LESTER v. NESTLE USA, INC.

Filing 51

ORDER granting in part and denying in part Deft's 37 Motion to Dismiss for Failure to State a Claim (see Order for details). Signed by Magistrate Judge Mark J. Dinsmore on 7/31/2012. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DAVID LESTER,
Plaintiff,
vs.
NESTLE USA, INC.,
Defendant.

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Order on Motion to Dismiss
This matter is before the Court on Defendant Nestlé USA, Inc.’s (“Nestlé”) Motion for
Partial Dismissal of Claims in Plaintiff David Lester’s (“Lester”) Amended Complaint pursuant
to Fed. R. Civ. P. 12(b)(6). [Dkt. 37.] Additionally, pursuant to 28 U.S.C. § 1927, Nestlé seeks
its costs, expenses, and attorneys’ fees associated with filing this Motion. For the reasons
discussed below, the Court GRANTS Nestlé’s Motion in part and DENIES the Motion in part.

I. Background
Lester brings claims for disability discrimination, retaliation, and failure to accommodate
against Nestlé—his former employer—in violation of the Americans with Disabilities Act
(“ADA”). Presently at issue is whether Lester exhausted his administrative remedies with regard
to his retaliation and failure to accommodate claims by properly including them in his Charge of
Discrimination (“EEOC charge”) against Nestlé filed with the Equal Employment Opportunity
Commission (“EEOC”).
On December 9, 2009, Lester filed his EEOC charge against Nestlé. The charge form
contains boxes that the charging party checks to indicate the type of discrimination alleged to

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have taken place. Lester checked the box for discrimination based on disability, but did not
check the box for retaliation. The EEOC charge form does not contain a box for failure to
accommodate. Lester indicated that the discrimination took place between June 22, 2009 and
June 29, 2009.
In the area for the charging party to include particulars of the discrimination, Lester wrote
the following:
I was hired by Nestle in October 2007 as an I-Process Operator. My immediate
supervisor was Charlie Turner.
On June 22, 2009, I was approached by Quality Assurance Manager Jason
Johnson, regarding a testing machine error. Johnson accused me of not running a
specific test, because it did not show up on the machine’s printer. During that
same conversation, I mentioned to Johnson that I hoped that my disability was not
the reason for the error.
One week later, I was terminated, allegedly for falsification of documents. Other
employees have made the same errors, and have not been terminated.
I believe that I have been discriminated against because of my disability, in
violation of the Americans with Disabilities Act of 1990, as amended.
[Dkt. 38 Ex. 1.]1 In August 2011, the EEOC issued a Dismissal and Notice of Rights.
Thereafter, on October 28, 2011, Lester filed suit in this Court.
In his Amended Complaint, Lester alleges that, at some point in 2009, he requested
accommodation for his diabetes, including break times away from his assigned workstation, but
Nestlé did not provide him any such accommodation. Shortly thereafter, Lester told Nestlé of
his diagnosis of Attention Deficit Disorder (“ADD”) in order to advise Nestlé of upcoming
medical appointments for both his diabetes and his ADD, which would require time away from
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Lester did not attach the EEOC charge to his Amended Complaint. Had he done so, pursuant to Fed. R.
Civ. P. 10(c), it would have been part of his pleading and the Court could consider the EEOC charge
without converting the Motion to Dismiss into a Motion for Summary Judgment. Nonetheless, the Court
may consider Lester’s EEOC charge, which Nestlé attached to its brief in support of its Motion, without
converting the Motion to Dismiss into a Motion for Summary Judgment, because Lester’s Amended
Complaint referred to his EEOC charge and the EEOC charge is central to his claim. See Venture
Associates Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993); see also Davis v. Cent.

Can Co., 05 C 1563, 2006 WL 2255895 (N.D. Ill. Aug. 4, 2006) (collecting cases).
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work. Less than one week after he told Nestlé of his ADD, Nestlé accused Lester of falsifying
testing data. As a result, Nestlé first suspended Lester and later terminated his employment.
Lester further alleges that the twenty-month EEOC investigation revealed that Lester’s
claims included, but were not limited to, Nestlé’s retaliation of Lester after his request for
protections afforded by the ADA. Lester also alleges that the investigation revealed that Lester’s
claims included, but were not limited to, Nestlé’s failure to accommodate Lester’s known
disabilities. On April 11, 2012, Nestlé filed its Motion for Partial Dismissal as to the retaliation
and failure to accommodate claims.

II. Standard of Review
Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain
statement of the claim showing the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A short
and plain statement “‘gives[s] the defendant fair notice of what the claim is and the grounds upon
which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41 (1957)). In order to survive a Rule 12(b)(6) motion to dismiss, “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 Twombly, 550 U.S.
at 555).

III. Discussion
Nestlé argues that Lester’s Amended Complaint fails to state a claim upon which relief
can be granted as to Lester’s claims for retaliation and for failure to accommodate, because
Lester has failed to exhaust his administrative remedies with regard to these claims. Specifically,
Nestlé argues that Lester failed to include these claims in his EEOC charge and that he is now
barred from asserting them. Additionally, under 28 U.S.C. § 1927, Nestlé requests the Court

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award it the costs, expenses, and attorneys’ fees incurred in conjunction with this Motion. In
response, Lester contends that he properly raised his retaliation and failure to accommodate
claims before the EEOC, that he sufficiently pleads facts in his Amended Complaint that would
entitle him to relief, and that Nestlé is not entitled to its fees, costs, and attorneys’ fees.
Generally, “[a] plaintiff may not bring claims in a lawsuit that were not included in the
EEOC charge.” Cable v. Ivy Tech State Coll., 200 F.3d 467, 476 (7th Cir. 1999) (citing
Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974); Cheek v. Peabody Coal Co., 97 F.3d
200, 202 (7th Cir.1996)). There are two primary purposes for this requirement. First, it ensures
the EEOC can conduct a full investigation. Id. at 477. Second, it provides employers—such as
Nestlé—with advance notice of the claims and an opportunity to resolve them. Id. For these
reasons, a plaintiff may only pursue claims not explicitly included in the EEOC charge when the
allegations fall within the scope of the charges contained in the EEOC complaint. Cheek, 97
F.3d at 202.
A claim falls within the scope of the earlier EEOC charge if it is “like or reasonably
related to” those in the EEOC charge. Id. If it is, the Court then determines “whether the current
claim reasonably could have developed from the EEOC’s investigation of the charges before it.”
Id. For a claim in the plaintiff’s complaint to fall within the scope of the EEOC charge, there
must be a factual relationship between them, meaning, at a minimum, the claims in the lawsuit
must describe the same conduct and implicate the same individuals as the charge in the EEOC
complaint. Risk v. Ford Motor Co., 48 F. Supp. 2d 1135, 1145 (S.D. Ind. 1999). However,
“[t]he EEOC charge-filing requirement is not intended to erect ‘elaborate pleading requirements’
or ‘let the form of the purported charge prevail over its substance.’” Cable, 200 F.3d at 477
(quoting Downes v. Volkswagen of America, Inc., 41 F.3d 1132, 1138 (7th Cir.1994)).

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A. Retaliation Claim
With regard to the retaliation claim, Nestlé argues that Lester did not check the box on
the EEOC charge form to indicate that he was alleging retaliation; nor did he claim that his
discharge was retaliatory. Lester acknowledges that he did not check the retaliation box in his
EEOC charge, but argues that what box is checked does not necessarily control the scope of the
of the civil complaint. For support, Lester discusses Jenkins v. Blue Cross Mut. Hosp. Ins., Inc.,
538 F.2d 164, 169 (7th Cir. 1976), where the plaintiff checked the box for race discrimination,
but not the box for sex discrimination. The Seventh Circuit found that although the plaintiff left
the sex discrimination box unchecked, the allegations in her EEOC charge adequately raised the
issue and therefore the plaintiff could bring her sex discrimination claim in her civil lawsuit. Id.
Lester’s reliance on Jenkins is misplaced. To rely on Jenkins, Lester’s allegations in his
EEOC charge should raise retaliation as an issue. In prohibiting retaliation, the ADA states that
“[n]o person shall discriminate against any individual because such individual has opposed any
act or practice made unlawful by this chapter or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
chapter.” 42 U.S.C. § 12203(a).2 Accordingly, to state a claim for retaliation under the ADA,
Lester must allege that (1) he engaged in statutorily protected expression; (2) he suffered an
adverse employment action; and (3) a causal link existed between the two. Cable, 200 F.3d at
478. Thus, even though formal pleading of the elements is not required, Lester’s EEOC charge

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Although not mentioned in the anti-retaliation statute, the Court will assume that a request for
accommodation, as Lester alleges in his Amended Complaint, is a statutorily protected activity. See Cloe
v. City of Indianapolis, No. 1:10-cv-1070-WTL-MJD, 2012 WL 777014, at *12 n.8 (S.D. Ind. March 6,
2012) (explaining that, although difficult to square with the text of the statute, the majority of courts,
including the Seventh Circuit, have assumed that a request for accommodation is a statutorily protected
activity); see also Yindee v. CCH, Inc., 458 F.3d 599, 602 (7th Cir. 2006); . Cassimy v. Bd. of Educ. of
Rockford Public Sch., Dist. No. 205, 461 F.3d 932, 938 (7th Cir. 2006).
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should provide some facts that would suggest Nestlé retaliated against him for engaging in a
protected activity.
Lester maintains that “it is clear from the face of the EEOC [charge] that retaliation was a
claim that was intended to be investigated by the EEOC.” [Dkt. 41 at 4.] Relying on Jenkins,
Lester explains that although he failed to check the retaliation box, he, nonetheless, made a
“clear allegation that he was terminated for an ‘error’ that other employees had made without the
same result (termination).” [Id.] Thus, according to Lester, his EEOC charge makes a specific
claim that he was subjected to a materially adverse employment action “as a result of his
disability.” [Id.] Indeed, Lester has made a specific claim of an adverse employment action,
but—as Lester himself acknowledges—his allegation is that Nestlé terminated him because of
his disability and not in retaliation for requesting the protections afforded him by the ADA.
In Bilal v. Rotec Indus., Inc., 326 F. App’x 949, 954 (7th Cir. 2009), the Seventh Circuit
found that, while the plaintiff’s EEOC charge clearly stated a complaint for discrimination and
hostile work environment, it did not give notice of a retaliation claim. The Seventh Circuit noted
that the EEOC charge “does not mention any grievances lodged with her employer or an agency
that could reasonably be understood as statutorily protected activity. It contains no hint that such
complaints caused her termination.” Id. The Seventh Circuit went on to explain that even when
drawing all inferences in favor of the plaintiff, the only part of her EEOC charge that even
partially presented an element of retaliation was the mention of her termination. Id. However,
the Seventh Circuit agreed with the district court that “termination can occur for any number of
reasons, most of which are perfectly legal.” Id.
Similarly, nothing contained in Lester’s EEOC charge—even when construing it
liberally—suggests that Lester was engaged in any protected activity. As in Bilal, Lester

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mentions his termination, but fails to indicate in any way that his termination was the result of
Nestlé’s unlawful retaliation. Because Lester not only failed to check the retaliation box, but also
failed to make any allegation in his EEOC charge that could be construed as a retaliation charge,
the Court finds that Lester’s retaliation claim was not explicitly included in his EEOC charge.
Thus, to be within the scope of the EEOC charge, the Court must first determine whether
Lester’s retaliation claim is “like or reasonably related to” his EEOC charge. Cheek, 97 F.3d at
202. If it is, the Court then determines whether the retaliation claim “reasonably could have
developed from the EEOC’s investigation of the charges before it.” Id.
1. Whether Lester’s Retaliation Claim Is Like or Reasonably Related To His EEOC
Charge
“Normally, retaliation and discrimination charges are not considered ‘like or reasonably
related’ to one another.” Swearnigen-El v. Cook County Sheriff's Dep’t, 602 F.3d 852, 865 (7th
Cir. 2010) (citations omitted). As previously mentioned, for claims to be “like or reasonably
related” there must be a factual relationship between the them, describing the same conduct and
same individuals. Risk, 48 F. Supp. 2d at 1145. With regard to Lester’s retaliation claim, Lester
alleges in his Amended Complaint the following:
The twenty (20) month investigation by the EEOC of the alleged violations of the
ADA revealed that Lester’s claims included, but were not limited to, Defendant
Employer (sic) retaliation of Lester subsequent to his request for his protections
afforded by the ADA, including but not limited, to the requested accommodation
detailed herein.
[Dkt. 36 at ¶ 27.] The only requested protection that Lester specifically pled in his Amended
Complaint is his request that Nestlé “accommodate his disability, diabetes, including but not
limited to break times away from his assigned work station,” which Nestlé did not provide. [Id.
at ¶ 15.]

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Lester’s EEOC charge, however, is limited to the incident on June 22, 2009, where
Quality Assurance Manager Jason Johnson accused Lester of not running a specific test, to
which Lester responded that he hoped his disability was not the reason for the error, and his
subsequent termination one week later for allegedly falsifying documents. [Dkt. 38 Ex. 1.]
Lester fails to articulate how the facts giving rise to his retaliation claim—his requesting
accommodation for his diabetes—have anything to do with the incident on June 22, 2009, or his
subsequent termination one week later. As such, the Court finds no factual relationship between
Lester’s EEOC charge for disability discrimination and his subsequent retaliation claim.
Therefore, Lester’s EEOC charge alleging disability discrimination is not “like or reasonably
related to” Lester’s retaliation claim in his Amended Complaint.
2. Whether Lester’s Retaliation Claim Reasonably Could Have Developed From The
EEOC’s Investigation of Lester’s Disability Discrimination Charge
Having determined that the EEOC charge and the retaliation claim are not “like or
reasonably related” the Court need not address whether the retaliation claim reasonably could
have developed from the EEOC investigation. Lester, however, makes a novel argument with
regard to the EEOC’s investigation, which the Court finds necessary to address. In his Amended
Complaint, Lester alleges that the EEOC investigation lasted twenty-months and “revealed
Lester’s claims included, but were not limited to” Nestlé’s failure to accommodate Lester and
Nestlé’s retaliating against Lester for requesting protections afforded by the ADA. [Dtk. 36 at ¶¶
26, 27.] According to Lester, the Court must accept all of his allegations as true and therefore
should not grant Nestlé’s Motion for Partial Dismissal.
Lester is partially correct. In deciding on a Motion to Dismiss “[a]ll well-pleaded facts
are accepted as true and construed in favor of the plaintiff.” Hickey v. O'Bannon, 287 F.3d 656,
658 (7th Cir. 2002) (citing McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 614 (7th
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Cir.2001)). However, the Court is “not obliged to accept as true legal conclusions or
unsupported conclusions of fact.” Id. Here, Lester is not asking the Court to accept as true a
factual allegation; rather, Lester is asking the Court to accept as true what amounts to be a legal
conclusion as to what legal claims Lester has against Nestlé.
Moreover, even if the Court were to accept Lester’s allegations as true, Lester has
provided scant legal support for the proposition that the Court may consider what the EEOC
investigation revealed regardless of the contents of his EEOC charge. Lester cites to Smith v.
Jupiter Aluminum Corp., in which the court stated that it “is not limited to comparing
[plaintiff’s] complaint to the formal EEOC charge.” No. 2:09-cv-356, 2011 WL 197577, at *5
(N.D. Ind. Jan. 18, 2011) (citations omitted). However, the court went on to note that, because
the plaintiff’s EEOC charge alleged retaliation, it was clear that plaintiff intended for the EEOC
to investigate all of defendant’s retaliatory conduct. Id. As a result, the court determined that it
could consider documents and witness statements contained in the EEOC file that related to any
form of retaliatory conduct by defendant when comparing the similarity of the plaintiff’s charge
to his complaint. Id. In the end, the court found that the conduct alleged in plaintiff’s complaint
fell within the scope of his EEOC charge. Id.
Lester argues that, similar to Jupiter, this Court may consider the scope of the EEOC
investigation. Unlike in Jupiter, however, there is no indication from Lester’s EEOC charge that
he intended for the EEOC to investigate anything beyond his claim for disability discrimination.
Lester limits the time frame of the discrimination to a week long period beginning on June 22,
2009 and fails to mention any retaliation for his earlier request for protections afforded him
under the ADA. While the court in Jupiter stated that it could consider evidence from the
EEOC’s investigation, it did so only after determining the plaintiff’s EEOC charge indicated an

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intent for the EEOC to investigate all acts of retaliation. The court in Jupiter considered the
evidence in the EEOC file only to compare the similarity of the plaintiff’s charge to his
complaint to determine if the complaint fell within the scope of the EEOC charge. Thus, even in
Jupiter, the contents of the EEOC charge determined the scope of the both the EEOC
investigation and the subsequent litigation.
Lester’s argument goes beyond Jupiter, stretching so far as to make the EEOC charge
requirement meaningless. Under Lester’s theory, a plaintiff could check any box—or possibly
leave all boxes unchecked—describe any form of discrimination in his EEOC charge and then
file a lawsuit based upon whatever the EEOC investigation reveals, even if the EEOC
investigation uncovers evidence of discrimination of an entirely different nature. This theory,
however, effectively eliminates the requirement that a plaintiff include all of his claims in his
EEOC charge. The Seventh Circuit has explained that “[a]n aggrieved employee may not
complain to the EEOC of only certain instances of discrimination, and then seek judicial relief
for different instances of discrimination,” which is what Lester attempts to do under the guise of
an allegation that the EEOC investigation revealed additional claims. Rush v. McDonald's
Corp., 966 F.2d 1104, 1110 (7th Cir. 1992).
As previously mentioned, the EEOC charge filing requirement serves two purposes—
ensuring the EEOC can conduct a full investigation and providing the employer with advance
notice of the claims—neither of which are served under Lester’s theory. The EEOC’s
investigation would largely be left to chance, encompassing only what the EEOC stumbles upon
in investigating an incomplete EEOC charge. Moreover, Lester unwittingly acknowledges that,
under his theory, Nestlé would not have advance notice when he stated that “the Motion to
Dismiss cannot be decided at this premature stage as Defendant cannot be certain what occurred

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in the twenty months this case pended with the EEOC.” [Dkt. 41 at 5 n.1.] Exactly, hence the
reason for the requirement that the EEOC charge include all of the claims. Otherwise, the
employer is left to guess as to the scope of the EEOC investigation and what claims might be
asserted against it. When considering only Lester’s EEOC charge, it is not reasonable to expect
the EEOC to investigate unrelated claims of retaliation.
B. Failure To Accommodate Claim
For good reason, Lester does not attempt to argue that his EEOC charge alleges a failure
to accommodate claim. Nor does Lester appear to argue that his failure to accommodate claim is
“reasonably related to” his EEOC charge. Instead, Lester hangs his hat on the argument that
“[w]hile the EEOC charge does not mention the words failure to accommodate within its four
corners, the analysis of whether the Plaintiff failed to exhaust his administrative remedies on this
ground cannot be analyzed in such a vacuum.” [Dkt. 41 at 4.] According to Lester, the Court
must consider the EEOC’s investigation, which Lester alleges included Nestlé’s failure to
accommodate his disability. Lester’s argument fails for the same reasons it failed with regard to
his retaliation claim. Contrary to Lester’s argument otherwise, whether a plaintiff has exhausted
his or her administrative remedies is essentially analyzed in a vacuum, looking only at the EEOC
charge. Lester’s argument that the Court should look at the EEOC investigation to determine
whether he has exhausted his administrative remedy goes too far, especially when nothing in his
EEOC charge hints at a failure to accommodate claim.
In sum, Lester seeks to bring claims that are completely unconnected factually to his
EEOC charge. Seventh Circuit precedent, however, requires some factual relationship to exist
between the EEOC charge and the subsequent claims. The factual relationship here is nonexistent—or as Nestlé argues—so attenuated that it “effectively eviscerates the statutory charge

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requirement.” [Dkt. 43 at 4.] Nothing in Lester’s EEOC charge indicates a claim for retaliation
or for failure to accommodate and these claims would not reasonably develop from an EEOC
investigation of disability discrimination. Accordingly, the retaliation and failure to
accommodate claims do not fall within the scope of the EEOC charge and Lester cannot pursue
them in this litigation.
C. 28 U.S.C. § 1927
Lastly, Nestlé requests the Court award it the costs, expenses, and attorneys’ fees
incurred in conjunction with this Motion. Under 28 U.S.C. § 1927, “[a]ny attorney … who so
multiplies the proceedings in any case unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred
because of such conduct.” The principal purpose of the statute is “‘the deterrence of intentional
and unnecessary delay in the proceedings’” Taflinger v. Hindson, --- F. Supp. 2d ---, 2012 WL
1432845, at *6 (S.D. Ind. Apr. 25, 2012) (quoting Beatrice Foods Co. v. New England Printing
& Lithographing Co., 899 F.2d 1171, 1177 (Fed. Cir. 1990)). Generally, bad faith is a
prerequisite for the Court to award costs and attorneys’ fees under section 1927. Dal Pozzo v.
Basic Mach. Co., Inc., 463 F.3d 609, 614 (7th Cir. 2006). However, objective bad faith suffices,
which a lawyer can demonstrate by “‘pursu[ing] a path that a reasonably careful attorney would
have known, after appropriate inquiry, to be unsound ….’” Id. (quoting Riddle & Assocs. P.C.
v. Kelly, 414 F.3d 832, 835 (7th Cir.2005)).
Nestlé points to this Court’s Order on Leave to Amend Complaint, which suggested that
Lester’s counsel give serious thought as to whether Lester would have a valid defense to a
renewed motion to dismiss. [See Dkt. 35 at 4.] According to Nestlé, this should have resolved
any doubts as to whether Lester exhausted his administrative remedies. Lester argues that his
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claims have been raised in good faith and that he properly and sufficiently pleads the claims in
his Amended Complaint. Having considered the parties’ arguments with regard to Nestlé’s
Motion to Dismiss, the Court finds that Lester had a valid, albeit a losing, argument that did not
unreasonably or vexatiously multiple the proceedings. Moreover, the Court finds that Lester’s
counsel did not act in bad faith in pursuing the claims. Accordingly, the Court declines to award
Nestlé its costs, expenses, and attorneys’ fees.

IV. Conclusion
For the above stated reasons the Court GRANTS in part and DENIES in part Nestlé’s
Motion to Dismiss. [Dkt 37.] The Court dismisses Lester’s retaliation and failure to
accommodate claims under Fed. R. Civ. P. 12(b)(6). The Court, however, DENIES the Motion
with respect to Nestlé’s request for its costs, expenses, and attorneys’ fees under 28 U.S.C. §
1927.

Dated:

07/31/2012

Distribution: All counsel registered with CM/ECF.

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Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana