United States District Court, N.D. Illinois, Eastern Division
Joseph A. Longo, Mt. Prospect, IL, for Plaintiff.
Joshua David Holleb, Davi Lynn Hirsch, Klein, Dub & Holleb, Limited, Highland Park, IL, for Defendant.
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, JR., District Judge.
Plaintiff Robert Smith has sued Defendants Rosebud Farmstand, Rocky Mendoza, and Carlos Castaneda for sexual and racial harassment (Counts I and II), retaliation (Count III), and constructive discharge (Count IV) pursuant to Title VII of the Civil Rights Act of 1964 (" Title VII" ), a violation of the Illinois Gender Violence Act (Count V), and for violating 42 U.S.C. § 1981 (Count VI). Before the Court is Defendants' motion to dismiss  parts of Plaintiff's complaint. Defendants move to dismiss all claims except Plaintiff's sexual harassment claim against Defendant Rosebud. For the reasons set forth below, the Court grants in part and denies in part Defendants' partial motion to dismiss .
Plaintiff worked as a butcher for Rosebud Farmstand from November 14, 2003 until June 2008. Plaintiff alleges that he was subjected to repeated sexual harassment by his co-workers, including co-workers grabbing and touching his penis and grabbing and slapping his buttocks. He also maintains that co-workers used racial and sexual slurs around him. Plaintiff alleges that he complained to his managers— Defendants Rocky Mendoza, and Carlos Casteneda— about the ongoing racial and sexual harassment, but that they did nothing to stop the harassment and instead participated in the harassment. He also alleges that he was suspended for nine days for failing to report to work on December 13, 2007, even though he had previously requested the day off. Finally, Plaintiff alleges that Rosebud reduced Plaintiff's average weekly hours from 34 to 30 hours per week.
On January 7, 2008, Plaintiff filed a Charge of Discrimination (" Charge" ) with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission. In his Charge, Plaintiff maintained that he had been sexually harassed by male co-workers, including Defendants Mendoza and Castaneda, from July 2007 through January 6, 2008. He
also maintained that he had been subjected to race discrimination because he was sent home for nine days without pay after failing to report to work on December 13, 2007, and because his work hours were reduced from thirty-four to thirty hours per week.
Plaintiff continued to work for Rosebud Farms until June 2008, when he terminated his employment due to " intolerable" working conditions. On September 26, 2011, the EEOC issued a Notice of Right to Sue with respect to Plaintiff's Charge, stating conciliation failure. On December 23, 2011, Plaintiff filed his complaint in this action, alleging same-sex sexual harassment (Count I); racial harassment (Count II); retaliation (Count III); constructive discharge (Count IV); violation of the Illinois Gender Violence Act (Count V); and violation of § 1981 of the Civil Rights Act (Count VI).
II. Legal Standard for Rule 12(b)(6) Motions to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing " a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed.R.Civ.P. 8(a)(2)), such that the defendant is given " fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 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)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the " speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007) (quoting Twombly, 127 S.Ct. at 1965, 1973 n. 14). " [O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 127 S.Ct. at 1969. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir.2005).
Defendants contend that multiple shortcomings in Plaintiff's complaint warrant considerable pruning of the claims at the outset of the case. Defendants make several arguments: (1) Plaintiff's racial harassment, retaliation, and constructive discharge claims exceed the scope of his EEOC Charge (and thus were not properly exhausted before filing federal suit), (2) the claims against Mendoza and Castaneda must be dismissed because individual defendants cannot be held liable under Title VII, (3) Illinois law does not recognize a common law cause of action for constructive discharge, (4) Plaintiff's Illinois Gender Violation Act claim should be dismissed for failure ...