Carpenter v. Olin Corporation et al
Filing
33
STRICKEN - ORDER GRANTING in part and DENYING in part 27 Motion to Dismiss filed by Defendants. If Plaintiff can reasonably do so, the Court GRANTS leave to amend his Complaint in accordance with this Order on or before April 9, 2024. (Amended Pleadings due by 4/9/2024.) Signed by Chief Judge Nancy J. Rosenstengel on 3/26/2024. (kss) Modified on 3/26/2024 (drb).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRED CARPENTER,
Plaintiff,
v.
Case No. 3:23-CV-00759-NJR
OLIN CORPORATION,
WINCHESTER AMMUNITION, INC.,
OLIN WINCHESTER, LLC, and
DAVE HASKINS,
Defendants.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Fred Carpenter, an African American male, began working for Defendant
Winchester Ammunition, Inc. (“Winchester Ammunition”) at its East Alton, Illinois, plant
in April 2012. (Doc. 24, p. 1). During the relevant period, Carpenter served as the Director
of Human Resources and Security and Medical at the East Alton ammunition
manufacturing plant. (Id.). In this position, Carpenter negotiated labor union contracts,
received and investigated employee discrimination complaints, oversaw security
procedures and activities, served on the Joint Explosives Committee, and met with
employees outside of corporate headquarters. (Id. at pp. 5, 6). Alongside Winchester
Ammunition, Defendants Olin Corporation and Olin Winchester, LLC (collectively “Olin”)
jointly operated the ammunition production business from East Alton, Illinois, and St.
Louis, Missouri, manufacturing and selling ammunition to private businesses and the
federal government. (Id. at p. 1).
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According to Carpenter, back in 2017, Mildrine Clark, an African American female
employee at Winchester Ammunition complained to him about racial and sex-based
discrimination in the company’s promotion process within the Primer Department. (Id. at
pp. 5-6). Upon investigation of this complaint, Carpenter discovered improprieties in the
hiring process for a new supervisor within the Primer Department and reported his
findings to several Winchester Ammunition executives: Steve Goldschmidt (Vice President
of Production), Ted Zimmerman (Vice President of Human Resources), and Mike Tinsley
(Director of Production). (Id. at p. 6). The complaining employee, Clark, filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging
discrimination from Olin. (Id.). Carpenter alleges that he participated in the attendant
EEOC investigation and hearing. (Id.).
In April 2019, Carpenter provided sworn testimony in Olin’s internal investigation
regarding a sex-based hostile work environment claim from a female labor representative,
Jennifer Emery, who reported to Carpenter. (Id. at p. 7). Emery’s complaint involved
Zimmerman, Winchester Ammunition’s Vice President of Human Resources. (Id.). A
month after the investigation, Olin terminated Zimmerman and his position became
vacant. (Id.). But a week later, Brett Flaugher (President of Winchester Ammunition) and
Val Peters (Vice President of Human Resources for Olin Corporation) purportedly told
Carpenter that Zimmerman’s former position had been eliminated. (Id.). Relying on this
information, Carpenter did not apply to the vacant Vice President of Human Resources
position at Winchester Ammunition. (Id. at p. 8). Carpenter asserts that he possessed the
necessary qualifications for the position, which paid greater salary and benefits than his
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director-level position. (Id. at p. 9). Flaugher and Peters blind-sided Carpenter, in August
2020, with the news that Olin hired Defendant Dave Haskins, who is Caucasian/Korean
and purportedly less qualified, to fill the position instead. (Id.).
Spanning from October 2019 to March 2021, Carpenter experienced harassment and
a hostile work environment at the hands of Flaugher and Peters. (Id. at p. 7). Specifically,
on October 11, 2019, Flaugher purportedly blamed Carpenter for Zimmerman’s discharge.
(Id.). During this conversation, Flaugher also labeled Carpenter as a renegade who needed
to be a team player. (Id. at p. 8). Flaugher warned Carpenter that if his conduct ever needed
addressing, he “would not like the results.” (Id.). Flaugher also informed Carpenter of his
new supervisor, Mike Bokerman in the Legal Department, describing Bokerman as a good
guy and cautioning Carpenter against giving him any trouble. (Id.).
A year later, in November 2020, Bokerman communicated to Carpenter that senior
management carried the perception that Carpenter required a close watch. (Id.). Bokerman
encouraged Carpenter that he intended to correct this negative perception. (Id.). Carpenter
spoke with Haskins in March 2021, who explained that Carpenter’s office was moving back
to corporate headquarters because of Flaugher’s perceptions that Carpenter was not
performing his job and needed more supervision. (Id. at pp. 8, 10).
Between July 2020 and March 2021, Carpenter alleges that Haskins, Chuck
Hirschberg (Director of Production at Winchester Ammunition), and Lindsay Turner
(Human Resource Manager at Winchester Ammunition) harassed him. (Id. at p. 9). More
specifically, Carpenter claims that Hirschberg, Turner, and another employee, Kim
Murphy, challenged Carpenter concerning his assistance to Corliss Mitchell, a female
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foreman in the Primer Island Department, with her racial and sex-based discrimination
complaints. 1 (Id.). When Carpenter attempted to investigate Mitchell’s claims, Olin and
Winchester Ammunition intervened and counseled Mitchell against complaining to
Carpenter about her supervisors’ discriminatory conduct. (Id. at p. 7). Instead, Mitchell
received instruction to keep her complaints within the Primer Island Department. (Id.).
According to Carpenter, Haskins relayed false information about Carpenter to other
employees, including that Carpenter spoke negatively about his human resources
colleagues. (Id. at p. 9). Haskins also purportedly surveyed other employes about whether
Carpenter had any sexual relationships with his employees. (Id. at p. 10). In March 2021,
Haskins suspended Carpenter with pay for 12 days under false allegations that Carpenter
falsified documents by paying employees who worked remotely during the COVID-19
pandemic. (Id.). The day after imposing the suspension, Haskins allegedly interviewed a
union committee chairman to investigate Carpenter’s practices of advising employees to
contact the EEOC or Illinois Department of Human Rights (“IDHR”) to report violations of
discrimination laws at Winchester Ammunition. (Id.). Apparently, among Carpenter’s
subordinates, Turner theorized that Carpenter helped Mitchell write her IDHR charge due
to her illiteracy, which she implied was related to Mitchell’s race. (Id.). Turner also
purportedly claimed that Carpenter threatened her after he suggested that subjecting
Mitchell to an employee interview, when Turner was dating another employee competing
Carpenter alleges that Mitchell first complained about discrimination to Carpenter in December 2021.
Other allegations seem to indicate that Carpenter experienced harassment for helping Mitchell from July
2020 to March 2021. As such, it is unclear whether this employee alerted Carpenter to the discrimination
before December 2021. (See Doc. 24, pp. 6, 9).
1
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for the same position who was not required to interview, would be inappropriate. (Id.).
Winchester Ammunition and Olin initiated an ethics complaint against Carpenter
because of his investigation into the potentially discriminatory hiring and promotion
practices concerning black and female employees. (Id.). In response, his coworkers
ostracized and ignored Carpenter. (Id. at pp. 10-11). According to Carpenter, the human
resources staff stopped consulting him and went over his head or to other departments,
started ignoring his direction and communications, and excluded him from meetings,
including those for the Joint Explosives Committee. (Id. at p. 11).
Fed up, on March 12, 2021, Carpenter filed charges of retaliation and discrimination
related to race and age, nine with the IDHR and one with the Office of Federal Contract
Compliance Programs (“OFCCP”), identifying all defendants as respondents. (Id. at p. 11;
Docs. 24-1, 24-2). After Carpenter filed these charges, the harassment and job interference
persisted. (Doc. 24, p. 11).
A couple months later, in May 2021, Hirschberg purportedly instructed one of
Carpenter’s subordinates to conduct surveillance on another employee without consulting
or advising Carpenter. (Id. at p. 6). Once Carpenter caught wind of this activity, he
reminded Hirschberg to consult him for any security activity as he maintained
responsibility for ensuring Olin’s compliance with all policies, laws, and regulations
regarding any of these activities. (Id.).
Carpenter states that Defendants avoided him and ignored his authority and
responsibility to investigate employee complaints, including discrimination. (Id. at p. 12).
After Mitchell complained to and sought assistance from Carpenter, her supervisors (Toni
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Whaley and Dee Epps) admonished her for contacting Carpenter. (Id.). They instructed
Mitchell to raise her concerns with them. (Id.). In March 2022, after receiving a complaint
of discrimination from another employee, Carpenter launched an investigation as a routine
part of his role. (Id.). But Haskins and Megan Rosenberg (Senior Director of Corporate
Ethics for Olin) commandeered the investigation. (Id.). Around this same time, Carpenter
led a union grievance meeting when another employee hurled abusive and obscene
language towards him. (Id.). Carpenter complained to Haskins to no avail. (Id. at p. 13).
Carpenter also alleges that Defendants reduced his staff for six months and diminished his
authority in leading union contract negotiations. (Id.). As a result of these alleged actions,
it became difficult for employees to report discrimination, and Carpenter felt that
employees lost confidence in him as an HR director. (Id.).
In May 2022, Carpenter filed another charge against Olin for race-based
discrimination and retaliation for engaging in protected activity. (Id.; Doc. 24-11). The next
month, Whaley, Hirschberg, and Epps investigated an improperly issued “hot work safety
permit,” that allowed another employee to work in the Primer Island Department, a
production area with additional safety protocols due to the highly explosive mix process.
(Doc. 24, pp. 13-14). Even though the investigation fell under the purview of the Joint
Explosive Committee and concerned security, Carpenter was excluded. (Id. at p. 14). The
employees responsible for the improperly issued permit, in violation of Olin’s policies,
were both white. (Id.). To Carpenter’s knowledge, neither employee received discipline for
this violation of Olin’s safety policies, whereas two black employees were previously
disciplined for less serious safety violations of wearing earbuds and bumping into another
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employee while carrying an explosive primer mix. (Id.). On June 15, 2022, Carpenter
emailed Haskins about the lack of discipline and expressed his opinion that there was an
unacceptable appearance that Olin only disciplined black employees but not white
employees. (Id. at pp. 14-15). The next day, Haskins terminated Carpenter. (Id. at p. 15).
Haskins claimed that Carpenter failed to perform his duties, provided false information in
a training session resulting in a lawsuit, and threatened a former supervisor. (Id.).
Carpenter read between the lines. (Id.). He suspects that Defendants fired him in retaliation
for his ongoing efforts to oppose racial discrimination and because of his race. (Id.).
Now, Carpenter sues Olin Corporation (Counts I, II, III, XII, and XIII), Winchester
Ammunition (Counts IV, V, VI, XIV, and XV), and Olin Winchester (Counts VII, VIII, IX,
XVI, and XVII) for discrimination and retaliation under the IHRA and Title VII, along with
retaliation under 42 U.S.C. § 1981. (Id. at pp. 15-22, 24-28). He also sues Dave Haskins
(Counts X and XI) for retaliation under the IHRA and 42 U.S.C. § 1981. (Id. at pp. 22-24). In
response to the complaint, Defendants filed a Motion to Dismiss under Federal Rule of
Civil Procedure 8(a)(2) and 12(b)(6). (Docs. 27; 28). Carpenter filed a timely response
(Doc. 31), to which Defendants filed a timely reply. (Doc. 32). For the reasons set forth
below, the motion is granted in part and denied in part.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), “a pleading must contain a short
and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009) (internal quotation marks omitted). The pleading
standard announced in Rule 8 “does not require ‘detailed factual allegations,’ but it
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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Id. at 678. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests whether
the complaint states a claim on which relief may be granted.” Richards v. Mitcheff, 696 F.3d
635, 637 (7th Cir. 2012). To survive a Rule 12(b)(6) motion, a plaintiff only needs to allege
enough facts to state a claim for relief that is plausible on its face. Twombly, 550 U.S. at
570. A plaintiff need not plead detailed factual allegations, but must provide “more than
labels and conclusions, and a formulaic recitation of the elements.” Id. at 555.
In deciding a motion to dismiss under Rule 12(b)(6), a court accepts as true all wellpleaded facts in the complaint and draws all reasonable inferences in the plaintiff’s favor.
Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 504 (7th Cir. 2013). Taken together, the
factual allegations contained within the complaint must “raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S. at 555 (internal citations omitted).
DISCUSSION
Carpenter anchors his claims for race-based discrimination and retaliation in three
statutes: Title VII, 42 U.S.C. § 1981, and the IHRA. Title VII prohibits employers from
engaging in various unlawful employment practices “because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Employers are also barred
from discriminating against an employee for making a charge, testifying, assisting, or
participating in any manner in an investigation, proceeding, or hearing. 42 U.S.C. § 2000e3(a); Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 382 (7th Cir. 2016). Applicable in
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the employment context, Section 1981 bars discrimination based on race or national origin
in “mak[ing] and enforc[ing] contracts.” 42 U.S.C. § 1981. Likewise, the IHRA forbids
employers from engaging in harassment or acting with respect to promotion, discipline, or
privileges or conditions of employment, “on the basis of unlawful discrimination[.]”
775 ILCS 5/2–102(A). Retaliation is also a cognizable claim under § 1981 and the IHRA.
Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 887 (7th Cir. 2016). As a
preliminary matter, each of these statutes generally operates under the same standard and
evidentiary rubric, so they need not be analyzed separately. See Hoosier v. Greenwood Hosp.
Mgmt. LLC, 32 F. Supp. 3d 966, 975 (N.D. Ill. 2014) (citing Humphries v. CBOCS West, Inc.,
474 F.3d 387, 403 (7th Cir. 2007)); see also Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 940
(7th Cir. 1996) (“Although section 1981 and Title VII differ in the types of discrimination
they proscribe, the methods of proof and elements of the case are essentially identical.”);
Zaderaka v. Illinois Hum. Rts. Comm’n, 545 N.E.2d 684, 687 (Ill. 1989) (employing “the
analytical framework…addressing claims brought under Title VII” to evaluate an
employment discrimination claim under the IHRA). As such, where the causes of action
overlap, the Court will separate its discussion of the claims by category (race-based
discrimination and retaliation) rather than by statute.
I.
Dismissal Under Rule 8(a)
According to Defendants, Carpenter’s complaint violates Federal Rule of Civil
Procedure 8 by failing to provide a short and plain statement of his claims showing that he
is entitled to relief. See FED. R. CIV. P. 8(a)(2). Defendants contend that Carpenter’s 28- page
complaint, consisting of 149 paragraphs, 17 enumerated counts, and 18 attached exhibits
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(adding 192 additional pages), wields a “kitchen sink” pleading approach, setting forth
every slight he potentially suffered. Defendants also lament that the complaint contains no
discernable framework or timeline and that it reads in a confusing, rambling manner.
Where a lengthy complaint, even with superfluous matter, provides the defendant
notice of the plaintiff’s claims, dismissal is inappropriate under Rule 8. Stanard v. Nygren,
658 F.3d 792, 797-98 (7th Cir. 2011). Plainly stated, “undue length alone ordinarily does not
justify the dismissal of an otherwise valid complaint.” Id. at 797. If undue length is paired
with some other insufficiency, like unintelligibility or incomprehensibility, a complaint
may be justifiably rejected pursuant to Rule 8. Id. at 797-98.
To say that Defendants’ argument is an overstatement is an understatement. The
Court finds it surprising that Defendants could devise 20 pages of developed argument in
their Motion to Dismiss against an entirely incomprehensible complaint. Clearly,
Defendants understand the types of claims Carpenter brings against them, and to some
extent, the relevant events giving rise to such claims. Moreover, Carpenter’s complaint
does not fall within the realm of unintelligibility and, as discussed below, his complaint
successfully withstands most of Defendants’ arguments for dismissal. The Court accepts
that the complaint is somewhat lengthy, especially considering the attached exhibits. But
those exhibits are provided to establish that Carpenter exhausted the relevant
administrative remedies necessary to pursue his claims in federal court. Demonstrating
compliance with this requirement surely cannot be used against him under Rule 8. Despite
Defendants’ contentions, the pleading requirements announced in Rule 8 impose no duty
on a plaintiff to plead facts chronologically or in a specific organizational manner. In short,
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dismissal of Carpenter’s complaint is not appropriate under Rule 8.
II.
Exhaustion for Claims Based on Termination
Defendants next argue that Carpenter failed to exhaust his claims specifically
related to his termination (as opposed to other adverse actions alleged). While Carpenter
filed many charges with multiple agencies, including OFCCP, IDHR, and EEOC,
Defendants contend that Carpenter failed to allege that he received, or to attach, a right-tosue notice for the charge associated with his termination, purportedly filed on June 27,
2022. Without a right-to-sue letter or an IDHR determination as to Carpenter’s terminationrelated claims, Defendants urge that he failed to exhaust his administrative remedies as to
such claims. As such, Defendants assert that, to the extent Carpenter’s claims reference his
termination, Counts I, II, IV, V, VII, VIII, and XII-XVII should be dismissed.
The IHRA permits a complainant to a commence civil action within 90 days of either
the issuance of the IDHR’s report (or notice of dismissal) or the conclusion of a one-year
period without the issuance of any report. 775 ILCS 5/7A-102(D), (G)(2). “Before bringing
a Title VII claim, a plaintiff must first exhaust his administrative remedies by filing charges
with the EEOC and receiving a right to sue letter.” Chaidez v. Ford Motor Company, 937 F.3d
998, 1004 (7th Cir. 2019). Of course, a plaintiff may only bring claims included in the
underlying EEOC charge or claims reasonably related to the allegations in the charge. Id.
Here, Carpenter filed several IDHR charges, however, none describe his
termination. (See Docs. 24-2 to 24-11). But Carpenter filed a charge of discrimination with
the EEOC that did reference his termination and the events leading up to it. (Doc. 24-12). It
appears that the EEOC Notice of Right-to-Sue attached to the complaint could correspond
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with the Charge of Discrimination filed with the EEOC on June 27, 2022, which included
claims related to Carpenter’s termination. (Docs. 24-12; 24-18). As such, the Title VII claims
related to termination are properly exhausted. Thus, to the extent that Counts XII-XVII
include termination-related claims, the administrative exhaustion requirement is satisfied.
As for the charges submitted to the IDHR, the Court agrees with Defendants. The attached
charges, the last of which was filed in May 2022, only relate to events prior to Carpenter’s
termination. (Docs. 24-2 to 24-11). Thus, the termination-related claims brought under the
IHRA were not exhausted before the IDHR, or at least such exhaustion is not made clear
through allegations in the complaint or the attached exhibits. In addition, no allegations
connect Carpenter’s EEOC charge filed in June 2022 to any IHRA claim or review by the
IDHR. (See Docs. 24-12 to 24-17).
Accordingly, the Court dismisses any termination-related claims under the IHRA
housed in Counts I, II, IV, V, VII, and VIII. To the extent possible, the Court grants
Carpenter leave to amend these claims with respect to exhaustion on or before April 8,
2024.
III.
Race-based Discrimination
To substantiate a claim of race discrimination, a plaintiff must show, either through
direct or circumstantial evidence, that an employer’s decision to take an adverse job action
was motivated by an impermissible purpose, such as race or national origin. Adams v. WalMart Stores, Inc., 324 F.3d 935, 938-39 (7th Cir. 2003). But simple claims of race or sex
discrimination are subject to a “minimal pleading standard.” Tamayo v. Blagojevich, 526 F.3d
1074, 1084 (7th Cir. 2008) (citing E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 781Page 12 of 21
82 (7th Cir. 2007)). The Seventh Circuit has reiterated that to adequately plead a claim of
race-based discrimination, “a plaintiff. . . may allege [such] claims quite generally.” Tamayo,
526 F.3d at 1081. As such, “[a] complaint need not allege all, or any, of the facts logically
entailed by the claim, and it certainly need not include evidence.” Id. (internal quotation
marks omitted). Put another way, to survive a motion to dismiss, “[a] plaintiff alleging race
discrimination need not allege each evidentiary element of a legal theory.” Freeman v.
Metropolitan Water Reclamation Dist. of Greater Chicago, 927 F.3d 961, 965 (7th Cir. 2019); see
also Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 777 (7th Cir. 2022) (“[A] plaintiff need not
allege facts aligning with her claim’s every element, which she will have to prove for her
claim to survive summary judgment.”). Specifically, “to prevent dismissal under Rule
12(b)(6), a complaint alleging [employment] discrimination need only aver that the
employer instituted a (specified) adverse employment action against the plaintiff on the
basis of [his protected status].” Tamayo, 526 F.3d at 1084. “[O]nce a plaintiff alleging illegal
discrimination has clarified that it is on the basis of [his] race, there is no further information
that is both easy to provide and of clear critical importance to the claim.” Concentra, 496
F.3d at 782.
Defendants argue that the majority of the conduct described in the complaint does
not reach the level of an adverse employment action, like the suspension without pay or
comments by coworkers. In Defendants’ view, the only possible adverse action alleged is
failure to promote. But Defendants urge that Carpenter failed to plausibly allege facts
supporting that this action was based on his race. Defendants assert that most incidents
provided by Carpenter involve his relationship with his superiors and coworkers, but the
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alleged comments and interactions cannot reasonably demonstrate harassing conduct, let
alone harassment based on race. Further, Defendants emphasize that Carpenter does not
adequately allege a hostile work environment. Regarding Carpenter’s claims of altered job
duties, Defendants argue that he likewise failed to connect any such conduct to his race.
In response, Carpenter points to his allegations that demonstrate a continual effort
by Defendants to undermine his authority, interfere with his job performance, portray him
negatively to his coworkers, and press him to stop making waves. Carpenter argues that
he expressly alleged that Defendants subjected him to this hostile work environment,
including his brief suspension, because of his race. In defense of his failure to promote
claim, Carpenter points to his allegations that Defendants misrepresented the availability
of the position and later offered the role to a less-qualified, non-black employee. Carpenter
also highlights that many of the orders cited by Defendants address cases on summary
judgment, not dismissal, where courts evaluate a plaintiff’s actual proof rather than the
sufficiency of a complaint.
In their motion, Defendants demand far too much specificity from Carpenter at the
pleading stage. In the employment discrimination context, the Seventh Circuit has
explicitly cautioned district courts against evaluating complaints in a manner that requires
a plaintiff to plead a prima facie case or align allegations with each element of the claim.
See Kaminski, 23 F.4th at 777. Here, Carpenter alleged discrimination through a hostile work
environment (a years-long campaign of harassment intended to ostracize Carpenter,
undermine his authority, interfere with his ability to successfully perform his job, exclude
him from participation in relevant meetings, spread false information about him,
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intimidate and humiliate him, etc.), failure to promote him to a Vice President position for
which he was qualified, and his ultimate termination. Carpenter connects these to his race
through explicit allegations in the complaint. Defendants push for the Court to require
stronger allegations connecting race to the alleged adverse actions, but it is difficult to
imagine such a heightened pleading requirement in practice. Under Defendants’ view,
only those subject to the extremely rare scenario where an employer overtly declares its
racist, sexist, ableist, or other impermissible motivations for taking adverse employment
action could sufficiently plead a discrimination claim. Of course, reality counsels that
racism, and other forms of bias, often present subtly, veiled in coded language or otherwise
disguised.
Defendants also argue that Carpenter’s chronology of events defeat his attempts to
causally connect adverse actions to purported discrimination. While the complaint does
not provide an air-tight chronology of events, the allegations generally describe conduct
sustained over a period of years with more specific dates related to some of the conduct.
But again, at the pleading stage, Carpenter is under no obligation to temporally connect
every allegation or to establish causation via timing. He must simply allege enough facts
to allow for a plausible inference that the adverse action could be connected to his protected
characteristics and raise a right to relief above the speculative level. Carpenter has done so.
His complaint contains allegations that describe how he was aggrieved (subject to
harassment and a hostile work environment in various ways and passed over for
promotion to a non-black, less qualified individual) and that this treatment was due to his
race.
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Naturally, the course of litigation will reveal whether Carpenter can prove the
necessary elements to substantiate his claims. But his allegations suffice to initiate
Carpenter’s lawsuit and survive dismissal at the pleading stage.
IV.
Retaliation
The Court’s analysis of Carpenter’s retaliation claims overlaps with its review of his
discrimination claims above. To sufficiently plead a retaliation claim, a plaintiff must allege
that he “engaged in statutorily protected activity and was subjected to adverse
employment action as a result of that activity, though [he] need not use those terms, of
course.” Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1029 (7th Cir. 2013). Protected
activity is some step in opposition to a form of discrimination prohibited by the relevant
statute. Ferrill v. Oak Creek-Franklin Joint School District, 860 F.3d 494, 501 (7th Cir. 2017). In
the retaliation context, “the challenged action must be one that a reasonable employee
would find to be materially adverse such that the employee would be dissuaded from
engaging in the protected activity.” Lewis v. City of Chicago, 496 F.3d 645, 655 (7th Cir. 2007)
(internal citation omitted).
Defendants argue that Carpenter’s allegations fail to demonstrate that he engaged
in protected activity, suffered adverse actions, and that both are causally connected or that
the perpetrators of the adverse actions knew of the protected activity. To the contrary,
Carpenter argues that he engaged in several protected activities. He also asserts that he
plausibly pleaded facts demonstrating that Defendants created a harassing, intimidating,
and hostile work environment because he opposed race and sex discrimination, which
were designed to dissuade him from engaging in such opposition.
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Again, Defendants attempt to hold Carpenter to a higher pleading standard than is
required to state an actionable claim for retaliation under Title VII, § 1981, or the IHRA.
Carpenter alleges many instances of engaging in protected activity such as participating in
an EEOC investigation for an employee’s discrimination charge, providing sworn
testimony
in
another
sex
discrimination
investigation,
investigating
ongoing
discriminatory hiring and promotion practices of black and female employees, voicing his
disagreement with the company’s practice of punishing black employees more harshly for
less severe safety violations than that of white employees to his supervisor, and filing
charges of discrimination and retaliation with the IDHR and OFCCP. Carpenter also
plausibly alleges that Defendants engaged in conduct that would dissuade a reasonable
employee from engaging in such protected activity, through the hostile work environment,
failure to promote, and ultimate termination.
Defendants challenge Carpenter’s specific allegations of hostile work environment
as commonplace management decisions, petty slights, and isolated incidents. As discussed
above relating to the discrimination claims, Carpenter has plead enough to demonstrate
hostile work environment and ongoing harassment. He alleged that Defendants repeatedly
undermined his authority, labeled him as a troublemaker and renegade, excluded him
from relevant meetings, stripped him of responsibilities, suspended him under false
pretenses, and attempted to tarnish his reputation among his coworkers, among other
allegations. Perhaps, when pressed to prove his claims at a later stage in litigation, the
evidence may show this conduct amounted to isolated incidents, mere inconveniences,
routine workplace decisions, or petty slights. Without the benefit of discovery, however,
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Carpenter is not required to plead every instance contributing to the hostile environment or
harassment to survive dismissal, nor does he have the appropriate opportunity at the
pleading stage to paint the entire picture in its proper context to substantiate his claims for
such an environment or conduct. Carpenter has alleged enough facts to put Defendants on
notice as to the relative protected activity and challenged retaliatory actions giving rise to
his claims, which is all that is required at this stage.
While Carpenter specifically alleges that he assisted employees with
discrimination claims as early as 2017, which happened years before the hostile work
environment supposedly began or the purported failure to promote occurred, this is not
fatal to his claims. He alleges many other instances of protected activity, including his
ongoing efforts to investigate and shed light on discrimination at the company, his
participation in a specific investigation in 2019, his IDHR and OFCCP charges, and an
email to his supervisor the day before his termination (for his Title VII claims).
Defendants argue that, to sustain a retaliation claim, Carpenter must assert facts showing
that he alerted Defendants to his opposition of unlawful employment practices separate
and apart from his normal job responsibilities as an HR director. To support this
argument, Defendants rely on persuasive authority from two other federal circuits, but
they acknowledge this rule has not been considered by the Seventh Circuit. Even if the
Court adopted the so-called “manager rule,” it is not possible, at the pleading stage, to
determine what actions fell within or outside his job responsibilities as an employee
responsible for personnel matters. The Court declines to dismiss Carpenter’s complaint
on this basis.
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Once more, Carpenter may fail to eventually prove his claims of retaliation, but
his complaint sufficiently states a claim to initiate this lawsuit and survive dismissal at
the pleading stage.
V.
IHRA Claims against Individual Defendant Haskins
In Count X, Carpenter brings a retaliation claim against individual defendant, Dave
Haskins, under the IHRA. Defendants point to Illinois appellate case law and several
federal district court cases to argue that the IHRA does not provide for individual liability
(when an alleged act falls within the scope of the individual’s employment). In response,
Carpenter agrees that state court interpretation of the IHRA is binding. He argues,
however, that with no Illinois Supreme Court decision on point, this Court can either
follow the Illinois appellate courts or rely on a convincing reason to predict that the Illinois
Supreme Court would likely disagree with the appellate courts’ interpretation. Such a
convincing reason exists, according to Carpenter, because the plain language of the IHRA
specifically provides for individual liability.
Multiple Illinois appellate courts have rejected the notion that the IHRA provides
for individual liability because, by its language, a “person” is prohibited from retaliating
against another. See Winston v. Meyers, 2022 IL App (1st) 220368-U, ¶ 23 (citing Watkins v.
Office of State Appellate Defender, 2012 IL App (1st) 111756, ¶ 37); Kozlowski v. Greenridge
Farm, Inc., 338 F. Supp. 3d 828, 835 (N.D. Ill. 2018) (”[T]he Appellate Court of Illinois has
held that in IHRA retaliation cases…the charge must be against the employer and not
against the official personally.”). In cases charging retaliation where a company official
acts in the name of the employer, the claims must be against the employer, not the official
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personally, unless the conduct was personally motivated or done without knowledge or
consent from the employer. Anderson v. Modern Metal Products, 711 N.E.2d 464, 471 (Ill.
App. Ct. 1999). Federal district courts in Illinois have endorsed this interpretation of the
IHRA. See Robertson v. Lofton, No. 13 C 3205, 2013 WL 5796780, at *3 (N.D. Ill. Oct. 25,
2013); see also Zayadeen v. Abbott Molecular, Inc., No. 10 C 4621, 2013 WL 361726, at *5 (N.D.
Ill. Jan. 30, 2013) (“[Section] 1981 provides for individual liability while Title VII and the
IHRA do not.”); Dalton v. Sweet Honey Tea, Inc., No. 23 CV 01793, 2023 WL 8281524, at *2
n. 2 (N.D. Ill. Nov. 30, 2023) (“[T]he IHRA generally only allows for individual liability
for agents of an employer that have themselves engaged in sexual harassment.”); Ross v.
Univ. of Chicago, No. 18-CV-4200, 2018 WL 6448464, at *10 (N.D. Ill. Dec. 10, 2018) (“[A]
supervisor cannot be held individually liable for claims asserted under…the IHRA.”); but
see Nieman v. Hale, 541 F. App’x 693, 695-98 (7th Cir. 2013) (non-precedential opinion
allowing claims for individual liability where an employment agent, rather than
employer’s own employee, committed the challenged action).
The Court sees no compelling reason to interpret the IHRA differently than the
Illinois appellate courts. Because the Complaint does not allege that retaliation by
Haskins occurred outside the scope of his employment, was personally motivated, or
done without his employer’s knowledge or consent, the Court agrees with Defendants
that the IHRA claim against Haskins (Count X) should be dismissed. Dismissal is without
prejudice, and to the extent possible, the Court grants Carpenter leave to amend his IHRA
claim against Haskins on or before April 8, 2024.
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CONCLUSION
For these reasons, the Motion to Dismiss (Doc. 27) is GRANTED in part and
DENIED in part. Any termination-related claims under the IHRA within Counts I, II, IV,
V, VII, and VIII are DISMISSED. Moreover, Count X (for retaliation under the IHRA) is
DISMISSED against Defendant Haskins. If Carpenter can reasonably do so, the Court
GRANTS leave to amend these claims on or before April 9, 2024. In all other respects,
Defendants’ Motion to Dismiss is DENIED.
IT IS SO ORDERED.
DATED: March 26, 2024
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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