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GARCIA v. FRY

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


July 15, 1997

ANITA GARCIA, Plaintiff,
v.
RITA FRY (in her official capacity as County of Cook Public Defender), COUNTY OF COOK, PATRICK GLEASON, and ALVIN HILL, Defendants.

The opinion of the court was delivered by: BUCKLO

MEMORANDUM OPINION AND ORDER

 The plaintiff, Anita Garcia, was employed by the Public Defender of Cook County ("Public Defender"). Ms. Garcia sued the Public Defender through its head official, Rita Fry, *fn1" Cook County, and her superiors, Patrick Gleason and Alvin Hill, for retaliation in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., and for intentional infliction of emotional distress. The defendants moved to dismiss. For the following reasons, the motion is granted, in part, and denied, in part.

 Count I--Title VII

 Statute of Limitations

 A Title VII plaintiff has 300 days from the allegedly illegal act to file her Equal Employment Opportunity Commission ("EEOC") charge. 42 U.S.C. § 2000e-5(e)(1); Lever v. Northwestern Univ., 979 F.2d 552, 553 (7th Cir. 1992). Ms. Garcia filed her EEOC charge on October 31, 1995. In Count I, relying on the complaint allegations in paragraphs 1 through 38, the plaintiff charges that she was retaliated against because she assisted co-workers in asserting their Title VII rights. (Am. Compl. PP 39, 40.) The defendants contend that Count I is time-barred to the extent that it alleges incidents which took place more than 300 days prior to Ms. Garcia's filing of her EEOC charge, i.e., before January 4, 1995. The defendants point to paragraphs 21 through 27 and 35.

 In paragraphs 21 through 27, Ms. Garcia explains that prior to and in 1993, her supervisor, Mr. Hill, sexually harassed several Public Defender employees and an office intern. At the request of these persons, the plaintiff confronted Mr. Hill, communicated with office managers about his conduct, and participated in an internal Public Defender investigation of Mr. Hill's treatment of the intern. Ms. Garcia says that after the intern left in December 1993, with the help and approval of his supervisor, Mr. Gleason, Mr. Hill initiated a campaign of retaliatory harassment against her. (Id. P 28.) The plaintiff then describes the allegedly retaliatory conduct. (Id. PP 29-32, 34, 35, 37.) Clearly, then, the events of 1993 and earlier do not comprise the retaliatory conduct about which Ms. Garcia complains, but are alleged to trigger retaliation. Therefore, the events set forth in paragraphs 21 through 27 need not fall within the 300-day statute of limitations.

 However, the conduct alleged to constitute retaliation--paragraphs 29 through 32, 34, 35, and 37--must either have occurred before the statute ran or the plaintiff must successfully invoke a doctrine excusing failure to comply with the statute. Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1166-1167 (7th Cir. 1996) ("standard principles of limitations law, notably the discovery doctrine and the doctrines of equitable estoppel and equitable tolling . . . apply to cases brought under Title VII"). *fn2" Paragraphs 29 through 32 refer to numerous episodes yet are devoid of dates. The defendants ask for these dates, pursuant to Fed. R. Civ. P. 12(e). In a footnote in her response brief, Ms. Garcia promises to furnish the dates. If she has not done so as of the date of this opinion, she is to do so as soon as possible. Although Ms. Garcia could have "pleaded herself out of court" by alleging pre-January 4, 1995 retaliatory conduct, her failure to plead specific dates is not a basis for dismissal. *fn3" Tregenza v. Great American Communications Co., 12 F.3d 717, 718-19 (7th Cir. 1993) ("The statute of limitations is an affirmative defense, and a plaintiff is not required to negate an affirmative defense in his complaint."); Broxton v. City of Chicago, No. 96 C 2488, 1996 WL 627622, at *4 (N.D. Ill. Oct. 25, 1996) (denying motion to dismiss Title VII claims in absence of facts showing that claims are untimely).

 Exhaustion of Administrative Remedies

 Prior to filing a Title VII suit, a plaintiff must exhaust her administrative remedies with the EEOC. Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 128-29 (7th Cir. 1989). A corollary of this exhaustion requirement is that generally, a plaintiff cannot base her complaint on claims she did not include in her EEOC charge. Nevertheless, since most EEOC charges, including Ms. Garcia's, are completed by laypersons without the assistance of attorneys, "a Title VII plaintiff need not allege each and every fact that . . . form[s] the basis of . . . her complaint." Cheek v. Western & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). What the courts do require, however, is that the claims in the complaint be "[1] like or reasonably related to the allegations of the [EEOC] charge and [2] growing out of such allegations." Id. (quotation omitted). "This limitation is consistent with the principle of primary jurisdiction in the [EEOC], for it gives the employer some warning of the conduct about which the employee is aggrieved, and it affords the agency and the employer an opportunity to attempt conciliation without resort to the courts." Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992) (citing Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985)). The courts construe this limitation with "utmost liberality." 966 F.2d at 1111 (quotation omitted). The defendants argue that Count I must be dismissed to the extent that the alleged retaliatory conduct is not encompassed within the plaintiff's EEOC charge.

 In her EEOC charge, Ms. Garcia wrote as follows:

 

I. I was hired by the above named Respondent in May, 1990. My most recent position is as Sentencing Advocate. In November, 1993 I assisted in a sexual harassment investigation against my supervisor. Since that time I have been subjected to discipline.

 

II. The reason given for the discipline was that I was insubordinate.

 

III. I believe that I am being retaliated against for assisting in a sexual harassment investigation in violation of Title VII of the Civil Rights Act of 1964, as amended, in that I am being subjected to disciplinary memos, disciplined on October 5, 1995, and I received a poor performance appraisal.

 See Babrocky, 773 F.2d at 864-66 (looking to factual narrative of EEOC charge to determine what claims were raised before agency). Paragraph 34 of Ms. Garcia's complaint states that her 1995 performance review indicated that she met or failed to meet expectations and that she was insubordinate. Clearly, this claim is alleged in the EEOC charge.

 In paragraph 30, Ms. Garcia alleges that Messrs. Hill and Gleason subjected her to arbitrary and groundless disciplinary actions. Subparagraphs (b), (c), and (d) detail instances where Ms. Garcia was actually disciplined, subparagraphs (f) and (g) describe instances where she was threatened with disciplinary action, and subparagraph (e) states that Messrs. Hill and Gleason failed to comply with the Public Defender's disciplinary procedure. All these allegations are "like or reasonably related to" the plaintiff's EEOC allegations that she was "subjected to discipline." Ms. Garcia's "detailed [complaint] allegations . . . simply define" what she means by being subjected to discipline. Zorn v. Helene Curtis, Inc., 903 F. Supp. 1226, 1242 (N.D. Ill. 1995) (where EEOC charge asserted that employer "'embarked on a systematic campaign of harassment'," numerous instances of sexual harassment set forth in the complaint "are reasonably related to and grow out of th[e EEOC] charge[, because they] . . . simply define what [the plaintiff] claims was a systematic campaign of harassment").

 "The second part of the test[--that the claims in the complaint reasonably grow out of an EEOC investigation--]is difficult to apply because it requires speculation as to what the EEOC might or might not discover in the course of an investigation." *fn4" Cheek, 31 F.3d at 500. Nevertheless, here, it would be reasonable for the EEOC to examine any disciplinary actions taken with respect to Ms. Garcia. See Nolan v. South Cent. Community Servs., Inc., No. 95 C 2328, 1996 WL 473662, at *5-6 (N.D. Ill. Aug. 14, 1996) (where plaintiff left employer after filing EEOC charge in which he alleged retaliation, complaint properly included constructive discharge claim because that issue "certainly would have come up in the conciliation process"). In addition, the policy which underlies the requirement that the Title VII complaint allegations be "like or reasonably related to" the plaintiff's EEOC allegations and grow out of such allegations supports the above conclusion. Cook County is aware of its Public Defender's disciplinary policies and procedures and, upon receiving an EEOC charge claiming that Ms. Garcia was retaliated against by being subjected to discipline, Cook County was put on notice that it had to review any disciplinary actions taken with respect to Ms. Garcia. Therefore, Cook County was in a position to resolve the dispute through the EEOC conciliation process. See Rush, 966 F.2d at 1110.

 In subparagraph 30(a), Ms. Garcia states that Mr. Hill demoted her from the position of Lead Sentencing Advocate without incident or explanation. Although this allegation appears under the heading "arbitrary and groundless disciplinary action," the plaintiff's characterization of the conduct as a disciplinary action does not necessarily make it so. The EEOC charge does not refer to a demotion. However, it does state that Ms. Garcia received a poor performance appraisal. The demotion allegation can be said to be "like or reasonably related to" the appraisal allegation. In Rush, the plaintiff supplemented her EEOC charge with an affidavit which alleged that her employer's promotional policies were discriminatory. Id. at 1110-11. The plaintiff's complaint contained, among other things, a claim that she was discriminatorily denied a promotion and employee benefits. Id. at 1108. The district court held that the denial of the promotion claim was "preserved." Id. at 1111. Disagreeing with the district court, the Seventh Circuit held that the denial of benefits claim was properly asserted because it was "derivative of the denial of promotion" claim. Id. "The plaintiff's theory regarding benefits [was] that she could have obtained these additional benefits only by being a full-time employee," i.e., by receiving a promotion. Id. Here, there may be a relationship between Ms. Garcia's demotion and her poor performance appraisal. *fn5"

 In paragraph 31, Ms. Garcia complains that Mr. Hill disparaged her skills and abilities to and in front of the Public Defender's employees and addressed her in a harsh, insulting, and demeaning manner. This allegation does not satisfy the first prong of the test because it is not "like or reasonably related to" the plaintiff's EEOC allegations. The Rush plaintiff's EEOC charge asserted race-based termination- and promotion-related charges. 966 F.2d at 1110-11. The Seventh Circuit held that a claim of racial harassment was not related to the EEOC charge allegations and could not, therefore, be asserted in a Title VII suit. Id. at 1111-12. In paragraph 31, without attaching that label, Ms. Garcia is stating a harassment claim.

 In paragraph 29, Ms. Garcia lists instances in which Messrs. Hill and Gleason disparately implemented the Public Defender's policies with respect to her. In paragraph 32, the plaintiff claims that Mr. Hill improperly accessed and copied her computer files. These allegations are not "like or reasonably related to" the plaintiff's EEOC allegations. The Cheek plaintiff alleged in her EEOC charge that one of her supervisors discriminated against her on the basis of gender by intimidating her and asking her to pay for her clients' insurance premiums, something that her male colleagues were not required to do. 31 F.3d at 500. In the complaint, the plaintiff stated that another supervisor discriminated against her on the basis of gender by transferring her, as well as other females sales representatives, to less lucrative sales routes. Id. at 500-01. The Seventh Circuit concluded that the transfer allegations were not "like or reasonably related to" the intimidation/insurance premiums allegations because "the type of conduct alleged to be discriminatory[] and the identity of the individuals involved" were different. Id. at 502. Like in Cheek, the conduct asserted in paragraphs 29 and 32 is different from and factually unrelated to that in Ms. Garcia's EEOC charge. *fn6" See id. at 501-02. "Retaliation" is a legal conclusion, and merely labeling conduct "retaliatory" does not bring the complaint allegations within the ambit of the EEOC charge. Id. at 501 ("Because an employer may discriminate on the basis of sex in numerous ways, a claim of sex discrimination in an EEOC charge and a claim of sex discrimination in a complaint are not alike or reasonably related just because they both assert forms of sex discrimination."); see also Vitello v. Liturgy Training Publications, 932 F. Supp. 1093, 1096, 1098-99 (N.D. Ill. 1996) (where second EEOC charge alleged retaliation in the form of "suspension, harassment, and different terms and conditions of employment" because of filing first EEOC charge, complaint allegation that plaintiff was retaliatorily demoted because he assisted co-worker in prosecuting EEOC claim was not "like or reasonably related to" EEOC charge because "retaliation by demotion . . . involves a different form of retaliation . . . than the retaliation alleged in the second EEOC charge").

 In paragraph 35, Ms. Garcia states that from September 1994 to the present, she requested transfers from several managers at the Public Defender's office, but her requests were denied. This allegation is not "like or reasonably related to" those of the EEOC charge. Assuming that the EEOC charge implicitly refers to Messrs. Hill and Gleason, the allegations in paragraph 35 do not implicate them. Thus, like in Cheek, paragraph 35 neither "describe[s] the same conduct [as that in the EEOC charge, nor] . . . implicate[s] the same individuals." Id. (emphasis in the original); see also Harper, 45 F.3d at 148 (where plaintiffs alleged in EEOC charge that they were discriminated against with respect to layoffs, complaint allegation regarding discrimination with respect to seniority lists was not "alike or reasonably related to" EEOC charge because "the layoffs were not connected with the ordering of the seniority lists[, and different] . . . individuals [were] involved").

 Notwithstanding the above analysis, Ms. Garcia's allegations in paragraphs 29, 31, 32, and 35 may be cognizable if the conduct occurred after she filed her EEOC charge. If the alleged retaliatory acts occur after the EEOC charge is filed, "only a single filing is necessary to comply with the intent of Title VII" viz-a-viz the requirement to exhaust administrative remedies. *fn7" McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 482-83 (7th Cir. 1996). As I have indicated previously, the allegations in paragraphs 29 through 32 and 35 do not include dates. I am lead to speculate that, at least, some of the conduct might have occurred after the plaintiff filed her EEOC charge. Ms. Garcia filed her EEOC charge on October 31, 1995. In May 1996, she went on a medical leave of absence. (Am. Compl. P 38.) In subparagraph 29(e), Ms. Garcia complains about being unable to gain access to her office during her leave of absence, while other similarly situated employees did have such access. It would appear that this incident occurred after Ms. Garcia filed her EEOC charge. As such, this allegation is properly included in the complaint. McKenzie, 92 F.3d at 482-83. The incident alleged in paragraph 37 is likewise cognizable in this suit because it occurred in January 1996. Since the requirement to exhaust administrative remedies is a non-jurisdictional condition precedent to filing a Title VII suit, Harper, 45 F.3d at 148, the absence of dates in the complaint is not grounds for dismissal. See Adwan v. Columbus-Cuneo-Cabrini Med. Ctr., 635 F. Supp. 499, 500-01 (N.D. Ill. 1986) (exhaustion requirement need only be averred generally in complaint); see also Babrocky, 773 F.2d at 864 (proper place to attack exhaustion of administrative remedies requirement is summary judgment motion).

 In conclusion, allegations in paragraphs 21 through 27 are properly in the complaint as providing context for the retaliatory conduct. Allegations in paragraphs 29(e), 34, and 37 are cognizable. Allegations in paragraph 30 satisfy the exhaustion of administrative remedies requirement, but must fall within the 300-day statute of limitations or be excused from is operation. *fn8" Incidents alleged in paragraphs 29, *fn9" 31, 32, and 35 are cognizable only if they occurred after the filing of the EEOC charge, October 31, 1995; otherwise, even if they comply with or are excused from the operation of the statute of limitations, they do not meet the exhaustion of administrative remedies requirement. See Luddington v. Indiana Bell Tel. Co., 796 F. Supp. 1550, 1565 (S.D. Ind. 1991), aff'd, 966 F.2d 225 (7th Cir. 1992) ("doctrine of 'like or reasonably related [to]' . . . has nothing to do with the statute of limitations"). Ms. Garcia must provide the relevant dates to the defendants and the court.

 Count II--Intentional Infliction of Emotional Distress

 The defendants argue that I lack subject matter jurisdiction over Count II pursuant to the Illinois Human Rights Act ("IHRA"). 775 ILCS 5/1-101 et seq. (West 1993 & Supp. 1997). The IHRA provides that "except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act." *fn10" 775 ILCS 5/8-111(C) (West Supp. 1997). Retaliation "against a person because . . . she has opposed that which . . . she reasonably and in good faith believes to be . . . sexual harassment" is a "civil rights violation" under the IHRA. 775 ILCS 5/6-101(A) (West 1993).

 In Geise v. Phoenix Co. of Chicago, 159 Ill. 2d 507, 639 N.E.2d 1273, 203 Ill. Dec. 454 (1994), the plaintiff alleged that her supervisor sexually harassed her. Id. at 1274. She further alleged that her employer was liable for negligently hiring and retaining the supervisor, a known sexual harasser. Id. at 1274-75. The Illinois Supreme Court held that, pursuant to the IHRA, the trial court had no jurisdiction over the plaintiff's claims of negligent hiring and negligent retention because

 

the concept of sexual harassment is inextricably linked to the [negligent hiring and negligent retention] claims . . . . Absent the allegations of sexual harassment, [the plaintiff] would have no independent basis for imposing liability on her former employer under the facts present here. [The tort claims against the employer] . . . depend on the prohibitions against sexual harassment for their viability.

 Id. at 1277. Numerous cases in this district have interpreted this language as instructing a court "to examine the plaintiff's tort claim and assess whether there is any viable claim remaining once all references to the civil rights claims are removed." Russo v. Kap Graphics, No. 96 C 2500, 1997 WL 17804, at *4 (N.D. Ill. Jan. 14, 1997). If not, "the tort claim is barred by the [Illinois Human Rights] Act." *fn11" Id.

 In Guy, the plaintiff alleged that she was discriminated against because of gender and was sexually harassed. She also alleged that she was fired in retaliation for complaining about the discrimination and the harassment. 958 F. Supp. at 1304. Having reviewed the facts of the intentional infliction of emotional distress claim, the court found that it was "based on retaliation by defendants." Id. at 1312. The court therefore dismissed the claim, holding that it was preempted by the IHRA. Id. The present case is analogous because, for the purposes of Count II, Ms. Garcia realleges the facts which support Count I. (Am. Compl. P 46). She also states that Messrs. Gleason's and Hill's retaliatory conduct was extreme, outrageous, "intentional, malicious, and in reckless disregard of the high degree of probability that [Ms.] Garcia would suffer extreme emotional distress," (id. PP 48, 50), and that she suffered severe distress as a result of the retaliation. (Id. at 51.) Thus, after the allegations referring to a civil rights violation, i.e., retaliation, are removed, nothing is left of Ms. Garcia's intentional infliction of emotional distress claim. Russo, 1997 WL 17804, at *4. This "claim is therefore barred by [the IHRA] and Geise." Id. Accordingly, I have no jurisdiction over Count II and dismiss it. *fn12"

 Conclusion

 The defendants' motion to dismiss is granted, in part, and denied, in part. Ms. Fry, in her official capacity as the Public Defender, is dismissed. Count II is dismissed. Messrs. Hill and Gleason are dismissed. Ms. Garcia is to provide the dates pertaining to paragraphs 29 through 32 and 35.

 ENTER ORDER:

 Elaine E. Bucklo

 United States District Judge

 Dated: July 15, 1997


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