Dean v. Illinois State University

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

DIANE DEAN, )

)

Plaintiff, )

)

v. ) Case No. 22-cv-1082-JES-JEH

)

ILLINOIS STATE UNIVERSITY, )

)

Defendant. )

ORDER AND OPINION

This matter is now before the Court on Defendant’s Motion and supporting

Memorandum, seeking to dismiss Plaintiff’s Complaint (Doc. 7), for failure to state a claim.

Plaintiff has filed a Response in Opposition (Doc. 9) and Supplemental Response in which she

provides a copy of the December 20, 2021 Right to Sue Letter issued by the Equal Employment

Opportunity Commission (“EEOC”) in response to her June 3, 2020 Charge of Title VII

Discrimination. For the reasons set forth below, Defendant’s Motion to Dismiss is GRANTED in

part and DENIED in part.

BACKGROUND

Plaintiff asserts a Title VII Civil Rights Act claim against the Board of The Trustees of

Illinois State University (“ISU”), incorrectly named as Illinois State University. Plaintiff alleges

racial and gender discrimination under (42 U.S.C. 2000e) and retaliation under (42 U.S.C.

2000e-3). The following facts are taken from Plaintiff’s Complaint, which the Court accepts as

true for the purposes of a motion to dismiss. Bible v. United Student Aid Funds, Inc., 799 F.3d

633, 639 (7th Cir. 2015).

Plaintiff is a Caucasian female employed at ISU as an associate professor in the

Department of Educational Administration Foundations (“DEAF”). Ledford Sutton, a black

male, is the Chair of DEAF. In her Count I Retaliation claim, Plaintiff alleges that she filed

complaints against Sutton and others; and also supported one or more Title IX complaints filed

by students against Sutton. Plaintiff asserts that Sutton and other unidentified individuals

retaliated against her by downgrading her performance evaluations; refusing in 2019 to promote

her to Associate Dean; refusing to allow her to serve on committees; refusing to allow her to

work in the summer months; refusing to allow her to attend conferences; creating a hostile work

environment that forced her to take a leave of absence; treating her students differently than the

students of other faculty members; and denying “professional opportunities” afforded to other

faculty members.

In Counts II and III, Plaintiff makes general allegations that Sutton discriminated against

her due to her status as a White female, without pleading detail as to the alleged discrimination.

While Plaintiff might be implicating others, she alleges that the race and gender discrimination

were “directed primarily by Sutton.” (Doc. 1 at ¶ 15, 20). Plaintiff alleges in support of her

discrimination claims, the same career limiting events cited in support of the retaliation.

Defendant has moved to dismiss, largely asserting that the discrimination and retaliation

claims are too lacking in detail to state a claim. Defendant argues Plaintiff cannot sustain a claim

for race or gender discrimination where she has not identified the alleged acts of discrimination.

Defendant also asserts that the retaliation lacks sufficient detail; and due to this lack of detail, it

is unclear whether Plaintiff’s allegations are outside the relevant 300-day period of the filing of

the June 3, 2020 Charge of Discrimination.

Plaintiff responds that Defendant asks too much of the pleading. Plaintiff cites

Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002) and other cases, to support that the Court’s

review of the complaint is a limited one; to determine “not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence to support the claims.” Id. at 511.

MOTION TO DISMISS

Defendant asserts its Motion under Fed. R. Civ. P. 12(b)(6) which challenges the

sufficiency of a complaint to state a claim upon which relief may be granted. Hallinan v.

Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[W]hen

ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); McGowan v.

Hulick, 612 F.3d 636, 637 (7th Cir. 2010) (courts accept factual allegations as true and draws all

reasonable inferences in plaintiff's favor). A “complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). These

allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550

U.S. at 555. The allegations that are entitled to the assumption of truth are those that are factual,

rather than mere legal conclusions. Iqbal, 556 U.S. at 679.

FACTS

Plaintiff complains in summary fashion, that around the Summer of 2012, she

complained to Human Resources and “other administration officials,” that she had been

subjected to “gender discrimination,” not otherwise described. Plaintiff does not identify the

discriminatory acts or identify the individual(s) who discriminated against her. In May 2015,

Plaintiff complained of gender and racial discrimination to the Office of Equal Opportunity and

Access (“OEOA”). Here, again, Plaintiff does not identify the discriminatory acts or the

individual(s) responsible.

On February 12, 2016, Plaintiff filed a complaint with the Academic Freedom, Ethics,

and Grievance Committee (“AFEG), an elected body of faculty members, alleging

discrimination by DEAF Chair Sutton. This appears to be the first complaint in which Plaintiff

named Sutton. No additional detail is provided, and it is unclear whether the discrimination was

racial, gender-related, or both. In March 2016, Plaintiff filed another complaint with the OEOA,

alleging unspecified “discriminatory conduct” by Sutton. In April 2015, a female student filed a

Title IX complaint against Sutton, identifying Plaintiff as a supporting witness.

In June 2017, the OEOA undertook a Title IX investigation of Sutton, and it is not clear

whether this was related to the April 2015 complaint or represents a second complaint. Plaintiff

supported the complaint and provided testimony at the proceeding. In July 2017, as a result of

Plaintiff’s complaints, the OEOA launched an investigation of Sutton. Plaintiff does not disclose

the results of that investigation. In March 2019, Plaintiff met with unidentified ISU

administrators and reported her concerns about Sutton’s “discriminatory actions.”

Plaintiff filed a Charge of Discrimination with the EEOC and, on December 20, 2021,

was issued a Right to Sue Letter. On March 18, 2022, Plaintiff filed her complaint where she

generally asserts that the downgrading of her performance evaluations, the failure to promote

her, and other lost career opportunities, are evidence of both the retaliation she suffered and the

discriminatory actions to which she was subjected. Plaintiff alleges that these actions limited her

career opportunities, affecting her compensation, pension, and professional standing.

ANALYSIS

Count II and III Discrimination

The complaint is so sparsely pled that at times, it is unclear whether Plaintiff is asserting

racial discrimination, gender discrimination, or both. Some of the allegations do not identify the

individual who allegedly discriminated, and it is unclear as to the number of actions which are

attributable to Sutton. See Fosnight v. Jones, 41 F.4th 916, 921–22 (7th Cir. 2022) (finding that,

for purposes of facial plausibility, a plaintiff must plead “factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”) (citing

Iqbal, 556 at 662). See also Conner v. Illinois Dept. of Nat. Res., 413 F.3d 675, 679 (7th Cir.

2005) (“But pleading is still vitally important to inform the opposing party of the grounds upon

which a claim rests; a complaint is adequate only if it ‘fairly notifies a defendant of matters

sought to be litigated[.]”).

The parties frame the issue as whether Plaintiff’s Title VII complaint sufficiently states a

claim in light of the Supreme Court’s 2002 decision in Swierkiewicz and later decisions in

Twombly (2007), and Iqbal (2009). In Swierkiewicz, the Supreme Court considered the Second

Circuit’s affirmance of the district court’s Rule 12(b)(6) dismissal of a Title VII discrimination

claim. The district court dismissed, finding that plaintiff had not adequately pled a prima facie

case under McDonnell Douglas, 411 U.S.792, 802 (1981). The Supreme Court reversed, finding

that a McDonnell Douglas prima facie case was “an evidentiary standard, not a pleading

requirement.” Id. at 510. The Court held that a Title VII discrimination case did not require

heightened pleading beyond the Fed. R. Civ. P. 8(a)(2) requirement of “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Swierkiewicz, 534 U.S. at

512. Plaintiff asserts that Swierkiewicz remains good law as it was not overruled by the Court’s

subsequent decisions in Twombly and Iqbal, although these cases have later been interpreted by

the Seventh Circuit as imposing “enhanced pleading requirements.” Tate v. SCR Med. Transp.,

809 F.3d 343, 345-46 (7th Cir. 2015).

In Twombly, decided five years after Swierkiewicz, the Court discussed the Rule 8(a)(2)

pleading requirements in the context of a Sherman Act anti-trust claim. The Court reiterated that

under the Rule, a plaintiff need not plead “detailed factual allegations” to survive a Rule 12(b)(6)

motion to dismiss. Plaintiff was obligated, however, to provide the “grounds’ of his ‘entitlement

to relief.’” Id. at 555. The Court determined that plaintiff had not sufficiently stated an anti-trust

claim where he only pled allegations “consistent with” an anti-competitive agreement, rather

than allegations which plausibly suggested it. Id. at 545. The Supreme Court provided further

guidance two years later in Iqbal, where it upheld the dismissal of a pretrial detainee’s inhumane

conditions of confinement claim. The Iqbal Court, citing Rule 8(a)(2), stated “where the well-

pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Iqbal,

556 U.S. at 679.

Plaintiff argues that her complaint is sufficient, citing language in Luevano v. Wal-Mart

Stores, Inc., 722 F.3d 1014 (7th Cir. 2013), post Twombly and Iqbal. There, although

acknowledging the “tension” between Swierkiewicz and Twombly and Iqbal, the Seventh Circuit

stated, “a complaint alleging sex discrimination need only aver that the employer instituted a

(specified) adverse employment action against the plaintiff on the basis of her sex.’” Id. at 1028.

Luevano is distinguishable, however, as it concerned a pro se plaintiff who used a form

complaint provided by the court. The form provided six lines for the body of the complaint,

“implying that the statement should be concise.” Id. at 1027. The Seventh Circuit determined the

pleading sufficient, noting that “pleading standards for pro se plaintiffs are considerably

relaxed,” and courts are to “construe pro se complaints liberally and hold them to a less stringent

standard than formal pleadings drafted by lawyers[.]”) Id. at 1027 (internal citations omitted).

Plaintiff also cites the aforementioned Tate case, asserting, “the Seventh Circuit again

affirmed that a plaintiff need only allege that they were fired, the date that they were fired, and

generally state that it was because of a prohibited reason.” (Doc. 9 at 3) (citing id. at 346).

There, the Seventh Circuit found the plaintiff had adequately pled discrimination and retaliation

claims under Twombly and Iqbal. However, the Tate plaintiff, like that in Lueveno, was pro se

and had used a court-provided form complaint which provided only seven blank lines in which to

plead.

Plaintiff cites more cases still, to support a low pleading threshold. In one, Carlson v.

CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014), the Seventh Circuit stated that a Title VII

claim “need only aver that the employer instituted a (specified) adverse employment action

against the plaintiff on the basis of her sex.” There, however, the Court went on to discuss the

detailed allegations of the complaint, detail which is missing here. See id. at 823. In another,

Huri v. Office of the Chief Judge of the Circuit Court of Cook Cnty., 804 F.3d 826, 833-34 (7th

Cir. 2015), the Seventh Circuit found the Muslim court employee’s complaint sufficient where

she pled a “litany of malfeasance.” This included being subject to “screaming, prayer circles,

social shunning, implicit criticism of non-Christians, and uniquely bad treatment of [plaintiff]

and her daughter…” Plaintiff has pled no such litany pled here.

Plaintiff also cites Graham v. Bd. of Educ., 8 F.4th 625, 627 (7th Cir. 2021), where the

Seventh Circuit reversed the district court’s Rule 12(b)(6) dismissal. There, however, the

dismissal resulted from the district court applying too high a standard. The Seventh Circuit

found, “[t]he district judge wanted [plaintiff] to put in the complaint all facts that would be

needed to defeat a motion for summary judgment. But that’s not the function of a complaint.” It

is clear, after Swierkiewicz, that the practice of requiring a Title VII plaintiff to plead a prima

facie case has been discredited. Still, one must plead facts which plausibly suggest an entitlement

to relief. Twombly, 550 U.S. at 545; Iqbal, 556 U.S. at 679 (requiring “well-pleaded facts” which

infer “more than the mere possibility of misconduct…”).

In a more recent case, Kaminski v. Elite Staffing, Inc., 23 F.4th 774 (7th Cir. 2022), the

Seventh Circuit affirmed the dismissal of a Title VII claim for unlawful termination. Although

critical of the standard the district court used in reviewing the complaint, the Appellate Court

agreed that the pro se plaintiff’s pleading was insufficient where:

Beyond saying Elite Staffing wrongfully discharged her, Kaminski includes no

factual allegations directly or indirectly connecting the termination with her

national origin, age, or race. It is not enough for the complaint to observe only that

federal law prohibits adverse employment actions on those grounds. There must be

some facts that make the wrongful discharge contention plausible.

Id. at 776.

The Court finds that Plaintiff’s pleadings as to her discrimination claims fail Rule 8(a)(2)

scrutiny where Plaintiff has only vaguely pled that Sutton, and perhaps others, “discriminated”

against her. She does not identify any individual acts of discrimination, only asserting that any

unrealized career opportunity was evidence of discrimination. While Plaintiff relies heavily on

Swierkiewicz, that case principally held that a Title VII plaintiff need not plead a prima facie case

to withstand a motion to dismiss, not that conclusory allegations should be allowed. In Brooks v.

Ross, 578 F.3d 574 580 (7th Cir. 2009), the Seventh Circuit characterized Swierkiewicz as

‘“focus[ing] litigation on the merits of a claim’ rather than on technicalities that might keep

Plaintiffs out-of-court.” This, of course, is consistent with the decisions in Lueveno and Tate,

liberally construing pro se filings. Here, however, there is no public policy reason to construe

this complaint as liberally as though filed by a pro se plaintiff.

Plaintiff has failed to plead facts to support discrimination, merely reciting legal

conclusions which do not plausibly suggest that unrealized career opportunities were due to race

or gender discrimination. See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011)

(“legal conclusion and conclusory allegations merely reciting the elements of the claim are not

entitled to this presumption of truth.”) (citing Iqbal, 556 U.S. at 681); Brooks, 578 F.3d at 581

(finding it is not enough to “merely parrot the statutory language of the claims that they are

pleading . . . rather than providing some specific facts to ground those legal claims . . .”). This is

insufficient under Twombly and Iqbal, and even Swierkiewicz, as all require a level of pleading

which will fairly place a defendant on notice of the claims against him.

Defendant also asserts that the complaint is so lacking in detail that it cannot be

determined whether any of the claims fall within the 300-day limit of the filing of the Charge of

Discrimination. The Court need not address this as whether the complaint was timely filed is an

affirmative defense with the burden on defendant, not a pleading requirement. “Complaints need

not anticipate defenses and attempt to defeat them.” Potts v. Nippon Sharyo Mfg., LLC, No.16-

50145, 2016 WL 4975148, at *2 (N.D. Ill. Sept. 16, 2016).

Count I Retaliation

As to the retaliation, Defendant claims that Plaintiff has generally failed to plead

sufficient details to support that any retaliation even occurred. It claims, further, while Plaintiff

names Sutton in some of the allegations, he has not identified the names, titles, or other

information as to the “others” who allegedly retaliated against her. Defendant also claims that the

alleged retaliatory actions are unduly vague, and Plaintiff has not pled a causal link between her

protected activity and the retaliatory acts. Defendant notes, particularly, while Plaintiff alleges a

hostile work environment, she has pled no facts to support conditions which would reach the

level of a hostile work environment.

The Court largely disagrees, finding Plaintiff has sufficiently pled that she engaged in

protected activity, filing complaints about Sutton, and perhaps others, and testifying against

Sutton in support of at least one Title IX complaint.1 She then pled to a number of adverse work-

related actions, stating that if not for her protected conduct, she would not have suffered them.

See Carlson, 758 F.3d at 828 (finding a retaliation claim is sufficiently pled where it specifically

identifies the protected activity and identifies the adverse employment action). This is enough to

place Defendant on fair notice, with the exception of the retaliation hostile work environment

claim which is not adequately pled.

It is recognized that a hostile work environment may be actionable as a form of

retaliation. See Knox v. State of Ind., 93 F.3d 1327, 1334 (7th Cir. 1996) (“No one would

question the retaliatory effect of many actions that put the complainant in a more unfriendly

working environment.”); Smith v. Ne. Illinois Univ., 388 F.3d 559, 567 n.5 (7th Cir. 2004) (“The

creation of a hostile work environment can be a form of retaliation.”). To succeed on a claim of a

retaliatory hostile work environment, Plaintiff must establish that the conditions were

“sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.” Dennis v. Potter, No.11-58, 2015 WL 4429371, at *11 (N.D.

Ind. July 20, 2015), on reconsideration in part, No.11-58, 2015 WL 5032015 (N.D. Ind. Aug.

25, 2015) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). While this level of

specificity is not required at the pleadings stage, some pleading is required. Plaintiff has not

1 It is not inconsistent to dismiss the discrimination claims while allowing the retaliation to proceed as a plaintiff can

establish a retaliation claim even if the underlying discrimination claim does not succeed. Luevano, 722 F.3d at 1029

(citing Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir.1994) (“In order for plaintiff’s expression to be

protected by section 2000e–3(a), the challenged practice need not actually violate Title VII.”).

stated any facts suggestive of an abusive environment, merely interjecting the term “hostile work

environment” into the pleadings without “providing some specific facts to ground [the] claims.”

Brooks, 578 F.3d at 581. This is not enough to fairly place Defendant on notice of the claim

against it. See Iqbal, 556 U.S. at 678 (“[w]hile legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.”)

CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss (Doc. 11) is GRANTED

in part and DENIED in part. It is GRANTED to the extent that Plaintiff’s Count II and III gender

and race discrimination claims are dismissed. Plaintiff’s Count I retaliation claim can proceed

with the exclusion of the retaliation through a hostile work environment claim. Plaintiff will have

leave, within 30 days, to file an Amended Complaint, consistent with this Order.

Entered on this 6th day of March, 2023.

s/James E. Shadid

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE