United States District Court, N.D. Illinois, Eastern Division
BEVERLY R. MAYS GILLON, Plaintiff,
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS and DIANE OIKLE, Defendants.
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall United States District Judge
Beverley R. Mays Gillon filed this suit against the Board of
Trustees of the University of Illinois (the
"Board") and her supervisor Diane Oikle
(collectively "Defendants") for alleged employment
discrimination based on her race in violation of Title VII of
the Civil Rights Act of 1964 as amended 42 U.S.C. §
2OOOe et seq. and 42 U.S.C. § 1983. After her
First Amended Complaint was dismissed by Judge St. Eve (Dkt.
42), Gillon filed a Second Amended Complaint. (Dkt. 43).
Defendants again have moved to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Dkt. 45). After the Motion
was fully briefed, the suit was reassigned to the undersigned
judge. For the reasons set forth below, Defendants'
Motion is denied.
following facts are alleged in Gillon's Second Amended
Complaint and assumed to be true for purposes of
Defendants' Motion to Dismiss. See Calderon-Ramirez
v. McCament, 877 F.3d 272, 275 (7th Cir. 2017). The
Board is the "governing body of the University of
Illinois System." (Dkt. 43) at ¶ 3. From 1993 to
2005, Gillon, an African American, was employed by the Board
as a "Flex Nurse" though the Board's Nursing
Resource Office. Id. at ¶ 10-11. In 2005,
Gillon was hired to the permanent position of PICC Line Nurse
Specialist. Id. at ¶ 11. In 2012, Gillon became
a Gastroenterology Nurse. Id. at ¶ 12. In this
position, she worked under the supervision of Oikle, who was
the Assistant Director of the Gastroenterology Lab at the
University of Illinois at Chicago Hospital. Id. at
¶ 4. Gillon alleges that in the Spring of 2016,
Defendants began to exclude Plaintiff from "Charge Nurse
duties and rotation" and training opportunities,
resulting in her loss of pay and promotional opportunities.
Id. at ¶ 13. Specifically, Oikle made the
decision to exclude Gillon from these activities.
Id. at ¶ 4. Gillon alleges that she was the
only nurse removed from Charge Nurse duties and that her
removal was on account of her race, despite her adequate
performance reports. Id. at ¶¶ 14-18.
Along these same lines, Gillon alleges that "similarly
situated non-African Americans were not excluded from Charge
Nurse duties, rotation and training." Id. at
¶ 14. Gillon also alleges that she was demoted.
Id. at ¶ 22. Gillon alleges few other facts.
December 2016, Gillon filed a charge of discrimination with
the Equal Employment Opportunity Commission, complaining that
she had been removed from her Charge Nurse duties and
rotation because of her race; in March 2017, she received a
right to sue letter. (Dkt. 43-1). Gillon's Second Amended
Complaint contains two counts: (1) a Title VII claim against
the Board, and (2) a § 1983 claim against Oikle. (Dkt.
43). Gillon seeks $50, 000 in compensatory damages, punitive
damages, and a permanent injunction "requiring Defendant
to abolish discrimination." Id. at 4, 5.
12(b)(6) motion challenges the legal sufficiency of the
complaint. For purposes of a motion to dismiss under Rule
12(b)(6), the Court '"accept[s] as true all of the
well-pleaded facts in the complaint and draw all reasonable
inferences in favor of the plaintiff"
Calderon-Ramirez, 877 F.3d at 275 (quoting
Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th
Cir. 2016)). To survive a motion to dismiss under Rule
12(b)(6), a plaintiffs complaint must allege facts which,
when taken as true, '"plausibly suggest that the
plaintiff has a right to relief, raising that possibility
above a speculative level.'" Cochran v. III.
State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir.
2016) (quoting EEOC v. Concentra Health Servs.,
Inc., 496 F.3d 773, 776 (7th Cir. 2007)). "Specific
facts are unnecessary, but the complaint must give the
defendant fair notice of what the claim is and the grounds
upon which it rests." Hurt v. Office of the Chief
Judge of the Circuit Court of Cook Cty., 804 F.3d 826,
832 (7th Cir. 2015). "Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). In addition, a "plaintiffs
obligation to provide the grounds of [her] entitle[ment] to
relief requires more than labels and conclusion."
Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d
732, 739 (7th Cir. 2014) (citation omitted). The Court reads
the complaint and assesses its plausibility as a whole.
See Atkins v. City of Chicago, 631 F.3d 823, 832
(7th Cir. 2011).
moving to dismiss the Second Amended Complaint, Defendants
argue "that [Gillon] has not plead enough facts that
allow a court to reasonably draw the inference that
Defendants are liable for racial discrimination." (Dkt.
45) at 3. That is, Defendants argue that Gillon has not
presented anything more than an "bare bones recitation
of the claims' elements" that should not allow the
case to proceed to discovery. (Dkt. 50) at 4.
Count I: Title VII Claim Against the Board
VII makes it unlawful for an employer "to fail or refuse
to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex,
or national origin." 42 U.S.C.A. § 2OOOe-2(a)(1).
In order to state a claim for a violation of Title VII,
Gillon must show the following elements: "(1) [s]he is
member of a protected class; (2) [s]he was qualified for the
applied for position; (3) [s]he suffered an adverse
employment action; and (4) similarly situated persons not in
the protected class were treated more favorably."
Martino v. W.&S. Fin. Grp., 715 F.3d 195, 202
(7th Cir. 2013) (citing McGowan v. Deere & Co.,
581 F.3d 575, 579 (7th Cir. 2009)). The Title VII pleading
standard is, in fact, an "undemanding" one.
Tate v. SCR Med. Tramp., 809 F.3d 343, 346 (7th Cir.
2015). Specifically, the "pleading standards in Title
VII cases are, of course, different from the evidentiary
burden a plaintiff must subsequently meet" at the
summary judgment stage. See Huri, 804 F.3d at 834.
What this means is that Gillon is not required to "plead
a prima facie case because it an evidentiary
standard, not a pleading requirement." Swierkiewicz
v. Sorema, 534 U.S. 506, 210 (2002).
Court previously held that Gillon had sufficiently alleged
that she is African American, that she was qualified as a
nurse, and that she suffered an adverse employment action by
not being assigned Charge Nurse duties and being excluding
from training that resulted in a loss of pay and promotional
opportunities. (Dkt. 42) at 6. Where she fell short, however,
was in connecting the alleged adverse employment action to
her race. Id. As a result, Gillon filed her Second
Amended Complaint, as relevant adding eight (sometimes
duplicative) new allegations. In any event, the Second
Amended Complaint alleges that "Defendants excluded
Gillon due to her race in that similarly situated non-African
Americans were not excluded from Charge Nurse duties,
rotation and training and these nurses were similar to Gillon
in attributes such as knowledge, experience and
education." (Dkt. 43) at ¶ 14; see also
Id. at ¶ 23 (same allegation). She also alleges
that she was the only nurse removed from the Charge Nurse
rotation. Id. at ¶ 15; see also Id. at
¶ 28 (same allegation).
under prevailing federal notice-pleading standards, a
plaintiff alleging employment discrimination need only allege
the type of discrimination that he thinks occurred, by whom,
and when. See Swanson v. Citibank, N.A., 614 F.3d
400, 404-05 (7th Cir. 2010). Gillon has alleged these facts.
"[O]nce a plaintiff alleging illegal discrimination has
clarified that it is on the basis of her race, there is no
further information that is both easy to provide and of clear
critical importance to the claim." EEOC v. Concentra
Health Servs., Inc., 496 F.3d 773, 782 (7th Cir. 2007).
Accordingly, Gillon's Second Amended Complaint adequately
alleges that the Board discriminated against her on account
of her race. See Bennett v. Schmidt, 153 F.3d 516,
518 (7th Cir. 1998) (an allegation that states "quite
generally," "I was turned down for a job because of
my race" is sufficient to survive a Rule 12(b)(6) motion
to dismiss); see also Lavalais v. Vill. of Melrose
Park, 734 F.3d 629, 633 (7th Cir. 2013) ("a
complaint alleging [race or gender] discrimination need only
aver that the employer instituted a (specified) adverse
employment action against the plaintiff on the basis of [her
race or gender]"). As a final point, Defendants'
argument that Gillon cannot state a claim for race
discrimination because the individual who currently serves as
the Charge Nurse is African American is not appropriately
considered at this stage. (Dkt. 45) at 4. Defendants'
motion to dismiss Count I is denied.
Count II: 42 U.S.C. § 1983 Claim ...