Appleton v. City of Gary

BRIEF in Support of 21 MOTION to Dismiss

N.D. Ind.December 30, 2016

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION EBONY APPLETON, ) ) Plaintiff, ) ) vs. ) CASE NO. 2:16-cv-448-TLS-APR ) CITY OF GARY, ) ) Defendant. ) DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR PARTIAL DISMISSAL OF PLAINTIFF’S COMPLAINT Because the Plaintiff Ebony Appleton (“Plaintiff’ or “Appleton”) failed to exhaust her administrative remedies and because her harassment claim is not plausible, parts of her employment discrimination claim against her former employer should be dismissed. Plaintiff worked for the Defendant, City of Gary (“Defendant” or “City”), and after her separation, Plaintiff filed her Complaint, alleging sex discrimination, harassment, and retaliation. But, Plaintiff fails to meet the pleadings standards under Federal Rule of Civil Procedure 12(b)(6) as to her claims for retaliation and sexual harassment. First, as to her retaliation claim, Plaintiff failed to properly exhaust her administrative remedies before filing this lawsuit. Although Plaintiff reportedly filed a Charge of Discrimination with the Gary Human Relations Commission on or about September 27, 2016, just three (3) weeks before filing this lawsuit, her retaliation Charge was neither investigated nor resolved. Plaintiff has offered no record that the EEOC issued a Dismissal and Notice of Rights, which is a prerequisite to her filing the lawsuit. Second, Plaintiff’s harassment claim reads like a lament about unfavorable working conditions—not a claim for harassment based on sex. Her Complaint does not allege she was USDC IN/ND case 2:16-cv-00448-APR document 22 filed 12/30/16 page 1 of 10 2 subjected to sexual advances, requests for sexual favors, or other conduct of a sexual nature. Moreover, none of the conduct alleged could be considered severe or pervasive. For these reasons, and as explained more fully below, Plaintiff’s claims against the City for retaliation and sexual harassment should be dismissed. I. SUMMARY OF PLAINTIFF’S KEY ALLEGATIONS Plaintiff Ebony Appleton worked for Defendant the City of Gary (“City” or “Gary”) in the Youth Services Bureau of the City’s Parks Department, beginning in the fall of 2014. She initially reported to Gary Youth Services Bureau Director Ken Barry, then to Cecilia Garmon, and later to Marcus Hare. Plaintiff asserts she was subjected to widespread sex discrimination and harassment by several employees of the Gary Youth Services Bureau Department during her employment 1 . First, Plaintiff claims she was harassed by Cecelia Garmon, Director of the Youth Services Bureau, and Payroll Clerk Patricia Covington. Id. This harassment allegedly included the following behavior: • Plaintiff’s office decorations were taken down and put in a box; • A letter on Plaintiff’s desk in the office she shared with another worker was “accessed”; • Plaintiff’s work hours were cut; • Plaintiff’s check was opened; • Plaintiff was forced to make up the hours that were cut “20 miles away on [T]hursday and [F]riday”; • Plaintiff was “removed from council”; and • Patricia Covington “ran up on” her and told Plaintiff she needed to “pump [her] brakes” because Plaintiff had talked about Ms. Covington “in a meeting with the director.” 1 All of the allegations asserted by Plaintiff are contained in paragraph 1of her Complaint. USDC IN/ND case 2:16-cv-00448-APR document 22 filed 12/30/16 page 2 of 10 3 In her Complaint, Plaintiff also accuses Marcus Hare of subjecting her to harassment after he became Director of the Gary Youth Services Bureau, including the following: • Mr. Hare informed Plaintiff she had a “write up in [her] folder” which she knew nothing about; • Mr. Hare suspended Plaintiff for not doing someone else’s job; • Mr. Hare informed Plaintiff she did not have a job title and stated that there was not a position entitled Operations Manager; • Mr. Hare told Plaintiff she was to follow his instructions and that she had to “work for a position”; • He suspended Plaintiff for telling a co-worker she was “not sure if the program was opening Monday”; and • Mr. Hare “physically ran up on [her]” and “cornered [her] in [her] office intimidating [her] in front of [her] three children.” Finally, Plaintiff asserts she was subjected to the following behavior, although she does not identify by whom: • Plaintiff was excluded from getting a shirt; • Plaintiff was excluded from trips; • Plaintiff was excluded from “door signs”; • Plaintiff was excluded from a pizza party; and • Time was deducted from Plaintiff’s check and then returned “in hours not money meaning [she] was able to leave early.” Apparently after this alleged conduct, on May 12, 2016, Plaintiff filed a Charge of Discrimination (“First Charge”) (see Complaint, ECF No. 1 at p. 9) with the Gary Human Relations Commission (the “GHRC”), alleging sex discrimination and harassment. The GHRC found no probable cause to support Plaintiff’s claims, and, on September 13, 2016, the Equal Employment Opportunity Commission (“EEOC”) affirmed the finding and issued a Dismissal and Notice of Right to Plaintiff.(Complaint at p. 13). USDC IN/ND case 2:16-cv-00448-APR document 22 filed 12/30/16 page 3 of 10 4 Then, on September 23, 2016, Plaintiff was dismissed by the City. A few days later, on September 27, 2016, Plaintiff filed a second Charge of Discrimination (“Second Charge”) with the GHRC (See Complaint at p.10), asserting she was fired in retaliation for filing the First Charge. Within three weeks, on October 18, 2016, Plaintiff filed this Complaint against the City, including her claim for retaliation (which is the subject of the Second Charge with the GHRC, and the subject of the Motion for Partial Dismissal). Notably, there is no evidence that any Dismissal and Notice of Rights letter to Ms. Appleton was issued in connection with her Second Charge, nor does she attach one to her Complaint. Based on these facts and taking Plaintiff’s allegations as true, her retaliation and harassment claims should be dismissed. II. RULE 12(B)(6) LEGAL STANDARDS A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the suit. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering a Rule 12(b)(6) motion to dismiss, the Court must apply the plausibility standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). To do so, the Court must accept as true any well-pleaded factual allegations in plaintiff’s complaint, but conclusory allegations are not entitled to this presumption of truth. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). After disregarding conclusory allegations, the Court must determine whether the remaining factual allegations “plausibly suggest an entitlement of relief.” Id. Plausibility means plaintiffs have pled factual content that “allows the [C]ourt to draw the reasonable inference that the [D]efendant[s] [are] liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. But, “[i]f the allegations give rise to an obvious alternative explanation, then the USDC IN/ND case 2:16-cv-00448-APR document 22 filed 12/30/16 page 4 of 10 5 complaint may stop [] short of the line between possibility and plausibility of entitlement to relief.” McCauley, 671 F.3d at 616. The Court should draw on its judicial experiences and common sense to determine whether a complaint states a plausible claim. Iqbal, 556 U.S. at 679. Under the standards established by Federal Rule of Civil Procedure 12(b)(6) and further explained under Iqbal and Twombly, Plaintiff’s retaliation and sexual harassment claims should be dismissed. III. LEGAL ARGUMENT A. Plaintiff’s Retaliation Claim Fails Because She Did Not Exhaust Her Administrative Remedies. Plaintiff’s Complaint includes a copy of her Second Charge (Complaint, at p.10), on which Plaintiff has checked the box “Retaliation.” The details of her Second Charge describe events in September of 2016—just a month or so before she filed this Complaint. But, the Plaintiff has skipped the administrative requirement of allowing the GHRC or the EEOC to investigate, attempt to resolve, and issue a finding regarding Plaintiff’s Second Charge, In short, Appleton did not exhaust her administrative remedies. The law is clear that a plaintiff must exhaust administrative remedies before filing a Title VII claim, which requires, in part, that a plaintiff must (a) file a Charge of Discrimination with the EEOC or appropriate state agency within the requisite period of time allotted by the statute; and (b) the EEOC must issue a right to sue letter. 42 U.S.C. §2000e-5. Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7th Cir. 1992) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 783 (1973); Movement for Opportunity and Equality v. General Motors Corp., 622 F.2d 1235, 1240 (7th Cir. 1980)). The purpose of this limitation is to give the employer a warning of the conduct about which the charging party is concerned, as well as to allow the employer and the EEOC an USDC IN/ND case 2:16-cv-00448-APR document 22 filed 12/30/16 page 5 of 10 6 opportunity to engage in conciliation efforts without resorting to the courts. Id. (citing Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985)). In addition to the plain language of Title VII and court guidance, the Federal Rules of Civil Procedure also require plaintiffs to exhaust any prerequisites before bringing their claims to court. Specifically, FED.R.CIV.P. 9(c) requires that a plaintiff plead “all conditions precedent have occurred or been performed.” Therefore, Title VII claims should be dismissed where the plaintiff fails to plead that he or she has complied with all of the statute’s conditions precedent. That is exactly what the Court should do here with Plaintiff’s retaliation claim; Plaintiff has not complied with the statute’s conditions precedent. Not only has Plaintiff failed to comply with Rule 9, she is unable to do so as her Charge was filed less than a month before her lawsuit. Plaintiff alleges only that she “filed [a] retaliation charge because [she] was fired for asking a question about cutting her hours.” She attaches the Second Charge to her Complaint, which was filed September 27, 2016. Plaintiff does not, however, attach a corresponding Dismissal and Notice of Rights, nor does she even allege in her Complaint that one was issued. And even if Plaintiff had requested that the EEOC issue a Dismissal and Notice of Rights, the EEOC could only do so upon the expiration of 180 days or after making a determination that it could not complete its investigation within that timeframe. 29 C.F.R. §1601.28(a)(1) & (2). Plaintiff filed her lawsuit a mere 21 days after she filed her Charge, long before the expiration of 180 days and hardly enough time for the EEOC to determine whether it could complete its investigation within 180 days. Without a Right to Sue notice in hand, Plaintiff cannot bring her claim as she has not fully exhausted her administrative remedies. Her retaliation charge therefore must be dismissed on this ground alone. USDC IN/ND case 2:16-cv-00448-APR document 22 filed 12/30/16 page 6 of 10 7 B. Plaintiff’s Sexual Harassment Claim Is Not Plausible. Plaintiff’s harassment claim is also doomed. Title VII’s prohibition against sex discrimination includes sexual harassment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66-67 (1986). To state a claim for sexual harassment, a plaintiff must set forth sufficient allegations to make it plausible that “(1) she was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (2) the harassment was based on her sex; (3) the sexual harassment had the effect of unreasonably interfering with her work performance in creating an intimidating, hostile, or offensive working environment that seriously affected her psychological well-being; and (4) a basis for employer liability exists.” Hall v. Bodine Elec., Co., 276 F.3d 345, 354-55 (7 th Cir. 2002); see also Huri v. Office of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 833-34 (7 th Cir. 2015). To prevail, a plaintiff must also allege that the conduct was “severe or pervasive.” Alexander v. Casino Queen, Inc., 739 F.3d 972, 982 (7 th Cir. 2014); see also Holmes v. Hous. Auth. of Joliet, Case No. 14 C 3132, 2015 U.S. Dist. LEXIS 51346, *11 (N.D. Ill. April 20, 2015). “Offhand comments, isolated incidents, and simple teasing do not rise to the level of conduct that alters the terms and conditions of employment.” Scruggs v. Garst Seed Co., 587 F.3d 832, 840-41 (7 th Cir. 2009). 1. Plaintiff Does Not Allege Conduct of a Sexual Nature. Plaintiff’s Complaint simply does not support a claim for sexual harassment. First, nowhere does she allege (and it cannot be inferred) that she was subjected to harassment in the form of sexual advances, requests for sexual favors or other conduct of a sexual nature. Cortes- Devito v. Vill. Of Stone Park, 390 F.Supp.2d 706 (N.D. Ill 2005) is illustrative. There, Plaintiff, an African-American female paramedic, alleged her male co-workers subjected her to sexual harassment by the following conduct: USDC IN/ND case 2:16-cv-00448-APR document 22 filed 12/30/16 page 7 of 10 8 • Making racially insensitive offensive jokes and comments; • Imitating African-American accents; • Mocking how African-Americans might speak pejoratively; • Placing human feces in a glass of milk; • Alienating Plaintiff from conversations; and • Placing a urinal cake in Plaintiff’s beverage. Id. at 709. In support of Plaintiff’s allegations that these actions constituted a sex-based hostile environment, Plaintiff averred only that they occurred because of her sex and blames her former male co-workers for putting a urinal cake in her beverage. But this is not enough. In the case of Cortes-Devito, the Court granted employer’s motion to dismiss, finding that plaintiff’s failure to allege that she was subjected to sexual advances, requests for sexual favors, or other conduct of a sexual nature doomed her claim. The Court ruled that even assuming the plaintiff’s allegations to be true, they did not rise to the level of actionable sex- based harassment. Id. at 711. See also Wyant v. Wayne Twp. Fire Dep’t, Case No. 1:11-cv- 00145-LJM-TAB, 2011 U.S. Dist. LEXIS 47598 (S.D. Ind. May 3, 2011)(hostile environment claim dismissed where plaintiff’s complaint devoid of allegations of sexual harassment; plaintiff alleged only that she was alienated, not allowed to apply for a vacant position, and placed in a remedial training program insufficient to support hostile environment claim). Similarly, even if Plaintiff’s allegations are true, they are not based on sex. 2. Plaintiff Does Not Allege Severe or Pervasive Conduct. Plaintiff’s sexual harassment claim also fails because she does not allege severe or pervasive conduct. The only allegation that arguably could support Plaintiff’s sexual harassment claim is that “Mr. Hare “physically ran up on [her] and cornered [her] in [her] office intimidating USDC IN/ND case 2:16-cv-00448-APR document 22 filed 12/30/16 page 8 of 10 9 [her] in front of [her] three children.” There is no allegation that he physically touched her, or threatened to—only that he “intimidat[ed] [her].” But even if of a sexual nature, this single isolated event alone is insufficient to establish the basis of Plaintiff’s claim. Ngeununtr v. Metro. Life Ins. Co., 146 F.3d 464, 467 (7 th Cir. 1998)(“isolated and innocuous incidents will not support a hostile work environment claim.”(citation omitted)); see also Triplett v. Starbucks Coffee, Case No. 10 C 5215, 2011 U.S. Dist. LEXIS 82341 (N.D. Ill. July 26, 2011)(one allegedly racist remark that there were not as many black people in Boston (where plaintiff was from) as in Chicago not sufficiently severe or pervasive to establish racial harassment); Holmes v. Hous. Auth. of Joliet, Case No. 14 C 3132, 2015 U.S. Dist. LEXIS 51346, *12 (N.D. Ill. April 20, 2015)(comments to plaintiff about her beauty, including by calling her “pretty baby” and “beautiful,” as well as remarks about plaintiff and defendant’s past friendship, not severe or pervasive to constitute sexual harassment). Plaintiff certainly avers a myriad of conduct she considers to be discriminatory, such as cutting her hours, excluding her from a pizza party, and telling her that she did not have a job title. But, as explained above (see III.B.1), because the conduct is not sex-based, it simply is not enough to support her sexual harassment claim. For, “[o]ne can most certainly be the victim of gender discrimination without being a victim of sexual harassment.” Vandeventer v. Wabash Nat’l Corp., 887 F.Supp. 1178, 1180 (N.D. Ind. 1995). IV. CONCLUSION THEREFORE, because Plaintiff does not sufficiently establish a claim for sexual harassment, and because she has not exhausted her administrative requirements for her retaliation claim, these two claims should be dismissed. Defendant the City of Gary respectfully requests this Court dismiss Plaintiff’s sexual harassment and retaliation claims, and all other appropriate relief. USDC IN/ND case 2:16-cv-00448-APR document 22 filed 12/30/16 page 9 of 10 10 Respectfully submitted, BARNES & THORNBURG LLP By: /s/ Teresa A. Maginn Jeanine M. Gozdecki Teresa A. Maginn 700 1st Source Bank Center 100 North Michigan Street South Bend, IN 46601-1632 Telephone: (574) 233-1171 Facsimile: (574) 237-1125 jeanine.gozdecki@btlaw.com teresa.maginn@btlaw.com Attorneys for Defendant CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing Brief in Support of Motion to Dismiss was filed electronically. Service of this filing will be made on all ECF-registered counsel by operation of the court's electronic filing system. I further certify that on December 30, 2016, a copy of the foregoing was mailed, by first class U.S. Mail, postage prepaid and properly addressed to the Plaintiff at the following address: Ebony Appleton 1211 West 17 th Avenue Gary, IN 46407 s/ Teresa A. Maginn Name of Filing Attorney DMS 4516686v1 USDC IN/ND case 2:16-cv-00448-APR document 22 filed 12/30/16 page 10 of 10