that the defendant participated in "the illegal act initially giving rise to the corporation's liability." Musikiwamba, 760 F.2d at 753. Indeed, there is no suggestion that Broccolo mishandled the letters in any way. Accordingly the Section 1981 counts, Counts I and II, are dismissed without prejudice as to defendant Broccolo, again because it is possible that amended allegations could cure the deficiency.
B. Section 1981 Retaliation Allegations in General
So far Counts I and II are dismissed without prejudice as to defendants Thomas Cook and Broccolo, but survive as to defendants Commonwealth Edison, Philip Stachelski and Donald Cook.
All defendants attack Count II, for Section 1981 retaliation, as generally insufficient to state a claim. All parties assume that there exists a retaliation cause of action under Section 1981. Any controversy is over whether a Section 1981 retaliation plaintiff may allege retaliation for seeking to enforce only the contract rights guaranteed by Section 1981, as this court has held. See Buddingh v. South Chicago Cable, Inc., 830 F. Supp. 437, 441-42 (N.D. Ill. 1993). Contra Wilborn v. Primary Care Specialists, Ltd., 866 F. Supp. 364, 370 n.1 (N.D. Ill. 1994).
Any venture (or renewed venture) into that legal issue is avoided here. Even assuming, without revisiting it, that Buddingh was correct, plaintiff has pleaded retaliation against seeking to enforce Section 1981 rights. In Buddingh, the alleged retaliation was directly linked to the filing of the EEOC charge. See Buddingh, 830 F. Supp. at 442. Here, reading plaintiff's Count II with all due liberality, the count meets even the more stringent of the two possible approaches to Section 1981 retaliation claims. (See, e.g., Complaint P 50 (alleging defendants "punished and retaliate[d] against Plaintiff for his opposition to racial discrimination in employment").)
In this respect, therefore, the motion to dismiss is denied. Count II survives as against defendants Commonwealth Edison, Philip Stachelski and Donald Cook.
C. Individual Title VII Liability
Counts III and IV are Title VII counts. The present individual, supervisor defendants seek dismissal based on this courts holding in Pacourek v. Inland Steel Co., Inc., 858 F. Supp. 1393, 1405-06 (N.D. Ill. 1993) and the subsequent Seventh Circuit case, EEOC v. AIC Security Investigations, Ltd., et al., 55 F.3d 1276, 1995 U.S. App. LEXIS 12139, at *4-15 (7th Cir. May 22, 1995), rejecting supervisor liability. AIC Security Investigations was an Americans with Disabilities Act case, not a Title VII case. Nonetheless the court's reasoning, by its own description, "obviously affects the resolution of the very similar question[ ] under Title VII ...." Id. at *14 n. 10. In any event, in Pacourek the court concluded no supervisor liability attached under Title VII, so even if the reasoning of AIC Security Investigations only guides, not dictates, the result, that is the result the court reaches.
Insofar as defendants' motion seeks to dismiss all individual supervisor defendants from Counts III and IV, the motion is granted. Counts III and IV as against defendants Philip Stachelski, Donald Cook, Thomas Cook and Anthony Broccolo are dismissed with prejudice.
D. Count IV's Variation from EEOC Charge
Counts III and IV so far have survived as against defendant Commonwealth Edison only. Count IV is a Title VII retaliation claim. All defendants argue (although only Commonwealth Edison now has a stake in it) that the retaliation claim is not contemplated by the EEOC charge. The inquiry is whether the retaliation claim is "'like or reasonably related to the allegations of the charge and growing out of such allegations.'" O'Rourke v. Continental Cas. Co., 983 F.2d 94, 97 (7th Cir. 1993) (quoting Jenkins v. Blue Cross Mutual Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.) (en banc), cert. denied, 429 U.S. 986, 97 S. Ct. 506, 50 L. Ed. 2d 598 (1976)). Liberal as the leeway may be in construing an EEOC charge, see, e.g., Taylor v. Western & Southern Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir. 1992), there are limits, and the Seventh Circuit has not been kind to attempts to apply a discrimination EEOC charge to a retaliation suit. See O'Rourke, 983 F.2d at 97; Steffen v. Meridian Ins. Co., 859 F.2d 534, 544-45 (7th Cir. 1988). Here, as in O'Rourke and Steffen, the retaliation claim is not like or reasonably related to a charge of discrimination.
Plaintiff states he was proceeding pro se when he filed his EEOC charge, and for these purposes the court can assume that is true. No doubt that presumed fact gives plaintiff more leeway. But that fact does not mean there is no requirement for the charge at all.
For retaliation for the filing of the base EEOC charge itself no subsequent EEOC charge is required. See Steffen, 859 F.2d at 545 n.2. But on the EEOC charge in this case there is no retaliation claim. Missing from the charge is even the sort of hint of another claim that has prompted the Seventh Circuit court to allow a sex discrimination claim to proceed where only the race discrimination box was checked. See Jenkins v. Blue Cross Mutual Ins., Inc., 538 F.2d 164, 168-69 (7th Cir.) (en banc), cert. denied, 429 U.S. 986, 97 S. Ct. 506, 50 L. Ed. 2d 598 (1976). So as far as alleged retaliation before the filing of the EEOC charge, defendants' motion is granted.
Plaintiff does argue, however, that one of the alleged illegal acts occurred in retaliation for the EEOC charge, specifically Complaint paragraph 39's allegation of the pulling of plaintiff's security badge. This is the allegation: "On May 18, 1994, Plaintiff arrived at work but could not get into the plant because his security clearance badge had been pulled and it was not at the gate. Plaintiff had to wait several hours outside to regain security clearance. Plaintiff never found out why his security badge was pulled nor who did it." (Complaint P 39.) Because this is the only alleged act of retaliation that makes it past defendants' EEOC-charge argument, it is important to decide whether this allegation may be the act of retaliation. Two problems are seen. First, there is no allegation that the pulling of the security badge was retaliatory. But even assuming there were such an allegation, giving plaintiff all that leeway, paragraph 39 does not allege an actionable adverse employment decision.
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.