Cir. 2015) (citing Morgan, 536 U.S. at 116-18). However, the “doctrine is
limited to claims of hostile work environment.” Id.
Thus, to the extent that Plaintiff challenges discrete actions unrelated to her hostile work
environment claim, the Court agrees that Plaintiff may not proceed with her Title VII claims
relating to conduct occurring more than 300 days before Plaintiff filed her charge of discrimination
with the EEOC. For example, Plaintiff alleges that she was investigated in or around March or
April of 2016 in retaliation for having made sexual harassment complaints. Alleged discriminatory
investigations are the kind of discrete acts that are not actionable beyond the limitations period.
Beesen-Dwars v. Morris, 2007 WL 2128348, at *7 (N.D. Ill. July 24, 2007) (collecting cases).
Similarly, Plaintiff may not proceed with Title VII claims based on “several formal and informal
employee counseling/‘write-ups[,]’” to the extent that such warnings occurred more than 300 days
before Plaintiff filed her charge of discrimination with the EEOC.1 The continuing violation
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The complaint does not indicate precisely when such write-ups occurred. Rather, Plaintiff alleges
generally that she received several such write-ups from approximately March 2016 to June 2017. [1, at

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doctrine does not apply to such discrete acts. Conley v. Vill. of Bedford Park, 215 F.3d 703, 710
(7th Cir. 2000) (“The suspension was a discrete act resulting in a discrete injury to [the plaintiff].”);
Mull v. Abbott Labs., 563 F. Supp. 2d 925, 929 (N.D. Ill. 2008) (“[T]he continuing violation
doctrine has no application to discrete acts of discrimination, such as termination or the failure to
hire, which are actionable at the time they take place.”).
To the extent that Plaintiff’s Title VII claims are based on a hostile work environment
theory, however, Plaintiff may proceed under the continuing violation theory. Defendant argues
that Plaintiff has not sufficiently alleged a continuing violation claim because “[m]ere continuity
of employment, without more, is insufficient to prolong the life of a cause of action for
employment discrimination.” [23, at 4 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 111 (2002) (internal quotation marks omitted)).] Here, Plaintiff has alleged more than just
mere continuity of employment. Plaintiff alleges that “[o]n an ongoing and continuous bas[is],
commencing on or about May 1999 through her unlawful termination on or about June 26, 2017,
Plaintiff was subjected to unwelcome, unwanted, and offensive sexual harassment” and a “hostile
work environment[.]” [1, at ¶ 23.] Plaintiff further lists numerous examples of such alleged
misconduct during the tenure of her employment with Defendant. [Id. at ¶¶ 23-24.] Plaintiff
makes similar allegations with respect to her racial hostile work environment claim. [Id. at ¶¶ 2324.]
Furthermore, while labeling discrete acts as a “practice” is not enough to survive a motion
to dismiss, see, e.g., Crum v. Advocate N. Side Health Network, 2018 WL 1064990, at *7 (N.D.

¶ 120.] Thus, Plaintiff may proceed with her Title VII claim with respect to some of those write-ups (i.e.,
those occurring within the 300-day charging period), but may not proceed with respect to write-ups
occurring before May 6, 2017. Similarly, Plaintiff alleges that she was denied a promotion in retaliation
for her declining advances of a fellow employee. Plaintiff only may bring an independent claim based on
that discrete event if it occurred within the 300-day charging period.

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Ill. Feb. 26, 2018), aff’d, 733 F. App’x 842 (7th Cir. 2018), Plaintiff has not simply identified
isolated and unrelated instances of misconduct. Rather, Plaintiff challenges the cumulative effects
of numerous and repeated instances of alleged misconduct that Defendant failed to address despite
repeated complaints by Plaintiff. Vance v. Ball State Univ., 646 F.3d 461, 468 (7th Cir. 2011),
aff’d, 570 U.S. 421 (2013) (“When a plaintiff initiates a hostile work environment lawsuit, as
opposed to a suit claiming discrimination based on discrete acts, she usually complains of an
employer’s continuing violation of Title VII ‘based on the cumulative effect of individual acts.’”
(quoting Morgan, 536 U.S. at 115)); see also Morgan, 536 U.S. at 115 (“Hostile environment
claims are different in kind from discrete acts.”). Viewing the allegations in the light most
favorable to Plaintiff, as the Court must at this stage of this case, Plaintiff sufficiently has alleged
a pattern of harassment and unjustified discipline to survive a motion to dismiss. Little v. Illinois
Dep’t of Pub. Health, 2017 WL 5903835, at *4 (N.D. Ill. Nov. 30, 2017) (denying motion to
dismiss where plaintiff alleged “a pattern of harassment and unjustified discipline”).
To be sure, in order to establish an ongoing pattern of discrimination, the challenged
conduct must be similar and involve the same individuals. Little v. Illinois Dep’t of Pub. Health,
2017 WL 5903835, at *3 (N.D. Ill. Nov. 30, 2017) (citing Hopkins v. Bd. of Educ. of City of
Chicago, 73 F. Supp. 3d 974, 982 (N.D. Ill. 2014)). However, other than to assert generally that
Plaintiff only has alleged a number of discrete actions, Defendant has not offered any other
argument as to why Plaintiff’s allegations otherwise are insufficient to establish an ongoing pattern
of discrimination. Yeksigian v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990) (“The defendants have
the burden on a motion to dismiss to establish the legal insufficiency of the complaint.”). The
Court therefore concludes that Plaintiff sufficiently has alleged a continuing violation to survive a
motion to dismiss.

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Defendant also argues that Plaintiff may not proceed on a continuing violation theory
because her charge of discrimination did not provide Defendant with fair notice that she was
alleging such a violation. “The proper scope of a judicial proceeding following an EEOC charge
‘is limited by the nature of the charges filed with the EEOC.’” Hopkins v. Bd. of Educ. of City of
Chi., 73 F. Supp. 3d 974, 982 (N.D. Ill. 2014) (citing Rush v. McDonald’s Corp., 966 F.2d 1104,
1110 (7th Cir. 1992)). Specifically, “a plaintiff may only bring claims that are originally included
in the EEOC charge or are ‘reasonably related to the allegations of the EEOC charge and growing
out of such allegations.’” Id. (quoting Moore v. Vital Prods., Inc., 641 F.3d 253, 256-57 (7th Cir.
2011)). In other words, plaintiffs only may pursue claims “that could reasonably be expected to
grow out of the administrative charges.” Reynolds v. Tangherlini, 737 F.3d 1093, 1100 (7th Cir.
2013). “Courts review the scope of an EEOC charge liberally.” Huri v. Office of the Chief Judge
of the Circuit Court of Cook Cty., 804 F.3d 826, 831 (7th Cir. 2015) (citation omitted).
Construing the charge liberally, Plaintiff’s continuing violation claim is reasonably related
to the allegations in Plaintiff’s charge.

Plaintiff’s charge indicates that “[d]uring [her]

employment, [she] was subjected to unwanted touching of a sexual nature.” [1-1, at 2.] The charge
further indicates that the “touching continued” after Plaintiff complained to management. [Id.]
Similarly, the charge indicates that Plaintiff “continuously” complained to management about
being subjected to racial slurs. [Id.] Although Plaintiff did not check the “continuing action” box
on her charge, the Seventh Circuit has made clear that the failure to check a box should not bar a
plaintiff’s claim where the EEOC charge otherwise is sufficient to satisfy the purpose of requiring
a charge. Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 528 (7th Cir. 2003) (“[W]e do not rest
our decision here on an omitted check mark.”). Accordingly, Plaintiff’s charge of discrimination

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provided Defendant with fair notice that she was pursuing a continuous violation claim. Malozienc
v. Pac. Rail Servs., 606 F. Supp. 2d 837, 859 (N.D. Ill. 2009).2
ii.

Section 1981 Claims

To the extent that Plaintiff’s claim under 42 U.S.C. § 1981 (Count V) relies on alleged acts
occurring more than four years before Plaintiff filed her complaint, Defendant moves to dismiss
Plaintiff’s Section 1981 claim as time-barred. Claims brought under Section 1981 are subject to
the federal four-year statute of limitations, 28 U.S.C. § 1658. Gupta v. Madison Metro. Sch. Dist.,
120 F. App’x 641, 643 (7th Cir. 2005). Plaintiff has not invoked any grounds for tolling the statute
of limitations. Still, it is not clear from the complaint whether Plaintiff is basing her Section 1981
claim on conduct occurring more than four years before Plaintiff filed her complaint. While any
such claims would be time-barred, Plaintiff need not “negate a possible affirmative defense based
on the statute of limitations.” Hunt v. Pers. Staffing Grp., LLC, 2018 WL 1014513, at *7 (N.D.
Ill. Feb. 22, 2018). Where a “complaint does not unambiguously establish that all or some” claims
are time-barred, dismissal is inappropriate. Id. The Court therefore denies Defendant’s motion to
dismiss Plaintiff’s Section 1981 claim.
C.

Laches

Defendant moves to dismiss certain of Plaintiff’s allegations under the doctrine of laches.
“The defense of laches ‘requires proof of (1) lack of diligence by the party against whom the
defense is asserted, and (2) prejudice to the party asserting the defense.’” State of Kansas v. State
of Colorado, 514 U.S. 673, 687 (1995) (quoting Costello v. United States, 365 U.S. 265, 282

2

The Court notes that—even if Plaintiff could not bring a claim based on conduct occurring before May 6,
2017—such conduct still could be considered in support of Plaintiff’s hostile work environment claim. See
Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 786 n.4 (7th Cir. 2004) (courts may look to
time-barred acts as support for timely claims).

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(1961)). Although Defendant ultimately may be able to succeed on a laches defense, Defendant
has not identified allegations establishing the necessary elements of the defense.
Defendant contends that because some of Plaintiff’s allegations date back to 1999, the
Court should presume that the elements of laches are satisfied. However, the Court sees no reason
to adopt a presumption that the elements of laches are satisfied merely because certain allegations
date back some threshold number of years. None of the cases cited by Defendant support such a
position. To the contrary, the cases cited by Defendant recognize that—even at the summary
judgment stage—a defendant must identify specific facts supporting the elements of its laches
defense. See Pruitt v. City of Chicago, Illinois, 472 F.3d 925, 928 (7th Cir. 2006) (identifying
specific ways the defendant would be prejudiced (e.g., witnesses who moved beyond the court’s
subpoena power) before granting summary judgment on laches grounds). Defendant has not
identified such specific allegations here.

Even if Defendant had identified some specific

allegations supporting its laches defense, whether a claim is barred by the doctrine of laches
generally should not be resolved on a motion to dismiss. Am. Commercial Barge Lines, LLC. v.
Reserve FTL, Inc., 2002 WL 31749171, at *1 (N.D. Ill. Dec. 3, 2002) (“Ordinarily a motion to
dismiss is not the appropriate vehicle to raise the defense of laches.” (citing Farries v.
Stanadyne/Chicago Div., 832 F.2d 374, 376 (7th Cir. 1987)). Defendant certainly has not
identified allegations establishing the elements of laches as a matter of law. The Court therefore
denies Defendant’s motion to dismiss Plaintiff’s claims under the doctrine of laches.
IV.

Conclusion
For the reasons set forth above, the motion [16] is granted in part and denied in part. The

case is set for further status on February 12, 2019 at 9:00 a.m.

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Date: February 1, 2019
_____________________________________
Robert M. Dow, Jr.
United States District Judge

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