United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge.
Chicago Police Department (“CPD”) Lieutenant
Allison Schloss brings this action against the City of
Chicago and current and former CPD employees for sex
discrimination and several related claims. The Court denied
the defendants' first partial motion to dismiss in an
Order dated October 4, 2018. See R. 47. In July
2019, Schloss filed a Second Amended Complaint. The
defendants have moved to partially dismiss the Second Amended
Complaint's Title VII claims for adverse treatment,
hostile work environment, and retaliation (Counts I-III), and
to dismiss her 42 U.S.C. § 1983 equal protection claim
against Defendant Warren Richards (Count IX). R. 101. Their
motion is granted in part and denied in part.
12(b)(6) motion challenges the “sufficiency of the
complaint.” Berger v. Nat. Collegiate Athletic
Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint
must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with
“fair notice” of the claim and the basis for it.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). This standard “demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While
“detailed factual allegations” are not required,
“labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. The complaint must
“contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). “‘A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged.'” Boucher v. Fin. Sys. of Green Bay,
Inc., 880 F.3d 362, 366 (7th Cir. 2018) (quoting
Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party.
Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir.
Court assumes the parties' familiarity with the facts of
this case from its October 4, 2018 Order denying the
defendants' first partial motion to dismiss. See
R. 47. Briefly, Schloss served as a commanding officer in the
CPD's Special Functions Division. Schloss alleges she was
removed from her command and transferred to the Major
Accidents Investigation Unit (“MAIU”) due to
rampant sex discrimination in the Special Functions Division
and in retaliation for filing a workplace complaint.
Second Amended Complaint includes the following additional
allegations. On January 2, 2018, the CPD learned that Schloss
had received her Notice of Right to Sue from the Equal
Employment Opportunity Commission (“EEOC”). R. 95
¶ 86. Shortly thereafter, a sergeant approached
“nearly every member” of MAIU soliciting them to
make complaints against Schloss. Id. ¶ 89.
Schloss alleges this was done at the behest of her direct
supervisor, Defendant Commander Warren Richards. Id.
¶¶ 88-89. At the end of January 2018, Richards
began to return responses to document and file requests sent
by Schloss's unit to other CPD units for corrections.
Id. ¶ 93. This was the first time since Schloss
had been assigned to MAIU that file requests were returned as
filed this action on March 15, 2018. Id. ¶ 94.
Two weeks later, Richards and two other CPD supervisors
accused Schloss of misconduct in her department. Id.
¶ 95. Schloss went on furlough from mid-April through
May 10, 2018. Id. ¶ 97. When she returned,
numerous responses to other departments' file requests
were returned to her with reports explaining why the
responses were incorrect. Id. ¶ 98. On June 28,
2018, Richards issued a written reprimand to Schloss related
to 20 files that had been returned, many due to policy
changes about which Schloss had not been informed.
Id. ¶ 99. On July 2, 2018, Schloss filed a
retaliation complaint against Richards. Id. ¶
100. Three weeks later, Richards informed Schloss that she
could not work overtime without his written permission.
Id. ¶ 101.Over the next several months,
Richards continued to change the procedure required for
processing file requests so that Schloss could not process
them properly. Id. ¶ 105.
April 18, 2019, Schloss moved for leave to file her Second
Amended Complaint, which included additional allegations of
retaliation against Richards and the City. Id.
¶ 106. The next day, Schloss learned she was being
transferred from MAIU to the Violence Reduction Initiative
(“VRI”) North. Id. ¶ 107. The VRI
is less prestigious than MAIU and provided Schloss with fewer
opportunities to work overtime. Id. ¶ 110. On
May 6, 2019, Schloss received a Performance Evaluation form
that had been completed by Richards. Id. ¶ 112.
Richards assigned Schloss a “needs improvement”
rating on every aspect of her job. Id. ¶ 113.
Schloss had not received a single “needs
improvement” rating in her previous 29 years with the
CPD. Id. Schloss also received a Performance
Improvement Plan, which she could not comply with because she
had already been transferred from MAIU to VRI. Id.
¶ 116. Schloss alleges this relentless retaliation was
designed to remove her from the CPD. Id. ¶ 118.
Schloss determined she had no other option but to retire,
which she did on May 31, 2019. Id.
City of Chicago has moved to dismiss the Second Amended
Complaint's Title VII claims for adverse treatment (Count
I), hostile work environment (Count II), and retaliation
(Count III) to the extent they incorporate allegations from
Schloss's time in MAIU. In addition, Richards moved to
dismiss Schloss's 42 U.S.C. 1983 equal protection claim
against him (Count IX). Schloss clarifies in her opposition
to the defendants' motion that the new allegations
regarding Richards and MAIU do not alter or support her
claims for sex discrimination/adverse treatment (Count I) or
sex discrimination/hostile work environment (Count II).
Accordingly, the Court will not consider the amended
allegations as they relate to those claims, and the
City's motion to partially dismiss Counts I and II is
denied as moot. The motion to dismiss Schloss's
retaliation claim (Count III) and her equal protection claim
against Richards (Count IX) are discussed in turn.
Title VII of the Civil Rights Act of 1964 - Retaliation
(against the City of Chicago) (Count
City of Chicago argues that Schloss's Title VII
retaliation claim should be dismissed for failure to exhaust
her administrative remedies to the extent she incorporates
allegations from her time in MAI U.Specifically, the City
contends that Schloss's EEOC charge dealt only with her
experience in the Special Functions Division, and that her
new allegations involve different people (Richards), a
different department (MAIU), and a different time period
(2018 as opposed to 2016). As an initial matter, failure to
exhaust is an affirmative defense, see Massey v.
Helman, 196 F.3d 727, 735 (7th Cir. 1999), and
complaints do not have to anticipate affirmative defenses to
survive a motion to dismiss. United States v. Lewis,
411 F.3d 838, 842 (7th Cir. 2005) (citing Gomez v.
Toledo, 446 U.S. 635, 640 (1980)). Nevertheless,
considering the issue now does not affect the outcome of the
City's motion, and because Schloss does not object, the
Court will address it here.
“a Title VII plaintiff cannot bring claims in a lawsuit
that were not included in her EEOC charge.” Cheek
v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir.
1994). A well-recognized exception to this requirement
exists, however, for suits “complaining about
retaliation for filing the first charge.” Malhotra
v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir.
1989); Gawley v. Ind. Univ., 276 F.3d 301, 314 n.8
(7th Cir. 2001) (“Of course, an employee is not
required to file a separate EEOC charge alleging retaliation
when the retaliation occurs in response to the filing of the
original EEOC charge.”). The rationale for this
exception is that a double filing “would serve no
purpose except to create additional procedural
technicalities.” McKenzie v. Illinois Dept. of
Transp., 92 F.3d 473, 482 (7th Cir. 1966); see also
Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1030
(7th Cir. 2013) (“We have held for practical reasons,