Moss v. Continental Tire the Americas, LLC

Filing 30

ORDER: 27 Motion to Dismiss for Failure to State a Claim filed by Defendant Continental Tire the Americas, LLC is DENIED. Signed by Judge Stephen P. McGlynn on 3/10/2025. (trf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM MOSS,
Plaintiff,
v.

Case No. 24-CV-01477-SPM

CONTINENTAL TIRE THE
AMERICAS, LLC,
Defendant.

MEMORANDUM AND ORDER
McGLYNN, District Judge:
Before the Court is a Motion to Dismiss filed by Defendant Continental Tire
the Americas, LLC. (Doc. 27). Having been fully informed of the issues presented,
Continental’s Motion to Dismiss is DENIED.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff William Moss is a former employee of Continental, having worked at
their location in Jefferson County, Illinois from October 2021 to November 2022. (See
Doc. 1, ¶¶ 8, 21). Moss alleges that he was subjected to various forms of discrimination
and retaliation while employed at Continental. (See generally id.). His Complaint
alleges five causes of action: (1) race-based discrimination in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.; (2) gender/sexual
harassment/discrimination in violation of Title VII; (3) retaliation in violation of Title
VII; (4) creation of a hostile workplace in violation of Title VII; and (5) discrimination
in violation of 42 U.S.C. § 1981. (See id.).

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Moss received a Right to Sue Notice from the U.S. Equal Employment
Opportunity Commission (“EEOC”) on March 12, 2024. (Id., § 27). He filed his initial
Complaint on June 10, 2024. (Id.). Continental filed a Motion to Dismiss (Doc. 22) on
October 21, 2024; this Court granted the Motion to Dismiss and ordered Moss to file
an amended complaint on December 12, 2024 (Doc. 25). Moss filed his Amended
Complaint on January 2, 2025 (Doc. 26); in response, Continental filed another
Motion to Dismiss on January 16, 2025 (Doc. 27). Moss filed a Response on January
30, 2025 (Doc. 28), to which Continental replied (Doc. 29).
APPLICABLE LAW AND LEGAL STANDARDS
In analyzing a motion to dismiss for failure to state a claim filed pursuant to
Federal Rule of Civil Procedure 12(b)(6), this Court must determine whether or not
the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court of Appeals
for the Seventh Circuit has explained that “‘[p]lausibility’ is not a synonym for
‘probability’ in this context, but it asks for ‘more than a sheer possibility that a
defendant has acted unlawfully.’” Bible v. United Student Aid Funds, Inc., 799 F.3d
633, 639 (7th Cir. 2015) (quoting Olson v. Champaign County, 784 F.3d 1093, 1099
(7th Cir. 2015)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations . . . [the] [f]actual allegations must be
enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S.
at 555.

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District courts are required by the Court of Appeals for the Seventh Circuit to
review the facts and arguments in Rule 12(b)(6) motions “in the light most favorable
to the plaintiff, accepting as true all well-pleaded facts alleged and drawing all
possible inferences in her favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th
Cir. 2008). “The purpose of a motion to dismiss is to test the sufficiency of the
complaint, not to decide the merits.” Gibson v. City of Chicago, 910 F.2d 1510, 1520
(7th Cir. 1990).
ANALYSIS
As this Court has noted previously, when assessing Moss’s Complaint, the
Court accepts the factual allegations as true, liberally construing them in the
plaintiff’s favor. Turley v. Rednour, 729 F.3d 645 (7th Cir. 2013). Conclusory
statements and labels, however, are not enough. Id. The complaint must allege
enough facts to “state a claim to relief that is plausible on its face.” Alexander v.
United States, 721 F.3d 418, 422 (7th Cir. 2013) (quoting Twombly, 550 U.S. at 570).
That means “a plaintiff must do better than putting a few words on paper that, in the
hands of an imaginative reader, might suggest that something has happened to her
that might be redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403
(7th Cir. 2010). “[I]nstead, the plaintiff must give enough details about the subjectmatter of the case to present a story that holds together.” Id. at 404.
Once more, Continental argues that Moss’s “barebones and conclusory
Complaint” does not provide sufficient specificity to survive the Twombly and Iqbal
standard. (See Doc. 27). Continental argues that “Plaintiff’s Amended Complaint is
largely the same as his original Complaint, with the sole addition of four names and
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four alleged facts in paragraphs 10, 17, 24, and 25” and that, out of “Plaintiff’s 85paragraph Amended Complaint, only 18 paragraphs arguably contain factual
allegations.” (Id., p. 2 (citing Doc. 26, ¶¶ 7–19, 21–25)). Continental argues that, even
with the benefit of the Court’s guidance to Moss on what information he needs to add
to his pleadings (Doc. 27, p. 4 (citing Doc. 25, p. 5)), he has still failed to provide a
sufficient level of detail. (Id.). Regarding Moss’s Title VII discrimination claim,
Continental argues that Moss admits that he violated Continental’s lunch policy, that
he only provides conclusory statements that do not move the dial from “conceivable
to plausible” (Id., p. 5 (quoting Twombly, 550 U.S. at 570)). They argue that he has
still failed to allege any information on how exactly he was harassed because of his
gender. (Id., p. 8). Continental also argues that Moss’s “request that someone put
Continental’s lunch policy in writing is not a protected activity and cannot serve as
the basis for a Title VII retaliation claim” and that “even if Continental makes the
assumption that the ‘situation’ Plaintiff reported to Mr. Hawkins was that ‘Hobbs’
allegedly used the N-word, Plaintiff does not sufficiently plead a causal connection
between this alleged complaint and his discharge.” (Id., p. 9 (citing Fernandez v. Cent.
States Pension Fund, No. 23-CV-16313, 2024 WL 4213242, at *7 (N.D. Ill. Sept. 17,
2024))). They also argue that a single use of a racial epithet is not sufficient to allege
a hostile work environment. (Id., p. 11 (collecting cases)). Finally, Continental argues
that Moss has failed to allege that race was the “but for” cause of his termination to
meet the pleading requirements for his § 1981 race-based discrimination claim. (Id.,
pp. 12–13 (citing Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S.
327, 341 (2020))).
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Moss’s Response to the instant motion is nearly identical to his Response to
Continental’s first Motion to Dismiss. (Compare Doc. 28 with Doc. 23). Moss insists
that he need not plead every element of a prima facie case and that each of his claims
is sufficiently plead in line with Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002),
Twombly, and Iqbal. (Doc. 28).
Continental insists in its Reply that Moss has misstated Continental’s burden
by citing caselaw abrogated by Twombly and Iqbal; that Continental has never
argued that Moss has to plead all elements of a prima facie discrimination or
retaliation case; that Plaintiff’s legal conclusions are not enough to save his Amended
Complaint; that Moss cannot rely on discovery to provide him with the details he
seeks; that Moss misstates the § 1981 “but for” cause requirement; and, finally, that
Moss has not cured the deficiencies in his hostile work environment claim. (See Doc.
29).
Recall that the Seventh Circuit provided the following exemplar of the pleading
standard in Title VII cases:
A plaintiff who believes that she has been passed over for a promotion
because of her sex will be able to plead that she was employed by
Company X, that a promotion was offered, that she applied and was
qualified for it, and that the job went to someone else. That is an entirely
plausible scenario, whether or not it describes what “really” went on in
this plaintiff’s case.
Swanson v. Citibank, N.A., 614 F.3d 400, 404–05 (7th Cir. 2010). Thus, while Moss is
not required to prove his case at the pleading stage or to provide a detailed factual
summary, he “must give enough details about the subject-matter of the case to

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present a story that holds together. In other words, the court will ask itself could
these things have happened, not did they happen.” Id. at 404.
In its previous Order, the Court compared Kaminski v. Elite Staffing, Inc., 23
F.4th 774 (7th Cir. 2022) with Swanson, 614 F.3d at 400. (Doc. 25) In Kaminski, the
Seventh Circuit stated that even though “all agree Kaminski alleges she lost her job
because of her age, race, and national origin,” that “Rule 8 requires more,” even
considering the plaintiff’s pro se status. Id. at 777 (citing Doe v. Columbia Coll. Chi.,
933 F.3d 849, 855 (7th Cir. 2019); FED. R. CIV. P. 8). That being said, “[s]atisfying
Rule 8 and the accompanying standards articulated by the Supreme Court in
Twombly and Iqbal does not require a plaintiff to plead a prima facie case of
employment discrimination.” Id. (citing Graham v. Bd. of Educ., 8 F.4th 625, 627 (7th
Cir. 2021); Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). “Put more plainly, 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. She certainly does not need
to identify—as the district court seems to have suggested—a similarly situated
employee who managed to avoid termination.” Id. (citing Carlson v. CSX Transp.,
Inc., 758 F.3d 819, 830 (7th Cir. 2014)). In Swanson, the Seventh Circuit stated that
the following are “key questions”: (1) “what, exactly, does it take to give the opposing
party ‘fair notice’”; (2) “how much detail realistically can be given, and should be
given, about the nature and basis or grounds of the claim”; and (3) “in what way is
the pleader expected to signal the type of litigation that is being put before the court?”
614 F.3d at 404. Additionally, the addition of “other, largely extraneous facts in [a]
complaint does not undermine the soundness of [the] pleading.” Id. at 405.
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Considering all of the above, once again, the crux of the issue is whether Moss’s
Complaint is analogous to Kaminski or to Swanson. Compare Kaminski v. Elite
Staffing, Inc., 23 F.4th 774, 777 (7th Cir. 2022) (“The one detail Kaminski does allege
about her discharge is that Elite Staffing fired her pursuant to a company policy. But
her complaint says no more—nothing allowing us to see a link between any aspect of
that policy and her contention that the agency discharged her because she is Polish,
white, or over 50. Right to it, Kaminski’s complaint allows no inference that Elite
Staffing engaged in discrimination.”), with Swanson, 614 F.3d at 405 (“Swanson’s
complaint identifies the type of discrimination that she thinks occurs (racial), by
whom (Citibank, through Skertich, the manager, and the outside appraisers it used),
and when (in connection with her effort in early 2009 to obtain a home-equity loan).
This is all that she needed to put in the complaint.” (citations omitted)).
Yet again, this Court notes that it is obvious that Moss has notified Continental
that he is bringing suit for discrimination, retaliation, and for a hostile work
environment in accordance with Title VII and § 1988. (See Doc. 26). He has obtained
an authorization to sue letter from the EEOC. (See Doc. 1, ¶ 27). Moss has signaled
the type of litigation that is brought before this Court, which Continental clearly
understands as a sophisticated employer. (See, e.g., Doc. 22, p. 6). Recall that the
Seventh Circuit has expressly stated that “[e]mployers are familiar with
discrimination claims and know how to investigate them, so little information is
required to put the employer on notice of these claims.” Carlson at 827 (citing
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 782 (7th Cir. 2007)). The

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critical question, then, is whether or not Moss has provided a sufficient level of detail
regarding the events in question in his pleadings.
While Moss is not required to allege every element of a prima facie case, he
must provide sufficient detail in his Complaint. See Kaminski, 23 F.4th at 777 (citing
Carlson, 758 F.3d at 830); Swierkiewicz, 534 U.S. at 510). To review, Moss alleges
that Hobbs called him the N-word, which he reported to Matt Hawkins in human
resources (who allegedly did nothing); that another coworker (Alisha) asked him
whether he left the premises to buy lunch and then harassed him because of his sex;
that his complaints about harassment based on his sex went unanswered; that his
suspension for leaving for lunch was due to his race; and that he was ultimately
terminated because of his race, even though Defendant claims it was due to his
“attitude.” (See Doc. 26, ¶¶ 9–25).
A recently decided case, Thomas v. JBS Green Bay, Inc., 120 F.4th 1335 (7th
Cir. 2024), is instructive here. (See Doc. 28, p. 4 (citing Thomas); Doc. 29, p. 6 (citing
the same)). In Thomas, the Seventh Circuit stated that “Because racial
discrimination in employment is ‘a claim upon which relief can be granted’, [such a]
complaint [may] not be dismissed under Rule 12(b)(6). ‘I was turned down for a job
because of my race’ is all a complaint has to say.” 120 F.4th at 1337 (quoting Bennett
v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)). They held that “[a]ny doubt about this
was dispelled by Swierkiewicz” because the Supreme Court held that “these elements
set out an evidentiary standard, not a pleading rule.” Id. (citing 534 U.S. at 506). The
Seventh Circuit also stated that while they “appreciate that district judges may be
impatient with suits that do not seem promising, because the judges doubt that
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plaintiffs will be able to marshal enough evidence to get to trial,” that “the time to
demand evidence is the summary-judgment stage.” Id. at 1338.
Plaintiff cites Thomas approvingly (Doc. 28, p. 4) while Continental insists that
it is distinguishable because Thomas was pro se, see Thomas v. JBS Green Bay, Inc.,
No. 23-C-861, 2023 WL 8582272 (E.D. Wis. Dec. 11, 2023), and because Thomas
quoted a pre-Twombly/Iqbal case, Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir.
1998). See 120 F.4th at 1337; (Doc. 29, pp. 5, 6 (citing the same)). Thomas expressly
holds that the district court’s insistence “that Thomas’s complaint narrate facts
corresponding to elements” was “the exact requirement rejected by the Supreme
Court in Swierkiewicz. That something must be proved (if plaintiff is to win) does not
imply that it must be alleged in the complaint.” 120 F.4th at 1338 (citing 534 U.S. at
506). As an example, the Seventh Circuit cases that hold that one utterance of a racial
epithet is not enough to create a hostile work environment, see, e.g., Salvadori v.
Franklin Sch. Dist., 293 F.3d 989, 997 (7th Cir. 2002), were decided at summary
judgment, not at the Rule 12(b)(6) motion to dismiss stage.
Therefore, even though this Court (like the district court in Thomas) is
concerned about the lack of detail in Moss’s Amended Complaint (especially with
respect to his sex discrimination claim), Thomas is clear that “[a]ll the complaint need
do is state a grievance. Details and proofs come later.” 120 F.4th at 1338. Thus, if
Moss’s claims “are deficient, they can be pared off on summary judgment.” Id. at 1338.
Although Continental disagrees, the pleading standard for discrimination cases like
this one provides a low bar. Moss has met that bar (though not by much). This case
must move forward into discovery.
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CONCLUSION
For the reasons set forth above, Continental’s Motion to Dismiss (Doc. 22) is
DENIED. This case will be set for a scheduling conference via a separate order.
IT IS SO ORDERED.
DATED: March 10, 2025

s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge

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