United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
SARA L. ELLIS, District Judge.
Plaintiff Jungela Eiland, an African American female, brings this suit against Defendants B.E. Atlas Company, Inc. ("Atlas"), Norb Putlak, and Mark Feder. Eiland alleges race discrimination and constructive discharge in violation of 42 U.S.C § 1981 and race and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq. Eiland also brings a supplemental state law battery claim against Feder and seeks to hold Atlas responsible based on respondeat superior for Feder's and Putlak's tortious acts. Defendants have filed several motions to dismiss or strike allegations [9, 10, 11, 27], which are granted in part and denied in part. Because there are no allegations to suggest that Feder's alleged actions were racially motivated, Eiland cannot pursue any race-based discrimination or constructive discharge claims directly against Feder or against Atlas based on his actions. But because Feder's actions can be read as having been raised in Eiland's EEOC charge as part of a hostile work environment claim, Eiland may pursue a sex-based hostile work environment claim that includes Feder's actions and may also maintain her state law battery claim against Feder as part of this lawsuit. Feder's actions are as a matter of law outside the scope of his employment, however, and thus Atlas cannot be held vicariously liable for them.
Eiland worked at Atlas as an Accounts Receivable Manager with the title "Secretary for MLC." Second Am. Compl. ¶ 8. In April 2012, Feder, who also worked at Atlas, grabbed one of Eiland's breasts, commenting that the shirt she was wearing was too small for her. Between May 2011 and December 2013, Putlak, another Atlas employee, sent Eiland numerous offensive emails, including ones with racial and sexual overtones. Eiland complained about this conduct but eventually left Atlas in 2013.
Eiland filed a charge with the EEOC on September 12, 2013. She indicated that she was complaining of discrimination that took place between November 1, 2012 and May 30, 2013, during which time she was "subjected to racial and sex based harassment." Ex. A to Doc. 27. The EEOC issued a Notice of Right to Sue letter to Eiland on April 7, 2014.
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
I. Claims Based on the Feder Incident
Defendants argue that Eiland's Title VII race and sex discrimination and harassment claims based on allegations that Feder grabbed her breasts (the "Feder Incident") are not viable and thus those allegations should be stricken from the Second Amended Complaint. Specifically, Defendants argue that Eiland cannot base her Title VII claims on the Feder Incident because the incident occurred over 300 days prior to Eiland filing her charge of discrimination with the EEOC and because Eiland did not include the incident in her charge.
Eiland may not bring a Title VII claim without first having filed a charge before the EEOC. See 42 U.S.C. § 2000e-5(f)(1); Conner v. Ill. Dep't of Natural Res., 413 F.3d 675, 680 (7th Cir. 2005). In turn, she "may bring only those claims that were included in her EEOC charge, or that are like or reasonably related to the allegations of the charge and growing out of such allegations.'" Geldon v. S. Milwaukee Sch. Dist., 414 F.3d 817, 819 (7th Cir. 2005) (quoting McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 481 (7th Cir. 1996)). An allegation in an EEOC charge is reasonably related to a federal claim if it involves "the same conduct and implicate[s] the same individuals." Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005).
With respect to discrete discriminatory events, only those events that occurred within 300 days of the filing of the EEOC charge are actionable. 42 U.S.C. § 2000e-5(e); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The Feder Incident occurred in April 2012 and Eiland's EEOC charge was filed on September 12, 2013, more than 300 days after the Feder Incident. Thus, to the extent Eiland is asserting any discrete claims of harassment or discrimination based on the Feder Incident, those are time-barred.
Eiland, however, argues that the Feder Incident forms part of her hostile work environment claim and is thus timely. See Morgan, 536 U.S. at 115-17 (hostile environment claims occur "over a series of days or perhaps years" so that as long as "an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability"); Turner v. Saloon, Ltd., 595 F.3d 679, 684 (7th Cir. 2010) ("[C]onsideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period." (quoting Morgan, 536 U.S. at 105)). Defendants argue that the Feder Incident is not sufficiently similar to the other timely actions of which Eiland complains, as it was a sexual advance and not an offensive comment, was a single act and not a repeated course of conduct, and was perpetrated by a different person. Defendants are reading Morgan too strictly and asking the Court to determine too much at this stage, however. The standard established in Morgan for hostile work environment claims only asks "whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period." Morgan, 536 U.S. at 120. The Putlak emails fall within the statutory time period. Taking all reasonable inferences in Eiland's favor at this stage, she has sufficiently alleged a sex-based hostile work environment claim encompassing both the Feder Incident and the Putlak emails. See Downey v. Briscoe, No. 09 C 5870, 2013 WL 6230611, at *3 (N.D. Ill. Nov. 29, 2013) ( Morgan does not require that the same managers be responsible for the pre- and post-period conduct).
Further, although Defendants argue that Eiland's EEOC charge does not encompass the Feder Incident because that incident was not specifically mentioned and falls outside the time period Eiland listed for when the discrimination of which she complained took place, the Court finds that the EEOC charge can reasonably be read to encompass the incident. The EEOC charge is vague and does not mention specific incidents of discrimination, instead only stating that Eiland was "subjected to racial and sex based harassment." This could be read to include not only the Putlak emails but also the Feder Incident. Similarly, although the dates of discrimination are listed as November 1, 2012 to May 30, 2013, the text of the charge specifies that the discrimination took place "during [Eiland's] employment, " which she indicated began in April 2012, when the Feder ...