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Vazquez v. Suncast Corp.

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

June 24, 2019




         Then representing himself, Agapito Vazquez (“Vazquez”) filed a six-count complaint against his former employer, Suncast Corporation (“Suncast”), and two of his former supervisors, Ascension Espinal (“Espinal”) and Jose Lemus (“Lemus”), alleging employment discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, as amended, (“Title VII”), 42 U.S.C. § 2000(e) et seq., and intentional and negligent infliction of emotional distress claims. Defendants filed a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. The court recruited counsel to represent Vazquez due to the complexity of the issues the motion raised, Vazquez's demonstrated financial inability to pay the filing fee, and his representations to the court that his ability to read, write, and understand English is limited. ECF No. 22. Vazquez's recruited attorney has responded to the motion, ECF No. 28, and defendants have replied, ECF No. 30. For the following reasons, the court grants the motion in part and grants Vazquez leave to replead his dismissed claims.

         I. Summary of the Complaint

         On a Rule 12(b)(6) motion, the complaint's well-pleaded facts must be accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. Tobey v. Chibucos, 890 F.3d 634, 645 (7th Cir. 2018) (citing Ball v. City of Indianapolis, 760 F.3d 636, 642-43 (7th. Cir. 2014)). Suncast, which is located in Batavia, Illinois, hired Vazquez as a machine operator in 1994. Compl. ¶¶ 4, 10, ECF No. 9. In 2013-2014, Vazquez saw Espinal and Lemus sexually harassing a coworker, Woody Swinton, [1] on numerous occasions. Compl. ¶ 12. Vazquez intervened in an incident of “intense escalation” of harassment and verbal abuse perpetrated by Espinal on March 31, 2014. Compl. ¶ 13. Vazquez also filed a complaint with Suncast's Human Resources (“HR”) department. Compl. ¶ 13. Suncast's HR director told Vazquez not to discuss the incident with anyone. Compl. ¶ 14. The next day Espinal pulled Vazquez aside, cursed at him, called him a snitch, and told him that he should transfer to another shift if he wanted to keep his job. Compl. ¶ 15. Espinal almost rear-ended Vazquez while he was driving to work on April 2, 2014. Compl. ¶ 16. Vazquez reported this incident to HR, but he was told not to “get excited” and that the HR director had met with his co-workers. Compl. ¶ 17.

         A campaign of harassment followed. See Compl. ¶¶ 18-22. In retaliation for his reports, Suncast suspended Vazquez on May 14, 2014, for allegedly talking with Swinton. Compl. ¶¶ 18-19. Other employees who reported to Lemus were not disciplined for more serious misconduct. Id. Vazquez was “treated like a criminal” in June and July 2014. Compl. ¶ 20. On July 21, 2014, Vazquez filed a charge of discrimination (“charge”) with the Equal Employment Opportunity Commission (EEOC). ECF No. 20-1 Ex. A. Vazquez alleged that he complained about sexual harassment, that he was subsequently disciplined, and that he believed that he had been discriminated against due to his race and in retaliation for reporting protected activity. Id. at 3. Vazquez's pro se complaint does not say when Suncast received notice of the charge. The next month, on August 18, 2014, Lemus approached Vazquez and insulted him. Lemus told Vazquez that going to HR would be futile because the company would protect Lemus and because the union would protect Espinal. Compl. ¶ 21. Vazquez reported the incident to HR, and the next day Lemus approached and insulted Vazquez for making the report. Compl. ¶¶ 21, 22. Despite Vazquez's reports to HR, Suncast did nothing to stop the harassment. Compl. ¶ 24. Suncast terminated Vazquez without warning two days later on August 21, 2014. Compl. ¶ 23.

         All six counts of the pro se complaint state that they are “Title VII” claims. In Count I Vazquez asserts a hostile work environment and harassment claim against Suncast based on his race and in retaliation for his reports of discrimination and harassment. Compl. ¶ 30. Count II specifically alleges that Suncast suspended Vazquez in retaliation for reporting discriminatory and harassing behavior. Compl. ¶¶ 34, 35. Counts III-VI are pleaded as intentional and negligent infliction of emotional distress claims under Title VII variously against Suncast, Espinal, and Lemus. See Compl. 9-13.

         II. Analysis

         Suncast raises three contentions regarding Counts I and II. See Mem. Supp. Mot. to Dismiss 5-7, ECF No. 20. The first two concern the sufficiency of the allegations of race-based discrimination in Count I and the retaliation claim alleged in Count II. Suncast also asserts that Count I should be dismissed to the extent it pleads a discrimination claim based on Vazquez's termination because he did not timely amend his EEOC charge to allege such a claim.

         Defendants' Rule 12(b)(6) motion tests the sufficiency of the complaint. Christensen v. Cty. of Boone, 483 F.3d 454, 457 (7th Cir. 2007). Under federal notice pleading standards, “a plaintiff's complaint need only provide a short and plain statement of the claim showing that the pleader is entitled to relief, sufficient to provide the defendant with fair notice of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008); see also Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion, the short plain statement must overcome two hurdles. First, the complaint's factual allegations must be sufficient to give the defendant fair notice of the claim and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Second, the complaint must contain sufficient allegations based on more than speculation to state a claim for relief that is plausible on its face. Id. Applying this standard, the court concludes that Count I must be dismissed in part but that Count II satisfies federal pleading requirements.

         A. Race Discrimination Claim (Count I)

         Title VII prohibits an employer from discriminating against an employee based on the “individual's race, color, religion, sex, or national origin.” 42 U.S.C. 2000e-2(a)(1). This claim has four elements: “(1) [the plaintiff] was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe or pervasive so as to alter the conditions of the employee's work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability.” Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 895-96 (7th Cir. 2016) (citing Porter v. Erie Foods Int'l, Inc., 576 F.3d 629, 634 (7th Cir. 2009)).

         The complaint does not plausibly allege that the harassment Vazquez endured was based on his race. Paragraph 27 alleges the bare conclusion that Vazquez experienced race-based harassment. This is insufficient because conclusory allegations that merely recite the elements of a claim must be disregarded when deciding a Rule 12(b)(6) motion. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). Vazquez concedes that the complaint does not adequately allege a race harassment claim.[2] Resp. to Mot. to Dismiss 6. Indeed, the complaint does not identify the race or national origin of Vazquez, Swinton, or anyone else. The complaint does allege that supervisors insulted and cursed at Vazquez, but he does not allege or otherwise suggest that they used racially charged language. See Compl. ¶¶ 15, 21, 22. Vazquez's race-based harassment claim is therefore dismissed. See Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345-46 (7th Cir. 1999) (holding that a manager's use of coarse language and manager's cutting employee off in the parking lot were not inherently race-based on the record presented); Nolan v. City of Chicago, 2017 WL 569154, at *4 (N.D. Ill. Feb. 13, 2017) (Gottschall, J.) (dismissing race harassment claim for similar reasons).

         B. Retaliation Claim Based On Suspension (Count II)

         To state a Title VII retaliation claim, Vazquez must plausibly allege that “he engaged in protected activity and suffered an adverse employment action, and that there is a causal link between the two.” Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2016) (citing Castro v. DeVry Univ., Inc., 786 F.3d 559, 564 (7th Cir. 2015)). Defendants argue that the complaint does not plausibly allege a causal connection between Vazquez's complaints to HR, a presumptively protected activity, and his suspension in May 2014. See Mem. Supp. Mot. to Dismiss 6. Defendants also maintain that by pleading the reason given for the suspension, purported video footage showing Vazquez talking to Swinton, the complaint establishes ...

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