United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Gottschall United States District Judge
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).
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.
RULE 12(b)(6) STANDARD
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).
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.
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.
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.
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.
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).
FLEMING'S TITLE VII RETALIATION CLAIM
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.
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).
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”).
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.
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
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
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).
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