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Schloss v. City of Chicago

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

December 10, 2019

Allison Schloss, Plaintiff,
v.
City of Chicago, a municipal corporation, and Deputy Chief Steve E. Georgas, Commander Warren Richards, Sgt. Frederick Harnish, Sgt. Karoly Hadju, Angel Romero, and Robert Fitzsimmons, in their individual capacities, Defendants.

          MEMORANDUM OPINION AND ORDER

          Honorable Thomas M. Durkin United States District Judge.

         Former 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.

         Legal Standard

         A Rule 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, the-defendant-unlawfully-harmed-me accusation.” 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. 2018).

         Background

         The 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.

         Schloss's 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 incorrect. Id.

         Schloss 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.

         On 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.

         Analysis

         The 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.

         I. Title VII of the Civil Rights Act of 1964 - Retaliation (against the City of Chicago) (Count III)

         The 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.

         Generally, “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, to ...


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