Szany v. Garcia et al
Filing
301
OPINION AND ORDER GRANTING 268 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Hammond City of. Count VII of the Sixth Amended Complaint is DISMISSED with prejudice. Signed by Judge Philip P Simon on 9/30/19. (ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DENISE SZANY,
Plaintiff,
v.
CITY OF HAMMOND, and
JAIME GARCIA
Defendants.
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Case No. 2:17-cv-74-PPS-JPK
OPINION AND ORDER
Pending before me is the City of Hammond’s motion to dismiss Count VII of
plaintiff Denise Szany’s Sixth Amended Complaint. [DE 268.] I previously dismissed
this claim of retaliation and sexual harassment, but I gave Szany another opportunity to
amend her complaint to state sufficient factual allegations which could plausibly form a
basis for relief. [DE 249.] She took me up on the offer and filed the Sixth Amended
Complaint [DE 258], but the revised factual allegations still fall short of the pleading
requirements. Accordingly, I will grant the City’s motion and Szany’s claim for
retaliation will be dismissed, with prejudice.
Background
This lawsuit stems from alleged battery and sexual harassment which occurred
between two police officers with the Hammond Police Department. Szany alleges that
defendant Jaime Garcia assaulted her by grabbing her by her vest, then her belt and
then by physically harming her. She alleges that during this altercation, Garcia slapped
her on the buttocks with an open hand. Szany filed a complaint with the EEOC
regarding this conduct, received a right to sue letter, and then filed this lawsuit in
February 2017. [See generally DE 1.]
Count VII alleges that roughly a year after the lawsuit was filed (sometime in
2018), the City retaliated against Szany for pursing her legal rights. [DE 258 at 12, ¶ 2.]
She alleges that the City was aware of her protected activity (this lawsuit) and that the
retaliation occurred when the City/Hammond Police Department assigned her to use
the same police car as Garcia. She says this put her “in a dangerous situation as well as
contributed to the then ongoing pervasive hostile work environment.” [Id. at 13, ¶ 6.]
The Hammond Police Department has approximately two hundred police officers and
approximately fourteen numbered police cars. [Id. at 14, ¶ 11.] Thus, officers on
different shifts use the same set of cars. But Szany says that by assigning her to use the
same car as Garcia for her shift put her “in a position in which she was terrified”
because she feared Garcia would harass or batter her again. [Id. at 14-15, ¶ 15.] But there
is no allegation that as a result of the car assignments that Garcia and Szany were ever
assigned to use the car at the same time, that they interacted with one another as a
result, or that Garcia actually did anything untoward or inappropriate to Szany during
this time. After three months of this assignment system, Szany’s counsel wrote a letter
and from then on Szany was no longer assigned to the same car as Garcia. [Id. at 13, ¶
5.] That’s the extent of the relevant factual allegations contained within the Sixth
Amended Complaint and what I must evaluate for their sufficiency.
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Discussion
Rule 12(b)(6) of the Federal Rules of Civil Procedure and related case law control
the outcome of this motion to dismiss. To withstand the City’s motion, Szany’s
complaint must contain “allegations plausibly suggesting (not merely consistent with)”
an “entitle[ment] to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (citation
omitted). This requires her to plead “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. If the complaint only alleges relief at “the speculative
level” though, she has not met her burden and the claim is properly dismissed. Id. at
555. As noted, this is the second time I am reviewing this specific claim to determine if
Szany has pleaded sufficient facts to state a claim. I previously dismissed this same
claim because Szany failed to plead facts which would suggest she is entitled to relief,
but I gave her a chance to add to those facts by alleging, for example, that she was
required to use the same police car as Garcia at the same time. [DE 249.] The City says
that Szany still has not alleged sufficient facts to state a claim. I agree.
In addition to traditional discrimination based on protected class, “Title VII also
prohibits retaliation against employees who engage in statutorily protected activity by
opposing an unlawful employment practice or participating in the investigation of
one.” Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016). “A retaliation
claim requires proof that the plaintiff suffered an adverse employment action because of
his statutorily protected activity; in other words, the plaintiff must prove that he
engaged in protected activity and suffered an adverse employment action, and that
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there is a causal link between the two.” Id. Furthermore, the adverse employment action
must be material. The Seventh Circuit has defined material as meaning “more than a
mere inconvenience or an alteration of job responsibilities.” Crady v. Liberty Nat'l Bank &
Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). It need not directly relate to title, pay,
benefits, or specific duty-type things, but things that are nothing more than a “mere
inconvenience” that may make an employee unhappy, do not qualify. Terry v. Gary
Cmty. Sch. Corp., 910 F.3d 1000, 1005 (7th Cir. 2018) (citation omitted). It’s an objective
test and requires conduct that would have “dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67-68 (2006) (citation omitted).
Here, Szany alleges only speculation that she was going to be harmed or
harassed because of the car assignment system. But that is not a material adverse
employment action. Notice pleading doesn’t require much, but it certainly requires
more than the subjective fear of unrealized harm that Szany has offered. She alleges
only that she and Garcia “could potentially come physically into contact with one
another”, and “would and could [need to] interact” with one another when turning
over the keys or discussing car maintenance needs as a result of being assigned the
same car. [DE 258 at 14, ¶¶ 12, 14, 15.] Beyond legal conclusions and recitations of the
elements of retaliation, there is nothing more. For example, there are no allegations that
Szany, in fact, had to exchange keys with Garcia on an occasion, let alone any allegation
that during the phantom car swap Garcia actually did something offensive or untoward
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to her. Instead, she alleges only that she was fearful of something that could potentially
happen. That’s not enough. “Factual allegations must be enough to raise a right to relief
above the speculative level[.]” Twombly, 550 U.S. at 555. In other words, “liability may
not be predicated purely upon speculation.” Campbell v. Supervalu, Inc., 565 F. Supp. 2d
969, 980 (N.D. Ind. 2008).
In sum, Szany’s allegations read more like a slight inconvenience than an adverse
employment action. And the inconvenience was remedied by her employer when she
(and her attorney) brought the matter to its attention.
Contrary to Szany’s argument, my finding that she does not meet the basic
pleading requirements does not impose an especially onerous burden on her and her
pleadings, as was the case in Freeman v. Metropolitan Water Reclamation District of Greater
Chicago, 927 F.3d 961, 965 (7th Cir. 2019). In Freeman, the Seventh Circuit partially
reversed the grant of a motion to dismiss a pro se plaintiff’s disability discrimination
claim because the district court required factual specificity related to the plaintiff’s
alleged or perceived disability. The plaintiff alleged he was fired and retaliated against
because of his perceived alcoholism after he had his license suspended for driving while
intoxicated. The district court ruled that the plaintiff’s claim had to be dismissed
because he failed the allege how alcoholism substantially limited a major life activity,
i.e. was a disability in this context. The Seventh Circuit held this was too high a
standard and restated that a complaint need only cover the basics of the claim at issue
and that the plaintiff had in fact alleged enough. Id.; see also Bennett v. Schmidt, 153 F.3d
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516, 518 (7th Cir. 1998) (“‘I was turned down for a job because of my race’ is all a
complaint has to say.”). Here, the problem is wholly different than Freeman because
Szany has failed to allege any material adverse employment action, which is a necessary
element of her claim. To borrow from the Seventh Circuit’s example in Bennett, that’s
akin to a plaintiff pleading only their race but failing to lay out that they were turned
down for a job. Without the harm or an adverse employment action, there is no claim.
In addition to the above inadequacies, the City also argues that Szany’s claim
fails on causation grounds. “Title VII retaliation claims must be proved according to
traditional principles of but-for causation, not the lessened causation test stated in §
2000e–2(m). This requires proof that the unlawful retaliation would not have occurred
in the absence of the alleged wrongful action or actions of the employer.” Univ. of Texas
Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347-48 (2013). Given that the failure to plead a
material adverse employment action is fatal to the claim, resolution of this argument is
unnecessary. But I agree that Szany further fails to adequately allege the required “but
for” causation of a retaliation claim and so even if she had pleaded a material adverse
employment action, she fails to state a claim.
Szany alleges that the retaliation occurred because she filed this lawsuit. But as
the City notes, this lawsuit was filed in February 2017, [DE 1], and the allegedly
retaliatory actions took place over a three-month period at an unspecified time in 2018,
or about a year (or more) later. Szany does not allege any direct connection between this
lawsuit and her employer’s alleged retaliation, instead only speculation and subjective
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belief that they are related. For example, there’s no statement by a supervisor that he
was going to make her life hell because she sued or anything like that. And while such
“smoking gun” evidence is often hard to come by and is by no means required at the
pleading stage, something more than pure speculation is necessary. Furthermore, her
speculation has much less force and the City’s actions are less suspicious because the
alleged retaliation took place long after the protected activity. See, e.g., Lalvani v. Cook
Cty., Illinois, 269 F.3d 785, 790 (7th Cir. 2001) (holding that termination a year and a half
after protected activity failed to satisfy causation). Of course, “temporal proximity is
only evidence of causation, not a separate element of the prima facie case”, Lalvani, 269
F.3d at 791, but here, where Szany has alleged nothing else to support causation, that
lapse in time makes her claim deficient.
In my previous opinion dismissing this claim, I noted my reluctance to allow an
amendment since it was already the fifth iteration of the complaint. [DE 249 at 6.] That
reluctance was well-founded it seems, as Szany has not offered any additional facts
which salvage this claim. Instead, she has offered the same basic facts with a few
additional statements of her subjective beliefs. Nor could she learn more through
discovery, as discovery in this case is now closed. [DE 287.] As such, her claim will be
dismissed with prejudice. Stanard v. Nygren, 658 F.3d 792, 800 (7th Cir. 2011) (holding
that dismissal with prejudice is “eminently reasonable” where party is afforded
multiple opportunities to replead and fails to follow explicit instructions on how to
correct inadequacies in earlier pleading).
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Conclusion
For the foregoing reasons, defendant The City of Hammond’s Motion to Dismiss
Count VII [DE 268] is GRANTED. Count VII of the Sixth Amended Complaint is
DISMISSED, with prejudice.
SO ORDERED on September 30, 2019.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT
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