Kimberly v. Horizon Financial Management

Filing 28

OPINION AND ORDER granting 12 MOTION to Dismiss Count II of Plaintiff's Complaint filed by Horizon Financial Management. All other counts REMAIN PENDING. Signed by Judge Rudy Lozano on 11/28/17. (kjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
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KIM KIMBERLY,
Plaintiff,
vs.
HORIZON FINANCIAL
MANAGEMENT,
Defendant.

NO. 2:16–CV-494

OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to
Dismiss Count II of Plaintiff’s Complaint, filed by the defendant,
Horizon Financial Management, on January 31, 2017.

(DE #12.)

the reasons set forth below, the motion is GRANTED.
the complaint is hereby

DISMISSED.

For

Count II of

All other counts

REMAIN

PENDING.

BACKGROUND
The plaintiff, Kim Kimberly (“Kimberly”), filed her complaint
against the defendant, Horizon Financial Management (“Horizon”),
on November 29, 2016.

(DE #1.)

In it, she brings claims pursuant

to 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

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Rights Act of 1866, et seq. (“Section 1981”).
alleges

religious

discrimination

under

Title

The complaint
VII

(Count

I),

retaliation based on religious discrimination under Title VII
(Count II), racial discrimination and retaliation under Section
1981 (Count III), retaliation under Section 1981 (Count IV), and
intentional infliction of mental and emotional distress (Count V).
On January 31, 2017, Horizon filed the instant partial motion to
dismiss, arguing that the retaliation claim in Count II falls
outside of the scope of her underlying administrative charge and
should be dismissed.
March 1, 2017.
(DE #22.)

(DE #13.)

(DE #19.)

Kimberly filed her response on

Horizon filed a reply on March 17, 2017.

The motion is ripe for adjudication.

DISCUSSION
Standard
In evaluating a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6),1 a court must accept all facts alleged in the

1

The failure to exhaust administrative remedies is generally considered an
affirmative defense. See Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir.
2000). 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 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

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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).

Extraneous Materials
The parties have submitted several documents for the Court to
consider when ruling on the motion to dismiss.
submitted

Kimberly’s

Charge

of

Discrimination

Horizon has

filed

with

the

Indiana Civil Rights Commission (“ICRC”) and the Equal Employment

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).

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Opportunity Commission (“EEOC”)2 (the “Charge” or the “Charge of
Discrimination”).

(DE #13-1.)

Kimberly has submitted her own

affidavit (“Kimberly Affidavit”), a letter she sent to the EEOC
dated September 24, 2016 (“Letter”), and the affidavit of her coworker, Tykeyia Harmon (“Harmon Affidavit”).
2.)

(DE #19-1 & DE #19-

Only the Charge of Discrimination is directly referenced,

albeit not by name, in the complaint.

(See DE #1, p. 2.)

When reviewing a motion to dismiss, a court normally considers
only 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).

A court

may also examine “documents attached to the complaint, documents
that are critical to the complaint and referred to in it, and
information that is subject to proper judicial notice.”

Geinosky

v. City of Chicago, 675 F.3d 743, 745, n. 1 (7th Cir. 2012)
(collecting cases); see also Adams v. City of Indianapolis, 742
F.3d 720, 729 (7th Cir. 2014) (court may 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”).

Such

documents may be considered by the court without converting the
motion to dismiss into a motion for summary judgment; however, if

2

“[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).

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a moving party relies on materials other than the narrow exceptions
noted above, the motion must be converted.

Burke v. 401 N. Wabash

Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013); Geinosky, 675
F.3d at 745, n. 1.
Horizon devotes a section of its brief to arguing why the
Court should consider the Charge of Discrimination.
3-4.)

(DE #13, pp.

Kimberly does not respond to Horizon’s argument, and,

indeed, it is without question that the Charge of Discrimination
may be properly considered for purposes of the instant motion
without converting it to one for summary judgment.
F.3d at 729.
additional

See Adams, 742

Kimberly, on the other hand, simply submits her

documents

without

analysis

as

to

why

they

should

similarly be considered. Horizon replies that, even if considered,
Kimberly’s extraneous documents do not show that the retaliation
claim was within the scope of the Charge.
While it is true that the Kimberly Affidavit, the Letter, and
the Harmon Affidavit are not referenced in the complaint, the
Seventh Circuit Court of Appeals has recognized that a plaintiff
responding to a motion to dismiss is granted more flexibility than
a movant in terms of relying on extraneous materials to support
her position.

See Geinosky, 675 F.3d at 745, n. 1 (to ward off

dismissal, a plaintiff “may submit materials outside the pleadings
to illustrate the facts the party expects to be able to prove”).
Furthermore, because consideration of these documents would not
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change the result, the Court will consider them but declines 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).

Facts
Kimberly, an African American female who practices the faith
of Jehovah’s Witness, was hired by Horizon in August of 2012 and
was promoted to Floor Supervisor approximately two years later by
Graciela Biancardi (“Biancardi”).

(DE #1, pp. 1-2.)

At the time

of the promotion, Biancardi was aware that Kimberly was a Jehovah’s
Witness.

(Id. at 2.)

In November of 2014, Biancardi allegedly

began to harass Kimberly on the basis of her religion in that
Biancardi asked her to decorate the company Christmas tree and
participate in the “ugly sweater” contest. (Id. at 2-3.) Kimberly
refused to participate and subsequently provided Biancardi with
information regarding the Jehovah’s Witness faith “in an effort to
educate her and to avoid future conflicts.”

(Id. at 3.)

In

September of 2015, while Kimberly was present, Biancardi asked
several employees if they were going to dress up for Halloween.
(Id.)

When Kimberly’s non-Jehovah’s Witness co-worker, Tykeyia

Harmon (“Harmon”), refused to dress up for Halloween, Biancardi
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told her not to be afraid of “Sister Kim.”

(Id.)

Biancardi would

allegedly “follow her and force herself on Kimberly during her
walks while on break and would force her to talk about religion.”
(Id.)
On

or

around

September

23,

2015,

Kimberly

received

a

performance evaluation, and Biancardi rated her performance lower
than previous evaluations.

(Id.)

Kimberly asked the human

resource director, Gina Brainard (“Brainard”), for an explanation
as to why the performance evaluation was lower, but Brainard did
not respond.
Horizon’s

(Id.)
director

On October 6, 2015, Kimberly complained to
of

operations,

Sandy

Szczerbowski

(“Szczerbowski”), about Biancardi’s treatment of her with regard
to her religious beliefs, and Biancardi terminated her the next
day for allegedly “calling another employee ‘ghetto’ and for
allegedly

making

religion.”
On

derogatory

remarks

about

other

employee’s

(Id. at 3-4.)

October

20,

2015,

Kimberly

Discrimination with the ICRC and EEOC.3

filed

her

Charge

The Charge, which has the

box for religious discrimination checked off, provides in full:
I am a Jehovah Witness.
I was hired on
8/27/2012.
In October 2014, Mgr. Grace
Biancardi promoted me to Floor Supervisor.
Because Grace enjoys celebrating holidays,
prior to accepting the promotion I reminded
her that I did not celebrate holidays. Grace

3

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.

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of

said it didn’t matter because we connected
with the work and that is what matters. My
performance and attendance was good.
In Nov 2014, as the holidays approached, Grace
asked me to help decorate the tree. I told
her that I didn’t celebrate. She told me that
I don’t have to participate, just help.
In Dec 2014, Grace wanted me to pick someone
to win the ‘Ugly Sweater’ contest. I didn’t
know what it meant. I was told it was related
to Christmas and refused to participate.
Grace wanted me to celebrate birthdays.
I
offered her information to [sic] so that she
could understand my religion and she accepted.
On 9/18/15, as the holidays approach [sic]
Grace began harassing me again. She made and
[sic] announcement that she had asked Sandy if
we could dress up for Halloween.
Team-Lead
Tykeyia Harmon did not want to dress up
because of her religion. Grace told her not
to be afraid of me.
On 9/23/15, I received my evaluation and my
ratings had dropped.
I asked why, but the
Company did not respond.
On 10/7/2015 I was terminated for calling an
employee ‘ghetto’ and for alleged derogatory
comments about people’s religions.
I believe that I have been discriminated
against due to my religion, in violation of
the of [sic] Title VII of the Civil Rights Act
of 1964, as amended.
(DE #13-1.)
filed.

The Charge was signed by Kimberly on the date it was

(Id.)

On August 29, 2016, after an investigation of the

Charge, the EEOC issued Kimberly a right to sue letter, which she
received on August 31, 2016.

(DE #1, p. 2.)

In response, Kimberly

sent a Letter to the EEOC on September 24, 2016, in which she
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provided additional details in support of her position and asked
that the case be reopened.

(DE #19-1, p. 4.)

No further action

was taken by the EEOC, and the complaint was filed with this Court
on November 29, 2016.

(DE #1.)

Horizon filed its motion to dismiss on January 31, 2017.
#12.)

(DE

In it, Horizon argues that the religious retaliation claim

in Count II must be dismissed because it is not within the scope
of the original Charge.

(DE #13.)

Kimberly responds by arguing

that she failed to specifically mention the retaliation claim in
the Charge because she received incorrect guidance from an EEOC
investigator, and she also argues that the Charge, as it was
written, is “reasonably related” to all of the allegations in her
complaint.

(DE #19.)

In affidavits attached to the motion to

dismiss, both Kimberly and Harmon attest that the EEOC investigator
who took their initial statements informed them that they could
only file a charge based on one factor and could not include
multiple issues.4

(DE #19-1, p. 1 & DE #19-2, p. 2.)

Kimberly

states that, nonetheless, she informed the investigator that she
“believed that [her] termination was due to [her] race and was in
retaliation for . . . complaining about religious and racial
discrimination,” and she “signed the [C]harge even though it didn’t
include religious based retaliation” because of the aforementioned

4

Kimberly and Harmon attest that they drove to Indianapolis together on
October 20, 2015, and spoke separately with the same investigator. (DE #191, p. 1 & DE #19-2, p. 1.)

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representations

of

the

investigator.

(DE

#19-1,

pp.

1-2.)

Kimberly also states that, after the Charge was dismissed, she
sent the Letter to the EEOC in an attempt to appeal the dismissal;
in it, she reiterated her belief that her termination was in direct
response

to

the

complaint

Biancardi’s behavior.

she

made

to

Szczerbowski

about

(Id. at 2, 4.)

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
-10‐ 

(7th Cir. 1976)).

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

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.
Even giving her the benefits to which she is entitled at this
stage, Kimberly’s retaliation claim does not clear the first
hurdle.

In general, claims of one form of discrimination cannot

automatically be substituted for another, even if they are based
on the same protected classification.
of

Transp.,

344

F.3d

720,

726

See Sitar v. Indiana Dept.

(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 also Cheek, 31 F.3d at 503 (“Ordinarily, a claim
of

sexual

harassment

cannot

be

reasonably

inferred

allegations in an EEOC charge of sexual discrimination.”).

from
It is

only reasonable to link those distinct claims when they are “so
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related and intertwined in time, people, and substance that to
ignore that relationship for a strict and technical application of
the rule would subvert the liberal remedial purposes of the Act.”
Sitar, 344 F.3d at 726 (quoting Kristufek v. Hussmann Foodservice
Co., 985 F.2d 364, 368 (7th Cir. 1993)).
Here, while Kimberly asserts that the allegations in the
Charge are directly related to the allegations in her complaint,
she provides no specifics under relevant Seventh Circuit case law
to back up her argument.5

The reality is that Kimberly’s Charge

of Discrimination is simple and uncomplicated: she alleges that
she was discriminated against based on her religion when Biancardi
repeatedly harassed her by attempting to involve her in holiday
activities despite being aware of Kimberly’s religious beliefs
prohibiting such involvement.

She further alleges that Biancardi

subsequently gave her a lower performance rating on her evaluation
because of those beliefs and eventually terminated her for calling
another employee ‘ghetto’ and for making derogatory comments about
others’

religions.

In

contrast,

Count

II

of

her

complaint

specifically alleges that, when Kimberly became “fed up,” she
complained to Szczerbowski about Biancardi’s religious harassment
and was terminated one day later because she had engaged in that

5

  The Court notes that, in her brief, Kimberly cites to Fifth Circuit and
First Circuit cases seeming to suggest that the two-pronged test outlined
above need not be analyzed. However, because there is a dearth of Seventh
Circuit case law on the issue, the Court declines to look to other circuits
for guidance. 

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protected activity.

The Charge does not mention Szczerbowski by

name, nor does it make even a passing reference to the fact that
Kimberly allegedly complained of Biancardi’s harassment to anyone
else within the company.
the

Charge

and

the

While Biancardi is implicated in both

complaint,

Szczerbowski

is

not;

more

importantly, the conduct relevant to the retaliation claim (i.e.
complaining

of

the

harassment

to

Szczerbowski

supervisor) is missing entirely from the Charge.

or

another

Kimberly could

have, and indeed should have, included some mention of such conduct
in her Charge of Discrimination if she intended the retaliation
claim to be pursued.
that

her

termination

Without it, it is not reasonable to infer
was

in

retaliation

for

complaining

to

Szczerbowski as is alleged in Count II, even though there is some
overlap with regard to Biancardi.

See 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”).
Kimberly argues that she should be given leeway because she
was unrepresented by an attorney at the time she filed her Charge
and was given incorrect information by the EEOC investigator.
However, this argument has been rejected by the Seventh Circuit
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Court of Appeals.

In Vela v. Village of Sauk Village, 218 F.3d

661 (7th Cir. 2000), the plaintiff argued that she had “orally
informed the intake officer of the facts of her claim of sexual
harassment, and that in directing her to cross out the reference
to harassment on her intake form and by omitting the claim of
harassment when he typed the charge, he misled her.”

Id. at 665.

The Seventh Circuit held that “an oral charge, if made as she
testified, not reflected in nor reasonably related to the charge
actually filed, is not a sufficient predicate for a claim of sexual
harassment in her civil action.”

Id.

Because Title VII requires

that charges be in writing under oath or affirmation, the court
found that oral statements to an agency investigator were not
adequate, as “notice of such a statement cannot be expected to
reach the employer.”
this case.

Id.

The same sound reasoning applies to

Additionally, while an unrepresented 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, a
plaintiff

is

obligated

to

provide

enough

information

in

the

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

Cheek, 31 F.3d at 500,

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

Language describing one type

of discriminatory conduct does not automatically lead to the
inclusion of additional discriminatory claims.
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Kimberly’s Charge

simply does not provide any mention of conduct relevant to a
retaliation claim.

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

Finally, Kimberly has submitted the Letter she sent to the
EEOC, nearly a year after her original Charge was filed, as further
proof that the retaliation claim is within the scope of the Charge.
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 above, the conduct described in the Letter with regard
to

Kimberly’s

reporting

of

Biancardi

to

Szczerbowski

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.

Thus, reading Kimberly’s Charge of Discrimination liberally,
it can only fairly be said that she complained to the ICRC/EEOC of
discriminatory harassment and discharge based on her religion.

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 courts.

See e.g. Rush v. McDonald's Corp., 966

F.2d 1104, 1110 (7th Cir. 1992).

As such, the retaliation claim

found in Count II must be dismissed.
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CONCLUSION
For the reasons set forth above, the motion to dismiss (DE
#12) is GRANTED.

Count II of the complaint is hereby DISMISSED.

All other counts REMAIN PENDING.

DATE: November 28, 2017

/s/RUDY LOZANO
United States District Court

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