Collins v. Board of Trustees at the University at Urbana Champaign

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

JANICE COLLINS, )

)

Plaintiff, )

)

v. ) No. 21-cv-02136

)

THE BOARD OF TRUSTEES OF )

THE UNIVERSITY OF ILLINOIS, )

an Illinois public entity, and )

KENNETH ERDEY, )

)

Defendants. )

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on the Motion to Dismiss

(d/e 10) filed by Defendants Board of Trustees of the University of

Illinois (“UIUC”) and Kenneth Erdey (“Erdey”). For the reasons

stated below, Defendants’ Motion is GRANTED IN PART and

DENIED IN PART. Counts I and II of Plaintiff’s Complaint (d/e 1)

are DISMISSED WITHOUT PREJUDICE because they are

duplicative of Count III. Additionally, Counts VII and VIII are

DISMISSED WITHOUT PREJUDICE for failure to state a claim upon

which relief can be granted.

I. BACKGROUND

The following facts are drawn from the well-pleaded allegations

in Plaintiff’s Complaint, which are accepted as true at the motion to

dismiss stage.

In 2012, Plaintiff Janice Collins was hired by UIUC as a

tenure-track Assistant Professor in the Department of Journalism

of the College of Media. Plaintiff was the first Black woman ever

hired to a tenure-track position in the Department of Journalism.

Beginning in 2013, Erdey, a technical coordinator and instructor

responsible for maintaining the broadcast equipment and assisting

with technical issues in UIUC’s Richmond Studio, repeatedly

interrupted Plaintiff’s class lectures. Erdey is Caucasian and male.

Plaintiff asserts that Erdey tampered with and unplugged

equipment before Plaintiff’s classes, “called Plaintiff stupid, dumb,

intimidating, angry, and loud, as well as too aggressive in her

teaching style,” told Plaintiff’s students that “the way Plaintiff

structured classwork and assignments was wrong and stupid,” and

“asked Plaintiff why she was always so angry and aggressive.”

D/ 1, ¶¶ 26–28, 35.

In March 2013, Plaintiff informed a UIUC administrator that

Erdey had been harassing Plaintiff. The administrator “attempted

to connect Plaintiff to potential mentors to assist her in coping with

the harassment and discrimination and building a tenure dossier,”

but took no other action at that time. Id., ¶ 33. Later in 2013, the

head of UIUC’s Journalism Department transferred Plaintiff to

another building where she was “reassigned to teaching multimedia

classes” instead of the broadcast journalism classes that she had

been recruited to teach. Id., ¶¶ 36–37. Erdey was permitted to

continue teaching broadcast journalism. Plaintiff alleges that Erdey

continued to attend Plaintiff’s classes and criticize Plaintiff and her

teaching and also sent a number of text messages which Plaintiff

describes as “racially charged, vulgar, disturbing, and

inappropriate.” Id., ¶ 40. Plaintiff also alleges that Erdey

insinuated to colleagues that Plaintiff was unqualified for her

position and that Plaintiff had harassed Erdey.

In 2015, Plaintiff moved back into the broadcast journalism

building to teach, at which point she alleges that Erdey’s

harassment of her “intensified.” Id., ¶ 46. Defendant repeatedly

complained about Erdey’s behavior to a UIUC administrator who

“attempted to help Plaintiff” and told Erdey to stay out of Plaintiff’s

classroom unless invited but did not discipline or reprimand Erdey.

Id., ¶ 51. Erdey’s behavior frustrated Plaintiff and caused her

stress, which led to unspecified “physical, mental, and emotional

symptoms.” Id., ¶ 61.

Plaintiff took a visiting faculty position at the University of

Kansas for the spring of 2018 and explained to UIUC

administrators that she was doing so because of Erdey’s behavior

towards her. When Plaintiff returned from Kansas in 2018, UIUC

administrators requested that Plaintiff meet with Erdey. Plaintiff

requested that the administrators attend the meeting because

Plaintiff was uncomfortable with the idea of meeting Erdey alone.

The head of the Department of Journalism attended the beginning

of the meeting but left partway through. No other UIUC

administrators were present.

After Plaintiff’s meeting with Erdey, UIUC administrators

instructed Plaintiff and Erdey to jointly author a report outlining a

strategy for resolving their differences. Plaintiff “reluctantly” co-

authored the report because she “did not want to be insubordinate

or anger persons who would be involved in her tenure decisions.”

Id., ¶ 70. Following this meeting, Plaintiff alleges that Erdey

continued to harass Plaintiff, and Plaintiff reported his behavior to

UIUC’s administration. UIUC administrators required Plaintiff to

consent to a mediation session with Erdey, which Plaintiff refused

to do.

Newly hired tenure-track professors at UIUC are placed on a

probationary period of six years before they are granted or denied

tenure. Tenure applications are reviewed by Promotion and Tenure

(“P&T”) Committees, which also provide guidance and mentoring to

tenure-track faculty members. A P&T Committee reviews a

candidate’s progress towards tenure after three years, and, after six

years, the P&T Committee reviews a candidate’s tenure application

and makes a recommendation to grant or deny tenure. At Plaintiff’s

third-year review, in March 2016, her P&T Committee concluded

that she was making appropriate progress towards tenure, but they

noted concerns that Plaintiff had not published enough research in

peer-reviewed scholarly journals.

On October 17, 2018, Plaintiff received notice that her P&T

Committee had recommended that she be denied tenure and that

she be issued a one-year “terminal contract.” Id., ¶ 157. Plaintiff

appealed this decision and requested reconsideration of the denial

of her tenure application, but her appeal was denied. On December

6, 2018,1 Provost Andreas Cangellaris informed Plaintiff that he was

affirming the denial of her tenure application and that she would

receive a one-year “terminal contract” for the 2019–2020 school

year. Id., ¶ 168. Plaintiff received her terminal contract on August

19, 2019.

During her terminal year, Plaintiff applied for a number of

Associate Professor positions and received a number of interviews

but no offers. Plaintiff began to notice that colleagues and staff

were ignoring her and was told by a friend that UIUC

administrators had instructed Plaintiff’s colleagues “not to speak

with Assistant Professors in the College of Media who had been

1 Plaintiff’s Complaint gives two inconsistent dates—December 6 and December 8, 2018—for

when Plaintiff received notice from Cangellaris of the denial of her tenure and the decision to

issue her a terminal contract. See d/e 1, ¶¶ 78, 90. Since December 6 is the date that

appears more frequently in the Complaint, the documents submitted in support of the

Complaint, and Plaintiff’s Response to Defendants’ Motion to Dismiss, the Court will treat

December 6 as the correct date.

denied tenure.” Id., ¶ 177. At the time, Plaintiff was the only

professor to whom that description applied. Plaintiff also learned

that “Erdey had made numerous negative and racial remarks about

Plaintiff” to members of the P&T Committee. Id., ¶ 173.

In July 2019, Plaintiff met with an investigator at the Equal

Employment Opportunity Commission (“EEOC”) and submitted an

intake questionnaire and a written summary of her complaints

against UIUC and Erdey. Plaintiff has attached the notes made of

that meeting by the EEOC investigator, a Mr. Shuwn2 Hayes

(“Hayes”). Hayes advised Plaintiff that “until her denial for Tenure

is official, she has not suffered harm in this regard but she still

maintains the right to file a charge. [Plaintiff[ declined to file a

charge today but will return once her tenure is officially denied.”

Id., exh. C. Plaintiff understood Hayes to be saying that the 300-

day limitations period for timely filing an official charge would not

begin to run until after Plaintiff was officially terminated from her

employment at UIUC. Plaintiff claims that, “[b]ut for the incorrect

2 The Complaint contains two inconsistent spellings for Mr. Hayes’s first name, “Shuwn” and

“Shwun.” See d/e 1, ¶ 182; d/e 1, exh. B, 1; d/e 1, exh. C.

advice of Mr. Hayes,” she would have filed an EEOC charge within

300 days of the denial of her application for tenure.

On June 1, 2020, Plaintiff’s employment contract was

terminated by UIUC. Also in June 2020, Plaintiff was denied access

to life insurance policy funds related to her employment at UIUC

and was informed that she could not access said funds because she

had been “terminated.” Plaintiff alleges in her Complaint that this

denial of benefits was improper.

Plaintiff filed a formal charge with the EEOC on December 21,

2020, alleging that UIUC had discriminated against her in its

decision on her tenure application, retaliated against her by giving

negative references to prospective employers, failed to prevent her

from being harassed by Erdey, and improperly denied her

unemployment benefits. On March 16, 2021, Plaintiff received a

notice from the EEOC of her right to sue.

Plaintiff filed an eight-count Complaint in this matter on June

14, 2021. Counts I and II allege violations of Title VII of the Civil

Rights Act by UIUC based on racial and gender-based

discrimination, respectively. Plaintiff alleges that UIUC

discriminated against her by failing to take corrective action in

response to Erdey’s racialized and gender-based harassment of

Plaintiff. Count III alleges that the same failure to take corrective

action constituted a failure to prevent a hostile work environment,

in violation of Title VII. Count IV alleges that UIUC’s denial of

Plaintiff’s tenure application violated Title VII because the denial of

tenure was the result of racial and gender-based discrimination.

Count V alleges that UIUC retaliated against Plaintiff for reporting

Erdey’s harassment by giving negative references to Plaintiff’s

prospective employers and ordering UIUC employees to shun

Plaintiff. Count VI alleges that UIUC’s discriminatory failure to

promote Plaintiff violated the Illinois Civil Rights Act (“ICRA”).

Counts VII and VIII allege tort claims for intentional and negligent

infliction of emotional distress against Erdey.

On August 24, 2021, Defendants filed a Motion to Dismiss

(d/e 10) under Fed. R. Civ. P. 12(b)(6). Defendants argue that: (1)

Counts I and II of Plaintiff’s Complaint should be dismissed as

duplicative of Count III; (2) Plaintiff’s Title VII claims are all

time-barred because Plaintiff waited until more than 300 days after

she was denied tenure to formally file a charge with the EEOC; (2)

Plaintiff’s claims should all be dismissed because Plaintiff has not

alleged sufficient facts to render her claims plausible; and (3)

Plaintiff’s ICRA claim is untimely because Plaintiff filed suit more

than two years after her tenure application was denied.

Plaintiff filed a Response to Defendants’ Motion on September

20, 2021. Plaintiff concedes that Counts I and II should be

dismissed as duplicative of Count III. However, Plaintiff asserts

that her Title VII claims are not untimely because she submitted an

intake questionnaire to the EEOC in July 2019, fewer than 300

days after she was notified of UIUC’s decision to reject her tenure

application. Plaintiff argues that this intake questionnaire and the

written document she submitted along with the questionnaire

should be deemed a “charge” for statute of limitations purposes.

Additionally, Plaintiff argues that Counts III through VIII all state

plausible claims and that Count VI is not time-barred because the

applicable statute of limitations did not begin to run until August

2019.

II. LEGAL STANDARD

A motion under Rule 12(b)(6) challenges the sufficiency of the

complaint. Christensen v. Cty. of Boone, Ill., 483 F.3d 454, 458

(7th Cir. 2007). To state a claim for relief, a plaintiff need only

provide a short and plain statement of the claim showing he is

entitled to relief and giving the Plaintiff fair notice of the claims.

Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

When considering a motion to dismiss under Rule 12(b)(6), the

Court construes the complaint in the light most favorable to the

plaintiff, accepting all well-pleaded allegations as true and

construing all reasonable inferences in plaintiff’s favor. Id.

However, the complaint must set forth facts that plausibly

demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 547 (2007). A plausible claim is one that alleges factual

content from which the Court can reasonably infer that the Plaintiff

is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). Merely reciting the elements of a cause of action or

supporting claims with conclusory statements is insufficient to

state a cause of action. Id.

III. ANALYSIS

A. Plaintiff’s Title VII Claims Cannot Be Dismissed as

Untimely at the Motion to Dismiss Stage.

A plaintiff who wishes to bring a Title VII claim for employment

discrimination “must file charges with the EEOC within 300 days of

the alleged unlawful employment practice, in deferral states like

Illinois.” Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 839

(7th Cir. 2014); see 42 U.S.C. § 2000e-5(e)(1). Any claim based on a

discrete act that took place more than 300 days before the filing of a

charge with the EEOC is time-barred. Id. Defendants argue that

Plaintiff’s Title VII claims are time-barred because Plaintiff did not

file a formal charge of discrimination with the EEOC until

December 21, 2020, more than 300 days after December 6, 2018,

when UIUC denied Plaintiff’s tenure application.

Defendants rely principally on Delaware State College v. Ricks,

449 U.S. 250 (1980), a case in which the Supreme Court held that

the limitations period for filing an employment discrimination

charge with the EEOC began to run when the plaintiff was notified

that his tenure application had been denied. Id. at 261–62.

However, even if Defendants are correct that the limitations periods

for all of Plaintiff’s Title VII claims began to run when her tenure

was denied, the claims are not time-barred if Plaintiff filed a charge

with the EEOC within 300 days of December 6, 2018.

Under Fed. Exp. Corp. v. Holowecki, 552 U.S. 389 (2008), a

filing with the EEOC can be a “charge” if it contains the information

required by the relevant regulations and if it can be reasonably

construed as “a request for the agency to take remedial action to

protect the employee’s rights or otherwise settle a dispute between

the employer and the employee.” Id. at 393 (discussing the

meaning of “charge” in the Age Discrimination in Employment Act

of 1967); see McClendon v. Illinois Dep't of Transportation, 181 F.

Supp. 3d 578, 589 (N.D. Ill. 2015) (finding that “Holowecki compels

the conclusion” that plaintiff’s submission of complaint and intake

questionnaire to the EEOC satisfied Title VII’s charge filing

requirement).

Further, a limitations period is an affirmative defense, see

Laouini v. CLM Freight Lines, Inc., 586 F.3d 473, 475 (7th Cir.

2009), and a plaintiff is not required to anticipate and respond to

affirmative defenses in a complaint. See Hyson USA, Inc. v. Hyson

2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016). It is, therefore,

“‘irregular’ to dismiss a claim as untimely under Rule 12(b)(6).”

Hollander v. Brown, 457 F.3d 688, 691 (7th Cir. 2006) (quoting

United States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir.2004)).

Such a motion can succeed only if “the allegations of the complaint

itself set forth everything necessary to satisfy the affirmative

defense.” United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).

Here, the allegations in Plaintiff’s Complaint do not

conclusively show that Plaintiff’s claims are time-barred. Plaintiff

alleges that she submitted two documents to the EEOC in July

2019, namely an intake questionnaire and a five-page summary of

Plaintiff’s complaints against UIUC. Plaintiff was under no

obligation to attach the intake questionnaire to her Complaint, and

she has not done so. See Hurst v. Hantke, 634 F.3d 409, 411 (7th

Cir.2011) (noting that the Federal Rules of Civil Procedure do

not “require a plaintiff to attach evidence to his complaint”). Courts

have at times deemed EEOC intake questionnaires to be “charges,”

see McClendon, 181 F. Supp. 3d at 589, and it is plausible that

Plaintiff’s questionnaire could qualify as a charge. Moreover, the

five-page summary note that Plaintiff submitted along with her

questionnaire contains a number of statements that could plausibly

be construed as requests for agency action, such as the assertion

that Plaintiff is “considering suing for every dime that not getting

tenure took from her” and “wants something to be done about it

even if it is to sue.” D/e 1, exh. A, p. 3.

Clearly, July 2019 is within 300 days of December 6, 2018.

Therefore, any claims “like or reasonably related to” the allegations

in a charge filed in July 2019 would not be time-barred. Geldon v.

S. Milwaukee Sch. Dist., 414 F.3d 817, 819 (7th Cir. 2005).

Because the documents Plaintiff submitted to the EEOC may satisfy

Title VII’s charge filing requirement, Defendants’ motion to dismiss

Plaintiff’s Title VII claims as untimely is denied.

B. Plaintiff’s Complaint States Claims for Failure to Promote,

Failure to Prevent a Hostile Work Environment, and

Retaliation.

Title VII “forbids employers from requiring people to work in a

discriminatorily hostile or abusive environment.” Boss v. Castro,

816 F.3d 910, 920 (7th Cir. 2016). Defendants argue that Plaintiff

has “failed to allege a prima facie case of a hostile work

environment.” D/e 10, p. 9. But a complaint need not establish a

prima facie case of discrimination in order to survive a motion to

dismiss. See Swierkiewicz v. Sorema N.A., 524 U.S. 506, 510

(2002) (“Given that the prima facie case operates as a flexible

evidentiary standard, it should not be transposed into a rigid

pleading standard for discrimination cases.”). Moreover, the

pleading requirements for Title VII employment discrimination

claims are not demanding. To survive a motion to dismiss, a

complaint alleging race discrimination “need only aver that the

employer instituted a (specified) adverse employment action against

the plaintiff on the basis of his race.” Lavalais v. Vill. of Melrose

Park, 734 F.3d 629, 633 (7th Cir. 2013). A complaint must also

include “enough details about the subject-matter of the case to

present a story that holds together,” Swanson v. Citibank, N.A., 614

F.3d 400, 404–05 (7th Cir.2010), and Plaintiff’s 41-page complaint

provides a wealth of detailed allegations relevant to her

discrimination claims.

With respect to Plaintiff’s hostile work environment claim,

Defendants argue that the Complaint itself establishes that UIUC

took steps to resolve the issues between Plaintiff and Erdey. But

avoiding liability for harassment that violates Title VII requires an

employer to show that it took “reasonable” or “appropriate” steps to

address the issue. Here, Plaintiff alleges that UIUC took a number

of unreasonable and inappropriate actions, such as forcing Plaintiff

to teach classes outside of her specialty in order to avoid contact

with her harasser and requiring Plaintiff to meet with her harasser

alone, over her strenuous objections. The Court will not assume

that the measures taken by UIUC were reasonable and appropriate

at the motion to dismiss stage, where Plaintiff is entitled to every

reasonable inference arising from the facts alleged in her complaint.

Count IV, in which Plaintiff alleges that UIUC discriminated

against her on the basis of her race and sex by denying her tenure,

also survives Defendants’ Motion to Dismiss for similar reasons.

Defendants invite the Court to “closely scrutinize” Plaintiff’s

discrimination claim and ask “whether the evidence, considered as

a whole, would permit a reasonable factfinder to conclude” that

Plaintiff was denied tenure because of her race and/or sex. D/e 10,

pp. 12–13. But courts do not weigh evidence or closely scrutinize a

Plaintiff’s claims when considering a motion to dismiss under Rule

12(b)(6). Plaintiff’s Complaint contains a number of allegations

which, when taken as true, give rise to the reasonable inference

that Plaintiff was denied tenure because of her race and sex.

Plaintiff claims, for example, that the head of her department and

the dean of her college both explicitly admitted to Plaintiff “that she

had been treated differently throughout her time at UIUC because

she was an African-American female.” D/e 1, ¶ 79. Plaintiff also

claims that her P&T Committee “discriminated against Plaintiff by

providing inaccurate direction regarding the tenure process and

failing to participate in objective evaluation of Plaintiff’s merit” and

that “[t]he P&T Committee’s actions were discriminatory and

designed to ensure that the Department of Journalism would not

include a tenured African-American female professor.” Id.,

¶¶ 133–34.

Count V, Plaintiff’s retaliation claim, survives the motion to

dismiss as well. Title VII prohibits an employer from retaliating

against an employee for opposing an unlawful employment practice.

42 U.S.C. § 2000e–3(a). Here, Plaintiff alleges that she repeatedly

reported Erdey’s racial harassment of her to UIUC’s administration

and that UIUC administrators responded to these reports by: (1)

giving negative references to future employers so that Plaintiff

would not receive another job; and (2) ordering UIUC faculty and

staff not to speak with Assistant Professors who had been denied

tenure in the College of Media, when Plaintiff was the only person at

UIUC who fit that description. See id., ¶¶ 231–32; see also

Haugerud v. Amery Sch. Dist., 259 F.3d 678, 692 (7th Cir. 2001)

(“An adverse employment action might occur when an employer

orders its employees to shun the plaintiff, provided that this activity

causes material harm to the plaintiff.”). Taken as true, these

allegations state a claim for retaliation.

C. Plaintiff’s ICRA Claim Cannot Be Dismissed as Untimely at

the Motion to Dismiss Stage.

Count VI alleges that UIUC’s denial of Plaintiff’s tenure

application violated 740 ILCS 23/5, the Illinois Civil Rights Act

(ICRA). Defendants have moved to dismiss Plaintiff’s ICRA claim as

untimely. Unlike Title VII, the ICRA does not require a party to file

an administrative charge before bringing a lawsuit. The ICRA does,

however, require that any lawsuit under the ICRA must be filed

within two years of the alleged violation. See 740 ILCS 23/5(b).

Here, Plaintiff was notified that her application for tenure had been

denied on December 6, 2018. Plaintiff’s Complaint was filed more

than two years later on June 14, 2021. Defendants argue that this

lapse of time renders Plaintiff’s ICRA claim untimely.

Under Illinois law, limitations periods begin to run when the

party seeking relief “knows or reasonably should know of his injury

and also knows or reasonably should know that it was wrongfully

caused.” Parks v. Kownacki, 737 N.E.2d 287, 294 (Ill. 2000)

(quoting Knox College v. Celotex Corp., 430 N.E.2d 976 (Ill. 1981)).

Plaintiff asserts that she did not know that her tenure had been

denied because of her race and sex until August 2019, when UIUC

administrators admitted that she had been treated differently

because of her race and sex. See d/e 15, p. 30.

As discussed supra in Section III.A, a statute of limitations bar

is an affirmative defense, so dismissal under Rule 12(b)(6) is

appropriate only if “the allegations of the complaint itself set forth

everything necessary to satisfy the affirmative defense.” See Lewis,

411 F.3d at 842. Additionally, the question of exactly when a

plaintiff knew or should have known of her injury is “a fact-

intensive inquiry.” Hileman v. Maze, 367 F.3d 694, 697 (7th Cir.

2004). Here, the allegations in Plaintiff’s Complaint do not

conclusively establish the date on which Plaintiff should have

known that the decision to deny her tenure application was

discriminatory. Defendants’ motion to dismiss Count VI as

untimely is, therefore, denied.

D. Plaintiff Fails to State Claims for Intentional and

Negligent Infliction of Emotional Distress.

Counts VII and VIII, for Intentional and Negligent Infliction of

Emotional Distress, respectively, both name Erdey as the sole

Defendant. This is, evidently, the result of a drafting error. The

harm alleged in Count VII consists of “directing Plaintiff to

repeatedly interact with Defendant Erdey,” “failing to investigate or

mitigate the harassment and discrimination,” and “retaliating

against [Plaintiff] for reporting the harassment and discrimination.”

D/e 1, ¶ 237. Count VIII alleges that “Defendant Board of Trustees”

took various actions that caused Plaintiff “severe physical and

emotional damage due to Defendant Board of Trustees’ negligent

conduct,” but makes no mention of any tortious act by Erdey.

Plaintiff may have intended to name UIUC instead of or in

addition to Erdey as a Defendant to Counts VII and VIII, or Plaintiff

may have intended to allege that Erdey himself inflicted emotional

distress on her. Rather than speculating, the Court will dismiss

Counts VII and VIII without prejudice and give Plaintiff the

opportunity to amend her Complaint to adequately allege claims for

intentional and/or negligent infliction of emotional distress.

IV. CONCLUSION

For the reasons stated above, Defendants’ Motion to Dismiss

(d/e 10) is GRANTED IN PART and DENIED IN PART. Counts I, II,

VII, and VIII of Plaintiff’s Complaint are DISMISSED WITHOUT

PREJUDICE. As Defendant Kenneth Erdey is not a party to any

remaining Count, the Clerk is DIRECTED to terminate Defendant

Erdey as a party. Plaintiff may file an amended complaint on or

before April 12, 2022. Defendant shall file an answer to the original

Complaint or an answer or other response to any amended

complaint on or before April 26, 2022.

ENTERED: March 28, 2022

FOR THE COURT:

/s/Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE