United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Gupta brought this suit against her employer, the City of
Chicago, alleging retaliation in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. Doc. 13. The City has moved under Federal Rule of
Civil Procedure 12(b)(6) to dismiss the complaint for failure
to state a claim. Doc. 14. The motion is granted, though
Gupta will be given a chance to replead.
resolving a Rule 12(b)(6) motion, the court assumes the truth
of the operative complaint's well-pleaded factual
allegations, though not its legal conclusions. See Zahn
v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th
Cir. 2016). The court must also consider “documents
attached to the complaint, documents that are critical to the
complaint and referred to in it, and information that is
subject to proper judicial notice, ” along with
additional facts set forth in Gupta's brief opposing
dismissal, so long as those additional facts “are
consistent with the pleadings.” Phillips v.
Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th
Cir. 2013). The facts are set forth as favorably to Gupta as
those materials allow. See Pierce v. Zoetis, 818
F.3d 274, 277 (7th Cir. 2016). In setting forth those facts
at this stage, the court does not vouch for their accuracy.
See Jay E. Hayden Found. v. First Neighbor Bank,
N.A., 610 F.3d 382, 384 (7th Cir. 2010).
a Regional Nutritional Coordinator with the City's health
department, manages seven of its thirteen health clinics.
Doc. 13 at ¶¶ 7, 30. She has worked for the City
for 28 years. Id. at ¶ 6. JoAnn Peso has been
her supervisor since May 2013. Id. at ¶ 8. In
November 2015, an African-American employee filed an internal
complaint of discrimination against Peso. Id. at
¶ 9. Gupta provided the human resources department with
several hours of testimony about the complaint. Id.
at ¶¶ 9-10.
a few weeks, in early December 2015, Peso emailed Gupta
asking her to complete a self-evaluation form. Id.
at ¶ 11. Gupta had never seen such a form, nor had Peso
evaluated Gupta since becoming her supervisor. Id.
at ¶¶ 11, 13. The City did, however, conduct
occasional performance evaluations of its employees.
Id. at ¶¶ 16, 26. Those evaluations could
be taken into account when an employee was being considered
for promotion or reassignment, and scoring below 2.5 (out of
5) triggers a “performance improvement plan” and,
absent improvement, termination. Id. at ¶ 26;
Doc. 19 at 3. Gupta's other supervisors consistently gave
her 4's and 5's on her prior evaluations. Doc. 13 at
December 17, Gupta attended a performance evaluation meeting
with Peso and Kai Tao, a deputy commissioner of the health
department. Id. at ¶¶ 12, 14. Peso gave
Gupta an overall rating of 3, meaning
“satisfactory.” Id. at ¶ 15. Gupta
received sub-scores as low as 1.9 in the “core
values” category, and the qualitative portion of the
evaluation identified several performance deficiencies.
Ibid. Gupta was shocked and humiliated by the
negative aspects of her review; no one had ever before
criticized her work for the City. Id. at ¶ 19.
Peso had not previously voiced any of these concerns to
Gupta, and Peso told Tao in the December 17 meeting that she
had not done so out of fear that Gupta would retaliate.
Id. at ¶¶ 15, 17.
the meeting, an upset Gupta sought out Reginald Green, an
equal employment officer, to report the evaluation as
retaliatory. Id. at ¶ 20. Green referred Gupta
to the Employee Assistance Program (“EAP”), with
whom she later met once. Id. at ¶¶ 20-21,
31. The complaint does not specify what action, if any, EAP
took. Gupta also scheduled a second meeting with Peso and Tao
to discuss her evaluation further. Id. at
¶¶ 22-23. At that meeting, on December 22, Gupta
asked about several of Peso's specific criticisms that
she felt were unfair, such as a complaint about Gupta's
missing a meeting when one of her children was sick; Peso
responded that she had high standards but refused to explain
further. Id. at ¶ 24. Based on the meeting, Tao
ordered Peso to change the 1.9 ratings in the “core
values” section to 2.9, which brought Gupta's
overall rating up to a 3.1. Id. at ¶ 25. The
qualitative criticisms remained unchanged. Ibid.
believes that the performance review was intended by Peso to
“set her up for failure and/or discharge.”
Id. at ¶ 27. Gupta does not, however, allege
that she has in fact been fired-or demoted, for that
matter-since the review. The complaint alleges that her
emotional distress over the review caused crying spells and
difficulty sleeping. Id. at ¶ 31.
complaint describes several other instances of arguably
adverse treatment of Gupta by Peso and Tao. It alleges that
Peso has regularly monthly meetings with Jaclyn Castellanet,
who has the same title as Gupta and manages the City's
other six health clinics, but that Peso holds no such
meetings with Gupta. Id. at ¶ 30. It also
alleges that, in June 2016, Tao called Gupta into a meeting
to chastise her for yelling at subordinates, while refusing
to describe specific instances of such conduct. Id.
at ¶ 32. Finally, Gupta sought a meeting with Tao
seeking clarification of her job duties and the standards
under which she was being evaluated, but Tao refused to talk
with her, citing a lawsuit that Gupta had brought against the
City- presumably this one, as Gupta added this allegation
when amending her complaint, though the complaint does not
say. Id. at ¶ 29.
state a retaliation claim under Title VII, a plaintiff must
allege facts showing that: “(1) [s]he engaged in
protected activity; (2) [s]he suffered a materially adverse
employment action; and (3) there was a causal link between
the protected activity and the adverse action.”
Boss v. Castro, 816 F.3d 910, 918 (7th Cir. 2016);
see also Bell v. EPA, 232 F.3d 546, 554 (7th Cir.
2000). The City focuses on the second element, contending
that Gupta has failed to identify any action by Peso or Tao
that qualifies as “materially adverse.” Doc. 16
the retaliation context, determining whether an action is
materially adverse means inquiring whether it might well have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Boss, 816 F.3d at
918. “To rise to the level of an adverse action, a
change must be one that a reasonable employee would find to
be materially adverse … .” Bagwe v.
Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 889
(7th Cir. 2016) (internal quotation marks omitted). Adverse
actions for purposes of a retaliation claim may include:
(1) cases in which the employee's compensation, fringe
benefits, or other financial terms of employment are
diminished, including termination; (2) cases in which a
nominally lateral transfer with no change in financial terms
significantly reduces the employee's career prospects by
preventing her from using her skills and experience, so that
the skills are likely to atrophy and her career is likely to
be stunted; and (3) cases in which the employee is not moved
to a different job or the skill requirements of her present
job altered, but the conditions in which she works are
changed in ...