moves to dismiss pursuant to FED. R. CIV. P. 12(b)(6).
II. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss for failure to state a claim is granted only where it is beyond doubt that the plaintiff is unable to prove any set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). The court must take all well pleaded facts and allegations as true, and must view them in the light most favorable to the plaintiff. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986). Furthermore, plaintiff is entitled to all reasonable inferences that may be drawn from the complaint. Id.
On March 16, 1995, Judge Marovich decided two cases that are companion to this one. McDonnell v. Cisneros, 1995 U.S. Dist. LEXIS 3160, 1995 WL 110131 (N.D. Ill. March 16, 1995). After a thorough analysis, he concluded that the two plaintiffs had failed to state claims for sex discrimination, sexual harassment, or retaliation. Id. at*11. Now before the court are the same claims from the plaintiff in this case, Ortiz. Given that the amended complaints of Ortiz and McDonnell actually mirror one another, with few differences, the court feels no need to go into a lengthy analysis. However, the court does feel compelled to briefly explain why the defendant's motion to dismiss all three claims should be granted.
With respect to the sex discrimination and retaliation claims, a plaintiff must allege that he or she has suffered an adverse employment action. Loyd v. Phillips Brothers, Inc. 25 F.3d 518, 522-23 (7th Cir. 1994) (sex discrimination); Reed v. Shepard, 939 F.2d 484, 492 (7th Cir. 1991) (retaliation). In this case, both claims must fail because her allegations do not rise to the level of an adverse employment action.
Adverse job action in the Title VII context can take many forms, including outright dismissal, reduction of pay or benefits, transfer to another department or an isolated corner of the workplace, or directions to relocate one's personal files and to refrain from using the firm stationary or office services. Collins v. State of Illinois, 830 F.2d 692, 703-04 (7th Cir. 1987). In this case, Ortiz does not allege any of the above actions by her employer; instead, she claims that she experienced adverse action because the DOD investigators mishandled the investigation, resulting in the circulation of rumors concerning the plaintiff's professional competence and alleged sexual misconduct. Furthermore, plaintiff contends that the rumors irreparably damaged her reputation and that several of her colleagues avoided any contact with her.
The plaintiff, in this case, was one of the unfortunate subjects of two anonymous letters that HUD-OIG felt obligated to investigate. As Ortiz mentioned in her amended complaint, the investigation "ultimately determined that all of the allegations that had been made in each of the two letters were false and totally without foundation in fact." (First Amended Complaint P 24.) Since that time, plaintiff has not been fired, demoted, or transferred. The fact that rumors circulated throughout the office, while unfortunate, is not actionable against Cisneros. Therefore, plaintiff's claims for sex discrimination and retaliation should properly be dismissed.
In addition, as Judge Marovich discussed in McDonnell v. Cisneros, 1995 U.S. Dist. LEXIS 3160, 1995 WL 110131 at *6, plaintiff has made no allegation that the rumors were directed at her because of her gender. The subjects of the anonymous letters included both men and women and all were investigated by the team from the DOD. Id. In addition, from McDonnell, it is apparent that the rumors were not only directed at just the female subjects but also at the male subjects. Id. Finally, Gaffney's statements regarding actions that should be avoided were made to all of the employees, and the investigators' comments were made to both male and female witnesses. Therefore, even if plaintiff could allege adverse job action, she still may not even be able to allege that she was discriminated based on her sex. Plaintiff also seeks to recover under a claim for sexual harassment. The five elements necessary in order to state a sexual harassment claim include:
"(1) The employee was a member of a protected class; (2) the employee was subjected to unwelcomed sexual harassment in the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based upon sex; (4) the charged sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance in creating an intimidating, hostile, or offensive working environment that affected seriously the psychological well-being of the plaintiff; and (5) the existence of respondeat superior liability."
Swanson v. Elmhurst Chrysler Plymouth, Inc., 882 F.2d 1235, 1238 (7th Cir. 1989), cert. denied, 493 U.S. 1036, 107 L. Ed. 2d 774, 110 S. Ct. 758 (1990). As Judge Marovich outlined in McDonnell, besides the fact that the plaintiff is a woman and therefore from a protected class, thus satisfying the first prong of Swanson, plaintiff does not properly allege any of the remaining four elements. Consequently, since Ortiz has failed to allege a claim for sexual harassment, defendant's motion to dismiss should be granted.
Defendant's motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) is granted. This case is dismissed with prejudice.
Date: APR 07 1995
JAMES H. ALESIA
United States District Judge
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to a hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that defendant's motion to dismiss plaintiff's amended complaint is granted. This case is dismissed with prejudice.
April 7, 1995
© 1992-2004 VersusLaw Inc.