JENMERY C. YOUNG and ESPERANZA G. CALMES, Plaintiffs,
GCA SERVICE GROUP, Defendant.
MICHAEL P. McCUSKEY, District Judge.
On July 19, 2013, Magistrate Judge David G. Bernthal filed a Report and Recommendation (#50) in the above cause. Judge Bernthal recommended DENYING Defendant's Motion to Dismiss (#13) as to Plaintiff Esperanza G. Calmes' constructive discharge claim in Count II and GRANTING Defendant's Motion to Dismiss (#13) as to Counts III and IV as well as Plaintiff Jenmery C. Young's retaliatory discharge claim and attendant request for lost earnings in Count I. Judge Bernthal also recommended GRANTING Defendant's Motion for Leave to File Reply Brief (#21) and DENYING Defendant's Motion for Leave to File Supplement to Motion to Dismiss (#24). On July 23, 2013, Defendant filed its Objections to Report and Recommendation (#51). Defendant objected to Judge Bernthal's recommendation that the Motion to Dismiss Plaintiff Calmes' constructive discharge claim in Count II be denied. Following this court's careful de novo review, this court agrees with Defendant that Plaintiff Calmes did not include her claim of constructive discharge in an EEOC charge so this claim must be dismissed. There was no objection to any of Judge Bernthal's other recommendations and those recommendations are accepted by this court.
On January 9, 2012, Plaintiff Esperanza G. Calmes filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Illinois Department of Human Rights (IDHR). The charge of discrimination named Defendant, GCA Service Group, as Respondent and stated:
I was hired by Respondent on or about August 25, 2011. My job title is Housekeeper. During my employment, I have been directed to speak English only at all times while in the workplace.
I believe that I have been discriminated against because of my national origin, Philippines, in violation of Title VII of the Civil Rights Act of 1964, as amended.
The charge listed the latest date of discrimination as November 28, 2011, and the box for "continuing action" was not checked.
On May 10, 2012, Calmes filed a second charge of discrimination with the IDHR. Calmes stated that she was discriminated against on the basis of her national origin and stated that, on Nov 28, 2011, "Respondent imposed a restriction on the use of my native language." Calmes stated that this was a violation of the Illinois Human Rights Act. The documentation provided by Plaintiffs shows that Calmes' May 10, 2012, charge of discrimination was cross-filed with the EEOC.
On July 16, 2012, the EEOC issued a Notice of Right to Sue to Calmes. The charge referenced in Calmes' Notice of Right to Sue was her initial charge filed on January 9, 2012.
On September 21, 2012, Plaintiffs filed their Complaint (#1) in this court. Plaintiffs alleged that, on or about November 28, 2011, Defendant's manager Deborah Pate and supervisor Tracy Mashburn informed Calmes and other housekeeping workers that they had to speak English at all times while at work, including break periods and when speaking with other Filipino employees. Plaintiffs alleged that Calmes felt like a second-class employee and lived under fear of disciplinary action, "to include discharge, for speaking in her native language, and experienced a hostile work environment due to the prohibition on speaking in her native language and the requirement to speak only in English while at work." Plaintiffs alleged that, on March 9, 2012, Calmes "suffered a constructive discharge from her employment due to the increasing pressure from her employer to refrain from speaking in her native language and only speak in English while at work."
In Count I of the Complaint, Young brought Title VII claims of disparate treatment, hostile work environment and retaliatory discharge. In Count II of the Complaint, Calmes brought Title VII claims of disparate treatment, hostile work environment and constructive discharge on the basis of national origin. Calmes sought injunctive relief, compensatory relief, including lost earnings, and punitive damages. In Counts III and IV, Plaintiffs brought state law claims of intentional infliction of emotional distress (IIED).
On January 22, 2013, Defendant filed a Motion to Dismiss (#13) and Brief in Support (#14). Defendant argued that Counts III and IV must be dismissed. Defendant also argued that Young's claim of retaliatory discharge and Calmes' claim of constructive discharge must be dismissed or stricken because Plaintiffs failed to include them in their EEOC charges. Defendant argued that Plaintiffs' demand for lost earnings should also be dismissed or stricken. On February 8, 2013, Plaintiffs filed their Response to Motion to Dismiss (#20), with attached exhibits. Plaintiffs conceded that their IIED claims must be dismissed. Plaintiffs argued, however, that Young's retaliatory discharge claim and Calmes' constructive discharge claim should not be dismissed. Plaintiffs argued that Calmes' allegation of constructive discharge was "sufficiently related" to the charge listed in her EEOC charge "and grew out of the discriminatory English-only rule." Plaintiffs also argued that the fact that they did not check "continuing action" on the charge forms should not be held against them because they are laypersons and no explanation of the meaning of "continuing action" was provided to them.
On February 11, 2013, Defendant filed a Motion for Leave to File Brief Reply (#21). In its attached proposed Reply Brief, Defendant argued that Calmes' argument that her constructive discharge claim was related to her charge alleging disparate treatment was "flawed and ignores the controlling law and circumstances in this case." On February 28, 2013, Plaintiffs filed a Response to Defendant's Motion for Leave to File Brief Reply (#25) and included a Sur-Reply Memorandum. Plaintiffs argued that the crux of the issue is "whether the claim of constructive discharge is reasonably related to and growing out of her claim of discrimination based on National Origin due to the English-only rule." Plaintiffs argued that "the English-only rule is conduct which caused the discrimination, the hostile work environment, and the ...