Renken v. The Illinois State Toll Highway Authority

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Toni Renken,

Plaintiff,

Case No. 22-cv-5193

v.

Judge Jorge L. Alonso

The Illinois State Toll Highway Authority,

Defendant.

Memorandum Opinion and Order

Plaintiff Toni Renken filed this lawsuit against the Illinois State Toll Highway Authority

(“Tollway”) alleging gender discrimination and retaliation under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seq., and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). The

Tollway filed a motion to dismiss Count I in part and Counts II and III in their entireties (ECF

No. 6). For the reasons below, the Court denies the Tollway’s motion.

Background1

0F

On September 3, 2019, Renken began work as an Assistant Attorney General for the

Tollway. (Compl. ¶ 6, ECF No. 1.) In November 2020, the Tollway hired a male Assistant

Attorney General at a salary of $99,600. (Id. ¶ 8.) At that time, and despite having the same

1 The Court takes its facts from those alleged in Renken’s complaint (ECF No. 1), which the

Court assumes are true for purposes of the Tollway’s motion to dismiss. See United Cent. Bank

v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016). The Court also considers “not only

the complaint itself, but also documents attached to the complaint, documents that are critical to

the complaint and referred to in it, and information that is subject to proper judicial notice,” as

well as “additional facts set forth in [Plaintiff’s briefing], so long as those facts are consistent

with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019–20 (7th Cir.

2013) (internal quotation marks and citations omitted).

position as her male co-worker and performing substantially similar duties, Renken’s salary was

only $76,800. (Id.)

Around September 2021, Renken transferred to a position within the Tollway’s EEO

Department and her salary increased to $85,500. (Id. ¶ 10.) This still was less than the male

Assistant Attorney General’s salary. (Id.) On December 10, 2021, Renken filed an Equal Pay Act

complaint with the Illinois Department of Labor related to the pay discrepancy between her and

the male Assistant Attorney General. (Id. ¶ 11.)

In April 2022, the Illinois Department of Labor disclosed Renken’s identity to Kathleen

Pasulka-Brown, the Tollway’s General Counsel. (Id. ¶ 12.) As a result, Pasulka-Brown allegedly

retaliated against Renken, who was being “watched” and passed over for opportunities. (Id.

¶ 14.) The Tollway terminated Renken on April 25, 2022. (Id. ¶ 15.) Renken submitted a

retaliation complaint on May 5, 2022. (Id. ¶ 19.)

After filing retaliation and discrimination charges against the Tollway with the Equal

Employment Opportunity Commission (“EEOC”), Renken filed this lawsuit and brought three

counts against the Tollway. (Id. ¶ 5.) Count I of Renken’s complaint alleges unequal

compensation in violation of the Equal Pay Act; Count II alleges gender discrimination in

violation of Title VII; and Count III alleges retaliation in violation of Title VII and the Equal Pay

Act.

Standard of Review

A Rule 12(b)(6) motion asks the court to dismiss a complaint for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6)

motion, a complaint must “give the defendant fair notice of what the claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In evaluating a

12(b)(6) motion, the court accepts as true the well-pleaded facts alleged in the complaint.

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Conclusory statements and legal conclusions,

however, are not accepted as true. Alam v. Miller Brewing Co., 709 F.3d 662, 665–66 (7th Cir.

2013). On review, a court must decide whether the facts in the complaint make it plausible that

the plaintiff is entitled to relief. Id.

Discussion

In its motion to dismiss, the Tollway asks the Court to: (1) limit Renken’s Equal Pay Act

claim (Count I) to the period from January 2021 to September 2021; (2) dismiss Renken’s

gender-discrimination claim (Count II) as untimely; and (3) dismiss Renken’s retaliation claim

(Count III) because it does not support an inference of retaliation. The Court addresses each

count in turn.

I. Equal Pay Act Claim (Count I)

The Tollway argues that the recovery period for Renken’s Count I should be limited to

between January 2021 (when the Tollway says it hired the male comparator Assistant Attorney

General) and September 2021 (when Renken was transferred to the Tollway’s EEO Department).

Renken counters that she instead is entitled to recover for alleged violations that occurred

between November 2020 (when Renken says the Tollway hired the male comparator) and April

25, 2022 (when she was terminated).

To support its requested January 2021 start date, the Tollway asks the Court to take

judicial notice of its Exhibits 2–4. The Tollway claims these are screenshots from the Illinois

State Comptroller’s public website, and that they establish the Tollway hired the male

comparator Assistant Attorney General in January 2021, not November 2020 as Renken alleges.

A court considering a motion to dismiss may take judicial notice of public records. Gen. Elec.

Cap. Corp. v. Lease Resol. Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). A fact that is appropriate

for judicial notice is one that “(1) is generally known within the trial court’s territorial

jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b). In other words, indisputability is required.

Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1354 (7th Cir. 1995).

The Court declines to take judicial notice of the Tollway’s screenshot exhibits. The

screenshots merely display certain salary information, and definitive employment records for this

period do not appear to be public—indeed, some of the data in the Tollway’s exhibits appears no

longer to be publicly available on the cited website. Renken also has reiterated her own belief

that the male Assistant Attorney General was hired in November 2020, not January 2021, and the

public screenshots do not indisputably show otherwise. The Court therefore declines to take

judicial notice of the Tollway’s Exhibits 2–4. The start date for Renken’s Equal Pay Act claim

thus remains November 2020, at least at this early stage.

As to the end date for Renken’s Count I, the Tollway argues that the claim must end with

her transfer to the EEO Department in September 2021, rather than her termination on April 25,

2022, because Renken has not adequately alleged that her new position was comparable to that

of the male Assistant Attorney General. Renken responds that her claim should include the time

she worked in the EEO Department because that position was a lateral move requiring the same

skills and qualifications, but that she continued to make less than her male comparator.

A plaintiff asserting an Equal Pay Act violation ultimately must show “that the

employees do equal work which requires equal skill, effort, and responsibility” and “have similar

working conditions,” meaning that “that the jobs compared are substantially equal, based upon

actual job performance and content—not job titles, classifications or descriptions.” Markel v.

Bd. of Regents of Univ. of Wisconsin Sys., 276 F.3d 906, 912–13 (7th Cir. 2002) (internal

quotation marks and citation omitted). Yet, in the employment-discrimination context, a plaintiff

need not allege facts establishing every element at the pleading stage, and may “allege these

claims quite generally.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The

complaint need only provide “enough detail to give the defendant fair notice of what the claim is

and the grounds upon which it rests,” and “show that it is plausible, rather than merely

speculative, that [the plaintiff] is entitled to relief.” Id. (citation omitted). In Tamayo, the

complaint had listed the plaintiff’s salary and the salaries of her similarly situated male

coworkers, alleged specific adverse employment actions, and claimed discriminatory treatment.

Id. at 1085. The court concluded that was enough to survive dismissal. Id.

Here too, Renken’s allegations are enough. In both her complaint and her opposition

brief, Renken alleges that the same male Assistant Attorney General remained a higher-paid

comparator after Renken was transferred to the EEO Department, lists their relative salaries, and

states that her transfer to the EEO Department was a lateral move requiring the same skills and

qualifications as her male comparator. At the pleading stage, this is enough to extend Renken’s

Equal Pay Act claim through her time at the EEO Department. See id. The Court therefore denies

the Tollway’s motion to dismiss as to Count I.

II. Gender Discrimination Claim (Count II)

The Tollway argues that Renken’s Count II should be dismissed as untimely because she

did not allege any adverse employment action, including discriminatory compensation, on or

after November 27, 2021—that is, within 180 days before she filed her EEOC charges. Because

Renken did not first file her Title VII claim with a state or local agency, alleged unlawful actions

must have occurred no earlier than 180 days before Renken filed her EEOC charges for her claim

to be timely. 42 U.S.C. § 2000e–5(e)(1); see also McCoy v. Illinois Inst. of Tech., No. 1:20-CV-

02746, 2022 WL 11166624, at *2 (N.D. Ill. Oct. 19, 2022) (“Failure to comply with § 2000e-

5(e)(1)’s requirement renders a claim untimely.”). “[A]n unlawful employment practice occurs

. . . each time . . . compensation is paid.” 42 U.S.C. § 2000e-5(e)(3)(A). Thus, “a new cause of

action for pay discrimination arises every time a plaintiff receives a paycheck resulting from an

earlier discriminatory compensation practice—even one that occurred outside the statute of

limitations period.” Kellogg v. Ball State Univ., 984 F.3d 525, 529 (7th Cir. 2021) (internal

quotation marks and citations omitted).

This “paycheck accrual rule” makes Count II timely. Renken alleges that in September

2021 she was transferred to a lateral position in the EEO Department and received a salary

increase, but still was paid less than her male comparator. As a result, from September 2021 until

her termination on April 25, 2022, she continued to be the victim of alleged discrimination under

Title VII related to her compensation. Count II therefore encompasses not only the period before

her transfer to the EEO Department, but also the time she worked in the EEO Department until

her termination in April 2022, much of which falls within the 180-day statute-of-limitations

period. Because Renken has adequately alleged discriminatory compensation during the entirety

of her time within the EEO Department, Count II is timely and the Court denies the Tollway’s

motion to dismiss as to that count.

III. Retaliation Claim (Count III)

Lastly, the Tollway seeks to dismiss Renken’s Count III as failing to support a causal

connection for retaliation. In support, it asks the Court to take judicial notice of its Exhibit 5,

which it claims is the Tollway’s January 20, 2022 response to Renken’s Illinois Department of

Labor complaint, signed by Kathleen Pasulka-Brown. The Tollway argues this document shows

that Pasulka-Brown knew of Renken’s Illinois Department of Labor complaint approximately

four months before Renken alleges Pasulka-Brown learned Renken’s identity and the Tollway

terminated Renken in April 2022, and that four months is too long to suggest a causal link

between Renken’s Illinois Department of Labor complaint and her termination. Renken counters

that the Court should ignore the Tollway’s Exhibit 5, and that she has adequately pled retaliation

regardless. As explained below, even were the Court to take judicial notice of Exhibit 5, Renken

has stated a plausible retaliation claim, and the Tollway’s purported four-month gap between its

awareness of Renken’s state complaint and its termination of her in April 2022 does not warrant

dismissal at this stage.

“To plead a retaliation claim under Title VII, a plaintiff must allege that she engaged in

statutorily protected activity and was subjected to adverse employment action as a result of that

activity.” Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1029 (7th Cir. 2013). The pleading

need not prove a causal link between the protected activity and the adverse employment action.

Id. For instance, in Luevano the Seventh Circuit reversed a dismissal and held that the plaintiff

had sufficiently pled retaliation by alleging she had filed a complaint against her supervisor and

then suffered reduced working hours. Id. That was “all Luevano needed to do at that stage.” Id.

Renken’s complaint likewise adequately pleads retaliation. Renken alleges that she

engaged in the statutorily protected act of filing an Equal Pay Act claim with the Illinois

Department of Labor, and that, as a result, she was “watched” and passed over for opportunities

and ultimately terminated. Renken need not develop a causal relationship further at this time to

survive dismissal.

Even assuming a four-month period between the Tollway’s discovery of Renken’s state

complaint and her termination, “no bright-line timing rule can be used to decide whether a

retaliation claim is plausible or whether it should go to a jury,” and “[t]he facts and

circumstances of each case necessarily must be evaluated to determine whether an interval is too

long to determine rationally that an adverse employment action is linked to an employee’s earlier

complaint.” Carlson v. CSX Transp., Inc., 758 F.3d 819, 829 (7th Cir. 2014) (internal quotation

marks and citation omitted).

The Tollway points to cases holding that a four-month or shorter period between

protected activity and an adverse employment action did not support particular retaliation claims.

See Longstreet v. Illinois Dep’t of Corrections, 276 F.3d 379, 384 (7th Cir. 2002); Tomanovich v.

City of Indianapolis, 457 F.3d 656, 665 (7th Cir. 2006); Sauzek v. Exxon Coal USA, Inc., 202

F.3d 913, 919 (7th Cir. 2000). However, each of those cases was decided at the summary

judgment stage, after plaintiffs evidently had obtained nothing in discovery beyond mere timing

to establish causal links. Longstreet, 276 F.3d at 384 (“Her only evidence of a connection is the

timing; the transfer occurred 4 months after the second complaint.”); Tomanovich, 457 F.3d at

665 (“Tomanovich relies solely on the timing as evidence of a causal connection.”); Sauzek, 202

F.3d at 919 (“[P]laintiffs have shown no evidence other than the three month gap . . . .”).

By contrast, the parties here have not yet proceeded to discovery, and the distinction

between a plaintiff facing Rule 12(b)(6) dismissal and one facing summary judgment matters.

See Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 777 (7th Cir. 2022). At this stage, Renken need

only allege facts to support a plausible inference that the Tollway retaliated against Renken for

filing her state complaint. She has done so—she alleges that Pasulka-Brown and the Tollway

retaliated upon learning of her state complaint, ultimately resulting in her termination despite her

job performance. The Court will not deny Renken an opportunity to seek further evidence to

support her retaliation allegations in this case based merely on a potential four-month period

between the Tollway’s awareness of her state complaint and its termination of her employment.

The Court therefore denies the Tollway’s motion to dismiss as to Count III.

Conclusion

The Court denies the Tollway’s motion to dismiss (ECF No. 6) in its entirety and vacates

its prior stay order (ECF No. 12). Defendant’s answer is due August 1, 2023. A telephonic initial

status hearing is set for August 30, 2023, at 9:30 am. The parties are directed to file a joint initial

status report in accordance with this Court’s procedures by August 25, 2023.

SO ORDERED. ENTERED: July 19, 2023

HON. JORGE ALONSO

United States District Judge