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May 5, 2003


The opinion of the court was delivered by: Wayne R. Andersen, United States District Judge


This case is before the Court on the motion of the defendant CB Richard Ellis, Inc. to dismiss the class claim in Count I as well as Counts II through IV of plaintiff Amy Wiginton's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion to dismiss is denied in part and granted in part.


Plaintiff Amy Wiginton is a resident of Brookfield, Illinois who was employed as a Marketing Director at CB Richard Ellis' (hereinafter referred to as "Richard Ellis") Oak Brook, Illinois office. She began working at Richard Ellis on December 7, 1997 and she continued to work there until she quit her job on December 31, 2001. Defendant Richard Ellis is a worldwide commercial real estate services company. (Complt. at ¶ 11.)

On September 25, 2002, Wiginton filed the instant lawsuit individually and on behalf of other women similarly situated alleging sex discrimination and harassment in violation of Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e, et seq. According to the allegations in the complaint, which we are required to accept as true for purposes of this motion, Wiginton was forced to endure nearly daily sexual harassment once she began working at Richard Ellis. While we will not go into detail, Wiginton has alleged that she was subjected to harassment that included: 1) verbal comments regarding her body and her sexual history; 2) verbal propositions for sex; and 3) unwanted touching. (Complt. at ¶ 21.) Specifically, Wiginton has alleged that one of her former supervisors both grabbed and continuously stared at her breasts. Further, her supervisor at the time she quit subjected her to perhaps the most intense harassment. He allegedly propositioned her regularly for sex, he commented daily on her body and her clothes, he questioned her regarding her sexual life, and he called her "Wiggles" in front of her colleagues, an apparent reference to her breasts. (Complt. at ¶ 21(c).) Perhaps most reprehensible of all, Kozaritis allegedly circulated an email while Wiginton was on maternity leave implying that the father of her child was actually a male colleague. (Complt. at 21(g).)

Additionally, as part of her complaint, Wiginton has filed a number of class allegations which state that women employees of Richard Ellis as a group were subjected to a pattern and practice of discrimination on the basis of sex as a result "of a company-wide anti-female attitude." (Complt. at ¶ 16.) In particular, the complaint alleges that sexually explicit and pornographic material was disseminated by male supervisors, including birthday cards portraying naked women and the inclusion of pornographic material as gifts at annual holiday parties. (Complt. at ¶ 18.) Additionally, plaintiff and similarly situated women at Richard Ellis were allegedly subjected to a "daily barrage of lewd remarks, propositions and sexist insults, as well as leering glances and `elevator eyes' directed their way from co-workers and supervisors." (Complt. at ¶ 19.)

On December 31, 2001, Wiginton decided to voluntarily terminate her employment with Richard Ellis. The complaint suggests that the constant barrage of sexual harassment prompted her to make this decision. On January 2, 2002, the plaintiff filed timely charges with the United States Equal Employment Opportunity Commission ("EEOC") alleging sex discrimination and sexual harassment. In September 2002, the EEOC issued Wiginton a Notice of Right To Sue letter. She filed this lawsuit shortly thereafter.


In ruling on a motion to dismiss, the Court must normally accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Szumny v. Am. Gen. Fin., Inc., 246 F.3d 1065, 1067 (7th Cir. 2001). The purpose of a motion to dismiss is not to decide the merits of the challenged claims but to test the sufficiency of the complaint. Weiler v. Household Fin. Corp., 101 F.3d 519, 524 n. 1 (7th Cir. 1996). A court will grant a motion to dismiss only if it is impossible for the plaintiff to prevail under any set of facts that could be proven consistent with the allegations. Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000).

In its motion to dismiss, the defendant has raised two primary issues. First, the defendant is seeking to strike the class component of Wiginton's Title VII claim. Richard Ellis argues that the class action allegations contained in the complaint are outside the scope of the plaintiff's EEOC charge. Second, the defendant requests that Counts II through IV of the complaint be dismissed because they are preempted by the Illinois Human Rights Act. We will address each of these arguments in turn.

I. Title VII Class Action Complaint

In this portion of its motion to dismiss, Richard Ellis contends that the class action allegations of Wiginton's complaint should be stricken because: 1) her EEOC charge does not contemplate the subsequent filing of a federal class action sexual harassment/discrimination lawsuit; and 2) the time period for the purported class is broader than the period alleged in the EEOC charge. Both parties agree that the defining precedent for this case is the Seventh Circuit's ruling in Schnellbaecher v. Basking Clothing Co., 887 F.2d 124 (7th Cir. 1989).

It is well settled that a federal complaint alleging employment discrimination pursuant to Title VII must rely upon a timely charge of discrimination filed with the EEOC. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011 (1974); Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). It is also well settled that the allegations contained in the complaint must be sufficiently "like" or "related to" the allegations of the underlying EEOC charge so that: 1) the defendant was placed on notice of the claims it would be required to defend against; and 2) the EEOC had an opportunity to investigate the allegations that might eventually find their way into a lawsuit and attempt to conciliate the differences between the parties. See Schnellbaecher, 887 F.2d at 127; Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985) ("allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.").

The requirement that the complaint allegations be "like or reasonably related to" the allegations contained in the EEOC charge extends to the scope of the complaint, so that a class action claim in the lawsuit could have been properly anticipated in the underlying charge. Under the Schnellbaecher regime, our focus is the content of the charge itself and not on the subsequent EEOC investigation, if any. Whether the EEOC in fact investigated certain allegations contained in the charge is likely to have some effect on whether the defendant received adequate notice and had a chance to conciliate. But even "a limited EEOC investigation will not necessarily defeat a complaint where the complaint contains allegations like or reasonably related to the EEOC charge, but which the EEOC failed to investigate. In such a ...

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