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Brownlee v. Catholic Charities of Archdiocese of Chicago

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

March 28, 2018

ESTHER BROWNLEE, JACKIE TATE, AND JOANIE FLEMING, Plaintiffs,
v.
CATHOLIC CHARITIES OF THE ARCHDIOCESE OF CHICAGO and DUANE WASHINGTON, Defendants.

          MEMORANDUM OPINION AND ORDER

          Joan B. Gottschall United States District Judge

         Defendants Catholic Charities of the City of Chicago (“Catholic Charities”) and Duane Washington (“Washington”) separately move to dismiss certain counts of the Second Amended Complaint (“SAC”), ECF No. 37, filed by three former Catholic Charities mobile outreach workers-Esther Brownlee (“Brownlee”), Jackie Tate (“Tate”), and Joanie Fleming (“Fleming”)-for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). In their First Amended Complaint (“FAC”), Brownlee brought claims under Illinois law for battery and intentional infliction of emotional distress (“IIED”). All three plaintiffs pleaded claims under Title VII of the Civil Rights Act of 1964, as amended, (“Title VII”), 42 U.S.C. § 2000e et seq. The Title VII counts separately alleged each plaintiff's claims of “sexual harassment, ” “sex discrimination, ” retaliation (Brownlee and Fleming only), and a “constructive discharge” theory advanced by Tate. Catholic Charities moved to dismiss the FAC for failure to state a claim. On February 28, 2017, the court granted that motion in part and granted plaintiffs leave amend their complaint. Brownlee v. Catholic Charities of the City of Chi. [“Brownlee I”], No. 16-CV-00665, 2017 WL 770997, Slip Op. at 18, ECF No. 33 (N.D. Ill. Feb. 28, 2017) (also striking two counts as redundant). Plaintiffs timely filed their SAC, adding Washington, another former Catholic Charities employee who figured prominently in the FAC's allegations, as a defendant. In Count Ten, Brownlee pleaded for the first time a claim against Washington and Catholic Charities under the Illinois Gender Violence Act (sometimes “IGVA”), 740 Ill. Comp. Stat. 82/1 et seq. (West 2018).

         In its pending motion, Catholic Charities contends that the IGVA does not apply to corporations and that the SAC fails to cure the defects identified by the court when it partially dismissed the FAC. Adopting Catholic Charities' arguments and adding a couple of his own, Washington maintains that his conduct, as alleged in the SAC, is not extreme and outrageous enough to state a claim for IIED under Illinois law. See, e.g., Richards v. U.S. Steel, 869 F.3d 557, 566 (7th Cir. 2017) (listing elements of IIED claim under Illinois law, including that “the defendant's conduct was truly extreme and outrageous” (citing Feltmeier v. Feltmeier, 798 N.E.2d 75, 80 (Ill. 2003))).

         I. RULE 12(b)(6) STANDARD

         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 Twombly, 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 Chicago, 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).

         II. FACTS

         As just explained, the court assumes that the well-pleaded allegations in the SAC are true and views them in the light most favorable to plaintiffs. See Manistee Apartments, LLC v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016); Katz-Crank, 843 F.3d at 646 (citation omitted). For the most part, plaintiffs' allegations have not changed. The court therefore assumes familiarity with the discussion of the alleged facts in Brownlee I. See Brownlee I, Slip Op. at 2- 5.

         In brief, the plaintiffs, all of whom are women, worked as mobile outreach workers for most of the period described in the SAC. SAC ¶¶ 9-11, 18-20, 108 (noting that Fleming worked as an administrative assistant beginning in May 2015). Mobile outreach workers deliver meals and services to people in the community. E.g., SAC ¶ 24. Catholic Charities required the plaintiffs to drive with a partner when delivering food; Brownlee and Tate were partnered with Washington at various times between 2012 and 2015. See SAC ¶¶ 25, 27.

         Like the FAC, the SAC details a number of offensive and sexually explicit comments Washington made and actions he took. Tate was Washington's partner from around October 2012 through October 2014. During their partnership, Washington showed Tate a pornographic video she found offensive, referred to Tate as a prostitute and himself as a pimp, and told Tate, “I like the way your ass is shaped.” SAC ¶¶ 73, 74, 80-81.

         Washington made similar comments to Fleming. He remarked in explicit terms on how her jeans fit, touched her arm and leg in one incident, and made homophobic statements she found offensive on a daily basis beginning in October 2012. SAC ¶¶ 86, 93-94, 100. Fleming filed a grievance with her supervisor, Ray Lee (“Lee”), in November 2012, but other than an apology from Washington, Lee did not conduct a meaningful investigation. See SAC ¶¶ 89-92. Washington's behavior did not stop. SAC ¶ 93. Rather, Washington, believing that Fleming was a lesbian, began regularly calling her “little gay girl” in conversations with coworkers. SAC ¶¶ 103-04. In allegations not present in the FAC, Fleming pleads that Washington retaliated against her by escalating his harassment and offensive comments beginning within days after she filed a grievance against him in November 2012. See SAC ¶¶ 201-03.

         Catholic Charities assigned Brownlee to be partners with Washington from May 18-June 16, 2015. SAC ¶ 29. Washington made sexually offensive and aggressive comments to Brownlee during this period, e.g., “You know Ray want to fuck you.” See SAC ¶¶ 29-38. Washington also rubbed Brownlee's shoulders and thighs on at least five occasions; she always pushed his hand away and told him to stop. SAC ¶¶ 39-40. Brownlee complained about Washington's behavior and comments “sometime between May 18, 2015, and June 16, 2015, ” but she was not reassigned. SAC ¶¶ 43-47. Things came to a head on or about June 16, 2015, when a client refused to open the door for Brownlee and Washington because Washington was yelling and cursing at Brownlee. SAC ¶ 48. Brownlee called Lee who ordered the pair to return to the office. SAC ¶¶ 49-50. Washington hit Brownlee on the arm with the back of his hand while the two were driving to the office. SAC ¶ 51; see also Id. ¶ 55 (alleging Washington threatened to have someone meet Brownlee at 10 S. Kedzie and hurt her).

         III. FLEMING'S TITLE VII RETALIATION CLAIM

         Among other things, “Title VII . . . prohibits discriminating against an employee ‘because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.'” Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 382 (quoting 42 U.S.C. § 2000e-3(a)) (alteration in original). “To state a claim for retaliation under Title VII, a plaintiff must allege that he engaged in protected activity, and, as a result, was subjected to an adverse employment action.” Lugo v. IBEW Local #134, 175 F.Supp.3d 1026, 1037 (N.D. Ill. 2016) (citing Carlson v. CSX Transp., Inc., 758 F.3d 819, 828 (7th Cir. 2014)); see also, e.g., Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016), cert. denied, 137 S.Ct. 1115 (2017) (citing Castro v. DeVry Univ., Inc., 786 F.3d 559, 564 (7th Cir. 2015)) (discussing standard at summary judgment). On a Title VII retaliation claim, a materially adverse employment action means one that “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.'” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).

         The court dismissed Fleming's retaliation claim pleaded in the FAC on causation grounds. See Brownlee I, Slip Op. at 12-14. Fleming complained about Washington in November 2012, according to the FAC, and the first adverse employment action she pleaded occurred about thirty months later in May 2015. Id. at 13. The court ruled that “[b]ecause the [FAC did] not explain the delay of at least thirty months between Fleming's grievance to Lee and the allegedly retaliatory conduct, it [did] not state a plausible claim of a causal connection based on temporal proximity.” Id. The FAC, observed the court, gave no indication “that ongoing retaliation was occurring.” Id. at 14 (citing Carlson, 758 F.3d at 829) (other citation omitted).

         The same cannot be said of the SAC. Fleming alleges that Washington's harassing words and actions escalated beginning “within days” after she went to management with a grievance against him in November 2012 and that his escalated and continuing harassment and continuing conduct interfered with her ability to do her job. See SAC ¶¶ 201-04. Catholic Charities raises no causation challenge to those allegations. Rather, it says that Fleming's retaliation claim now fails for a different reason: she did not administratively exhaust her claim by filing a timely charge with the Equal Employment Opportunity Commission (“EEOC”).

         In Illinois, a charge must be filed with the EEOC within “three hundred days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e) (West 2018). “If a plaintiff fails to file a timely charge concerning a discrete act of discriminatory conduct, his claim is time-barred.” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 634 (7th Cir. 2013) (citing Roney v. Ill. Dep't of Transp., 474 F.3d 455, 460 (7th Cir. 2007)) (affirming dismissal of time-barred claim on Rule 12(b)(6) motion). The EEOC charge requirement serves two main purposes: it “gives the EEOC and the employer a chance to settle the dispute, and it gives the employer notice of the employee's grievances.” Huri v. Office of the Chief Judge of the Circuit Court of Cook Cnty., 804 F.3d 826, 831 (7th Cir. 2015) (citing Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)). If, Catholic Charities reasons, Washington's retaliatory harassment escalated to the level of an adverse employment action days after Fleming's November 2012 grievance, see SAC ¶¶ 201-02, then she had 300 days from November 2012 to complaint to the EEOC, and because she did not, her retaliation claim is untimely.

         Fleming responds that she has alleged a continuing violation. Resp. to Mot. to Dismiss 3, ECF No. 50. “The continuing violation doctrine allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period.” Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992); see also Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 801 (7th Cir. 2008) (discussing doctrine when applied to claims under another statute). The misnamed doctrine turns on the distinction between discrete, separately actionable employment practices on the one hand and a situation in which “the plaintiff had no reason to believe he was a victim of discrimination until a series of adverse actions established a visible pattern of discriminatory treatment” on the other. Selan, 969 F.2d at 566 (quotation omitted); see also Limestone Dev. Corp., 520 F.3d at 801 (explaining that “[t]he office of the misnamed [continuing violation] doctrine is to allow suit to be delayed until a series of wrongful acts blossoms into an injury on which suit can be brought. It is thus a doctrine not about a continuing, but about a cumulative, violation” (internal citations omitted)).

         The Supreme Court ruled on the extent to which the continuing violation doctrine applies to Title VII claims in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In Morgan, the Court distinguished discrimination claims based on discrete, adverse actions from claims that the plaintiff was subjected to a discriminatorily hostile work environment. Adams v. City of Indianapolis, 742 F.3d 720, 730 (7th Cir. 2014) (discussing Morgan and subsequent Supreme Court and statutory authority). The first category of discrete acts-things like firing someone, refusing to hire her, not promoting her, or denying her a transfer, Morgan, 536 U.S. at 114, -“are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Adams, 742 F.3d at 730 (quoting Morgan, 536 U.S. at 113). But as explained in Morgan, hostile environment claims by “[t]heir very nature involve[ ] repeated conduct, ” so, the Court held, “a hostile-work-environment charge is timely as long as ‘any act falls within the statutory time period, ' even if the charge encompasses events occurring prior to the statutory time.” Adams, 742 F.3d at 730 (quoting Morgan, 536 U.S. at 115, 120) (emphasis omitted). In Count Three of the SAC, Fleming separately pleads a hostile work environment claim based on statements and actions from September 2012 through the end of her tenure. See SAC ¶¶ 161-77. Catholic Charities does not argue that Count Three fails to state a claim or is time barred, and Fleming premises her retaliation claim on largely the same conduct, adding the detail that Washington's harassment escalated within days after he learned of Fleming's grievance, see SAC ¶¶ 197-204.

         As this similarity suggests, Fleming has pleaded a retaliatory hostile work environment claim in the SAC rather than the retaliation claim based on discrete acts she alleged in the FAC. The Seventh Circuit confirmed last year that, although less common than other Title VII theories, it recognizes a Title VII retaliation claim based on a hostile work environment theory. Boss v. Castro, 816 F.3d 910, 920 (7th Cir. 2016) (citing Knox v. Indiana, 93 F.3d 1327, 1334-35 (7th Cir. 1996)) (other citations omitted); see also Stutler v. Ill. Dep't of Corr., 263 F.3d 698, 704 (7th Cir. 2001); contra Threatt v. Jackson, No. 06 C 3944, 2008 WL 1774986, at *10 (N.D. Ill. Apr. 16, 2008) (citing Hobbs v. City of Chicago, No. 06 C 3795, 2007 WL 1810511, at *9-10 (N.D. Ill. June 21, 2007)) (holding “that harassment allegation based on prior EEOC activity was not a separate cause of action”). On a first reading, Fleming's response seems to frame her retaliation claim in terms of a series of discrete acts. See ECF No. 50 at 4-5. Her citation to Knox, id. at 5, reveals that she is pursuing a theory of retaliatory hostile work environment. See Boss, 816 F.3d 910, 920 (tracing theory to Knox).

         The SAC adequately pleads a retaliatory hostile work environment claim. Fleming's retaliation and hostile environment claims overlap factually, but the overlapping facts can support both claims. Gowski v. Peake, 682 F.3d 1299, 1313 (11th Cir. 2012); see also Cooper v. Lew, No. 13 C 2643, 2015 WL 7568382, at *6 (N.D. Ill. Nov. 24, 2015) (holding retaliatory hostile work environment claim failed at summary judgment because factually overlapping hostile work environment claim failed). Fleming alleges at least one act of harassment that occurred within the 300-day window, escalation of the harassing behavior soon enough after her grievance to permit an inference that the grievance caused the escalation, and, when the SAC is viewed favorably to Fleming, a persistently escalated level of harassment going forward. See SAC ¶¶ 197-204; cf. Sinkhorn v. LaHood, No. 08 C 1431, 2010 WL 1031970, at *8 ...


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