United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM AND ORDER
B. Gottschall United States District Judge
to his complaint, the City of Chicago (“the
City”) hired Michael Nolan (“Nolan”) to
work as a sign hanger in its Department of Transportation
(“CDOT”) on or around October 16, 2014. (ECF No.
1 ¶ 7.) The City terminated him approximately three
months later. (See id. ¶ 23.) On December 24,
2015, Nolan filed a four-count complaint against the City and
one of his supervisors, George Black (“Black”),
in his individual capacity. (See id. ¶¶
5-6, 15.) He pleads a claim under 42 U.S.C. § 1981
against both defendants (Count One); a retaliation claim
under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000 et seq., against the City
(Count Two); a Title VII discrimination claimed premised on a
hostile work environment against the City (Count Three); and
a respondeat superior count against the City (Count Four).
(See Id. at 3-7.) The court has before it separate
motions to dismiss Nolan's complaint for failure to state
a claim, Fed.R.Civ.P. 12(b)(6), filed by the City and Black.
The court grants both motions but gives Nolan leave to amend
his complaint in part, concluding that his hostile work
environment claim exceeds the scope of his charge of
purposes of deciding a Rule 12(b)(6) motion, the court
assumes that all of the well-pleaded allegations in the
complaint are true and draws all reasonable inferences in the
plaintiff's favor. Manistee Apts., LLC v. City of
Chi., 844 F.3d 630, 633 (7th Cir. 2016). Nolan alleges
that he began experiencing workplace harassment
“[a]lmost immediately after being hired.” (Compl.
¶ 8.) Coworkers and supervisors yelled and cursed at
him, verbally abused him, threatened to terminate him
“because of his ‘attitude, '” (Compl.
¶ 12) and gave him disparate work assignments during
training. (Id. ¶¶ 9-10.) He describes one
occasion in his complaint on which Black “poked
Plaintiff in the chest repeatedly and told [him] that the
safety of the building and the people in it were none of
[his] business.” (Id. ¶ 11.)
and Nolan's supervisors scheduled his performance review
in December 2014, even though four months remained on
Nolan's probationary period. (Id. ¶¶
14-15.) At the review, Black told Nolan that he did not have
a problem with Nolan's performance, but “Nolan had
a problem with ‘body language.'”
(Id. ¶ 16.) Due to the mounting stress, Nolan
began calling in sick. (Id. ¶ 21.) On January
5, 2015, Nolan called CDOT's human resources division and
“explained . . . the problems he had been having with
Defendant Black and other members of CDOT.”
(Id. ¶ 22.) Nolan received a termination letter
on or about January 15, 2015; it did not give a reason for
his termination. (Id. ¶ 23.) Nolan filed a
charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on or about July
15, 2015, and the EEOC sent him a right-to-sue letter on
September 25, 2015. (Id. ¶ 24.)
commenced this action by filing his original complaint on
December 24, 2015. He initially served the City but not
Black. By April 2016, the City's motion to dismiss had
been fully briefed. Nolan withdrew two counts in his response
to the City's motion to dismiss (ECF No. 17 at 1-2
(withdrawing Counts One and Four as to the City)), but he did
not amend his complaint. See Fed. R. Civ. P.
2016, Nolan moved for an extension of his deadline to serve
Black. (ECF No. 19.) His motion stated, among other things,
that “[u]pon reading Defendant's motion, Plaintiff
realized that the complaint would need to be amended, and for
the sake of efficiency, waited to serve Defendant Black until
Defendant City's motion had been decided.”
(Id. ¶ 5.) The court held a hearing on June 24,
2016. The court asked Nolan's counsel whether he intended
to amend his complaint consistent with the representations
made in his response to the City's motion to dismiss.
(See Tr. at 6:7-7:4, ECF No. 26-2 Ex. 5.)
Nolan's counsel responded that he did not “purely
for judicial economy because we are standing on Counts 2 and
3 against the City.” (Id. at 7:5-7.) After
hearing from Nolan's counsel on his theory of how the
interest of judicial economy was served, the court stated:
I do not think there is any judicial economy here. Basically,
what you are telling me is if I read your response, I will
know what is at issue. It has been put at issue by the City.
And I will go ahead and get you a decision on it. That is
what you want?
MR. O'BRIEN [Counsel for Nolan]: Yes, your Honor.
(Id. at 7:21-8:1.) The court set a deadline for
Nolan to serve Black, and Black filed his pending motion to
survive a Rule 12(b)(6) motion to dismiss, a complaint must
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, (2007)); Katz-Crank v. Haskett, 843 F.3d
641, 646 (7th Cir. 2016) (quoting Tombly,
supra). A complaint satisfies this standard when its
factual allegations “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at
555-56; see also Atkins v. City of Chi., 631 F.3d
823, 832 (7th Cir. 2011) (“[T]he complaint taken as a
whole must establish a nonnegligible probability that the
claim is valid, though it need not be so great a probability
as such terms as ‘preponderance of the evidence'
connote.”); Swanson v. Citibank, N.A., 614
F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give
enough details about the subject-matter of the case to
present a story that holds together.”). When deciding a
motion to dismiss under Rule 12(b)(6), the court takes all
facts alleged by the plaintiff as true and draws all
reasonable inferences from those facts in the plaintiff's
favor, although conclusory allegations that merely recite the
elements of a claim are not entitled to this presumption of
truth. Katz-Crank, 843 F.3d at 646 (citing
Iqbal, 556 U.S. at 662, 663); Virnich v.
Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).
ANALYSIS OF MOTIONS TO DISMISS
Section 1981 and ...