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Mele v. Lowes Home Centers

July 7, 2010


Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge


The Court grants in part and denies in part Defendant's motion to dismiss [26]. Defendant must answer on or before 7/21/10. Status hearing set for 8/19/10 is stricken and reset to 7/28/10 at 8:30 a.m.

O[ For further details see text below.] Notices mailed by Judicial staff.


On April 23, 2010, pro se Plaintiff John Mele filed the present two-count Third Amended Complaint based on Title VII, 42 U.S.C. § 2000e, et seq., against his former employer, Defendant Lowe's Home Centers, Inc. Before the Court is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants in part and denies in part Defendant's motion. Specifically, the Court dismisses Plaintiff's Title VII retaliation claim because it is not within the scope of his EEOC charge. The Court, however, denies Defendant's motion to dismiss Plaintiff's reverse sex discrimination claim because he has sufficiently alleged his claim under the federal notice pleading standards.


"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Pursuant to Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This short and plain statement must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Rule 8(a)(2) "reflects a liberal notice pleading regime, which is intended to 'focus litigation on the merits of a claim' rather than on technicalities that might keep plaintiffs out of court." Brooks v. Ross, 578F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)).

Under the federal notice pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Put differently, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009) (court construes complaint in light most favorable to plaintiff drawing all reasonable inferences in his favor).


Construing his pro se allegations liberally, see McGee v. Bartow, 593 F.3d 556, 565-66 (7th Cir. 2010), Plaintiff alleges that Defendant hired him as an Appliance Sales Specialist in June 2006. (R. 25-1; Third Am. Compl. at 5.) Defendant also hired two women at that time to work in the same capacity as Plaintiff and at the same store in Orland Park, Illinois. (Id.) Defendant required all three hires to attend an eight to twelve-week training seminar on Lowe's procedures and workplace policies. (Id.) In the training class, each employee learned how to operate a motorized lift, which is similar to an elevator lift with a platform in the front. (Id.) Each of the Appliance Sales Specialists obtained a certification to operate the lift in the store and an operator license after completing a driving test inside the Lowe's store with a Lowe's certified lift instructor. (Id.) Plaintiff asserts that company policy required all Appliance Sales Specialists to carry their lift operator license at all times and instructed them that if they did not follow all safety requirements when operating the lift they could be instantly terminated. (Id.)

Plaintiff further alleges that on a daily basis, the female Appliance Sales Specialists asked him and other male employees in various departments to operate the lift for them. (Id.) One of the female Appliance Sales Specialists refused to operate the lift and the other female Appliance Sales Specialist rarely, if ever, operated the lift. (Id.) Plaintiff further alleges that he approached Sales Manager Darrin and raised the issue of the disparate treatment between him and the female Appliance Sales Specialists. (Id.) Sales Manager Darrin questioned Plaintiff about his low sales numbers compared to the female Appliance Sales Specialists and Plaintiff replied that the reason for the difference was because the female Appliance Sales Specialists did not operate the lifts. (Id. at 6.) Plaintiff asserts that the Sales Manager did not take action on Plaintiff's remarks and that he continued to operate the lift as part of his sales routine. (Id.) On many occasions, Plaintiff returned to the appliance area after loading appliances for customers using the lift and was unable to make a sale because customers were already being helped or had already made purchases. (Id.)

Additionally, Plaintiff maintains that the female Appliance Sales Specialist's monthly sales numbers continued to beat his. (Id.) Bonus objectives for the Sales Manager and the Store Manager depended on store sales numbers and meeting the sales targets. (Id.) Plaintiff also alleges that he complained to management that he was not getting a helper to do his job like the female specialists and because he did not have a helper he could not write the same large volume of sales orders and get the same large paychecks that the female Appliance Sales Specialists did. (Id. at 7.)

Further, Plaintiff alleges that the two female Appliance Sales Specialists began telling Plaintiff's supervisor various things about him that were not true in an attempt to damage his reputation. (Id.) Plaintiff also alleges that his supervisors told Plaintiff that his position was being eliminated and offered him a demotion, which Plaintiff took. (Id.) Plaintiff alleges that later, however, management told him that the new position was only for eight hours and he was constructively discharged. (Id.)

On May 1, 2008, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ...

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