United States District Court, N.D. Illinois
CAROLYN BROWN as parent and legal guardian of C.A.B., a minor, Plaintiff,
90 MILES CUBAN CAFÉ II, INC. d/b/a 90 MILES CUBAN CAFÉ, Defendant.
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Judge.
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.
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
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.
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.
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
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.
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).
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.
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)).
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 ...