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MOORE v. ALLSTATE INS. CO.

June 17, 1996

HATTIE MOORE, Plaintiff,
v.
ALLSTATE INSURANCE COMPANY, Defendant.



The opinion of the court was delivered by: ALESIA

 Before the court is defendant Allstate Insurance Company's ("Allstate") motion to dismiss and strike certain claims alleged in plaintiff Hattie Moore's ("Moore") amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f). For the reasons that follow, the court grants in part and denies in part Allstate's motion.

 I. BACKGROUND1

 Moore, who is black, has worked for Allstate since July 1988. In September 1993, Moore received an unfavorable performance evaluation. On November 29, 1993, Moore filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that Allstate gave her the negative performance evaluation solely because of her race.

 Moore received a right-to-sue letter from the EEOC on May 30, 1995. On June 6, 1995, Moore filed a pro se complaint against Allstate. In that complaint, based on Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e - 2000e-17, Moore alleged that Allstate discriminated against her by giving her a negative performance evaluation and failing to promote her because of her race. Moore alleged that Allstate still may be discriminating against her.

 Moore retained counsel and filed an amended complaint on November 28, 1995. In her amended complaint, Moore alleges that Allstate violated both Title VII and 42 U.S.C. § 1981 ("section 1981") by discriminating against her based on her race, color, and sex. Moore alleges that Allstate gave her a negative performance evaluation in September 1993 and has given her other unfavorable evaluations because of her race, color, and sex. Moore also alleges that Allstate has failed to promote her because of her race, color, and sex. Moore alleges that Allstate maintains separate lines of progression based on race and sex so as to affect adversely Moore's compensation, evaluations, promotions, and terms, conditions, and privileges of employment.

 Allstate now moves to dismiss and strike Moore's Title VII claims for sex discrimination; Title VII claims for race or color discrimination that are beyond the scope of the EEOC charge; Title VII claims that arose more than 300 days before the filing of the EEOC charge; section 1981 claims for sex discrimination; and section 1981 claims for race or color discrimination that arose more than two years before November 28, 1995, when Moore filed her amended complaint.

 II. DISCUSSION

 A. Standard for motion to dismiss

 When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F. Supp. 1283, 1285 (N.D. Ill. 1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED. R. CIV. P. 12(b)(6); Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). However, the court may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims 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).

 B. Title VII claims

 1. Sex discrimination claims

 Allstate contends that any of Moore's Title VII claims that allege that Allstate discriminated against Moore based on her gender must be dismissed because Moore failed to raise sex discrimination claims in her EEOC complaint.

 A plaintiff must exhaust her administrative remedies with the EEOC before filing a claim in federal court. Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 128-29 (7th Cir. 1989); 42 U.S.C. § 2000e-5(e). A corollary of this exhaustion requirement is that a plaintiff generally may not bring claims under Title VII that she did not bring in her EEOC charge. Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995). "This rule serves two purposes: affording an opportunity for the EEOC to settle the dispute between the employee and employer and putting the employer on notice of the charges against it." Id. at 148 (citing Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992)).

 However, a plaintiff may bring claims not explicitly in her EEOC charge if she satisfies two conditions: (1) the claims are like or reasonably related to the allegations in the EEOC charge, and (2) the claims grow out of the allegations made in the EEOC charge. Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.) (en banc) (quoting Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971)), cert. denied, 429 U.S. 986, 97 S. Ct. 506 (1976). See also Harper, 45 F.3d at 148; Rush, 966 F.2d at 1111; Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994).

 In Moore's case, her EEOC charge was based solely on race discrimination. She made no allegations, either explicitly or implicitly, of gender discrimination. Discrimination based on gender is entirely different from discrimination based on race. Moore's sex discrimination claims are neither like nor reasonably related to her race discrimination claims, nor grow out of her race discrimination claims. Therefore, Moore's sex discrimination claims "run afoul of the requirement that 'allegations not contained in an EEOC charge cannot be contained in the complaint ....'" Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993) (quoting Schnellbaecher, 887 F.2d at 127). See also, e.g., Dangerfield v. Mission Press, 1989 U.S. Dist. LEXIS 8985, No. 88 C 7199, 1989 WL 88199, *1 (N.D. Ill. July 28, 1989); Clark v. Chrysler Corp., 673 F.2d 921, 931 (7th Cir.), cert. denied, 459 U.S. 873, 103 S. Ct. 161, 74 L. Ed. 2d 134 (1982) (both holding that plaintiff cannot bring sex discrimination claim where she filed EEOC charge alleging only race discrimination).

 By not bringing an EEOC charge based on sex discrimination, Moore failed to satisfy a condition precedent to her bringing a sex discrimination claim in this court. See Cheek, 31 F.3d at 500 (citing Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985)). Accordingly, Moore cannot bring her Title VII claims based on sex discrimination, and the court grants Allstate's motion to dismiss these claims.

 2. Race discrimination claims

 As a preliminary matter, the court agrees with Allstate that there is no real difference between race and color discrimination in the context of Moore's amended complaint. Consequently, the court will consider Moore's claims of color discrimination as claims of race discrimination against Moore because she is black.

 Claims in a complaint are not like or reasonably related to allegations in an EEOC charge unless a factual relationship exists between them. That is, "the EEOC charge and the complaint must, at a minimum, describe the same conduct ...


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