PISANO v. F.C. TUCKER INC.

Filing 25

Entry Discussing Motion to Dismiss - For the reasons set forth, Defendant's 16 Motion to Dismiss is DENIED. **SEE ENTRY**. Signed by Judge Tanya Walton Pratt on 8/26/2011. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

RISA PISANO,
Plaintiff,
vs.
F. C. TUCKER, INC.,
Defendant.

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1:10-cv-01460-TWP-DKL

Entry Discussing Motion to Dismiss
Risa Pisano brings this action against F.C. Tucker Company, Inc. (“Tucker”)
pursuant to Title VII of the Civil Rights Act of 1964. She alleges that she was not treated
the same as a male manager in the office and was retaliated against when she
complained. Tucker moves to dismiss.
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a
complaint if it fails to state a claim upon which relief can be granted. To survive a Rule
12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
This “facial plausibility” standard requires the plaintiff to allege facts that add up to “more
than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009). Conversely, “a plaintiff can plead himself out of court by
alleging facts that show there is no viable claim.” Pugh v. Tribune Co., 521 F.3d 686,
699 (7th Cir. 2008). Because it is not part of the amended complaint, the court will not
consider the plaintiff’s recitation of facts in her response to the motion to dismiss. See
Bilal v. Rotec Indus., Inc., 215 F.3d 758, 765-66 (7th Cir. 2009).

Discussion
Pisano asserts that she was not treated the same as a male manager in the
office. “In order to prevent dismissal under Rule 12(b)(6), a complaint alleging sex
discrimination need only aver that the employer instituted a (specified) adverse
employment action against the plaintiff on the basis of her sex.” Tamayo v. Blagojevich,
526 F.3d 1074, 1084 (7th Cir. 2008). That is what Pisano claims here.
Ms. Pisano’s retaliation claim also survives the motion to dismiss. A retaliation
claim requires an allegation that the employer retaliated against the employee because
the employee “opposed any practice made an unlawful employment practice” by Title
VII. Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008). A plaintiff alleging
illegal retaliation on account of protected conduct must provide some specific
description of that conduct beyond the mere fact that it is protected. EEOC v. Concentra
Health Servs., 496 F.3d 773, 779-82 (7th Cir. 2007) (citing Kyle v. Morton High Sch.,
144 F.3d 448, 454 (7th Cir.1998)). In her complaint, Pisano alleges “plaintiff was not
treated the same as male manager in office and was retaliated against when
complained.” This allegation could be read to assert that she was fired when she
complained that Tucker discriminated against her. All that is required at this stage is an
allegation that she was retaliated against for complaining about sex discrimination. She
alleges in her complaint that she complained of different treatment and was fired in
retaliation. That is sufficient to avoid dismissal under Rule 12(b)(6).

Conclusion
Tucker’s motion to dismiss (Dkt. No. 16) is DENIED.
IT IS SO ORDERED.

08/26/2011
Date: __________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
Risa Pisano
21110 Carrigan Crossing
Noblesville, IN 46062
Brian L. McDermott
[e-mail]
Susannah P. Mroz
[e-mail]