United States District Court, N.D. Illinois, Eastern Division
JUSTIN L. WORTHINGTON, Plaintiff,
JJ SEVERSON AFFILIATES, INC., et al., Defendants.
DER-YEGHIAYAN, District Judge
matter is before the court on Defendants' partial motions
to dismiss. For the reasons stated below, the partial motions
to dismiss are granted.
Justin T. Worthington (Worthington) alleges that he is of
Native American ancestry. In June 2012, Worthington allegedly
was employed by Defendant Jimmy John's Franchise, LLC at
a restaurant in Skokie, Illinois. Worthington contends that
he started as a delivery driver and earned promotions to the
positions of General Manager and Area Manager. Alex Salisbury
(Salisbury) and Harry Therault (Therault) were allegedly
Worthington's direct supervisors. Worthington contends
that Salisbury and Therault repeatedly made remarks and jokes
about racial stereotypes, ethnic stereotypes, sex and gender
stereotypes, and other groups of individuals. When
Worthington became General Manager, Salisbury and Therault
allegedly increased the frequency of their alleged
inappropriate conduct in Worthington's presence.
Salisbury and Therault allegedly began reprimanding and
publicly humiliating Worthington for minor errors and
referred to Worthington by derogatory racial terms and other
inappropriate terms. In the summer of 2014, Worthington
claims he could not longer put up with the alleged harassment
and he became withdrawn and less inclined to engage in any
conversation or banter with Salisbury or Therault.
Worthington contends that, as a result, in July 2014 he was
demoted and then constructively discharged. Worthington
includes in his complaint claims alleging race discrimination
in violation of Title VII of the Civil Rights Act of 1964
(Title VII), 42 U.S.C. § 2000e et seq., and 42
U.S.C. § 1981 (Section 1981) (Count I), Title VII and
Section 1981 color discrimination claims, (Count II), Title
VII and Section 1981 national origin discrimination claim
(Count III), Title VII and Section 1981 hostile work
environment claims based on race (Count IV), Title VII and
Section 1981 hostile work environment claims based on color
(Count V), and Title VII and Section 1981 hostile work
environment claims based on national origin (Count VI).
Defendants move to dismiss the Title VII color and national
origin discrimination claims and the Title VII hostile work
environment claims based on color and national origin.
Defendants also move to dismiss the claims brought against
individual Defendants Brooke Severson and Todd Severson
(collectively referred to as “Individual
ruling on a motion to dismiss brought pursuant to Federal
Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court
must draw all reasonable inferences that favor the plaintiff,
construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all
well-pleaded facts and allegations in the complaint.
Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d
609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the
complaint that “plausibly suggest that the plaintiff
has a right to relief, raising that possibility above a
‘speculative level'” and “if they do
not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496
F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter, Inc., 673 F.3d
at 622 (stating that “[t]o survive a motion to dismiss,
the complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face, ” and that “[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”)(quoting Ashcroft v. Iqbal, 556 U.S.
662 (2009))(internal quotations omitted).
argue that the Title VII claims cannot be brought against
Individual Defendants and that Worthington has not exhausted
his administrative remedies in regard to his Title VII claims
premised on his color and national origin.
argue that the Individual Defendants cannot be sued in the
personal capacity under Title VII. Title VII does not provide
for individual liability against individuals who are not an
employer. See Passananti v. Cook Cty., 689 F.3d 655,
662 (7th Cir. 2012)(stating that “Title VII authorizes
suit only against the employee” and that
“[i]ndividual people who are agents of the employer
cannot be sued as employers under Title VII”).
Worthington does not allege that Individual Defendants were
his employer and thus they cannot be held liable under Title
VII in their individual capacities. Worthington concedes this
point in response to the instant motion. (Resp. 2 n.1).
Therefore, Defendants' motion to dismiss the claims
brought against Individual Defendants is granted.
Exhaustion of Administrative Remedies
contend that Worthington has not exhausted his administrative
remedies in regard to his Title VII claims premised on his
color and national origin by filing a charge with the Equal
Employment Opportunity Commission (EEOC). A plaintiff seeking
to bring a Title VII claim in Illinois must first file a
charge with the EEOC and exhaust the available administrative
remedies. Huri v. Office of the Chief Judge of the
Circuit Court of Cook Cty., 804 F.3d 826, 831 (7th Cir.
2015). In addition to bringing Title VII claims that fall
within the scope of the EEOC charge, a plaintiff can also
file claims that are not specifically referenced in the EEOC
charge if there is “a reasonable relationship between
the allegations in the charge and the claims in the
complaint, and the claim in the complaint can reasonably be
expected to grow out of an EEOC investigation of the
allegations in the charge.” Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1030 (7th Cir.
2013)(internal quotations omitted)(quoting Cheek v.
Western & Southern Life Ins. Co., 31 F.3d 497, 500
(7th Cir. 1994)); see also Gul-E-Rana Mirza v. The Neiman
Marcus Grp., Inc., 649 F.Supp.2d 837, 854 (N.D. Ill.
2009)(stating that “[t]o determine whether the
allegations in the complaint fall within the scope of the
earlier EEOC charge, a court must decide whether the
allegations are like or reasonably related to those contained
in the [EEOC] charge”)(internal quotations
omitted)(quoting Kersting v. Wal-Mart Stores, Inc.,
250 F.3d 1109, 1118 (7th Cir. 2001)).
filed a charge with the EEOC (Charge). The EEOC charge form
used by Worthington made clear to him that race, color, and
national origin discrimination are entirely distinct forms of
discrimination. The form provides a box to check for
“Race, ” “Color, ” and
“National Origin” as bases for discrimination. Of
the three, Worthington only checked the race discrimination
box. Nor does Worthington's own words suggest color or
national origin discrimination. In the Charge, Worthington
stated that he was “racially harassed and sexually
harassed.” (EEOC 1). Worthington checked boxes
indicating discrimination based on his race and sex and
indicating he was retaliated against by his employer. (EEOC
1). Worthington also stated that he “believe[d] that
[he was] discriminated against because of [his] race, Native
American, and sex, male, and in retaliation for engaging in a
protected activity. . . .” (EEOC 1). Worthington failed
to reference any discrimination or harassment based on his
color or national origin and thus he failed to properly raise
such claims before the EEOC. Nor has Worthington shown that
the color or national origin discrimination claims are
reasonably related to his race discrimination claim, which is
an entirely separate and distinct form of discrimination.
Worthington has also failed to show that the color or
national origin discrimination claims could have been
reasonably expected to grow out of an EEOC investigation of
the alleged race discrimination.
contends that the EEOC Interview Summary in his EEOC
investigation (Summary) shows that certain statements
allegedly made by Salisbury and Therault related to
Worthington's color and national origin. However, still
Worthington failed to specify that he was asserting such
discrimination in the Charge. The Seventh Circuit has
explained that “[t]he primary purpose of the EEOC
charge requirement is twofold: it gives the EEOC and the
employer a chance to settle the dispute, and it gives the
employer notice of the employee's grievances.”
Huri, 804 F.3d at 831. The Summary appears to be
only an informal document prepared during the investigation.
There is no indication that Defendants would have had notice
of the Summary in a timely manner that would have enabled
them to address settlement issues. Nor would the fact that
some statements were listed in records during the
investigation be sufficient to alert Defendants to the fact
that Worthington was expanding his claims. The Summary was
not prepared by Worthington and he did not swear to the
accuracy of the facts in the Summary. It would be an
unreasonable burden and a waste of resources to impose on
employers to require them to continually sift through all
EEOC investigation records and speculate as to whether the
bases for a plaintiff's discrimination claims have
shifted or expanded. The court also notes that even if
Defendants had notice of the Summary and read the alleged
statements in the Summary, the Summary ...