United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall United States District Judge.
Straub (“Straub”) sued Jewel Food Stores, Inc.
(“Jewel”) alleging employment discrimination
under the Age Discrimination and Employment Act of 1967, 29
U.S.C. § 623 (“ADEA”), Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2,
2000e-3, and 42 U.S.C. § 1981 (“Section 1981).
(Dkt. No. 1.) Straub's claims include age and color
discrimination (Counts I-II), the failure to promote (Count
III), sexual harassment (Count IV), and retaliation (Counts
V, VI). (Id. at 3-4.) Jewel seeks dismissal on all
counts except age discrimination for failure to state a claim
upon which relief may be granted pursuant to Fed.R.Civ.P.
12(b)(6). (Dkt. No. 17.) The Court grants Jewel's motion
for the following reasons. [17.]
was employed at a Jewel location in Downers Grove, Illinois
from 2001 until his termination in 2016. See (Dkt.
No. 1, at 9) (EEOC Charge). While employed at Jewel, Straub
filed a 2010 EEOC Charge that he claims resulted in
harassment and a change to his work assignments.
(Id.) He further alleges that he was demoted three
times, including once after filing the 2010 EEOC charge.
(Id. at 6.) Jewel fired Straub after an altercation
with another coworker on or about December 10, 2016.
(Id. at 2, 6.) Prior to the altercation, Straub
complained to “the Unions, Management and Corporate
Office, ” which he claims served as the basis for his
termination after the altercation with his coworker.
(Id. at 6.) Although Jewel terminated Straub,
“other young black employees that were in an actual
fist fight were not fired and only received a
suspension.” (Id.) Straub's form
employment discrimination Complaint includes allegations of
age and color discrimination, unlawful termination, the
failure to promote, the failure to stop harassment,
retaliation for asserting protected rights, and sexual
harassment. (Id. at 3-4.) Straub attached his
Right to Sue letter from the EEOC, issued June 2, 2017, and
his EEOC Charge claiming violations based on race,
retaliation, and age.
considering a motion to dismiss under Rule 12(b)(6), the
Court accepts as true all facts alleged in the complaint and
construe all reasonable inferences in favor of the plaintiff.
Cannici v. Vill. of Melrose Park, 885 F.3d 476, 479
(7th Cir. 2018). In doing so the complaint must contain
“sufficient factual material, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Plausibility does not mean
probability: a court reviewing a 12(b)(6) motion must
‘ask itself could these things have happened,
not did they happen.'” Huri v. Office
of the Chief Judge of the Circuit Court of Cook Cnty.,
804 F.3d 826, 832-33 (7th Cir. 2015) (citing Swanson v.
Citibank, 614 F.3d 400, 405 (7th Cir. 2010)). In order
to satisfy this pleading requirement, the plaintiff must
provide enough facts to raise a reasonable expectation that
discovery will reveal evidence supporting the allegations.
Olson v. Champaign Cnty., 784 F.3d 1093, 1099 (7th
Cir. 2015). The Court reviews documents attached to a
pleading as part thereof for all purposes “if they are
referred to in the plaintiff's complaint and are central
to his claim.” 188 LLC v. Trinity Indus., 300
F.3d 730, 735 (7th Cir. 2002). In analyzing whether a
complaint has met this standard, the “reviewing court
[must] draw on its judicial experience and common sense.
Iqbal, 556 U.S. at 679.
as the Court is able to discern from the pleadings,
Straub's claims include age discrimination, color
discrimination, retaliation for asserting protected rights
(both in the form of employment and in his eventual
discharge), the failure to promote, and sexual harassment.
(Dkt. Nos. 1, at 3-4; 17, at 4-8.) Jewel does not request
dismissal of Straub's age discrimination claim and so it
is not addressed below; however the remaining claims are
dismissed based upon the following.
Plaintiff's Sexual Harassment and Failure to Promote
Claims A plaintiff must “avoid foreclosing
possible bases for relief in [his] complaint, ” or in
admissions in subsequent pleadings. Tamayo v.
Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008);
see also Cincinnati Ins. Co. v. E. Atl. Ins. Co.,
260 F.3d 742, 747 (7th Cir. 2001) (a failure to oppose an
argument permits an inference of acquiescence and
“acquiescence operates as a waiver”). Straub
responds to Jewel's motion stating he “is not
alleging a sexual harassment claim” and that he
“mistakenly alleged ‘failure to promote' and
thus does not object to that claim being dismissed.”
(Dkt. No. 29, at 1.) Accordingly, the claims based on the
failure to promote (Count III) and sexual harassment (Count
IV) are dismissed.
Title VII Color Discrimination
seeks dismissal of Straub's color discrimination claim
because he failed to exhaust his administrative remedies.
(Dkt. No. 17, at 4.) Of course a plaintiff must exhaust his
administrative remedies by presenting any Title VII and ADEA
claims to the EEOC before filing a lawsuit based on
employment discrimination. See 42 U.S.C. §
2000e-5; 29 U.S.C. § 626(d); see also Cheek v. W.
& S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir.
1994). This process provides notice to the employer and gives
both the employer and the EEOC an opportunity to settle any
disputes outside of litigation. Cheek, 31 F.3d at
exception to this requirement is recognized when there is a
“reasonable relationship” between the allegations
in the charge and the claims in the complaint. Id.
However for the exception to apply the federal claim must be
“like or reasonably related to the allegations of the
[EEOC] charge and growing out of such allegations.”
Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 634
(7th Cir. 2013) (quoting Jenkins v. Blue Cross Mut. Hosp.
Ins., 538 F.2d 164, 167 (7th Cir. 1976). At a minimum
the narrative in the charge and the federal claim must
“describe the same conduct and implicate the
same individuals.” Cheek, 31 F.3d at
does not put Jewel on notice of color discrimination in his
EEOC Charge because he checked the box for “race”
box, but not for “color.” (Dkt. 1, at 9.)
Additionally, Straub stated that Jewel discriminated against
him on the basis of race and not his skin-tone after his
altercation with two African-American employees.
(Id.) In fact nothing in Straub's EEOC Charge
suggests his color, or skin-tone, was a causal factor forming
the basis of discrimination, and “an allegation of race
discrimination does not automatically create the assumption
that color is associated.” See Williams v. County
of Cook, 969 F.Supp.2d 1068, 1078 (N.D. Ill. 2013)
(Kendall, J.) (citing similar district cases where color and
race are distinguished as separate claims). Straub even
admits that his claim was grounded in racial discrimination,
not on the basis of color. (Dkt. No. 25, at 1.)
(“Plaintiff checked the first relevant box, that being
‘color, ' with the understanding that it
encompassed the race claim.”) In admitting as much, the
claim for color discrimination is dismissed based on failure
to exhaust in the EEOC Charge.
further argues that any attempt to add a race discrimination
claim in an amended complaint would be futile because Straub
fails to establish facts sufficient to state of claim for
reverse race discrimination. (Dkt. No. 29, at 3.) In order to
succeed on a claim of reverse race discrimination, a
“non-minority plaintiff must be able to plead facts to
show why it is likely in this case, that an employer had
engaged in such unusual behavior” with the use of
“direct evidence of the racial discrimination waged
against him.” Phelan v. City of Chicago, 347
F.3d 679, 685 (7th Cir. 2003). Straub fails to meet this
standard because his EEOC charge merely alleges that other
employees-whom he fought with-were African Americans that
were suspended while he was fired, and that he was
discriminated against for being white. (Dkt. No. 1, at 9.)
While this certainly puts Jewel on notice of race
discrimination claims, Straub's Complaint fails to allege
racial discrimination at all and simply repeats the
allegation that the ...