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Watkins v. City of Chicago

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

June 5, 2018



          Honorable Edmond E. Chang United States District Judge

         Jacqueline Watkins, a Chicago police officer, alleges that her employer discriminated against her on the basis of her race (African American) and gender (female).[1] R. 18, Am. Compl.[2] In her Amended Complaint, Watkins advances a number of legal theories, all more or less based on the allegation that, in 2008, her supervisor filed a false complaint register against her and that the City did not properly handle Watkins's grievances against the complaint register. Id. The City moves to dismiss the complaint, arguing that most of the conduct Watkins complains of is outside the scope of the EEOC charge filed pre-suit, and that her complaint fails to state a claim upon which relief could be granted. R. 24, Def. Br. For the reasons discussed below, the City's motion is granted in part and denied in part. Some of the claims are indeed outside the scope of the EEOC charge, though some fit comfortably within the charge (or it is not yet possible to tell whether dismissal is required). And some of Watkins's theories plausibly state a claim to relief, so her legal claims based on those theories survive.

         I. Background

         For the purposes of this motion, the Court accepts as true the allegations in the Amended Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Watkins is a female African-American police officer who has been working as a patrol officer for the Chicago Police Department since 1999. Am. Compl. ¶ 4. The events giving rise to this case began in September 2008, when Watkins's then-supervisor, [3] Sergeant Francis Higgins, filed a complaint register (CR) against Watkins. Id. ¶ 11. Among other things, a CR is a way of initiating discipline within the Chicago Police Department. See Id. ¶¶ 9, 13. If sustained, a CR can lead to serious disciplinary action, including suspension, denial of promotion, denial of transfer, and possible termination. Id. ¶ 13. Watkins asserts that the CR filed against her by Higgins was intentionally false and motivated by her race and gender. See Id. ¶ 11; Am. Compl. Exh. A.

         Watkins immediately filed a complaint of race and gender discrimination with the Illinois Department of Human Rights. Am. Compl. ¶ 14. The IDHR allegedly refused to accept Watkins's complaint, and told her that a complaint could not be filed or investigated unless some punishment or employment detriment occurred as a result of the CR. Id.

         At some point (the complaint is unclear on when), [4] Watkins complained to the CPD's Internal Affairs Division that Higgins had filed a false CR against her due to her race and gender.[5] Am. Compl. ¶ 16. Watkins alleges that Internal Affairs took an “uncharacteristically” long time-two years-to begin investigating her complaints, and then took a total of six years to complete its investigation. Id. ¶ 17. This investigation took much longer than investigations of other complaints filed by Watkins. Id. Watkins believes that the long delays were an attempt to prevent her from filing timely discrimination charges, and to protect Higgins from reprisal. Id. ¶¶ 17-18. At some point, an Internal Affairs investigator, Sergeant Kane, “excoriated” Watkins for bringing allegations of race and gender bias against Higgins. Id. ¶ 21. In October 2011, Kane found the CR filed by Higgins to be “sustained, ” and recommended that Watkins be suspended for two days. Am. Compl. Exh. C at 1. Sometime later (the complaint does not say when), the Chief of Internal Affairs, Juan Rivera, documented the CR as sustained and submitted it to then-Police Superintendent Garry McCarthy for approval.[6] Am. Compl. ¶ 24.

         In March 2014, Watkins was suspended by Sergeant Ronald Wilkerson, who told her that the suspension was based on the CR filed by Higgins in 2008. Am. Compl. Exh. A. (It is unclear what happened between 2011 and 2014; perhaps the CR was undergoing further review, but the complaint does not say.) Watkins filed another charge of discrimination with IDHR, alleging again that Higgins issued the CR because of Watkins's race and sex, and adding the allegation that the March 2014 suspension was motivated by race, sex, and a desire to retaliate against Watkins for engaging in protected activity. Am. Compl. ¶ 15; Am. Compl. Exh. A.

         In December 2015 (again, the complaint does not say what happened in the intervening time, though perhaps nothing happened), an arbitrator found that the CR should not have been sustained. Am. Compl. ¶ 25; Am. Compl. Exh. C. The arbitrator ordered that Watkins's suspension should be set aside, that Watkins's record should reflect that the CR was not sustained, and that the suspension should not be part of her record. Am. Compl. Exh. C at 4.

         Despite the arbitrator's finding, the CR has remained on Watkins's record. Am. Compl. ¶ 25. Watkins has made numerous attempts to have the CR “expunged, ” but these attempts have been unsuccessful. Id. ¶¶ 54, 27. Watkins states that having the CR on her record has prevented her from advancing in her career. She alleges that she was denied a promotion to detective in December 2016, and was denied the same promotion again in February 2017.[7] Id. ¶¶ 8-9. Watkins also attributes the lost promotion opportunities to retaliation for her prior complaints of race and gender discrimination. Id. ¶ 8. In addition to the failed promotion attempts, Watkins says that her performance review rating has been lowered recently. Id. ¶ 29. She attributes this to retaliation and discriminatory animus. Id.

         Apart from these factual allegations, Watkins makes a number of accusations of racial and gender bias, but the allegations are conclusions without factual content. For example, she assets that during her employment, she was “[s]ubjected to harassment by employees and managers due to race and gender, which was condoned by the Defendant” and “[s]ubjected to a racially harassing, hostile and intimidating employment environment.” Am. Compl. ¶36. Watkins also claims that the police department is biased against all non-white employees, but these allegations are not backed up by any concrete facts or examples. See, e.g., id. ¶ 45 (“[Plaintiff] and other minority employees are routinely … subjected to harsher discipline for similar behaviors than their white counterparts”), ¶ 5 (noting the existence of a Department of Justice report finding a “pattern and practice of racist behavior” at the police department).

         II. Legal Standard

         Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This short and plain statement must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up).[8] The Seventh Circuit has explained that this rule “reflects a liberal notice pleading regime, which is intended to ‘focus litigation on the merits of a claim' rather than on technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).

         “A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). These allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678-79.

         III. Analysis

         A. Title VII

         1. IDHR/EEOC Charges

         The first of many problems with the Amended Complaint is that Watkins failed to file a charge with the Equal Employment Opportunity Commission for at least some of her Title VII claims. Filing a charge with the EEOC is a necessary precondition to filing civil claims under Title VII. Huri v. Office of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 831 (7th Cir. 2015). If the aggrieved individual first files with a state or local agency, then the EEOC charge must be filed within 300 days of the alleged unlawful employment practice, or within thirty days of the state or local agency's termination, whichever is earlier. 42 U.S.C. § 2000e-5(e)(1). Failure to file a timely EEOC charge is an affirmative defense, and a plaintiff need not plead around an affirmative defense. See Salas v. Wis. Dept. of Corrections, 493 F.3d 913, 921 (7th Cir. 2007); Kawcynski v. F.E. Moran, Inc., Fire Protection, 2015 WL 3484268, at *2 (N.D. Ill. June 1, 2015). But a plaintiff can plead herself out of court by “alleging (and thus admitting) the ingredients of a defense.” U.S. Gypsum Co. v. Ind. Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003); see also Indep. Trust Corp. v. Stewart Info. Serv. Corp., 665 F.3d 930, 935 (7th Cir. 2012) (“[W]hen a plaintiff's complaint nonetheless sets out all of the elements of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate.”).

         In this case, Watkins alleged that she filed or attempted to file two charges with the Illinois Department of Human Rights (which would be cross-filed with the EEOC as a matter of course, Collier v. City of Chi., 2010 WL 476649, at *3 (N.D. Ill. Feb. 4, 2010); Marlowe v. Bottarelli, 938 F.2d 807, 809 (7th Cir. 1991)). The first attempt was in 2008, [9] when Watkins complained of Higgins's alleged race and gender discrimination to the IDHR. The second charge was filed in 2014 (this time successfully). The Court will consider each in turn.

         a. The 2008 Charge

         Watkins alleges that she attempted to file a charge of race and gender discrimination in 2008 immediately after Higgins filed a false CR against her. Am. Compl. ¶ 14. She asserts that the IDHR told her that “unless there was some punishment or other employment detriment that ensued as a result of this action, the complaint could not be filed and investigated.” Id. Taking this allegation as true (as the Court is required to), the IDHR prevented Watkins from filing a timely administrative charge by mistakenly telling her it could not accept the charge unless some more tangible employment detriment occurred. Misleading conduct by an administrative official which prevents a plaintiff from filing a timely EEOC charge can be the basis for equitable tolling of the administrative statute of limitations. Early v. Bankers Life and Cas. Co., 959 F.2d 75, 81 (7th Cir. 1992) (EEOC's erroneous representation that plaintiff's completion of intake questionnaire fulfilled his administrative responsibilities tolled the 300-day time limit for filing a charge); see also Anderson v. Unisys Corp., 47 F.3d 302, 306-07 (8th Cir. 1995); Wilson v. Dep't of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995); Martinez v. Orr, 738 F.2d 1107, 1111-12 (10th Cir. 1984). The question then becomes whether the plaintiff asserted her rights “as early as [she] realistically could given [the] misinformation.” Early, 959 F.2d at 81.

         At this stage, it is not clear whether Watkins's charge of discrimination based on the 2008 CR was untimely. Equitable tolling is a fact-intensive inquiry, more appropriate for summary judgment or an evidentiary hearing than a motion to dismiss. See Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014) (“The realm of equitable tolling is a highly fact-dependent area in which courts are expected to employ flexible standards on a case-by-case basis.”) (cleaned up). Watkins alleges that an IDHR representative told her that she could not file a charge until she was punished for the CR. Consistent with that representation, Watkins waited until she was suspended and filed again, alleging that the CR was false and discriminatory. Watkins thus alleges that she followed the instruction of the IDHR, and if she did, then perhaps waiting to file was a reasonable thing to do (though the Court cannot be sure without more facts). See Sarsha v. Sears Roebuck and Co., 747 F.Supp. 454, 456 (N.D. Ill. 1990) (“The IDHR investigator was someone whom [the plaintiff] could objectively reasonably rely upon to be knowledgeable on the proper filing procedures. It was therefore reasonable for [the plaintiff], as he did, to rely upon the IDHR investigator's instructions and follow them.”). It is not clear precisely why six years passed between the alleged discrimination and the filing of the IDHR charge. But that delay might have been due more to the very slow Internal Affairs investigation than to any dilatoriness on Watkins's part. See Am. Compl. ¶ 17. The point is that, without some additional factual development-and, eventually, an evidentiary hearing-the Court cannot hold that as a matter of law equitable tolling does not save Watkins's Title VII claims based on the filing of the 2008 CR.

         b. The 2014 Charge

         Watkins's next attempt to file a charge of discrimination went more smoothly. The IDHR accepted her 2014 charge and conducted an investigation. Am. Compl. ¶ 15. The outcome of this investigation was not favorable to Watkins, id., and the EEOC (which adopted the IDHR's finding), issued a right to sue letter on December 16, 2016. Am. Compl. Exh. A. Watkins filed this lawsuit on March 15, 2017, within the statutory ninety day window. See 42 U.S.C. ยง 2000e-5(f)(1). This means that any claims related to the 2014 charge ...

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