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Straub v. Jewel Foods Stores Inc

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

April 27, 2018



          Hon, Virginia M. Kendall United States District Judge.

         Preston 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.]


         Straub 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.[2] (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.


         When 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 much 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.

         I. 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.

         II. Title VII Color Discrimination

         Jewel 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 500.

         An 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 501.

         Straub 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.

         Jewel 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 ...

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