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Thompson v. Fairmont Chicago Hotel

June 1, 2007

SANDRA P. THOMPSON PLAINTIFF,
v.
FAIRMONT CHICAGO HOTEL, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

This is an employment action brought by Sandra Thompson ("Thompson") against her former employer, the Fairmont Chicago Hotel ("Fairmont"). Fairmont has filed a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss certain claims that it interprets Thompson to have made in her complaint, which she filed pro se before I appointed counsel to represent her in this matter. After Thompson did not respond to Fairmont's motion to dismiss, Fairmont filed a "Motion for Ruling on Motion to Dismiss without further Hearing, in Lieu of Filing a Reply Brief," contending that because Thompson had not responded to its motion, under Local Rule 78.3 this court should grant its motion without further proceedings. Although I decline to grant Fairmont's motion to dismiss without further hearing, for the following reasons, I grant its initial motion to dismiss in part and deny it in part.

I.

In ruling on Fairmont's motion to dismiss, I must accept all well-pled facts in Thompson's complaint as true. Thompson v. Illinois Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). I must view the allegations in the light most favorable to Thompson. Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). Dismissal of a claim is proper if a plaintiff has not, at minimum, made enough factual allegations to raise a right to relief above a "speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (citations omitted). In addition to the allegations contained in Thompson's complaint, I may consider the attachments to the complaint. See FED. R. CIV. P. 10(c); Help at Home, Inc. v. Med. Capital, LLC, 260 F.3d 748, 752 (7th Cir. 2001) (citation omitted).

Under these standards, the following must be considered to resolve Fairmont's motion: Thompson alleges that Fairmont hired her as a server/bartender on September 23, 2002. She contends Fairmont fired her on May 18, 2004 when two "white" sales managers falsely claimed that she had not offered them dessert; Thompson's complaint alleges that she offered them both coffee and dessert and they refused both.

Thompson filed a formal Equal Employment Opportunity Commission ("EEOC") charge through the Illinois Department of Human Rights on January 14, 2005; she attaches a copy of the charge to her complaint (the "EEOC charge"). In that charge she contends that she was discharged from her position at Fairmont, and states:

I believe that I was discriminated against because of my race, Black, and national origin, Bahamian, in violation of Title VII . . . and my age, 40 . . . in violation of the Age Discrimination in Employment Act of 1967.

In the section of the charge indicating on what the discrimination was based, Thompson accordingly checked the boxes for race, national origin, and age. She left blank the boxes for disability, color, sex, and retaliation. The EEOC dismissed Thompson's charge, stating that from its investigation it could not conclude that Fairmont had violated the relevant statutes. The EEOC issued Thompson a notice of her right to sue on January 26, 2005.

Thompson subsequently filed her present complaint on April 21, 2005. Her complaint consists of the standard form complaint in this district for employment discrimination claims, as well as 11 additional paragraphs in a separate, hand-written document entitled "complaint."*fn1 In paragraph nine of the form complaint, the paragraph alleging on what the complained-of discrimination was based, Thompson checks the boxes for age, color, national origin, race, and sex. In paragraph twelve, the paragraph indicating the actions Fairmont allegedly took against Thompson, Thompson checks the boxes to indicate that Fairmont 1) terminated her employment, 2) failed to stop harassment, and 3) retaliated against her for asserting her protected rights.

In paragraph twelve Thompson also checks the box marked "other," and in the lines on the complaint for specifying the "other" states that 1) Burhan Culculoglu ("Culculoglu") retaliated against her for reporting his verbal abuse and harassment, and falsified her personnel files; 2) she was injured at work on March 25, 2004 because Fairmont "eradicated" the busboys; 3) she was not given the weekend off even though she had more seniority than white servers who were given the weekend off, which she contends violated the union contract "after the Union informed management to discontinue this practice"; 4) she was terminated less than one month after informing Culculoglu that she needed to start physical therapy and see a chiropractor; and 5) none of her doctor's statements were in her human resources files.

In paragraph thirteen of the form complaint, in which the claimant is to list the facts supporting her claim of discrimination, Thompson states that she was terminated because of a fabricated story made up by two managers who stated that she never offered them dessert, and regardless of the fabrication white servers were never let go for not offering dessert; that white servers were never "documented" when they were late while she was documented for the same reasons; that she was given less "covers" than other servers; that her section was not rotated everyday while white servers' sections were; that her section was not rotated after she filed her grievance; and that she was the only server to be summoned to human resources at least four times a month.

Furthermore, in paragraph sixteen, which indicates the relief requested by the plaintiff, Thompson checks the boxes requesting 1) that the defendant re-employ the plaintiff; 2) any appropriate injunctive relief, lost wages, etc.; and 3) any other relief that the court may find appropriate. Thompson also checks the box (Paragraph 16(f)) that allows the plaintiff to indicate specified requests. In that section Thompson lists a series of questions, including: why were white servers allowed to walk out, sleep on the job, report late to work, and allowed to be punched in early when they were late, when at the same time she was written up; and why had Fairmont never removed false information of a criminal history from her file even when she produced information from the Circuit Court of Cook County that she did not have a criminal history.

Thompson attaches a three page handwritten addition to the form complaint that partially duplicates allegations in the form complaint. However, her handwritten addition also alleges that she was injured at work and terminated within one month of providing her doctor's recommendation that she receive physical therapy and chiropractic treatment. She alleges that although she ostensibly was terminated for not offering desert, "the reality of the problem [was] avoiding liability." Moreover, Thompson states that she was subjected to daily harassment after she suffered a work-related injury. She adds ...


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