Johnson v. ArcelorMittal LLC

Filing 32

OPINION AND ORDER GRANTING 11 MOTION (Partial) to Dismiss by Defendants ArcelorMittal LLC, ArcelorMittal USA LLC, Arcelormittal Burns Harbor LLC. The claims brought pursuant to Title VII are DISMISSED. The claims brought pursuant to Section 1981 REMAIN PENDING. Signed by Judge Rudy Lozano on 9/19/17. (cer)

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

TREVIA JOHNSON,
Plaintiff,
vs.
ARCELORMITTAL LLC, et al.,
Defendants.

NO. 2:16–CV-215

OPINION AND ORDER
This matter is before the Court on Defendants’ Partial Motion
to Dismiss Complaint, filed by the defendants, Arcelormittal LLC,
Arcelormittal USA LLC, and Arcelormittal Burns Harbor LLC, on
September 2, 2016.

(DE #11.)

the motion is GRANTED.

For the reasons set forth below,

As set forth in the body of this order,

the claims brought pursuant to Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq., as amended are hereby
DISMISSED, while the claims brought pursuant to 42 U.S.C. § 1981
of the Civil Rights Act of 1866, et seq. REMAIN PENDING.

BACKGROUND
The

plaintiff,

Trevia

Johnson

(“Plaintiff”)

filed

her

Complaint against the defendants, Arcelormittal LLC, Arcelormittal
USA

LLC,

and

Arcelormittal

Burns

-1‐ 

Harbor

LLC

(collectively,

“Defendant”),1 on June 8, 2016.

(DE #1.)

In it, she alleges

claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq., as amended (“Title VII”) and 42 U.S.C. § 1981 of
the Civil Rights Act of 1866, et seq. (“Section 1981”).

On

September 2, 2016, Defendant filed the instant partial motion to
dismiss, arguing that the Title VII allegations in Plaintiff’s
Complaint

fall

outside

of

the

scope

of

her

underlying

administrative charge and should be dismissed for a failure to
exhaust administrative remedies.

(DE #12.)

Plaintiff filed her

response on September 16, 2016. (DE #14.) Defendant filed a reply
on September 23, 2016.

(DE #16.)

The motion is ripe for

adjudication.

DISCUSSION
Standard
In evaluating a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6),2 a court must accept all facts alleged in the

1

In her response brief, Plaintiff indicates that she named all three
corporate entities as defendants only to ensure that the correct party was
named. (DE #14, p. 1.) For the sake of clarity, this order will refer to
the three corporate entities collectively as one.

2

The failure to exhaust administrative remedies is generally considered an
affirmative defense. See Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir.
2000). In this case, Defendant has raised it as such in its Answer. (DE
#13, p. 31.) However, the proper vehicle for moving for dismissal based on
an affirmative defense is a motion for judgment on the pleadings via Federal
Rule of Civil Procedure 12(c) rather than 12(b)(6). Carr v. Tillery, 591
F.3d 909, 913 (7th Cir. 2010). That said, because the practical effect is
the same, and there is sufficient information before the Court to make a
determination on the issue pursuant to Rule 12(c) without changing the
analysis, the defense may be appropriately considered by the Court at this

-2‐ 

complaint as true and draw all reasonable inferences in the light
most favorable to the plaintiff.

See Parish v. City of Elkhart,

614 F.3d 677, 679 (7th Cir. 2010) (citation omitted).

While a

complaint is not required to contain detailed factual allegations,
the plaintiff must allege facts that state a claim to relief that
is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 677,

129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

“Threadbare recitals

of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”

Id. at 678.

“Factual allegations

must be enough to raise a right to relief above the speculative
level . . . on the assumption that all the allegations in the
complaint are true . . . .”

Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007) (internal citations omitted).
When reviewing a motion to dismiss, a court generally only
considers

the

factual

allegations

of

the

complaint

and

any

reasonable inferences that can be drawn from those allegations.
See Gessert v. United States, 703 F.3d 1028, 1033 (7th Cir. 2013).
The court may examine information from documents attached to a

stage. Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009); see also Brownmark
Films, LLC v. Comedy Partners, 682 F.3d 687, 690 n. 1 (7th Cir. 2012)
(“Though district courts have granted Rule 12(b)(6) motions on the basis of
affirmative defenses and this court has affirmed those dismissals, we have
repeatedly cautioned that the proper heading for such motions is Rule 12(c),
since an affirmative defense is external to the complaint.”). The Court
notes that “[a] motion under Rule 12(c) is subject to the same standard as a
motion to dismiss under Rule 12.” Craigs, Inc. v. Gen. Elec. Capital Corp.,
12 F.3d 686, 688 (7th Cir. 1993).

-3‐ 

motion to dismiss “if they are referred to in the plaintiff’s
complaint and are central to his claim.”
Indianapolis,
omitted).

742

F.3d

720,

729

(7th

Adams v. City of

Cir.

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
and convert to summary judgment.

See Levenstein v. Salafsky, 164

F.3d 345, 347 (7th Cir. 1998).

Extraneous Materials
Plaintiff has submitted several documents for the Court to
consider in ruling on the motion to dismiss: a letter sent from
Defendant

to

Probationary

Plaintiff

regarding

Reinstatement

the

alleged

Agreement

(DE

violation
#14-1),

of

a

the

administrative Complaint of Discrimination filed with the Indiana
Civil

Rights

Commission

(“ICRC”)

-4‐ 

and

the

Equal

Employment

Opportunity Commission (“EEOC)3 (the “Charge” or the “Charge of
Discrimination”)

(DE

#14-2),

notes

of

an

interview

between

Plaintiff and the ICRC dated November 14, 2014 (the “Complainant
Interview”) (DE #14-3), a letter from a former co-worker of
Plaintiff’s regarding her work conditions (the “Hunter Letter”)
(DE #14-4), the Notice of Finding by the ICRC (DE #14-5), and the
Dismissal and Notice of Rights letter from the EEOC (DE #14-6).
Only the Charge of Discrimination and the Dismissal and Notice of
Rights letter are mentioned in Plaintiff’s Complaint.
p. 2.)

(See DE #1,

In a footnote in her response brief, Plaintiff asks the

Court to consider the attached documents because they are “directly
referenced in her Complaint or describe incidents referenced in
her Complaint, and which are integral to a full and complete
understanding of her position.”
elaborate on this assertion.
with

the

exception

of

the

(DE #14, p. 2.)

She does not

In reply, Defendant argues that,
Charge

of

Discrimination

and

the

Dismissal and Notice of Rights letter, the documents are not
referenced in her Complaint nor are they central to her claims, so
they should not be considered by the Court.
It is undisputed that both the Charge of Discrimination and
the

Dismissal

and

Notice

of

Rights

letter

may

be

properly

3

“[T]he EEOC and the ICRC have a ‘Worksharing Agreement,’ under which the
EEOC and the ICRC have designated each other as agents for the purpose of
receiving charges.” M.C. Welding and Machining Co., Inc. v. Kotwa, 845
N.E.2d 188, 192, n. 3 (Ind. App. 2006).

-5‐ 

considered for purposes of the instant motion without converting
it to one for summary judgment. See Adams v. City of Indianapolis,
742 F.3d 720, 729 (7th Cir. 2014).

However, the Court agrees with

Defendant that the remaining documents do not fall within the
narrow exception articulated by the Seventh Circuit:
In effect, the incorporation-by-reference
doctrine provides that if a plaintiff mentions
a document in his complaint, the defendant may
then submit the document to the court without
converting defendant’s 12(b)(6) motion to a
motion for summary judgment.
The doctrine
prevents a plaintiff from evad[ing] dismissal
under Rule 12(b)(6) simply by failing to
attach to his complaint a document that
prove[s] his claim has no merit.
Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th
Cir.

2012)

(internal

(emphasis added).

quotation

marks

and

citation

omitted)

Plaintiff’s attempt to expand the exception to

include documents that simply “describe incidents referenced in
her Complaint” goes too far.

Nowhere in the Complaint are the

violation letter, the Complainant Interview, the Hunter Letter, or
the Notice of Finding by the ICRC even tangentially referenced.
The Complaint contains allegations describing conduct relevant to
her claims; while the aforementioned documents may be used as
evidence in support of those factual assertions, they are not
central to the claims presented.

Thus, the Court declines to

consider them when deciding this motion.

See Metz v. Joe Rizza

Imports, Inc., 700 F. Supp. 2d 983, 988 (N.D. Ill. 2010) (refusing

-6‐ 

to consider documents submitted in response to motion to dismiss
because they “are not central in determining whether Defendants
engaged in these acts” alleged in the complaint).

Furthermore,

because consideration of these documents would not change its
analysis,4 the Court declines to exercise its discretion to convert
the motion to dismiss into a motion for summary judgment.

See

Hecker v. Deere & Co., 556 F.3d 575, 583 (7th Cir. 2009) (affirming
district court’s refusal to convert a motion to dismiss into a
motion for summary judgment based on district court’s discretion).

4

For example, the Court notes that neither the Complainant Interview nor the
Notice of Finding by the ICRC describe anything other than conduct related to
alleged discriminatory discharge based on race and/or sex regarding a
violation of the last chance agreement. (See DE #14-3 & DE #14-5.) Of note,
the Complainant Interview describes, in detail, Plaintiff’s reasons for her
absenteeism which led to the violation of the last change agreement (court
hearings, doctor appointments, school enrollment, etc.), all of which she
claims were excused absences; it does not describe any harassment allegations
whatsoever, nor does it refer to any conduct by her co-workers other than to
suggest that Jeff Jellison, an individual not named in the Complaint, also
violated a last chance agreement but was not terminated. (DE #14-3.) While
the Complainant Interview does mention that previous grievances were filed,
it does so only in the context of Plaintiff’s challenge to the violation of
the last change agreement, not in reference to any retaliatory conduct.
(Id.) The same is true for the Notice of Finding by the ICRC, which defines
the singular issue as being whether Plaintiff was terminated because of her
race and/or sex for violating the last chance agreement yet similarlysituated white male employees were not. (DE #14-5.) Simply put, these
documents do not help further Plaintiff’s position. On the other hand, it is
true that the Hunter Letter describes racial and sexual harassment directed
at Plaintiff by her co-workers and supervisors. (DE #14-4.) However the
Court notes that Plaintiff’s response brief indicates that the Hunter Letter
was not submitted to the ICRC investigator until January of 2015, nearly five
months after the Charge of Discrimination was filed. (DE #14, p. 8; DE #142.) While it is possible that such evidence may sometimes be considered an
amendment to the original EEOC charge within the meaning of 29 C.F.R. §
1601.12(b), this in only true where the information clarifies or amplifies
the original allegations. Cheek v. W. and S. Life Ins. Co., 31 F.3d 497, 502
(7th Cir. 1994). As set forth in detail in the body of this order, the
conduct described in the Hunter Letter is not reasonably related to the
claims presented in the Charge of Discrimination, so it may not be used to
expand the scope of that Charge. See Id. at 502-503.

-7‐ 

Facts
Plaintiff, an African American female, was hired by Defendant
as a “utility person” in September of 2010 and was promoted to an
“operating technician” in approximately March of 2011.
2.)

(DE #1, p.

From March 2011 through 2014, Plaintiff alleges that she was

harassed by her white co-workers Donna Tapper (“Tapper”), Calvin
Hastings (“Hastings”), and others on account of her race.
3-7.)

(Id. at

Such harassment occurred on a daily or near daily basis and

included

verbal

racial

dangerous

work

conduct.

(Id.)

slurs,

conditions,

the

and

creation
offensive,

of

intentionally

racially-charged

For example, Plaintiff alleges that Tapper

routinely called her “black bitch,” “nigger,” and “monkey” while
Hastings and other co-workers purposefully threw away her lunch,
placed her personal belongings on top of a coke oven, and left
notes

“inscribed

with

racial

slurs

such

as

‘black

whore,’

pornographic photos of naked African-American women, and bananas
and discarded banana peels, in the area in which Plaintiff took
lunch breaks.”

(Id. at 5.)

Although Plaintiff complained of the

behavior to her Division Manager, Timothy Candiano (“Candiano”),
and

filed

grievances

pursuant

to

the

collective

bargaining

agreement (“CBA”) with USW Local 6787 (the “Union”), Defendant
took no responsive action.

(Id. at 2-5.)

-8‐ 

On multiple occasions between March of 2011 and April of 2014,
Hastings and several of Plaintiff’s other white male co-workers
regularly attempted to subject Plaintiff to disciplinary action by
signing her name on an overtime request form without her permission
or knowledge.

When Plaintiff informed Candiano or his assistant,

Mike Zmuda, that she had not been the one who added her name to
the form, they insisted that she was obligated to work the shift
anyway.

(Id. at 4, 7-8.)

Plaintiff further alleges that she was subjected to unwelcome
sexual advances, sexual comments, and other physical and verbal
conduct of a sexual nature from co-worker Eddie Tyler (“Tyler”),
an African American male.

(Id. at 2, 9.)

Specifically, Plaintiff

alleges that from March 2011 through April 2014, Tyler frequently
waited for her outside of the women’s bathroom or near her locker
in order to watch or surprise her, made offensive sexual statements
to her such as “damn, you have a fat ass” and “your mouth is great
enough for my dick to fit in,” and exposed her to unwanted physical
touching of her buttocks, breasts, and mouth. (Id. at 9.) Despite
the fact that Plaintiff filed multiple grievances about Tyler’s
behavior, Defendant failed to take any responsive action.

(Id. at

10.)
Finally, while Plaintiff was prohibited from complaining
about

the

workplace

incidents

described

above

directly

to

Defendant, she submitted the grievances to the Union pursuant to
-9‐ 

the

CBA’s

terms,

Defendant.

and

those

(Id. at 12.)

grievances

were

communicated

to

Plaintiff alleges that Defendant was

fully aware of the behavior of Tapper, Hastings, and Tyler due to
her grievances, yet Candiano referred to them as “bullshit games,”
and no responsive action was taken against any of the offending
co-workers.

(Id. at 12-13.)

Instead, Plaintiff herself was

terminated on approximately June 6, 2014.5
In

August

of

2014,

Plaintiff

Discrimination with the ICRC and EEOC.6

(Id. at 13.)

filed

her

Charge

of

The Charge, which has the

boxes for race and gender discrimination checked off, provides in
full:
On June 22, 2014, I was terminated. I believe
I have been discriminated against based on my
race, African American and my sex, female
because on the above mentioned date I was
terminated due to violating the last chance
agreement. I am the only female employee on
my crew.
Caucasian male employees have
violated a last chance agreement and they were
not terminated.
I am seeking all available
remedies for a violation of Title VII of the
Civil Rights Act of 1964, as amended and the
Indiana Civil Rights Law.
(DE #14-2.)

The Charge indicates that the intake was originally

received by telephone on August 12, 2014, and it was later signed

5

The complaint lists the termination date as approximately June 6, 2014;
however, a number of other documents list the termination date as June 22,
2014 (see e.g. DE #14-2.)

6
As noted above, the Worksharing Agreement between the ICRC and the EEOC
provides that the same Charge applies to both agencies even if it is only
filed with one.

-10‐ 

and affirmed by Plaintiff on August 15, 2014.

(Id.)

The EEOC

Dismissal and Notice of Rights letter dated March 14, 2015, adopted
the findings of the ICRC and closed its file accordingly.
#14-6.)

(DE

The Complaint before this Court was filed by Plaintiff’s

attorney on June 8, 2016.

(DE #1.)

Failure to Exhaust
A plaintiff must file a charge with the EEOC prior to filing
suit under Title VII.

Chambers v. Am. Trans Air, Inc., 17 F.3d

998, 1003 (7th Cir. 1994).

In order to “prevent circumvention of

the EEOC’s investigatory and conciliatory role, only those claims
that are fairly encompassed within an EEOC charge can be the
subject of a resulting lawsuit.”

Id.

In general, “[a] plaintiff

may pursue a claim not explicitly included in an EEOC complaint
only if her allegations fall within the scope of the charges
contained in the EEOC complaint.”

Cheek v. Peabody Coal Co., 97

F.3d 200, 202 (7th Cir. 1996) (citation omitted).

The Seventh

Circuit has articulated a two part test to determine whether such
claims may proceed:

(1) the claim must be like or reasonably

related to the EEOC charges; and (2) the claim could reasonably
develop from the EEOC’s investigation of the original charges.
Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995) (citing
Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167
(7th Cir. 1976)).

As to the first prong, “[c]laims are reasonably
-11‐ 

related if there is a factual relationship between them.

At a

minimum, this means that the EEOC charge and the complaint must
describe the same conduct and implicate the same individuals.”
Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005) (internal
citation omitted); see also Cheek v. W. and S. Life Ins. Co., 31
F.3d 497, 501 (7th Cir. 1994).

As to the second prong, the Seventh

Circuit has recognized the difficulty of applying it because
speculation is often required; however, courts need not analyze
the second prong when the first part of the test is not satisfied.
Cheek, 31 F.3d at 500.
Defendant argues that because Plaintiff’s Complaint contains
different Title VII allegations than those submitted in the Charge
of Discrimination they should be dismissed.

Plaintiff, on the

other hand, argues that the Complaint states claims that are like
or reasonably related to the allegations in the Charge because
those claims implicate a similar time frame, the same Defendant,
and similar substance to her Charge; she also argues that the
claims fall within the scope of the Charge because they could have
been and actually were discovered during the course of the ICRC
investigation.
As an initial matter, the Court notes that, in her brief,
Plaintiff cites to several cases outside of this circuit seeming
to suggest that the two-pronged test outlined above is met as long
as claims not included the original charge were actually discovered
-12‐ 

in the course of an agency investigation.7

While that may be true

in other circuits, in the Seventh Circuit it is clear that both
prongs must be met in order to be properly considered.

See

Sommerfield v. City of Chicago, 863 F.3d 645, 648 (7th Cir. 2017)
(first the court must ask if the claims are like or reasonably
related to the EEOC charges, and, if they are, then the court asks
whether those claims reasonably could have developed from the
investigation); see also Cheek, 31 F.3d at 500 (finding that the
court need not speculate as to the second part of the test because
the first prong was not satisfied).

Any arguments to the contrary

are unpersuasive.
Plaintiff’s claims do not clear the first hurdle.

As noted

above, at a minimum, a charge and a complaint must describe the
same conduct and implicate the same individuals.
F.3d at 1046.

See Ezell, 400

Plaintiff asserts that they do; however, other than

a broad statement that the Charge and Complaint implicate the same
three year period – March 2011 through July 2014 – and “reference
action taken by Defendant up to and including her July 2014
termination” in the form of “differential treatment” on the basis
of race and gender, she provides no specifics to back up her
argument. The reality is that Plaintiff’s Charge of Discrimination
is simple and uncomplicated: she alleges that she was discriminated

7

See DE #14, pp. 5-6 (citing E.E.O.C. v. Farmer Bros., 31 F.3d 891, 899 (9th
Cir. 1994); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.
1970); E.E.O.C. v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976)).

-13‐ 

against because of her race and sex when she was terminated on
June 22, 2014, for violating a last change agreement, while male
Caucasian employees who also violated such agreements were not
terminated.
or

title,

The Charge does not reference any individuals by name
nor

does

it

describe

discriminatory discharge itself.
section

of

the

Charge

asking

any

conduct

other

than

the

As for the timeframe, in the
for

the

date

of

the

alleged

discriminatory act, Plaintiff states “June 22, 2014” and reaffirms
that date in the statement of allegations section; the Charge does
not indicate that a lengthier period of time was at issue.
In contrast, Counts I and III of the Complaint contain
detailed and specific claims of racial and sexual harassment.
Count I includes allegations that Tapper, Hastings, and other
unnamed coworkers harassed her on a near daily basis from March
2011 through 2014 by using crude and offensive racial slurs, by
purposefully creating unsafe work conditions, by breaking into her
personal belongings, and by attempting to subject Plaintiff to
disciplinary action.
Plaintiff

to

unwanted

Count III alleges that Tyler subjected
sexual

advances,

sexual

comments,

harassing physical and verbal conduct of a sexual nature.

and

Despite

filing grievances pursuant to the CBA and speaking directly with
Candiano, no corrective action was ever taken related to her racial
or sexual harassment complaints.

Plaintiff claims that Defendant

failed to maintain a harassment free work environment because it
-14‐ 

did not provide adequate training and discipline to its employees.
Similarly,

Count

V

alleges

that

Plaintiff

was

terminated

in

retaliation for her earlier complaints and grievances that were
filed in response to the aforementioned harassing conduct.

Count

II and Count IV, on the other hand, allege racial and sexual
discrimination;

specifically,

Plaintiff

claims

that

she

was

obligated by Candiano or his assistant to work overtime shifts
when her co-workers signed her name to the schedule without her
knowledge and that she was subjected to pervasive discrimination
on the basis of her race (in the form of coarse, crude, and
offensive language and inferior treatment by various co-workers)
and her sex (in the form of degrading and insulting comments and
other physical conduct by Tyler).
Even giving Plaintiff the benefits to which she is entitled
at this stage, none of these claims can be said to be like or
reasonably related to the original Charge.

Typically, claims of

sexual/racial harassment and retaliation cannot be inferred from
a charge of sexual/racial discrimination simply because all of the
theories relate to discrimination in some form.

See Sitar v.

Indiana Dept. of Transp., 344 F.3d 720, 726 (7th Cir. 2003)
(“Normally, retaliation, sex discrimination, and sexual harassment
charges are not ‘like or reasonably related’ to one another to
permit an EEOC charge of one type of wrong to support a subsequent
civil

suit

for

another.”);

see
-15‐ 

also

Cheek,

31

F.3d

at

503

(“Ordinarily, a claim of sexual harassment cannot be reasonably
inferred

from

allegations

discrimination.”).

in

an

EEOC

charge

of

sexual

It is only reasonable to link those distinct

claims when they are “so related and intertwined in time, people,
and substance that to ignore that relationship for a strict and
technical

application

of

the

remedial purposes of the Act.”

rule

would

subvert

the

liberal

Sitar, 344 F.3d at 726 (quoting

Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 368 (7th Cir.
1993)). Here, Plaintiff’s Charge does not even hint at any conduct
involving racial or sexual harassment whatsoever.

It does not

describe any harassing verbal or physical actions taken by coworkers, nor does it refer to a lack of corrective action by a
supervisor related to those actions.

It does not identify any

time period other than the date of her termination, a date which
is referenced with specificity in the Charge twice.

Finally, the

Charge does not implicate the same individuals as those described
in the Complaint; in fact, as noted above, the Charge does not
name any individual employees at all.8

The harassing behavior of

Plaintiff’s co-workers and lack of action taken by her supervisor
as described in the Complaint were certainly not subtle.

In fact,

8

While it has not been used as a basis for deciding this motion, the Court
notes that the Complainant Interview identifies Jasper Seal and Ken Kasner as
Plaintiff’s supervisors (neither of whom are mentioned in the Complaint), yet
it does not refer to Candiano. (DE #14-3.) Likewise, the Complainant
Interview references co-worker Jeff Jellison as being an employee who was
treated more favorably when he was not terminated after violating a last
chance agreement, but it does not mention Tapper, Tyler, or Hastings.

-16‐ 

they were egregious. Plaintiff easily could have, and should have,
included at least some kind of passing mention of such conduct in
her Charge of Discrimination if she intended those claims to be
pursued. It follows then that the same is true for her retaliation
claims – because Plaintiff’s Charge fails to even tangentially
reference

any

previous

grievances

made

to

her

union

and/or

supervisors regarding the aforementioned harassing behavior of her
co-workers,

it

is

not

reasonable

to

infer

from

it

that

her

termination was in retaliation for those grievances.
While Count II and Count IV of the Complaint do allege racial
and sexual discrimination, the nature of those allegations is very
different than the single discrimination claim described in the
Charge.

In the Charge, Plaintiff faults unnamed company officials

for unlawfully terminating her employment on June 22, 2014, for
violating a last chance agreement when Caucasian males who did the
same were not terminated.

In the Complaint, she alleges that she

was obligated to work additional overtime shifts that she had not
sought between March of 2011 and April of 2014 and that she was
subjected to racial and sexual discrimination via the actions and
words of fellow employees during that timeframe. Again, when there
is no mutuality of actors or conduct, it is not proper to infer
additional forms of discrimination simply because some form of
discrimination was alleged.

See Cheek, 31 F.3d at 501 (“Because

an employer may discriminate on the basis of sex in numerous ways,
-17‐ 

a claim of sex discrimination in an EEOC charge and a claim of sex
discrimination in a complaint are not alike or reasonably related
just because they both assert forms of sex discrimination.”); see
also Miller v. Am. Airlines, Inc., 525 F.3d 520, 526 (7th Cir.
2008) (citing Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th
Cir. 2002) with approval and noting that, even when the parties
involved are the same, a plaintiff cannot use conclusory statements
of

discrimination

to

open

the

door

to

related

theories

of

discrimination based on “whatever facts or legal theory she may
later decide upon”).
Plaintiff argues that she deserves some leeway because she
lacked

attorney

proceedings.9

representation

during

the

administrative

It is true that, because many EEOC charges are

drafted without the assistance of an attorney, a plaintiff may be
granted leniency and does not need to include each and every fact
that forms the basis of her complaint in her underlying charge.
See Cheek, 31 F.3d at 500 (citing Taylor v. Western & Southern
Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir. 1992)).
plaintiff

is

obligated

to

provide

enough

However, a

information

in

the

9

Plaintiff also argues in her brief that she deserves leniency because the
investigator ignored several of her allegations and because her personal life
was in upheaval at the time the Charge was filed. However, she has not
presented any evidence (i.e. an affidavit based on personal knowledge or
additional documents related to the initial investigation by the ICRC) that
would be proper to consider at this stage. See footnote 4, supra.
Furthermore, the Court notes that the Charge of Discrimination was signed by
Plaintiff several days after the telephone intake was completed, and no
additions or changes were made by Plaintiff. (DE #14-2.)

-18‐ 

original charge for allegations in a later filed complaint to be
construed as reasonably related to them.

Cheek, 31 F.3d at 502 (a

plaintiff must describe the alleged discriminatory conduct “with
some degree of specificity”).

Broad language describing one type

of discriminatory conduct does not automatically lead to the
inclusion of additional discriminatory claims; there must be a
foundation

upon

which

to

base

rational

inferences.

See

Sommerfield, 863 F.3d at 648–49 (charge using general phrasing of
“hostile work environment” and describing offensive remarks by one
supervisor

was

not

sufficient

to

encompass

claims

about

retaliatory staffing decisions by a different group of “illdefined” supervisors because the charge did “not provide enough
information about these earlier slights to permit that kind of
linkage”).

As

described

above,

Plaintiff’s

Charge,

which

delineates a claim of discriminatory discharge, simply does not
provide enough details to support the much broader range of claims
described in the Complaint.

See Sitar, 344 F.3d at 726-27.

In a similar vein, Plaintiff cites several cases for the
proposition that the Seventh Circuit standard for determining
whether claims exceed the scope of an EEOC charge is “liberal.”10
While it is true that charges are to be viewed with liberality,
the standard is certainly not unbounded.

10

See DE #14, p. 10.

-19‐ 

In each of the cases

cited by Plaintiff, the court found that the allegations made in
the administrative charge and the complaint involved, at a minimum,
the same individuals and same conduct so that they were reasonably
related.

See e.g. Miller, 525 F.3d at 525 (citing Cheek, 97 F.3d

at 202-03); Huri v. Office of the Chief Judge of the Cir. Ct. of
Cook Cnty., 804 F.3d 826, 831–32 (7th Cir. 2015).

That cannot be

said here.
Finally, Plaintiff attempts to distinguish her case from
cases such as Conner v. Ill. Dep’t of Natural Res., 413 F.3d 675,
680

(7th

Cir.

2005).

In

Conner,

the

court

found

that

the

plaintiff’s claim of non-promotion was necessarily outside of the
scope

of

her

EEOC

charges

because

the

alleged

non-promotion

occurred after the charge was filed, and it would have been
impossible for the EEOC to undertake the required preliminary
investigation.

Id.

Plaintiff argues that her claims fall within

the scope of the Charge because the Charge was filed after all of
the alleged conduct occurred, so the ICRC should have been able to
investigate each discriminatory and harassing act.
Court finds this argument unconvincing.

However, the

The Seventh Circuit has

continually reaffirmed that the real issue is whether the new
claims involve the same conduct and people as the original EEOC
charge; this is true even when all of the complained of conduct
occurred prior to the filing of the charge.
720, 726-27 (7th Cir. 2003).

In determining that a plaintiff’s
-20‐ 

See Sitar, 344 F.3d

earlier

sex

procedurally

discrimination
barred

because

and

sexual

her

EEOC

harassment
charge

claims

were

referenced

only

retaliation, the Seventh Circuit found that:
[u]nfortunately for Sitar, this is not the
unusual case in which a single retaliation
charge will support a broader range of claims.
Sitar’s
sex
discrimination
and
sexual
harassment claims involve a separate set of
incidents, conduct, and people, spanning over
a period of time prior to the filing of her
complaint and more than three months prior to
her termination.
While these earlier facts
may provide context and support for Sitar’s
later
EEOC
charge
alleging
that
her
termination
was
retaliatory,
the
discrimination and harassment charges are not
so closely related that we can justify
departing
from
the
general
rule
of
distinguishing among different forms of
discrimination. The fact that both INDOT and
the EEOC may have been aware of her earlier,
internal complaint about sex discrimination
does not change the fact that she chose not to
include this issue in her later EEOC charge.
Id. (internal citations omitted).

As described in detail above,

none of Plaintiff’s current claims can be said to be like or
reasonably related to the original Charge.
Reading Plaintiff’s Charge of Discrimination liberally, it
can only fairly be said that she complained to the ICRC/EEOC of
discriminatory discharge based on race and sex.

To determine

otherwise would thwart the goal of giving an employer fair warning
of its employees’ conduct at issue and providing the employer with
an opportunity to reconcile the situation without resorting to the

-21‐ 

courts.

See e.g. Rush v. McDonald's Corp., 966 F.2d 1104, 1110

(7th Cir. 1992).

Thus, her Title VII claims must be dismissed.

CONCLUSION
For the reasons set forth above, Defendants’ Partial Motion
to Dismiss Complaint (DE #11) is GRANTED.

The claims brought

pursuant to Title VII are hereby DISMISSED, while the claims
brought pursuant Section 1981 REMAIN PENDING.

DATE: September 19, 2017

/s/RUDY LOZANO
United States District Court

-22‐