The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the motion of Defendant Rotec
Industries, Inc. ("Rotec") to dismiss Count II of Plaintiff Daphne
Bilal's amended complaint pursuant to 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. For the reasons set forth below, we
grant the motion.
According to the allegations of the amended complaint, which we must
assume are true for purposes of this motion, Bilal is a former
receptionist for Rotec. Shortly after Bilal started at Rotec, Robert
Oury, chief executive officer of Rotec, began making sexual comments
about and sexual advances toward her. He made repeated invitations to Bilal to have dinner with him, all of which she declined.
Bilal told Oury on more than one occasion that his comments made her
uncomfortable and that he should refrain from making them.
Later, Oury allegedly told Bilal that if she had sex with him, he would
make her job at Rotec better. Bilal refused and threatened to report him
to the Equal Employment Opportunity Commission ("EEOC"). According to the
complaint, Oury grew angry with Bilal, called her "a useless tease," and
said that he knew what to do with a tease. Thereafter, Oury refused to
address Bilal's complaints about not receiving help answering phones at
lunchtime or when she needed to use the restroom. Bilal was forced to use
a time clock, even though she was a salaried employee. Oury also began to
make disparaging comments about Bilal's professional ability.
In October 2002, Oury began touching Bilal in sexually suggestive ways,
as well as continuing his sexually related remarks. On one occasion, he
placed a piece of chocolate from his mouth into Bilal's mouth and licked
his lips. Bilal alleges that Oury also told her that he wished she would
quit so that he could "have" her and "no one would have anything to say
about it." On or about October 30, 2002, Bilal reported to Oury that her
supervisor had thrown a newspaper at Bilal. The supervisor denied doing
so, and Oury fired Bilal. On March 12, 2003, Bilal filed a charge of discrimination with the EEOC
complaining of sex discrimination. On September 24, 2003, EEOC issued
Bilal a letter informing her of her right to sue. She filed the instant
action on December 22, 2003, within 90 days of receiving her right to sue
letter. In March 2004, she filed an amended, five-count complaint,
alleging sex discrimination, retaliation, battery, assault, and
intentional infliction of emotional distress. Rotec now moves to dismiss
the retaliation count.
A rule 12(b)(6) motion to dismiss is used to test the legal sufficiency
of a complaint. Gibson v. City of Chicago. 910 F.2d 1510, 1520 (7th Cir.
1990). In ruling on a motion to dismiss, a court must draw all reasonable
inferences in favor of the plaintiff, construe allegations of a complaint
in the light most favorably to the plaintiff, and accept as true all
well-pleaded facts and allegations in the complaint. Bontkowski v. First
Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v.
Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The allegations of a
complaint "should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). Nonetheless. In order to withstand a
motion to dismiss, a complaint must allege the "operative facts" upon
which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir.
1998). The plaintiff need not allege all of the facts involved in a claim
and can plead conclusions. Higgs v. Carter. 286 F.3d 437, 439 (7th Cir.
2002): Kyle. 144 F.3d at 455. A pleading need only convey enough
information that the defendant is able to understand the gravamen of the
complaint. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623,
627 (7th Cir. 1999). However, any conclusions pled must "provide the
defendant with at least minimal notice of the claim." Kyle, 144 F.3d at
455. Further, the plaintiff cannot satisfy federal pleading requirements
merely "by attaching bare legal conclusions to narrated facts which fail
to outline the basis" of the claim. Perkins, 939 F.2d at 466-67.
Rule 12(b)(1) provides for dismissal of claims over which the federal
court lacks subject matter jurisdiction. Jurisdiction is the "power to
decide" and must be conferred upon the federal court. See In re Chicago.
Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). In
reviewing a 12(b)(1) motion to dismiss, the court may look beyond the
complaint and view any extraneous evidence submitted by the parties to
determine whether subject matter jurisdiction exists. See United Transp.
Union v. Gateway Western Ry. Co., 78 F.3d 1208, 1210 (7th Cir. 1996).
Plaintiff bears the burden of establishing that the jurisdictional
requirements have been met. See Kontos v. United States Dept. of Labor,
826 F.2d 573, 576 (7th Cir. 1987). When a party moves for dismissal pursuant to Rule 12(b)(1), the nonmoving party must
support its allegations with competent proof of jurisdictional facts. See
Thomson v. Gaskill, 315 U.S. 442, 446, (1942). With these principles in
mind, we turn to the motion before us.
Generally, a plaintiff may not bring claims under Title VII that were
not originally brought among the charges before the EEOC. See Peters v.
Renaissance Hotel Operating Company. 307 F.3d 535
, 550 (7th Cir. 2002).
This requirement ensures that charged parties are aware of the
discrimination alleged and gives the EEOC an opportunity to investigate.
Babrocky v. Jewel Food Co., 773 F.2d 857
, 863 (7th Cir. 1985). In
analyzing whether allegations within a complaint were among the charges
brought before the EEOC, a court must look to the substance of the
charges, not merely whether a particular box was checked on the EEOC
form. See Jenkins v. Blue Cross Mutual Hospital Insurance Inc.,
538 F.2d 164
, 168 (7th Cir. 1976). Accordingly, plaintiffs can proceed on
a claim not explicitly set forth in a charge of discrimination if the
claim is "like or reasonably related" to the EEOC charges, and could be
expected to grow out of the EEOC's investigation. Peters. 307 F.3d at
550. Claims are not to be considered alike or reasonably related unless
there is a factual relationship between them. Id. That is, the complaint
must at least "describe the same conduct and implicate the same
individuals." Id. On her EEOC form, Bilal checked the box indicating that her charge was
based on sex discrimination; she did not make a corresponding indication
in the area for retaliation. She then described her experience at Rotec
in the following terms:
I am a former employee of Rotec Industries, Inc.
and a woman. I worked in the Elmhurst, Illinois
office. I have been subjected to unwanted touches
and sexual comments by the owner and CEO of Rotec.
Since August, 2001, on a continuous basis until my
termination on October 30, 2002, I have been
harassed, and subjected to a hostile work environment
on account of my sex. I have been treated differently
than non-woman employees.
The actions of Rotec violate my rights under Title
VII of the Civil Rights Act.
As described above, Bilal's complaint reiterates the allegations of sex
discrimination found in her EEOC charge. She details unwanted sexual
advances and touching. Specifically, she claims that after complaining to
Rotec's CEO about his sexual comments and advances, she was verbally
abused, offered little administrative support, and eventually
Without question, Bilal's EEOC charge and her complaint both implicate
the same individual-Robert Oury. However, there is no trace in the EEOC
charge of the retaliatory conduct that she cites in her complaint, no
hint of any grievances lodged with her employer or any agency that could
be reasonably inferred to be statutorily protected activity, and no
inference of causation to be made from the charges lodged with the EEOC. See Stone v. City of Indianapolis Pub. Util., 281 F.3d 640,
642 (7th Cir. 2002). The only statement that even arguably applies to her
retaliation claim is the mention of her termination in the second
paragraph of the charge. However, as termination can occur for innumerable
reasons, many (if not most) of which are not illegal, this mention alone
is insufficient to put Rotec or the EEOC on notice that Bilal claimed
retaliation as well as sex discrimination. See Heuer v. Weil-McLain,
203 F.3d 1021, 1022-23 (7th Cir. 2000).
Contrary to Bilal's assertions, this case does not resemble Mendenhall
v. Mueller Streamline Co., 2003 WL 187405 (N.D. Ill. Jan. 28, 2003), in
which a retaliation claim was permitted even though the plaintiff failed
to check the box marked "Retaliation" on his original EEOC charge. Id. at
*3. In Mendenhall, the plaintiff's charge discussed how he was subject to
"racially derogatory actions," informed his supervisors of those
actions, and was "subsequently suspended and eventually terminated." Id.
In light of these contentions, we concluded that the employer and the
EEOC were apprised that the plaintiff's charge encompassed a claim for
Here, Bilal's failure to check the "Retaliation" box is not the sole
deficiency of the charge with respect to her ability to bring a
retaliation in this court; rather, the charge is devoid of any indication
of a contention of retaliation. The charge and the complaint do not
describe the same conduct. Thus, we cannot conclude that one is like or reasonably related to ...