Opinion
Case No. 98 C 5838
February 10, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Joseph Sanders ("Sanders"), a former Chicago police officer brought employment discrimination charges against Defendant City of Chicago ("Defendant"). In Count I, he filed charges of race discrimination and hostile work environment under Title VII of the Civil Rights Act of 1964, (e)42 U.S.C. § 2000(e), [ 42 U.S.C. § 2000e. In Count II, he charges Defendant with disability discrimination and retaliation under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101. Defendant now moves the court to dismiss plaintiff's complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant argues that Count I, Sanders' Title VII race discrimination and hostile work environment claim, is time-barred and that both Count I and II, the Title VII and ADA claims, are insufficient as a matter of law. For the reasons set forth below, the court (1) denies Defendant's motion to dismiss Count I and Sanders ADA discrimination claim and (2) grants Defendant's motion to dismiss Sanders retaliation claim without prejudice.
Background
In ruling on a motion to dismiss, the court "accepts as true the factual allegations of the complaint." Lashbrook v. Oerkfitz, 65 F.3d 1339, 1343 (7th Cir. 1995). In addition to the complaint Sanders filed with this court on September 18, 1998, he previously filed two charges with the Equal Employment Opportunity Commission ("EEOC") against Defendant. The first was a disability discrimination charge filed on June 13, 1994 ("Charge I") and the second was a race discrimination and retaliation charge filed on February 26, 1996 ("Charge II"). The facts described below are taken primarily from these documents.
Documents incorporated by reference into the pleadings and attached to the pleadings are considered part of the pleadings for all purposes. See Fed.R.Civ.P. 10(c); Adams v. Adkins, No. 97 C 5981, 1998 U.S. Dist. LEXIS 2705, at *2 (N.D. Ill. Mar. 6, 1998).
Sanders served as a Chicago police officer from 1973 until 1995 when he resigned. (Compl., Count I, ¶ 4.) Initially, he was assigned to a patrolman post. He was transferred to the canine unit. (P1.'s Mem., Ex. 2.) In October 1993, upon notification that Sanders fainted while off duty, Defendant forced him to take medical leave. (Compl., Count II, ¶ 6.) The Police Department physician diagnosed Sanders as suffering from "emotional stress syndrome." (Id.)
When he returned to work on March 9, 1994, Sanders was reassigned from the Canine Unit to the Call Back Unit. (P1.'s Mem., Ex. 2.) On May 13, 1994, Defendant forced Sanders to go on medical leave again. (Id.) A month later, Sanders filed his first EEOC charge, alleging disability discrimination. Sanders claimed that his disability was not accommodated although he was fully capable of performing the essential functions of a Canine Officer. (P1.'s Mem., Ex. 2.)
On February 26, 1996, Sanders filed Charge II, alleging race discrimination and retaliation. In it, Sanders claims that after he filed his first EEOC charge in June of 1994, he was subjected to defendant's retaliatory and discriminatory conduct. (Id.) Specifically, Sanders alleges that in May of 1995, almost a year after filing his first EEOC charge, Defendant: (1) forced Sanders to take medical leave yet again, (2) "harassed" Sanders at his home, and (3) withheld his paycheck, and continued to do so until late August 1995. (Id.)
The charge includes a number of additional allegations. According to Sanders, in June 1995, he received a ten day suspension; in August 1995, he was "forced to retire;" in December 1995, he was "not allowed to attend a [defendant]-sponsored retirement party, whereas non-black retiring police officers were allowed to attend the retirement party;" and in January 1996, he was informed that he owed Defendant around $20,395 for overpayment of comp time, "although [Sanders] had sufficient comp time accumulated to cover the hours for which [he] was paid." (Id.) Finally, in Sanders' complaint to this court, he alleges that a Police Commander called him "Boy," and told him that "[his] type should be put in [his] place." (Compl., Count I, ¶ 7(a).) Sanders does not indicate when these alleged remarks took place.
Defendant moves to dismiss Count I and Count II of Sander's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Specifically, Defendant argues that the Title VII race discrimination and hostile work environment claims also should be dismissed as time-barred and that both the Title VII and ADA claims alleged in the complaint are insufficient as a matter of law.
Analysis
The purpose of a Rule 12(b)(6) motion is to test the sufficiency of the complaint, not to decide the merits of the case. Demitropoulos v. Bank One Milwaukee, N.A., 915 F. Supp. 1399, 1406 (N.D. Ill. 1996) (citing Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990)). In reviewing a motion to dismiss, the court must take all well-pleaded factual allegations as true and draw all reasonable inferences therefrom in the light most favorable to the non-moving party. See Wilczynski v. Lumbermens Mut. Cas. Co., 93 F.3d 397, 401 (7th Cir. 1996). Dismissal is improper "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
I. Count I: Statute of Limitations
Defendant contends that Sanders' Title VII allegations of race discrimination and hostile work environment "are time-barred to the extent that they involve purported incidents which occurred prior to May 2, 1995. (Def. Mem. at 8.) In Illinois, a plaintiff is required to file an EEOC charge within 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e). See Speer v. Rand McNally Co., 123 F.3d 658, 662 (7th Cir. 1997). Sanders filed Charge II, which serves as the basis for his Title VII claim, on February 26, 1996. Defendant maintains that any alleged conduct occurring prior to May 2, 1995 falls outside the applicable 300-day limitations period for that charge. See Utomi v. Cook County, 1999 WL 787480, *1 (N.D. Ill. September 24, 1999).
Under the applicable federal statute, a plaintiff has 180 days to file his claim, unless the forum state has an administrative agency to which the EEOC defers. Illinois has such an agency, the Illinois Department of Human Rights, making the time limit 300 days rather than 180 days applicable to this suit.
Neither plaintiff nor defendant identify specific incidents believed to fall outside the 300 day limitations period. Furthermore, a review of the complaint suggests that every incident alleged in Charge II falls within the 300 day limitations period. Although it may be unclear exactly when each alleged incident of discrimination occurred, at this early stage in the litigation, the court is unwilling to adopt an interpretation of Sanders' claims so narrow as to exclude all incidents not expressly included within the 300 day period. See Pastrana v. Federal Mogul Corp., 683 F.2d 236, 242 (7th Cir. 1982) (citing Satz v. ITT Financial Corp., 619 F.2d 738, 742 (8th Cir. 1980)).
Furthermore, Sanders' failure to identify when each and every alleged incident of discrimination occurred is not fatal as Defendant suggests. Filing a timely Title VII charge with the EEOC is not a jurisdictional prerequisite to bringing suit against a private employer. As such, Sanders does not bear the burden of showing that each incident fell within the statute of limitations, as he would were Defendant bringing a 12(b)(1) motion to dismiss. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982).
While one incident listed in Count I, Sanders' reassignment from the Canine to Call-Back Unit, does appear to have occurred outside the 300-day limitation period established by Charge II, it is saved by the continuing violation doctrine. The continuing violation doctrine applies when: (1) it would be unreasonable to expect the plaintiff to perceive offensive conduct as Title VII harassment before the limitations period runs, or (2) when the earlier discrimination may only be recognized as actionable in light of "events that occurred later, within the period of the statute of limitations." Hardin v. S.C. Johnson Son, Inc., 1999 WL 36035 (7th Cir. 1999) (citing Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996)). An examination of the Complaint and EEOC charges suggests that Sanders' reassignment may not have been actionable as race discrimination until other incidents of discrimination occurred.
In his complaint, Sanders charges that he was "re-assigned from his normal duties without reason other than racial animosity." However, it is Charge I, his EEOC disability charge, which describes the alleged discriminatory reassignment. According to Charge I, Sanders' reassignment from Canine to Call-Back Unit occurred in 1994; well outside the 300 day limitations period established in Charge II, his Title VII race discrimination charge. Sanders claims that before filing Charge I, he informed the EEOC that he thought "racial discrimination was an underlying cause of the disability discrimination," (P1.'s Mem. at 4.) At the same time, in Charge I, Sanders indicated that his reassignment to the Call-Back Unit was disability-based discrimination only. This is not, however, fatal to his claim.
"To succeed under the continuing violation theory, plaintiff must demonstrate that the acts of alleged discrimination are part of an ongoing pattern of discrimination and that at least one of the alleged discrete acts of discrimination occurred within the relevant limitations period." Young v. Will County Dep't. of Public Aid, 882 F.2d 290, 292 (7th Cir. 1989). At the time Sanders submitted Charge I, it is likely he was not aware that his reassignment was due to both race and disability discrimination. In Charge II, Sanders cites other incidents of discrimination that, if true, suggest that his reassignment may have been part of a larger pattern of racially discriminatory conduct. Sanders claims that after his reassignment, Defendant subjected him to racially offensive remarks and excluded him from an office retirement party because of his race. Given the ongoing relationship between Sanders and Defendant and these later incidents, Sanders may not have recognized the reassignment as racial discrimination until the other racially discriminatory conduct occurred. Here, unlike the plaintiff in Clay v. City of Chicago Dept. of Health, 143 F.3d 1092, 1094 (7th Cir. 1998) (affirming district court decision to exclude race discrimination charges since plaintiff "had not explained why she changed her legal theory and delayed in presenting a race discrimination charge"), Sanders has good cause for not initially bringing his race discrimination charge. Without the offensive remark, exclusion from the party, and other racially discriminatory conduct, the reassignment could not be cast as race discrimination. As such, the court finds that Sanders has alleged a continuing violation and each of the incidents cited in Sanders' complaint fall within the 300 day limitations period. Therefore, none of the incidents named in Count I are time-barred.
It is not uncommon for a plaintiff to amend her EEOC charge to add a charge of race discrimination to a pre-existing charge of disability discrimination. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999) (plaintiff amends charge of disability discrimination after almost one year to include race discrimination charges).
Alternatively, Sanders checking only the disability discrimination box may well have been a mistake. If that is the case, the court is inclined to read Sanders Charge I broadly. Because most EEOC charges are completed by laypersons rather than by lawyers, "the test for determining whether an EEOC charge encompasses the claims in a complaint . . . grants the Title VII plaintiff significant leeway." Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994).
II. Counts I and II: Failure to State a Claim
Next, Defendant argues that Sanders' Title VII and ADA claims are insufficient as a matter of law. In response, Sanders maintains that the facts stated in his complaint are more than adequate to defeat a motion to dismiss for failure to state a claim. The standard for pleading requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A plaintiff is not required "to specify particular legal theories in a complaint, so long as the facts alleged give adequate notice to the defendant of the basis of the suit." Wudtke v. Davel, 128 F.3d 1057, 1061 (7th Cir. 1997). This liberal notice pleading allows the plaintiff to "plead conclusions," so long as the "conclusions . . . provide the defendant with at least minimal notice of the claim." Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995). Accordingly, in ruling on a motion to dismiss, the court must determine "'whether relief is possible under any set of facts that could be established consistent with the allegations' in the complaint."First Nat'l Bank of Chicago v. ACCO USA, Inc., 842 F. Supp. 311, 316 (N.D. Ill. 1994) (quoting Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992)). Nevertheless, the court is not obliged to accept as true mere conclusory allegations without any supporting facts. See Cerns v. Village of Orland Park, 1999 WL 756155, *2 (N.D. Ill. September 13, 1999) (emphasis added).
Here, while Sanders' complaint may be inartfully drafted, most of his claims meet this very liberal notice pleading standard. His ADA retaliation claim, however, does not, and therefore will be dismissed without prejudice.
Title VII Race Discrimination
Sanders may establish a prima facie Title VII race discrimination claim by alleging that: (1) he belongs to some protected class, (2) he performed his job satisfactorily; (3) he suffered an adverse employment action, and (4) similarly situated non-African-American employees received more favorable treatment.Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994) (citingMcDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Defendant argues that Sanders does not meet the fourth prong of the prima facie case because he fails to "identify the race of the 'someone' whom defendant treated more favorably than himself." (Def.'s Mem. at 4.) Defendant further contends that Sanders fails to allege that the non-African-American police officers who were allegedly treated more favorably than plaintiff were "similarly situated." The court disagrees. In Count I of his complaint, Sanders generally notes that he was "treated differently from his Caucasian counterparts." From this conclusory allegation alone, the court can infer that "similarly situated non-African American employees received more favorable treatment." Furthermore, Sanders bolsters his argument that there was disparate treatment because of race by specifically noting that his paychecks were withheld, while Caucasian officers' checks were not and that he was not invited to a retirement party while white officers were. These facts are sufficiently particularized to meet the pleading standard in Title VII discrimination cases. To withstand 12(b)(6) motion, a Title VII race discrimination complaint need only say, "I was turned down for a job because of my race." Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998).
Here, Sanders claims race discrimination, intent, and an adverse employment action. These conclusory allegations are sufficient to put defendant on notice of his claim and to allow the court to infer that Sanders has a cause of action. Therefore, defendant's motion to dismiss Sanders' Title VII race discrimination claim as insufficient as a matter of law is denied.
Title VII Hostile Environment
To state claim of hostile work environment under Title VII, Sanders must allege harassment that is sufficiently "severe or pervasive to alter the terms or conditions of employment." Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). In other words, a hostile or abusive environment consists of "discriminatory intimidation, ridicule and insult" in the workplace. Dey v. Colt Constr. and Dev. Co., 28 F.3d 1446, 1453 (7th Cir. 1994) (quotingHarris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Courts look at the frequency of the conduct, its severity, and whether it reasonably interferes with the employee's work performance.Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Gogers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993). Relatively isolated incidents of trivial misconduct do not support a hostile environment claim. See Saxton v. American Telephone and Telegraph Co., 10 F.3d 526, 533 (7th Cir. 1993).
Defendant contends that Sanders has alleged isolated incidents that do not amount to a hostile working environment and that Sanders has not alleged an adverse job action. The court disagrees with both of Defendant's arguments. First, Sanders has alleged numerous hostile acts in the complaint and in the second EEOC charge, including: (1) a Police Commander calling Sanders "Boy", and telling him that "[his] type should be put in their place;" (2) withholding Sanders' paychecks; (3) forcing Sanders to take multiple medical leaves; (4) not inviting him to a retirement party; (5) harassing Sanders at his residence; (6) giving Sanders an unwarranted 10 day suspension; and (7) threatening a meritless legal action. The court finds that if true, these events are sufficiently severe and pervasive to have created a hostile environment for Sanders.
Second, to state a valid claim in a hostile environment discrimination action, plaintiffs need not identify a specific adverse employment action such as unequal pay or termination. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1270 (7th Cir. 1991) (recognizing harassment is an independent basis for a Title VII claim). Title VII prohibits an employer from engaging in racial harassment that results in a constructive discharge. See Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 673 (7th Cir. 1993). Sanders has adequately plead facts suggesting that his employment conditions were materially altered. He alleged each of the incidents of harassment detailed above and stated that eventually, the hostile environment forced him to resign.
Further, Sanders' reassignment and other alterations to his working conditions suffice under federal notice pleading standards to show an adverse employment action. See Scott v. City of Chicago, 195 F.3d 950, 952 (7th Cir. 1999) (holding that plaintiff's general allegation of lessened responsibilities is sufficient to provide notice to the City of the nature of her claim). The Seventh Circuit has stated that a materially adverse employment "might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). As such, in light of his reassignment, discriminatory suspension, required leave and other claims, Sanders has plead sufficient facts to allege a materially adverse employment action. Therefore, defendant's motion to dismiss Sanders' hostile working environment claim as insufficient as a matter of law is denied.
ADA Discrimination
Sanders also alleges that Defendant discriminated against him in violation of the ADA because the police department failed to accommodate his "disability" — emotional stress syndrome. (Compl., Count II, ¶ 8.) To state a claim for failure to accommodate under the ADA, Sanders must allege (1) he was or is disabled; (2) Defendant was aware of his disability; (3) he was otherwise qualified for his job; and (4) the disability caused the adverse employment action (a factor which is implied if not stated. See Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999).
Defendant argues that Sanders has not "adequately pled that so-called emotional stress syndrome is a disability or that it falls within the protection of the ADA." The court disagrees. Although the court found no case involving the so-called "emotional stress syndrome" of which Sanders claims he suffers, the ADA offers three ways for plaintiffs to establish the existence of a disability: (1) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (2) a record of such impairment; or (3) being regarded as having such impairment. See 42 U.S.C. § 12102(2).
Sanders alleges that defendant's doctor diagnosed him with "emotional stress syndrome," (Compl., Count II, ¶ 6.) and that he has been discriminated against because of this " perceived disability," (P1.'s Mem., Ex. 2) He therefore adequately alleges that he is "being regarded as having such an impairment." The disability requirement can be met where the impairment is "not defined by the regulations, but the individual nevertheless is treated by [his employer] as having a substantially limiting impairment." Duda v. Board of Education of Franklin Park Public School District No. 84, 133 F.3d 1054, 1058, n. 8 (7th Cir. 1997) (quoting 29 C.F.R. § 1630.2(1)). Here, although "emotional stress syndrome" is not defined as a disability by the ADA and has not been officially interpreted as such by any courts, Sanders alleges that Defendant's doctor diagnosed him with this ailment, and that subsequently he was reassigned to another position because of the alleged disability. These allegations sufficiently demonstrate that Defendant regarded Sanders as having a disability. As such, Sanders has established the existence of a disability as required by the ADA.
Defendant makes no other arguments concerning Sanders ability to allege facts sufficient to state a reasonable accommodation claim. A review of the complaint suggests that Sanders has met the remainder of the ADA prima facie case. Thus defendant's motion to dismiss Sanders' ADA discrimination claim as insufficient as a matter of law is denied. Retaliation Claim
Defendant treats Sanders' ADA discrimination claim as one for disparate treatment, while in his complaint, Sanders states a claim for failure to accommodate. Even under the test for ADA disparate treatment discrimination, Sanders has a valid claim. To state a prima facie case of ADA discrimination, Sanders must allege (1) that he was disabled as ADA uses the term, (2) that his work performance met his employer's legitimate expectations; (3) that he was discharged or suffered some adverse job action; and (4) that it is more likely than not that his disability was the reason for the adverse job action. See Leisen v. City of Shelbyville, 153 F.3d 805, 807 (7th Cir. 1998). As the court noted above, Sanders has alleged a disability as required by the ADA and has alleged that he was suffered an adverse job action as a result of his disability.
In Count II of his complaint, Sanders writes: "The retaliatory actions and harassment of the City due to his disability and combined with racial hostility, forced Plaintiff to resign." (Compl. Count II., ¶ 12.) Although Count II appears to be Sanders ADA claim, it is unclear whether his retaliatory claim is being brought under ADA or Title VII. Under either statute, to state a claim of retaliation, Sanders must allege that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) there is a causal link between the protected activity and the adverse action. See Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1459 (7th Cir. 1995).
Defendant argues that Sanders has plead no facts to support a retaliation claim. The court finds that while Sanders has stated sufficient facts to satisfy the first two prongs, he has not plead sufficient facts to show the requisite causal link between his protected activity and alleged adverse action. Drawing all reasonable inferences in favor of the plaintiff, the court concludes that the filing of Charge I, the disability EEOC charge, constituted a protected activity. See Mack v. County of Cook, 827 F. Supp. 1381, 1386 (N.D. Ill. 1993). In addition, the court finds that Sanders has detailed a number of Defendant's actions following the filing of his first EEOC charge which would constitute adverse employment actions. The only question, then, is whether Sanders has adequately alleged a causal link between this protected expression and the alleged adverse employment actions.
An adverse employment action that comes on the heels of or proximate in time to the protected expression can demonstrate a causal link. See Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187, 196 (7th Cir. 1994). In Sanders' case, the first of these allegedly adverse employment actions, however, occurred almost one year after Charge I was filed. Courts do consider factors other than temporal proximity to determine whether a causal link has been established. The court may look to the sequence of events occurring during the time between protected activity and adverse employment action, as well as the actions taken by both the plaintiff and defendant during this time. See Ichile v. City of Chicago, 1996 WL 264708, *5 (citing Collins v. State of Illinois, 830 F.2d 692, 104-06 (7th Cir. 1987)) and Maldonado v. Metra, 743 F. Supp. 563, 568 (N.D. Ill. 1990). Sanders, however, does not discuss the sequence of events during the elapsed period. Moreover, Sanders "fails to allege that any of the actors or decision-makers involved in the implementation of those actions" at the time of those actions knew that he had filed the first EEOC charge. Adusumilli v. Discover Financial Services, Inc., 1999 WL 286289, *6 (N.D. Ill. April 19, 1999). As such, the court finds that Sanders has failed to allege facts sufficient to state a prima facie case of retaliation. The court therefore dismisses his retaliation claim without prejudice and grants leave to amend within thirty days.
Conclusion
For the foregoing reasons, the court denies Defendant's motion to dismiss Sanders' Title VII and ADA discrimination claims, but grants Defendant's motion to dismiss Sanders' retaliation claim without prejudice [7-1]. Sanders has thirty days (30) from the entry of this order to amend his ADA retaliation claim and to omit any claim for punitive damages. Failure to do so will result in dismissal of the retaliation claim with prejudice. The court strongly urges the parties to discuss settlement prior to the next scheduled court appearance.