United States District Court, N.D. Illinois, Eastern Division
May 18, 2005.
ANGELICA BORROMEO, Plaintiff,
THE CITY OF CHICAGO, a municipal corporation; JOHN ROBERSON, individually; and MICHELLE KANTOR, individually, Defendants.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Angelica Borromeo, filed suit against Defendants,
the City of Chicago, John Roberson, and Michelle Kantor.
Plaintiff brings claims for: (1) sex discrimination under Title
VII, 42 U.S.C. § 2000e et seq. (Count I); (2) race
discrimination under Title VII (Count II); (3) age discrimination
under the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 621 et seq. (Count III); (4) sex discrimination under
42 U.S.C. § 1983 (Count IV); (5) race discrimination under
42 U.S.C. § 1983 (Count V); and (6) race discrimination under
42 U.S.C. § 1981 (Count VI).
Presently before the Court is Defendants' Motion to Dismiss in
Part Plaintiff's First Amended Complaint; Defendants seek to
dismiss the allegations pertaining to: (1) failure to select
Plaintiff for other positions, (2) false disciplinary charges,
and (3) discrimination which allegedly occurred after the
original act of discrimination. While this motion was pending,
Plaintiff filed a Second Amended Complaint. Per the parties'
agreement, this motion was deemed to be refiled as to the Second
Amended Complaint. LEGAL STANDARD
In reviewing a motion to dismiss, the court reviews all facts
alleged in the complaint and any reasonable inferences drawn
therefrom in the light most favorable to the plaintiff. See
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326
(7th Cir. 2000). A plaintiff is not required to plead the facts
or elements of a claim, with the exceptions found in Federal Rule
of Civil Procedure 9. See Swierkiewicz v. Sorema, 534 U.S. 506,
511 (2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir.
2002). Dismissal is warranted only if "it appears beyond a 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). The "suit should not be dismissed if it is
possible to hypothesize facts, consistent with the complaint,
that would make out a claim." Graehling v. Village of Lombard,
Ill., 58 F.3d 295, 297 (7th Cir. 1995).
The facts, for the purposes of this motion, are taken as true
from Plaintiff's Second Amended Complaint. Plaintiff, an
Asian-American, is employed as an architect for the City of
Chicago (the "City") in the Permits Bureau of the Department of
Buildings, located within City Hall in downtown Chicago. Her
assignments included architectural and certification work on
major products, including construction at Chicago's O'Hare and
Midway Airports, various City libraries, and other
multi-million-dollar construction projects.
The City formed a new department, the Department of
Construction and Permits ("DCAP"), in a reorganization. After the
reorganization, Plaintiff was transferred from her City Hall
position to another facility. While Plaintiff had previously
worked on products involving her architectural and other
professional skills, her new position was largely secretarial and clerical in nature. As a result of her transfer, Plaintiff also
lost opportunities for overtime pay, and her new office
conditions were significantly inferior to the office conditions
at City Hall. Plaintiff also lost opportunities for promotions
and career advancement. At the time Plaintiff was transferred,
seven other employees with similar qualifications as Plaintiff
worked for DCAP. Only Plaintiff and another older female were
transferred to less desirable positions, while younger, male,
non-Asian architects in Plaintiff's department were assigned to
more desirable positions.
After her demotion, Plaintiff filed a grievance with her union
against the City. The City agreed to consider Plaintiff for the
next applicable vacancy at City Hall. However, the City has not
considered or hired Plaintiff for such vacancies, choosing
instead to hire younger, male, non-Asian employees. The City has
also retaliated against Plaintiff by bringing false, baseless
disciplinary charges against her.
Plaintiff's first Equal Employment Opportunity Commission
("EEOC") charge contends that Plaintiff was discriminated on
account of her race, sex, and age and states that:
I was hired by [Defendants] in or around August 1992.
My current position is Architect IV. On or about
April 30, 2003, I was transferred to a less favorable
location. None of the male or white employees were
transferred. My duties were given to younger male
I believe I have been discriminated against because
of my race, Asian, and my sex, Female, in violation
of Title VII of the Civil Rights Act of 1964, as
amended. I also believe that I have been
discriminated against because of my age, 50 (DOB:
07/21/1952), in violation of the Age Discrimination
in Employment Act of 1967.
An intake questionnaire filled out by Plaintiff, also signed
under the penalty of perjury, alleges that Defendants failed to
promote Plaintiff on account of her sex, age, and national
origin. The questionnaire then refers to an attached letter,
which provides, in pertinent part: 7. March 10, 2003 DCAP selection. Yemi told by the
commissioner that he will be the he will [sic] work
with Jim Jack in self-cert (not known by myself at
that time), in the close door meeting with John
Roberson. This is a formal selection since Yemi was
hired only a few months ago and he was already told
where he job assignment is [sic].
8. March 11, 2003 [sic] the older and female
employees were the last to be told by Michelle Kantor
that we will be with DCAP. She is not in liberty to
tell what our [d]uties are for three months we will
be assigned to finishing the projects about 3,000
plan outstanding [sic]. After that time she will tell
us what our duties will be. (very tricky).
9. March 17, 2003 Monday unofficial move to the
9th floor new department (newly renovated). New
hire started coming in and working. Brad (white male
and young) is working with Jimmy Jack in
Self-Certification. Victor Martinez (younger male
Hispanic) promoted to Project Manager. . . .
13. April 4, 2003 Chuck Killman informed us that we
will be with DCAP and the commissioner wants to talk
to us regarding our duties.
14. April 8, 2003 Roberson talked to us on the
9th floor. We complained to him that we [w]ere
mistreated all through this process. He told us he
would look into it. We also asked him why we were
not selected for promotion in the new department.
His respond [sic] was I only wanted less experience
people that would adapt to his system. He wants fresh
ideas. He went on to give us the new DCAP brochure
with the floor plan of the 9th. He offered us the
job of Self-Cert, Plan examination, regulatory
examination and neighborhood center (this center was
never our job). I told him that I was very involved
with self-cert and I would like to stay in that
position. He said he would talk to us again. . . .
16. April 11, 2003 (I was scheduled to see the
commissioner alone at 1 pm). At 9 am, there was
construction at the 8th floor that prevented us
from doing our work. We had to wear a masked [sic].
The bathroom about 4 feet from the office was
My meeting with the commissioner was moved to 3 pm.
In the meeting the commissioner had already made up
his mind that he will assign me to Kedzie and
47th St. I had told him it will be hardship [sic]
for me since I am a single parent and my home is
close to O'Hare airport and that was not the job that
I was doing for the last 10 years. I was in Self-Cert
and I was good at my job. He told me there would be
no architectural and I would be over-qualified for
the job. . . . 22. April 30, 2003 I was given a letter stating that
I will be assigned to Addison Neighborhood office not
in Self Cert.
Pl.'s Second Am. Compl., Ex. 2 (emphasis added).
Paragraphs 7 through 9 of Plaintiff's third EEOC charge
7. However, since engaging in protected activity,
Respondent has engaged in harassing and retaliatory
conduct for the purpose of manufacturing a false
reason to discipline me and justify its
discriminatory and retaliatory actions.
8. For example, on or about October 28, 2004, I was
issued a written reprimand for supposedly being
discourteous to a City customer. Respondent caused
its agents to solicit the complaint from the customer
for the purpose of manufacturing disciplinary action
9. On or about October 22, 2004, I was notified that
I faced further formal disciplinary action supposedly
related to my competence to perform my job duties and
other, unspecified matters.
Defendants do not seek to dismiss any particular claims but,
rather, only to dismiss allegations pertaining to: (1) failure to
select Plaintiff for architectural positions at City Hall, (2)
false disciplinary charges, and (3) Defendants' failure to return
Plaintiff to City Hall after she was transferred. Defendants do
not dispute that Plaintiff's allegations concerning her transfer
to the Addison facility are properly pled.
Defendants argue that Plaintiff's allegations regarding her
failure to be selected for other positions specifically,
architectural positions at DCAP were not contained in any of
Plaintiff's three EEOC charges. Plaintiff argues that the
allegations are within the scope of her first EEOC charge,
through supporting documents specifically, that the allegations
were included in her intake questionnaire and statement attached
thereto. Defendants contend that these documents may not be
considered and that, even if the documents were considered, do
not support the specific failure-to-promote claim made in the
Title VII and ADEA plaintiffs must initially file a charge with
the EEOC before pursuing a claim in federal court; and, thus,
Title VII and ADEA claims cannot be brought if they were not
included in the plaintiff's EEOC charge. Vela v. Village of Sauk
Village, 218 F.3d 661, 664 (7th Cir. 2000) (Vela); Babrocky
v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985). In
Novitsky v. American Consulting Engineers, L.L.C.,
196 F.3d 699, 702 (7th Cir. 1999) (Novitsky), the court held that "it is
the charge rather than the questionnaire that matters." However,
in a later case, the Seventh Circuit recognized that "[t]here are
cases where courts have looked beyond the four corners of the
EEOC charge form," provided that, at a minimum, "it is clear that
the charging party intended the [EEOC] to investigate the
allegations" and the allegations are made pursuant to oath or
affirmation. Vela, 218 F.3d at 664-65 (7th Cir. 2000) (citation
omitted). A concurring opinion in Novitsky also stated that
equitable reasons may exist that warrant consideration of the
intake questionnaire. Novitsky, 196 F.3d at 703.
Plaintiff's intake questionnaire, signed under the penalty of
perjury, states that she was denied a promotion. The intake
questionnaire refers to an attached statement which includes
details regarding Plaintiff's denied promotion. Therefore, for
purposes of a motion to dismiss, Plaintiff's intake questionnaire
and attached statement are sufficient to support her
failure-to-promote charge. Defendants contend that even if the statement is considered, it
lacks the specificity required under McGoffney v. Vigo County
Division of Family & Children, Family & Social Services
Administration, 389 F.3d 750, 752 (7th Cir. 2004) (McGoffney).
As discussed above, a plaintiff must file a charge with the EEOC
before pursuing a Title VII or ADEA claim in federal court. An
exception to this general rule, which allows a claim not included
in the EEOC complaint to be pursued in federal court, exists when
that subsequent claim is "reasonably related" to the claim that
was included in the EEOC charge. Vela, 218 F.3d at 664 (citing
Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500
(7th Cir. 1994) (Cheek)). To be reasonably related, a factual
relationship must exist between both claims; specifically, a
claim in a plaintiff's complaint and an EEOC charge are
reasonably related when the subsequent claim can be reasonably
expected to be developed from an investigation of the allegations
in the EEOC charge. Cheek, 31 F.3d at 500; Egan v. Palos
Community Hospital, 889 F.Supp. 331, 337 (N.D. Ill. 1995)
(referring to ADEA claims).
In McGoffney, the Seventh Circuit further explained this
As we have previously explained, limiting a Title VII
plaintiff to claims included in her EEOC charge
`serves the dual purpose of affording the EEOC and
the employer the opportunity to settle the dispute
through conference, conciliation, and persuasion, and
of giving the employe[r] some warning of the conduct
about which the employee is aggrieved.' Cheek v. W &
S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994).
[Plaintiff's] vague allegations regarding `positions'
and `jobs' for which she applied were insufficient to
place the EEOC or [Defendant] on notice of the
particular job applications to which she was
referring. She made no mention of a specific
employment action occurring any time within the year
1999, nor did she mention the individuals involved or
provide specific facts that would indicate that she
was referring to her fourth job application,
submitted in October 1999.
McGoffney, 389 F.3d at 752. Plaintiff's statement alleges that she was denied a promotion
in the new department. The statement further alleges that
Plaintiff was denied architectural work at DCAP. Therefore,
Plaintiff's first EEOC charge was sufficient to place Defendants
on notice of the allegations that Defendants failed to select
Plaintiff for architectural positions with DCAP.
Defendants next argue that Plaintiff failed to include in her
EEOC charges that she was falsely disciplined. However,
Plaintiff's third EEOC charge adequately includes these
allegations. Defendants, in their reply, do not argue to the
Finally, Defendants seek to dismiss any allegations contending
Plaintiff was not returned to City Hall after she was
transferred, as "[a]n employer's refusal to undo a discriminatory
decision is not a fresh act of discrimination." Sharp v. United
Airlines, 236 F.3d 368, 373 (7th Cir. 2001) (quotation omitted).
Plaintiff contends that her allegations contain a fresh act of
discrimination in that Defendants failed to consider Plaintiff
for positions for which she was qualified while
similarly-situated employees outside her protected class were
treated more favorably. Plaintiff has pled a fresh act of
discrimination; proof will be considered later.
For the first time in their reply, Defendants argue that
Plaintiff's second EEOC charge does not contain this allegation;
this argument will not now be considered.
Based on the above, Defendants' motion to dismiss is denied.
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