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July 6, 2004.


The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District


Pro se plaintiff Ralph Cabrera filed an eight-count amended complaint against Defendant World's Finest Chocolate ("WFC") alleging violations of Title VII, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Illinois Human Rights Act ("IHRA"), 775 Ill. Comp. Stat. 5/2-101 et seq., and various state laws. Cabrera also asserts several claims under the Constitution. WFC moved to dismiss the amended complaint in its entirety. For the reasons set forth below, WFC's motion is granted.


  Cabrera filed his complaint on January 20, 2004. WFC moved to dismiss the complaint on February 9, 2004. On February 10, 2004, we set a briefing schedule on the motion. Cabrera was to respond by March 2, 2004, and WFC was to reply by March 9, 2004. Cabrera did not file a response to the motion to dismiss by the scheduled deadline. On March 9, WFC complied with the scheduling order by filing its reply brief even though no responsive brief had been filed by Cabrera. On that same day, Cabrera filed a "Motion to Amend and Supplemental Pleadings," which we construed as a motion for leave to amend his complaint to include an additional paragraph that he submitted as an attachment to his motion. WFC urged us to deny the motion for leave to amend. In accordance with Federal Rule of Civil Procedure 15(a), we granted Cabrera leave to amend his complaint*fn1 to add the paragraph included in his motion. In the text of that same motion, Cabrera requested us to "strike defendant[']s motion to dismiss." Acknowledging Cabrera's pro se status, his failure to file a response to the motion to dismiss, and in an abundance of caution, we provided Cabrera an additional opportunity to respond to the motion to dismiss. We also permitted WFC to file a reply to the response. Following the issuance of our order, Cabrera did respond to the motion to dismiss. Approximately one week later, on April 26, 2004, Cabrera filed an amended complaint. The amended complaint did not add the paragraph to which he referred in his motion, but rather included two additional "causes of action", a new claim under the ADEA, new factual allegations, and more attachments. WFC replied to the motion to dismiss and also moved to strike or, alternatively, dismiss the amended complaint. Because the Seventh Circuit has made clear that a motion to dismiss is not a responsive pleading, see, e.g., Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1111 (7th Cir. 1984), and we considered this to be Cabrera's first attempt to actually serve an amended complaint, we denied WFC's motion to strike.*fn2 We acknowledged, however, that although the amended complaint retained many of the defects highlighted by WFC, it also raised new allegations that WFC would likely seek to address. The parties were therefore provided another opportunity to supplement their memoranda.*fn3 Now that the parties have had ample opportunity to present fully their arguments as to the merits of the amended complaint, we issue our opinion.


  For the purposes of this motion, we must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997). Although some of Cabrera's statements are not easy to fully comprehend, we have set forth the facts in this section as we understand them. These facts are taken from the first amended complaint ("FAC") submitted on April 26, 2004.

  Cabrera began working at WFC in 1997. He was employed as a facility maintenance technician. He describes himself as Hispanic-American-Indian. At WFC, he was under the supervision of John Singletary, Kenny Damron, Ray Southern and Len Serwecinski, who are all white. (FAC ¶ 7). Some time in January 1999, Cabrera entered into a verbal agreement with Richard Kessell, Serwecinski's boss, to study structural engineering design in Kessell's office, using Kessell's computers. Cabrera agreed not to use any equipment or read any study materials during work hours. (FAC ¶ 8). Several weeks later, Kessell notified Serwecinski of the agreement he had made with Cabrera. As a result, according to Cabrera, Serwecinski "retaliated with extreme prejudice" against Cabrera because of Cabrera's interest in furthering his education. (FAC ¶ 9).

  In February 1999, Singletary informed Cabrera that he was no longer permitted to enter the engineering office and if Cabrera did not comply with the rules, Cabrera would be disciplined or terminated. Cabrera was told that he could not enter any offices unless he was assigned to repair something, invited in for a conference, or given permission. (FAC ¶ 10). Cabrera continued, however, to study after working hours in Kessell's office with Kessell's permission. In the following weeks, Cabrera noticed he was under surveillance throughout his work shift and during his lunch hour. (FAC ¶ 11). Cabrera also reports that on several occasions he was escorted out of the building by Singletary and restrained by security personnel from entering the facility until fifteen minutes prior to his scheduled working hours. (FAC ¶ 15).

  Prior to a snowfall in March 1999, Cabrera requested that a repairman inspect one of WFC's truck's tires. Later that month, Singletary ordered Cabrera to plow snow from a parking lot deck. Cabrera refused to do so because he believed that the truck used to plow snow was unsafe. (FAC ¶ 12). Singletary assured Cabrera that the truck's tires had been repaired. Cabrera therefore plowed the parking lot deck. While doing so, he lost control of the truck and knocked out a portion of a brick wall partition. Cabrera refused to plow further until the truck was repaired by a certified repairman. Id. Cabrera received a "warning leading to suspension" apparently for his refusal to use the truck.

  On March 16, 1999, Singletary ordered Cabrera to use a pickup truck to move sand to another location. As Cabrera was transporting the sand, the pickup truck's hatch broke and two bags of sand fell to the street. Cabrera was able to pick up the sand and deliver it to the proper location. According to Cabrera, although he notified Singletary and Serwecinski that the hatch had broken, he was suspended for one day. (FAC ¶ 13). Later, in June 1999, Singletary ordered Cabrera to repair a steel door. The repair required the use of heavy equipment. Cabrera states that he used his own vehicle to transport the equipment to the work site and tried to park as close to the work site as possible. (FAC ¶ 14). Cabrera explains that no handicap parking signs were posted in the area. Nevertheless, Cabrera was suspended for three days for parking in a handicap parking space. In August 1999, Singletary ordered Cabrera to repair a steel door in the sugar silo. Cabrera refused because he was allergic to bees and he was concerned there were bees in the silo. He states that Singletary was informed of Cabrera's allergy when he was hired. (FAC ¶ 16). Cabrera requested that another employee be assigned to the task. Singletary informed Cabrera that this was his last chance and if he did not complete the task, he would be terminated. He assured Cabrera there were no bees in the silo. When Cabrera entered the silo, he saw hundreds of bees. Cabrera quickly exited and apparently did not repair the door.*fn4 Id.

  According to the complaint, on October 12, 1999, the maintenance supervisor, Kenny Damron, instructed Cabrera to move some office furniture out of an office belonging to Ms. Johnson and thereafter clean the vacant office. Once the furniture was moved, Cabrera began cleaning the office. Ms. Johnson returned and was frustrated with Cabrera for moving her office furniture. She asked Cabrera to move a computer monitor from under her desk and place it in the fire escape stairwell leading to the roof. Cabrera opened the stairwell and found that office supplies and files barricaded the fire exit. Cabrera apparently began discussing the importance of having the stairwell clear and noted other safety concerns. Cabrera placed the computer monitor in the threshold of the stairwell door. Later that afternoon, Cabrera was terminated. (FAC ¶ 17).*fn5

  Cabrera filed this action on January 20, 2004. He filed his amended complaint on April 26, 2004. He claims that as a result of the conduct set forth above, he suffered damages and is entitled to judgment. (FAC ¶ 17A). He alleges that although his work performance was exemplary, WFC "acted with malice and ill will towards Cabrera" discharging and otherwise discriminating against him because of his race. (FAC ¶¶ 17B-C). He contends that his job performance suffered "as a result of the racial harassment and created an objectively intimidating, hostile and offensive workplace." (FAC ¶ 17E). He claims he suffered adverse employment actions in the form of retaliatory and constructive discharge. Id. ¶ 17F. For these reasons, Cabrera seeks lost earnings, benefits, compensatory and punitive damages, and other compensation.


  The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to decide the adequacy of the complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Therefore, a complaint should not be dismissed "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). Where, as here, a plaintiff is proceeding pro se, we have a special responsibility to construe the complaint liberally. See Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. ...

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