The opinion of the court was delivered by: Richard Mills, U.S. District Judge
This is a Title VII retaliation case brought under 42 U.S.C. § 2000e-3(a). Pending before the Court are several motions in limine, four of which the Court now considers.
Defendant State of Illinois Department of Children and Family Services ("DCFS" or "the Defendant") has moved in limine to bar evidence or argument at trial concerning former Deputy Director of Human Resources Robin Staggers' transfer and media reports about alleged improper hiring activity outside DCFS. Plaintiff Sarah Gardner acknowledges that this evidence is not relevant for the purpose of trial. Accordingly, the Court will grant the Defendant's motion in limine to bar this evidence at trial, unless specific leave of Court is first provided.
The Defendant has also moved in limine to bar evidence or argument at trial that offering the Plaintiff the Chief of Affirmative Action position as a double exempt position is a cognizable adverse employment action. According to DCFS, this evidence should be excluded entirely from trial because in her charge of discrimination, Plaintiff never claimed that changing the Chief of Affirmative Action position from a "code" to "double exempt" position was an adverse employment action that she sought to challenge. As a double exempt position, the affirmative action chief position would be exempt from both the Illinois Personnel Code and from the Supreme Court's Rutan decision, meaning that the employee could be hired and/or fired at will. The Defendant notes that when the Plaintiff was given the opportunity to sign the paperwork necessary to accept the promotion, Plaintiff refused the position because she was dissatisfied with the compensation and the fact that the position was being changed to a double exempt position.
In her EEOC charge of discrimination, the Plaintiff alleged: Nature of the Claim
1. The Complainant is an African-American female.
2. The Complainant has been employed by the Respondent for a period of time in excess of nine years. Throughout her employment she has been employed as an Affirmative Action Officer.
3. That Complainant sought the position of Chief of the Department of Children and Family Services's Affirmative Action when its then Chief retired.
4. That when Complainant was initially offered the position it was offered at a salary well below the salary being paid to the individual who had previously occupied that position and well below comparable employees of DCFS.
5. That when Complainant requested that she be given a salary level comparable to her predecessor and comparable to similarly situated employees of DCFS the offer for the position was taken away from her.
6. These actions have been taken because she previously filed multiple charges of discrimination against the Respondent. As such, she has been subjected to unlawful retaliation by the Respondent.
Based on the foregoing, the Defendant states that Plaintiff's sole theory of retaliation raised in her charge of discrimination was that DCFS retaliated against her by offering her a salary lower than that paid to the prior Affirmative Action Chief. In her charge of discrimination, the Plaintiff does not claim to challenge that the position's status was changed from being code to double exempt. As a general matter, Title VII plaintiffs are precluded from bringing claims and theories of liability that were not included in their EEOC charges. Kolupa v. Roselle Park Dist., 438 F.3d 713, 715-16 (7th Cir. 2006).
In her response brief, the Plaintiff alleges that her EEOC charge is sufficient to allow her to bring up facts related to the fact that the position of Chief of Affirmative Action was made double exempt. Gardner states that she is not maintaining that making the position double exempt in and of itself was a materially adverse action. Rather, she asserts that it was part of a series of events that were retaliatory. Gardner contends, however, that even if she were seeking to offer the change in status of the position as an independent grounds for recovery, she would be permitted to do so under the liberal guidelines for filing an administrative charge. "[T]his Court has adopted a liberal standard for reviewing the scope of an EEOC charge and has held that all claims of discrimination are cognizable that are like or reasonably related to the allegations of the charge and growing out of such allegations." Farrell v. Butler University, 421 F.3d 609, 616 (7th Cir. 2005) (internal quotations and citations omitted). Courts recognize that these charges are often filed without the benefit of counsel. Ezell v. Potter, 400 F.3d 1041, 1047 (7th Cir. 2005). The complaint and EEOC charge must at least describe the same circumstances and participants. Conner v. Illinois Dept. of Natural Resources, 413 F.3d 675, 680 (7th Cir. 2005). "[T]o determine whether a claim raised in a complaint is within the scope of the earlier-filed EEOC charge, we ask what EEOC investigation could reasonably be expected to grow from the original charge." Ezell, 400 F.3d at 1047.
Because the Plaintiff is not alleging that the change in status of the Affirmative Action Chief position was itself a materially adverse action and is not seeking to pursue it as an independent grounds for recovery, the issue appears to be moot to some extent. To the extent that the Defendant seeks to prevent the Plaintiff from offering any evidence pertaining to the conversion of the position from a code to double exempt position, the Court will deny the motion in limine. Although the issue is relatively close because the Plaintiff was aware of the change in the position's status to double exempt at the time the charge was filed, the Court concludes that based on the liberal standard governing an EEOC charge, Gardner should not be precluded from presenting this evidence as ...