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Nanette Gardner v. City of Chicago

October 31, 2012


The opinion of the court was delivered by: Judge Marvin E. Aspen


Presently before us is a motion to dismiss all claims against the City of Chicago

(" Defendant") brought by Nanette Gardner ("Plaintiff"). For the following reasons, the motion is granted in part and denied in part.


The following factual allegations are taken from the complaint and are deemed true for the purposes of this motion to dismiss. See MCM Partners, Inc. v. Andrew-Bartlett & Assoc., Inc., 62 F.3d 967, 972 (7th Cir. 1995). From 2007, Plaintiff worked for Defendant in the Department of Water Management. (Compl. ¶¶ 4, 9.) Around February 13, 2008, Plaintiff began working with Tres Peel ("Peel"), who was Acting Foreman of the site at 101st and Stony Island and had "significant control and supervision" over Plaintiff's work. (Id. ¶¶ 11--13.) From February 22, 2008, Peel and unnamed others began engaging in conduct that Plaintiff alleges was sexual harassment and created a hostile work environment. (Id. ¶ 14.) In particular, Peel "judged Gardner's sexual attractiveness in front of her and spread rumors about Plaintiff having sex with various men at the workplace." (Id.) Peel also "grabbed Gardner's arm in attempts to physically intimidate her." (Id. ¶ 16.) Plaintiff alleges that she considered such conduct offensive and did not consent to it. (Id. ¶ 17.) Although Plaintiff complained to her superiors about the alleged sexual harassment, Defendant allegedly did not make a reasonable effort to prevent or correct the situation. (Id. ¶¶ 19--21.)

Plaintiff further claims that Defendant repeatedly transferred Plaintiff to different job sites and gave her "undesirable job assignments," allegedly as retaliation for complaining about the harassment. (Id. ¶¶ 24--25.) Plaintiff finally concludes that Defendant's reasons for the change in job sites and assignments are pretext for discrimination in violation of Title VII. (Id. ¶ 26.)

Plaintiff has filed a two-count complaint. Count I alleges sexual harassment, creating a hostile work environment in violation of 42 U.S.C. §2000e-2a(1). Count II alleges retaliation by Defendant in violation of 42 U.S.C. § 2000e-3(a). Plaintiff seeks compensatory damages and attorneys' fees in addition to punitive and/or liquidated damages.


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. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Accordingly, a court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007); see Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618--19 (7th Cir. 2007); EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776--77 (7th Cir. 2007). A sufficient complaint need not give "detailed factual allegations," but it must provide more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555, 127 S. Ct. at 1964--65; Killingsworth, 507 F.3d at 618--19. These requirements ensure that the defendant receives "fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 102 (1957)); see also Fed. R. Civ. P. 8(a). In evaluating a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Thompson v. Ill. Dep't of Prof'l Reg., 300 F.3d 750, 753 (7th Cir. 2002). However, "our favor toward the nonmoving party does not extend to drawing 'inferences that are supported by only speculation or conjecture.'" Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008) (quoting Fischer v. Avanade, Inc., 519 F.3d 393, 401 (7th Cir. 2008)).


I. Sexual Harassment Creating a Hostile Work Environment

Under Title VII of the Civil Rights Act of 1964, "[i]t shall be an unlawful employment practice for an employer to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2a(1). Sexual harassment that is so "'severe or pervasive' as to 'alter the conditions of the victim's employment and creates an abusive working environment' violates Title VII." Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S. Ct. 2275, 2283 (1998); Patton v. Keystone RV Co., 455 F.3d 812, 815--816 (7th Cir. 2006). To prevail on a sexual harassment claim based on a hostile work environment, Plaintiff must establish that:

(1) she was subjected to unwelcome sexual harassment; (2) the harassment was based on her sex; (3) the sexual harassment unreasonably interfered with her work performance by creating an intimidating, hostile or offensive work environment that affected seriously the psychological well-being of the plaintiff; and (4) there is a basis for employer liability.

McPherson v. City of Waukegan, 379 F.3d 430, 437--438 (7th Cir. 2004); see Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002). To be actionable under Title VII, the work environment must be "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher, 524 U.S. at ...

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