Comer v. School City of Hammond Inc et al

Filing 24

OPINION AND ORDER: GRANTING IN PART AND DENYING IN PART. GRANTING 15 MOTION to Dismiss Amended Complaint 12 , as to Title VII claims arising from EEOC Charge Nos. 24B-2011-0040 and 24B-2013-0016; Plaintiff's claims under Section 1981 and Section 1983; and Plaintiff's claims against Diane Schweitzer; DENYING as to Title VII claims arising under EEOC Charge Nos. 470-2014-01277 and 470-2014-02282. Signed by Judge Rudy Lozano on 12/15/2015. (lhc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

KATRINA B. COMER,
Plaintiff,
v.
SCHOOL CITY OF HAMMOND
INC., DIANE SCHWEITZER,
in her Official Capacity,
Defendants.

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No. 2:14-CV-467

OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to
Dismiss Amended Complaint, filed on April 6, 2015. For the reasons
set forth below, this motion is DENIED in part and GRANTED in part.
The motion is GRANTED as to (1) Plaintiff’s Title VII claims arising
from

EEOC

Charge

Nos.

24B-2011-0040

and

24B-2013-0016;

(2)

Plaintiff’s claims under Section 1981 and Section 1983; and (3)
Plaintiff’s claims against Diane Schweitzer.

The motion is DENIED

as to Title VII claims arising under EEOC Charge Nos. 470-201401277 and 470-2014-02282.

BACKGROUND
Katrina B. Comer (“Comer”) was employed by the School City of
Hammond, Inc. (“Hammond School”) as a painter from May 2010 until
July 1, 2014.

During her time with Hammond School, Comer filed

several EEOC charges.
On March 22, 2011, Comer filed her first discrimination charge
against Hammond School (Charge No. 24B-2011-00040).

Comer alleged

that, because of the constant harassment and intimidation from her
white, male coworkers, Hammond School was liable to her for
discrimination based on her race and sex, in violation of Title
VII of the Civil Rights Act of 1964, as amended.

42 U.S.C. §

2000e-5.
Thereafter, in February of 2013, Comer filed Charge No. 24B2013-00016 against Hammond School.

Here, Comer alleged that Diane

Schweitzer, the Director of Buildings and Grounds, harassed her
and retaliated against her because Comer made an internal complaint
and filed the previous EEOC complaint.
Over a year later, on March 29, 2014, Comer filed Charge No.
470-2014-01277 against the Hammond School.

In this charge, Comer

alleged that she was retaliated against for filing the two previous
charges and discriminated against due to her race and sex by being
prevented from operating school-owned vehicles.
A few months later, on July 10, 2014, Comer filed Charge No.
470-2014-02282 against the Hammond School.
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Under this charge,

Comer alleged Defendants terminated her position in retaliation
for filing the three previous charges.

The EEOC issued its

Dismissal and Notice of Rights on September 30, 2014, for Charge
No. 470-2014-02282.
On

December

discrimination

29,

2014,

complaint

Comer

against

filed

a

pro

Defendants.

se
The

employment
complaint

alleged discrimination and retaliation under Title VII, 42 U.S.C.
section 1981, and 42 U.S.C section 1983.

Thereafter, on January

30, 2015, Defendants filed a motion to dismiss. In response, Comer
secured legal representation and filed an amended complaint.

The

amended complaint alleges multiple claims, as follows: 1) unlawful
discrimination and job elimination based on race and sex in
violation of Title VII; 2) retaliation in violation of Title VII;
3) a claim pursuant to 42 U.S.C. section 1983 for a violation of
the Fourteenth Amendment; and 4) a violation of 42 U.S.C. section
1981.
On April 6, 2015, the Defendants filed the instant motion to
dismiss the amended complaint.

The motion is now fully briefed

and ripe for adjudication.

DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) allows a complaint
to be dismissed if it fails to “state a claim upon which relief
can be granted.”

Allegations other than fraud and mistake are
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governed by the pleading standard outlined in Federal Rule of Civil
Procedure 8(a), which requires a “short and plain statement”
showing that the pleader is entitled to relief.
In order to survive a 12(b)(6) motion, “a complaint must
contain 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 Atlantic Corp. v. Twombly,
550 U.S. 544,570 (2007)).

All well-pleaded facts must be accepted

as true, and all reasonable inferences from those facts must be
resolved in the plaintiff’s favor. Pugh v. Tribune Co., 521 F. 3d
686, 692 (7th Cir. 2008).

However, a plaintiff may plead himself

out of court if the complaint includes allegations that show he
cannot possibly be entitled to the relief sought.

McCready v.

eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).
In her response to the instant motion to dismiss, Comer has
agreed to dismiss Diane Schweitzer in her official capacity.

She

has also agreed to withdraw all claims under 41 U.S.C. section
1981 and 42 U.S.C. section 1983.

Accordingly, the motion to

dismiss is GRANTED as to Comer’s claims against Diane Schweitzer
in her official capacity and all claims arising under 41 U.S.C.
section 1981 and 42 U.S.C. section 1983.
This leaves only Comer’s Title VII claims against Hammond
School to address.

Hammond School has attached numerous exhibits

to their motion to dismiss.

The documents include EEOC charges,
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right to sue letters, and the contents of EEOC files.

When

reviewing a motion to dismiss, the court generally considers only
the

factual

allegations

of

the

complaint

and

any

inferences that can be drawn from those allegations.

reasonable
See Gessert

v. United States, 703 F.3d 1028, 1033 (7th Cir. 2013).

The court

may, however, examine information from documents attached to a
motion to dismiss “if they are referred to in the plaintiff’s
complaint and are central to his claim.”
Indianapolis,
omitted).1

742

F.3d

720,

729

(7th

Cir.

Adams v. City of
2014)

(quotation

Such documents may be considered by the court in ruling

on the motion to dismiss without converting the motion into a
motion for summary judgment.

See Burke v. 401 N. Wabash Venture,

LLC, 714 F.3d 501, 505 (7th Cir. 2013).

However, this is a “narrow

exception” to the general rule that consideration of extraneous
material requires conversion to a summary judgment motion.

188

LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002).
When extraneous materials are presented, it is within the court’s
discretion either to exclude the materials and handle the case as
a straightforward motion to dismiss, or to consider the materials

1 Defendants argue that “documents that are critical to the

complaint” can be considered, citing Geinowski v. City of Chicago,
675 F.3d 743, 745 n.1 (7th Cir. 2012). Geinowski, however,
consistent with Adams, actual states that “documents that are
critical to the complaint and referred to in it” can be considered
in ruling on a motion to dismiss. Id. (emphasis added).

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and convert to summary judgment.
F.3d 345, 347 (7th Cir. 1998).

See Levenstein v. Salafsky, 164
In the instant case, this Court

declines to convert the motion to dismiss into a summary judgment
motion.

Accordingly, before addressing the Title VII claims, the

Court must determine which, if any, of these exhibits can be
properly considered in conjunction with the motion to dismiss.
The EEOC charges are referenced in the amended complaint and
are central to Comer’s claims.
considered by this Court.

Therefore, they can be properly

Likewise, one of the right to sue

letters (for Charge No. 470-2014-02282) is referenced in the
amended complaint and can be properly considered by the Court – in
fact, Comer attached it to the amended complaint.

The other

materials, however, are not necessary to resolving the instant
motion

and

will

be

disregarded.

See

Macias

v.

Bakersfield

Restaurant, 54 F.Supp.3d 922, 927 (N.D. Ill. 2014).
Comer’s amended complaint references each of the four EEOC
charges discussed above.

Hammond School claims that Comer’s Title

VII claims arising from two of the four charges are time barred:
Charge Nos. 24B-2011-0040 or 24B-293-0016.

In response, Comer

concedes that claims arising from these two charges are timebarred because she did not file any action within 90 days of her
receipt of the right to sue letters.

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Hammond School has not

challenged the timeliness of Comer’s claims arising from Charge
Nos. 470-2014-01277 No. 470-2014-02282.2
Hammond School, however, wants more than just a ruling that
Comer cannot proceed on claims stemming from these two earlier
EEOC charges – Hammond School has asked this Court to dismiss
paragraphs 17 through 22 of the amended complaint with prejudice.
The aforementioned paragraphs contain factual allegations, not
legal claims.

Whether those facts are relevant to the remaining

timely claims stemming from EEOC Charge Nos. 470-2014-01277 and
470-2014-02282 is a question more appropriately resolved at a later
stage of this litigation.

CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss
Plaintiff’s Amended Complaint, filed on January 30, 2015, is GRANTED
as to (1) Plaintiff’s Title VII claims arising from EEOC Charge Nos.
24B-2011-0040 and 24B-2013-0016; (2) Plaintiff’s claims under
Section 1981 and Section 1983; and (3) Plaintiff’s claims against
Diane Schweitzer.

The motion is DENIED as to Plaintiff’s Title

2

Hammond School’s reply brief claims that “Plaintiff does not dispute that
all of her previous EEOC claims are time barred with the exception of the
last one, No. 470-2014-02282.” (DE #23 at 2). Hammond School, however, only
argued that the first two EEOC claims were untimely. Comer cannot be
expected to respond to arguments that were not made. The burden of
demonstrating dismissal is appropriate rests with the movant, and here,
Hammond School has not offered any argument that claims arising from Charge
Nos. 470-2014-01277 and 470-2014-02282 are untimely.

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VII claims arising under EEOC Charge Nos. 470-2014-01277 and 4702014-02282.

DATED: December 15, 2015

/s/RUDY LOZANO, Judge
United States District Court

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