The opinion of the court was delivered by: BUCKLO
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,
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.
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").
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.
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 " like or reasonably related to the allegations of the [EEOC] charge and  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 ...