United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. GOTTSCHALL UNITED STATES DISTRICT JUDGE
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.
Summary of the Complaint
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,  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.
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.
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.
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.
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.
Race Discrimination Claim (Count I)
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)).
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. 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).
Retaliation Claim Based On Suspension (Count II)
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