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Berends v. Bedell

November 9, 2007

COLLEEN BERENDS, PLAINTIFF,
v.
WILLIAM M. BEDELL, A. R. C., DEFENDANT.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM and ORDER

Defendant, William M. Bedell, A. R. C. ("ARC"), moves to dismiss and/or strike portions of Plaintiff's, Colleen Berends' ("Berends"), first amended complaint (Doc. 18). Berends claims that Bedell discriminated against her on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000, et seq. Berends contends that she was subjected to a sexually hostile work environment by the President of the Board of Directors and that she was discharged in retaliation for exercising her rights through the equal employment opportunity process.

ARC moves the Court to dismiss or strike the following allegations from Berends' first amended complaint: 1) "repeated[ly] touching Plaintiff in a sexually oriented and offensive manner"; 2) "adversely altering the terms and conditions under which Plaintiff worked"; and 3) "making Plaintiff's toleration of . . . discriminatory and sexually harassing remarks and conduct and unlawful condition of Plaintiff's employment. . . ."

Factual Background and Procedural History

ARC provides service and programs to children and adults who have a developmental disability and who reside in Madison County, Illinois. Berends worked for ARC from approximately May, 2000 to October, 2005. Berends was employed as a case manager for the family support unit. The amended complaint alleges the following. The President of ARC's Board of Directors, Robert J. Walters ("Walters"), engaged in sexually harassing conduct toward Berends by repeatedly touching her in a sexually orientated, offensive and unwelcome manner. See Am. Compl. ¶ 15. Walters' conduct adversely altered the terms and conditions under which Berends worked and created a hostile work environment. Id. ARC made Berends' toleration of Walters' conduct an unlawful condition of her employment, and, when she complained to one or more supervisors about his conduct, she was discharged from her employment in retaliation. Id. at ¶¶ 16, 17. As a result of ARC's violations of Title VII, Berends lost wages, incurred expenses and experienced emotional pain and suffering, humiliation, loss of enjoyment of life and inconvenience.

On January 3, 2006, Berends filed a timely charge of discrimination with the Equal Employment Opportunity Commission (EEOC), Cause No. 280-2006-00919. Her charge stated:

I believe that I have been discriminated against because fo my sex, female, in that I was subjected to a sexually hostile work environment by the President of the Board of Directors. I also believe that I was discharged in retaliation for having participated in the equal employment opportunity (EEO) process. Discriminating against me because of my sex and retaliation are violations of my civil rights under Title VII. . . .

Doc. 8, Exh. 1. On January 17, 2007, Berends received a right-to-sue letter from the EEOC, informing her of her right to file a civil action under Title VII for discrimination in employment within 90 days from receipt of notice. Berends then filed this action on April 17, 2007 (Doc. 1). Berends amended her complaint on July 16, 2007.

ARC now moves to dismiss, arguing that three of Berends' claims, supra, must be dismissed because they were not included in a timely filed EEOC charge of discrimination. This matter is fully briefed and ready for disposition. The Court begins its analysis with a recitation of the standard governing a motion to dismiss or strike.

Standards Governing a Motion to Dismiss and/or Strike

The purpose of a motion to dismiss under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)is to "test the sufficiency of the complaint, not to decide the merits" of the case. Triad Associates, Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). Dismissal is warranted under that Rule if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, -- U.S.--, 127 S.Ct. 1955, 1965 (2007); EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007).

In making this assessment, the District Court accepts as true all well-pled factual allegations and draws all reasonable inferences in plaintiff's favor. St. John's United Church of Christ v. City of Chicago, -- F.3d --, 2007 WL 2669403, * 7 (7th Cir. Sept. 13, 2007); Pisciotta v. Old National Bancorp, 499 F.3d 629 (7th Cir. 2007).

Motions to strike are governed by FED.R.CIV.P. 12(f), which states that "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Motions to strike are strongly disfavored and are rarely granted. See Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); see also Western Publ'g Co. v. MindGames, Inc., 944 F.Supp. 754, 755 n. 1 (E.D.Wis. 1996) ("Motions to strike are generally disfavored and ...


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