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Shankle v. Village of Melrose Park

United States District Court, N.D. Illinois, Eastern Division

February 12, 2018

LESLIE M. SHANKLE Plaintiff,
v.
VILLAGE OF MELROSE PARK Defendant.

          MEMORANDUM OPINION

          Samuel Der-Yeghiayan United States District Court Judge.

         This matter is before the court on Defendant Village of Melrose Park's (Village) motion to dismiss. For the reasons stated below, the motion to dismiss is granted.

         BACKGROUND

         Plaintiff Leslie Shankle (Shankle) began working for the Village of Melrose Park's Police Department full time in 1999. She is currently assigned to patrol duties. Shankle alleges she is the only female officer, as well as the only openly gay officer on the Village's police force. In 2012, Shankle filed a lawsuit (2012 Lawsuit) in this district against the Village and individual defendants alleging workplace gender discrimination and sexual orientation discrimination. The 2012 Lawsuit was settled and dismissed in May 2014. Shankle alleges that after settling the 2012 Lawsuit, she suffered retaliation by the Defendant and its employees. Shankle claims she was refused opportunities and experience required for her advancement which she was qualified to receive and should have received. Shankle alleges that on the nights of August 28, 2015 through the early morning hours of August 31, 2015, she was not allowed to serve as the supervisory Officer in Charge (OIC) even though she was the most senior officer on duty. Instead, Sam Pitassi, the Chief of Police, and Mark Rieger, a Sergeant at the Village, had a heterosexual male officer come in from vacation to serve as OIC. Shankle alleges that such adverse action was taken against her due to sex discrimination, including gender and sexual orientation discrimination, and retaliation for complaining of the same, and as such she has suffered the loss of opportunities and experience needed to be able to advance in her career. Shankle includes in her complaint sex discrimination claims brought pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §2000e et seq., alleging gender discrimination (Count I), sexual orientation discrimination (Count II), retaliation for opposition to gender discrimination (Count III), retaliation for opposition to sexual orientation discrimination (Count IV), and a Monell claim (Count V).

         LEGAL STANDARD

         In ruling on a motion to dismiss brought pursuant 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. III. Dep't of Prof'I 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. 2OO7)(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).

         DISCUSSION

         I. Discrimination Claims

         Defendants argue that the Title VII sex discrimination claims based on gender and sexual orientation should be dismissed because Shankle has failed to allege that she suffered an adverse employment action that would support a Title VII sex discrimination claim.

         To state a claim for discrimination on the basis of sex, Plaintiff must show (1) she is a member of a protected class, (2) she was subjected to an adverse employment action, and (3) there is a connection between membership in a protected class and the adverse employment action. Martino v. Western & Southern Financial Group, 715 F.3d 195, 201-02 (7th Cir. 2Ol3)(citing McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009)). The Seventh Circuit has stated that "[t]o survive a motion to dismiss on the basis of gender discrimination, [the plaintiff] needed to allege that the [defendant] instituted an adverse employment action against her on the basis of her sex." Joren v. Napolitano, 633 F, 3d 1144, 1146 (7th Cir.201 l)(internal quotations omitted)(quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir.2008)); see also Carlson v. CSX Tramp., Inc., 758 F, 3d 819, 827 (7th Cir.2014)(stating that "[a] complaint alleging sex discrimination under Title VII need only aver that the employer instituted a (specified) adverse employment action against the plaintiff on the basis of her sex")(internal quotations omitted)(quoting Tamayo, 526 F.3d at 1084); Hunt v. City of Markham, III, 219 F.3d 649, 653 (7tth Cir. 2OOO)(stating that "the idea behind requiring proof of an adverse employment action is simply that a statute which forbids employment discrimination is not intended to reach every bigoted act or gesture that a worker might encounter in the workplace"). Citing sexual orientation as the basis for a discrimination claim is also permissible under Title VII pursuant to the same analysis, where the counterfactual to be considered is a situation in which the plaintiffs sex is alternative, but "everything else stays the same." Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 345(7th Cir. 2017).

         Defendants do not dispute that Shankle is a female and a lesbian. Defendants instead argue that Shankle has not suffered an adverse employment action. In Title VII discrimination cases, "a materially adverse employment action is one which visits, upon plaintiff a significant change in employment status, " Boss v. Castro, 816 F.3d 910, 917 (7th Cir. 2Ol6)(internal quotation marks omitted). The Seventh Circuit has described a discriminatory adverse action as a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibility, or a decision causing a significant change in benefits." Lewis v. City of Chicago, 496 F.3d 645, 653 (7th Cir. 2OO7)(quoting Bell v. E.P.A., 232 F.3d 546, 555 (7th Cir. 2000)); see also Crady v. Liberty Nat 7 Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)(an adverse action must be more disruptive than a mere inconvenience or an alteration of job responsibilities); Grayson v. City of Chicago, 317 F.3d 745, 750 (7th Cir. 2OO3)(adverse employment action must involve a material, substantive change in an employee's pay and responsibilities).

         In response to the instant motion, the only alleged adverse action identified by Shankle relates to one weekend when she was not allowed to serve as the supervisory Officer in Charge (OIC). Shankle claims that she was denied her supervisory experience necessary to advance her career. However, Shankle fails to explain how OIC assignments alone impact career trajectory. Furthermore, Shankle never claims any actual consequence to this alleged denial to serve as OIC, but merely states a prediction for the future. According to Shankle, not being allowed to serve as OIC one time resulted in the loss of opportunities and experience necessary to advance her career, which will "adversely affect any application that [she] makes internally, or outside the Village, for a new assignment, position, or promotion." (Compl. Par. 16) Shankle does not allege she was denied a promotion based on lack of OIC experience, but speculates that in the future this will likely happen. To assume, based on the allegations in the complaint, that denial to serve as OIC could impact future applications for promotion that haven't even been filed yet without an explanation as to why OIC experience is so important to promotions would be pure speculation, which is not permitted even at the pleadings stage. See Carlson, 758 F.3d at 826-27(stating that "[a] claim must be plausible rather than merely conceivable or speculative"); E.E.O, C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2OO7)(stating that a plaintiff must allege facts suggesting a right to relief and "raising that possibility above a 'speculative level"'). Shankle has thus failed to allege facts that plausibly suggest that she suffered an adverse employment action because of her gender or sexual orientation. Therefore, Defendants' motion to dismiss the Title VII sex discrimination claims (Count I and Count II) is granted.

         II. Retaliation Claims

         Defendants argue that the Title VII retaliation claims based on gender and sexual orientation should be dismissed because Shankle has failed to allege that she suffered an adverse employment action that would support a Title VII retaliation claim. To state a retaliation claim under Title VII, plaintiff must "allege that she engaged in statutorily protected activity and was subjected to an adverse employment action as a result." Carlson, 758 F.3d at 828 (7th Cir. 2Ol4)(quoting Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1029 (7th Cir. 2013). Adverse employment action in the retaliation context is very simply an employer's action that would "dissuade a reasonable worker from participating in protected activity, " Hurt v. Office of the Chief Judge of the Circuit Court of Cook Cty.,804 F.3d 826, 833 (7th Cir. 2015); see also Henry v. Milwaukee County,539 F.3d 573, 586 (7th Cir. 2OO8)(stating that "[t]he range of conduct prohibited under the anti-retaliation provision is broader than its anti-discrimination provision, .. . because the discriminatory acts proscribed by Title VII's anti-retaliation provision are not limited to those that affect the terms and conditions of one's ...


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