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PORTER v. IBM

September 2, 1998

DONALD L. PORTER, Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant.



The opinion of the court was delivered by: WILLIAMS

MEMORANDUM OPINION AND ORDER

 Plaintiff Donald Porter ("Porter") brings this Title VII action under 42 U.S.C. § 2000(e)(5) against defendant International Business Machines Corporation ("IBM"). Porter alleges that IBM discriminated and retaliated against him on the basis of his race (African-American) with respect to certain conditions of his employment. Porter also alleges that IBM's actions negligently inflicted emotional distress on him. IBM moves to strike paragraphs six through nine of Porter's amended complaint pursuant to Federal Rule of Civil Procedure 12(f). IBM also moves under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss Porter's negligent infliction of emotional distress claim for lack of subject matter jurisdiction and failure to state a claim. For the reasons set forth below, the court grants both IBM's motion to strike paragraphs six through nine of Porter's amended complaint and IBM's motion to dismiss Porter's state law negligent infliction of emotional distress claim.

 Background

 In 1996, Donald Porter worked for IBM as a manager. (Compl. P 28.) On August 29, 1996, fellow IBM employee Nancy Stock directed a racial slur at Porter when she called him a "nigger." (Compl. P 11.) Porter reported this racial slur to IBM on September 4, 1996 and stated that he was interested in a transfer to another department. (Compl. PP 12, 13.) Porter spoke with IBM employees Vito Panteleo and John Wright about his transfer and they both told him that his transfer would go through. *fn1" (Compl. PP 14-17.) To date, IBM has not transferred Porter to another department. (Compl. P 18.)

 On February 24, 1997, Porter received two "Condition of Employment" letters from IBM. One letter cited Porter for tardiness and the other letter warned Porter about his absenteeism. (Compl. P 26.) According to Porter, however, IBM was not justified in sending these letters because Porter was neither tardy for work nor did he have any unexcused absences. (Compl. P 27.) On March 8, 1997, Porter applied for sick leave from work. (Compl. PP 22, 23.) IBM approved his request and Porter then took a sick leave from work. (Compl. P 24.)

 On March 14, 1997, Porter filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") against IBM. (Compl. P 65.) Porter returned to work from his sick leave on May 19, 1997. (Compl. P 25.) On that date, IBM informed Porter that the company was demoting him from Manager to Help Desk Tech because of his alleged tardiness and absenteeism. *fn2" (Compl. P 28-32.)

 Around September 1, 1997, Porter became clinically depressed because of the stress of the alleged discrimination and the conditions under which he worked at IBM. (Compl. P 19.) Porter was hospitalized from September 1 through September 8 because of this depression. *fn3" (Compl. P 20.) Porter then filed this lawsuit on September 19, 1997.

 Count I of Porter's amended complaint alleges that IBM retaliated against him for filing his complaint of racial discrimination by failing to transfer him to another department within IBM and by demoting him. (Compl. P 67.) In Count II, Porter alleges that IBM negligently failed to provide a work environment free of racial discrimination, and because of IBM's negligence, Porter suffered emotional distress. (Compl. P 97.) IBM now moves to strike paragraphs six through nine of Porter's amended complaint pursuant to Federal Rule of Civil Procedure 12(f) and moves to dismiss the negligent infliction of emotional distress claim for lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

 Analysis

 I. Motion to Strike

 Under Rule 12(f), motions to strike are limited to pleadings containing "immaterial, impertinent or scandalous matter." Fed. R. Civ. P. 12(f). Generally, motions to strike are disfavored and are therefore usually denied. Hrubec v. National R.R. Passenger Corp., 829 F. Supp. 1502 (N.D. Ill. 1993) (denying motion to strike a motion to strike and supporting memorandum because neither item constituted a pleading). Before the court will strike portions of a complaint, the moving party must show that the allegations are unrelated to the plaintiff's claims and that allowing the allegations to remain in the complaint would be unfairly prejudicial. Cumis Ins. Soc., Inc. v. Peters, 983 F. Supp. 787, 798 (N.D. Ill. 1997).

 In both his EEOC charge and Count I of his amended complaint, Porter claims that IBM violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)(5), by discriminating against him on the basis of his race. Specifically, Porter alleges that on August 29, 1996 he was subjected to a racial slur that he reported to IBM on September 4, 1996. He alleges that IBM retaliated against his complaint of racial discrimination by failing to transfer him to another department within IBM and by demoting him. (Compl. P 67.) IBM contends that paragraphs six through nine of Porter's amended complaint are immaterial and should be stricken because they contain descriptions of events that occurred prior to August 29, 1996 and because Porter did not mention these events in his EEOC Charge.

 Generally, a plaintiff may not bring claims in a Title VII lawsuit that were not originally included in the EEOC charge. Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995); Cheek v. Western and S. Life Ins. Co., 31 F.3d 497, 503 (7th Cir. 1994). This rule serves the dual purpose of "giving the employer some warning of the conduct about which the employee is aggrieved, and affording 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)). A Title VII claim is within the scope of the EEOC charge if it is "like or reasonably related to the allegations of the [EEOC] charge and growing out of such allegations." Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976). A claim in the complaint is like or reasonably related to an EEOC charge if, at minimum, they both "describe the same conduct and implicate the same individuals." Cheek, 31 F.3d at 501.

 Paragraphs six through nine of Porter's amended complaint describe events that occurred from 1993 through 1995. Paragraph six alleges that in 1993 Porter held the position of First Level Manager. Paragraphs seven through nine allege that while Porter worked as a First Level Manager, he suffered acts of racial discrimination from ...


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