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Brown v. 90 Miles Cuban Cafe II, Inc.

United States District Court, N.D. Illinois

July 20, 2017

CAROLYN BROWN as parent and legal guardian of C.A.B., a minor, Plaintiff,


          SHARON JOHNSON COLEMAN United States District Judge.

         Plaintiff Carolyn Brown, on behalf of her minor daughter (“C.A.B.”) filed a three-count Second Amended Complaint, alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964, and failure to accommodate a disability in violation of the Americans with Disabilities Act. Defendant 90 Miles Cuban Café II, Inc. d/b/a 90 Miles Cuban Café (“90 Miles”) moves to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, this Court grants in part and denies in part the motion.


         90 Miles hired C.A.B. to work as a barista on July 29, 2016. After starting her employment, C.A.B. began receiving “unwanted, unwelcome, and offensive sexual advances and comments” from her adult male co-workers. The complaint alleges that the offending conduct included repeated non-consensual physical contact, requests for physical and sexual contact, requests for “date” and for her personal contact information. C.A.B. was also subjected to comments about her appearance and inappropriate sexual innuendo.

         C.A.B. reported the conduct and comments from her non-managerial co-workers to a 90 Miles manager on August 15, 2016. (Dkt. 15 at ¶12). The offending conduct and comments continued after C.A.B. reported the behavior. Id. at ¶13. Sometime after August 15, 2016, C.A.B. observed both managerial and non-managerial male staff make similar comments and sexually suggestive advances on another 90 Miles minor female employee. On August 20, 2016, C.A.B. and the other minor female employee who had experienced the conduct and comments met with a different male manager to report the offensive behavior. Id. at ¶15. The offending conduct and comments from managerial and non-managerial male staff continued for both girls after their August 20, 2016, meeting with a manager. Id. at ¶16.

         C.A.B. met with two male managers on September 13, 2016, to again report the offensive conduct. Id. at ¶17. During this meeting, one of the managers told C.A.B., “You have to say no the first time he does something. If you give a man an inch, he'll take a mile… you let guys act like that and that is why they kept doing it.” Id. at ¶18. He further stated, “these kinds of things are a two-way street. You complain about him saying you are beautiful, but you walk in here waving and smiling at everybody and bouncing around acting like a little girl and this is something that is just going to happen.” Id. On September 14, 2016, C.A.B. complained to another manager about the ongoing offending conduct and comments and the manager's comments at the September 13, 2016, meeting. Id. at ¶19. The conduct continued after that meeting. She further alleges that on September 19, 2016, one of the managers to whom C.A.B. complained of harassment, himself made comments about C.A.B.'s clothing and body, even after she asked him to stop. He responded that she was “overthinking it.” Id. at ¶21.

         On September 20, 2016, C.A.B. complained to a female manager for the first time, about the male manager's comments about her body and her clothing, the female manager told her that she was “probably interpreting it that way because [she is] young, immature, and ha[s] a school girl crush on the manager.” Id. at ¶22. The conduct continued until the termination of C.A.B's employment with 90 Miles. After she complained on September 20, 2016, C.A.B. was never again scheduled for work Id. at ¶26.

         The complaint also alleges that C.A.B. suffers from syncope, a fainting condition that occasionally limits her ability to stand, walk, speak, lift, see, and hear. Id. at ¶30. On August 9, 2016, 90 Miles requested a physician's note regarding C.A.B.'s ability to work. Id. at ¶31. Approximately ten days later she provided 90 Miles with a letter from her physician indicating that she has syncope, but it is safe for her to work. Id. at ¶32. The complaint alleges that 90 Miles failed to engage in an interactive process with C.A.B. to accommodate her disability. Id. at ¶33.

         Legal Standard

         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). When considering the motion, 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 dismissal, 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 must be plausible rather than merely conceivable or speculative, meaning that the plaintiff must include enough details about the subject-matter of the case to present a story that holds together. But the proper question to ask is still could these things have happened, not did they happen.” Carlson v. CSX Transp., Inc., 758 F.3d 819, 826-27 (7th Cir. 2014) (emphasis in original) (internal citations omitted).


         90 Miles Cuban Café moves to dismiss the Second Amended Complaint in its entirety for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). This Court will first address the Title VII sexual harassment claim. 90 Miles argues that C.A.B. fails to allege sufficiently specific facts to establish a claim of hostile work environment and a basis for holding 90 Miles liable. 90 Miles further contends that C.A.B.'s retaliation claim fails to show a causal link between her termination and her complaints to managers about the offending conduct.

         Title VII prohibits discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1). “To establish a prima facie case of sexual harassment under Title VII, a plaintiff must show that 1) she was subjected to unwelcome harassment; 2) the harassment was based on her sex; 3) the harassment was sufficiently severe or pervasive so as to alter the condition of her employment and create a hostile or abusive atmosphere; and 4) there is a basis for employer liability.” Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 788 (7th Cir. 2007) (citing Kampmier v. Emeritus Corp., 472 F.3d 930, 940 (7th Cir.2007)).

         90 Miles relies on three cases to argue that C.A.B.'s allegations are insufficiently severe and pervasive: Koelsch v. Beltone Electronics,46 F.3d 705, 706-708 (7th Cir. 1995) (the court affirmed summary judgment in favor of the defendant, finding that two isolated incidents did not constitute a hostile work environment where the conduct ceased after the plaintiff complained), Saxton v. American Telephone and Telegraph Co., 10 F.3d 526, 528, 529 (7th Cir.1993) (the court affirmed summary judgment, finding the incidents of harassment were not sufficiently pervasive where the harasser was transferred out of the plaintiff's workplace after the plaintiff filed a sexual harassment complaint, and no further incidents of harassment occurred after the plaintiff's complaint), and Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993) (the court affirmed summary judgment, finding that the incidents of harassment were isolated and the plaintiff had given contradictory deposition testimony). None of the cases cited by 90 Miles involved a minor subjected to conduct by her ...

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