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Loparco v. Village of Richton Park

October 22, 2008


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant Village of Richton Park's ("Village") partial motion to dismiss. For the reasons stated below, we grant in part and deny in part the motion to dismiss.


Plaintiff Patricia Loparco ("Loparco") alleges that she was hired in September 1996 to work as a patrol officer for the Village Police Department ("Department"). She contends that she was one of only two female officers working for the Department. Loparco alleges that she was subjected to sexual harassment at work. Loparco asserts that she was forced to attend roll calls where sexually explicit film clips were played. Loparco also claims that at roll calls she was referred to in a derogatory manner based on her gender and that sexually explicit statements were made to her. Loparco further alleges that she did not have a separate locker room from the men and that she was subjected to using the men's locker room with the men. Loparco claims that she complained about the alleged harassment to her supervisors. Loparco alleges that after she made the complaint, she was asked to resign even though she was performing her job well. Loparco also alleges that after she complained, she was unfairly disciplined for actions such as reporting late to work and that she was suspended and ultimately fired. Loparco brought the instant action and includes in her amended complaint a claim alleging a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII")(Count I), a Title VII gender discrimination claim (Count II), a Title VII disparate treatment claim (Count III), a Title VII retaliation claim (Count IV), and a Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA") claim (Count V). The Village moves to dismiss any Title VII retaliation claim based on the termination of Loparco's employment, contending that the termination occurred after Loparco filed her charge with the Equal Employment Opportunity Commission ("EEOC"). The Village also moves to dismiss the hostile work environment claim arguing that it is not within the scope of the EEOC charge. The Village also moves to dismiss the Title VII claims to the extent that they are premised on conduct that occurred more than 300 days before Loparco filed the EEOC charge. In addition, the Village moves to dismiss all state claims.


In ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level" and "if they do not, the plaintiff pleads itself out of court ." EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007)(internal citations omitted). Under the current notice pleading standard in federal courts, a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action . . . .' " See Sanjuan v. Amer. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefits of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "provide the defendant with at least minimal notice of the claim." Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995)(internal citations omitted). Moreover, the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of her claim." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").


We address below each of the Village's arguments relating to its motion to dismiss.

I. Termination After the Filing of the EEOC Charge

The Village moves to dismiss the Title VII retaliation claim to the extent that it is based upon the termination of Loparco's employment, contending that the termination occurred after Loparco filed her EEOC charge. Generally, a plaintiff may not bring claims in a court action that were not included in the charge that the plaintiff filed with the EEOC. Kersting v. Wal-Mart, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001). Loparco indicates in her amended complaint that her employment was terminated. (A. Compl. Par. 26, 32, 45). Loparco also indicates in her amended complaint that the termination happened after she filed her EEOC charge and, thus, the termination is not mentioned in the EEOC charge. (A. Compl. Par. 6, 9, 12, 17, 26).

The Seventh Circuit has recognized a retaliation exception to the requirement that all claims be referenced in an EEOC charge where the "alleged retaliation is for filing the first claim." Heuer v. Weil-McLain,203 F.3d 1021, 1023 (7th Cir. 2000); McKenzie v. Ill. Dep't of Transp.,92 F.3d 473, 482 (7th Cir. 1996). The Seventh Circuit reasoned that requiring a plaintiff to file a separate charge with the EEOC for a subsequent retaliation "'would serve no purpose except to create additional procedural technicalities when a single filing would comply with the intent of Title VII.'" McKenzie, 92 F.3d at 482 (quoting Gupta v. E. Tex. St. U., 654 F.2d 411 (5th Cir. 1981)).

In National Passenger Railroad v. Morgan, 536 U.S. 101 (2002), the Supreme Court rendered a decision that called into question the continued viability of the retaliation exception. The Court in Morgan held that "discrete acts that fall within the statutory time period do not make timely acts that fall outside the time period." Id. at 112. The Court also held that "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act" and that "[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Id. at 113-14. The Court in Morgan also defined "discrete acts" as acts that are "easy to identify," including "termination, failure to promote, denial of transfer or refusal to hire." Id. at 114; see also Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162, 2167 (2007) (confirming the discrete acts definition in Morgan).

The Seventh Circuit has acknowledged the impact of Morgan on the retaliation exception, Horton v. Jackson County Bd. of County Com'rs., 343 F.3d 897, 899-900 (7th Cir. 2003), recognizing that "[n]ormally, retaliation, sex discrimination, and sexual harassment charges are not 'like or reasonably related' to one another to permit an EEOC charge of one type of wrong to support a subsequent civil suit for another. . . ." Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 726 (7th Cir. 2003). The Seventh Circuit has also concluded that consistent with the ruling in Morgan, it is possible that "[t]hose different claims may be so linked . . . where they are 'so related and intertwined in time, people, and substance that to ignore that relationship for a strict and technical application of the rule would subvert the liberal remedial purposes of the Act.'" Id. (citing Morgan and quoting in part Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 368 (7th Cir. 1993)); Horton, 343 F.3d at 899-901 (recognizing possible viability of retaliation exception with multiple employees or class actions).

In the instant action, the amended complaint provides only general allegations concerning the fact that Loparco lost her job. The amended complaint does not contain sufficient details regarding the termination of Loparco's employment to assess its relation to the allegations of harassment and discrimination, but Loparco was not required to include such details under the notice pleading standard. Although the Village argues that Loparco's termination is not related to the underlying allegations of harassment and discrimination, (Reply 2-3), such arguments delve beyond the pleadings and are premature at this juncture. See Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006)(indicating that a plaintiff need not anticipate affirmative defenses in a complaint). Thus, it is possible that Loparco's termination could have been so intertwined with the alleged discrimination, which was the basis for her EEOC charge, ...

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