Brown v. Ferrara Candy Company

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KENYATTA BROWN

Plaintiff

No. 22 CV 04875

v.

Judge Jeremy C. Daniel

FERRARA CANDY COMPANY,

Defendant

MEMORANDUM OPINION AND ORDER

Plaintiff Kenyatta Brown, a gay African American man who was formerly

employed by Defendant Ferrara Candy Company (“Ferrara”), filed this pro se

employment discrimination suit alleging hostile work environment, retaliation, and

wrongful termination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., and violation of the Family and Medical Leave Act of 1993, 29 U.S.C.

§ 2601 et seq. (“FMLA”). Ferrara now moves to dismiss Brown’s amended complaint

in part. R. 22. For the reasons that follow, we deny the motion with respect to Brown’s

Title VII hostile work environment claim and grant the motion with respect to

Brown’s Title VII failure-to-hire claims.

BACKGROUND

We take the following facts from the amended complaint, exhibits attached

thereto, and documents referred to in the amended complaint that are central to

Brown’s claim. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th

Cir. 2012). Because Brown is proceeding pro se, we also consider allegations put forth

in response to Ferrara’s motion to dismiss, so long as they are consistent with the

facts set forth in the amended complaint. See, e.g., De Lion v. CRRC Sifang Am., Inc.,

No. 22 CV 00070, 2023 WL 4899814, at *1 n.1 (N.D. Ill. Aug. 1, 2023) (citing Gutierrez

v. Peters, 111 F.3d 1364, 1367 n.2 (7th Cir. 1997) and Defender Sec. Co. v. First

Mercury Ins. Co., 803 F.3d 327, 335 (7th Cir. 2015)); see also Gordon v. Sheahan, No.

96 C 1784, 1997 WL 136699, at *1 (N.D. Ill. Mar. 24, 1997) (“[I]n determining whether

a pro se plaintiff has stated a claim the court is to consider allegations made in all

documents filed with the court.”) (citation omitted).

Defendant Ferrara is a manufacturer of candy and gummy vitamins based in

Bellwood, Illinois. R. 1 ¶ 2. Brown is a gay African American man who was employed

by Ferrara from November 2020 until June 8, 2022, as a customer service

representative at Ferrara’s Bellwood facility. R. 20 ¶¶ 1, 6, 7.1 Brown was a member

of the vitamins, minerals, and supplements, or “VMS,” division. See id. at 32–24

(Exhibit E). In this position, he was responsible for managing ingredient deliveries

and monitoring inventory levels, as well as interfacing with customers.

Brown’s issues with Ferrara began in November 2021, when he informed VMS

Director Sheryl Kasbaum and Senior Director Don L. Henderson that he was not

receiving reimbursement for his cell phone plan. Id. ¶ 14. Brown claims that he was

forced to use his personal cell phone for work-related tasks without reimbursement,

1 The amended complaint does not specify Brown’s sexual orientation. However, Brown’s

initial pro se complaint indicates that he is gay, R. 1 ¶ 1, and Brown’s amended complaint

indicates that he was discriminated against based on his sexual orientation. See generally R.

20. We find that these allegations are sufficient to establish, for the purposes of this motion,

that Brown is a gay man. Cf. Hardy v. Pinkerton Sec. Servs., 20 F.3d 469 (5th Cir. 1994)

(rejecting argument that plaintiff’s failure to specify his own race was fatal to his Title VII

discrimination claim because allegations that plaintiff was discriminated against in favor of

a white employee implied that plaintiff was not white).

while other non-African American employees were reimbursed. Id. ¶¶ 14–15. Brown

also complained to Ferrara’s HR department and was told that he would have to use

his personal cell phone without reimbursement. Id. ¶ 15–16.

Following Brown’s complaint to HR about cell phone reimbursement, he was

asked via email to attend a Zoom meeting with Henderson. Id. ¶ 18. Brown alleges

that the entire VMS team was copied on Henderson’s email, but only he was required

to attend. Id. When Brown logged into the meeting, Henderson (who is also black)

began yelling at Brown and responded to his allegations of discrimination by making

unspecified comments about Brown’s race, saying “that’s y’all problem,” and telling

him to “act like a man.” Id. ¶¶ 18–20. After the meeting, Brown voiced concerns to

Kasbaum about Henderson’s comments and stated that he would like to involve HR

due to the “tone, language, and approach of the meeting.” Id. ¶ 21. Kasbaum told

Brown not to involve HR “for something so small.” Id. Despite Kasbaum’s instruction,

Brown met with HR to inform them about the incident. Id. No one ever followed up

with him. Id. A few days after Brown’s complaint, Kasbaum told Brown that the HR

manager had “mentioned the meeting” to her and that she and Henderson were “not

happy” with Brown. Id.¶ 23.

Things got worse for Brown after that. Brown alleges that Henderson and

Kasbaum began to assign him tasks that were outside of his job description. Id. ¶¶ 17,

26(a), 26(e). The company also posted a job opening for a “VMS Distribution

Analyst”—a position that Brown was interested in applying for—but Henderson and

Kasbaum told him not to apply. Id. ¶ 26(b). Instead, Brown claims that Ferrara

“preselected” another individual for the position. Id. The complaint does not specify

this individual’s race or sexual orientation. See id. Once again, Brown communicated

these incidents to HR, but never received any follow up. Id. ¶ 26(f).

In March 2022, Ferrara ended Brown’s work from home privilege and required

him to work from the office part time during the week. R. 20 at 35 (Exhibit F-1).

Brown was required to work in the same 8x8 foot workspace as another VMS

employee named John Kornfiend. See id. ¶¶ 36–37; R. 26 at 4. According to Brown,

Kornfiend would “make racial, political, and radical comments” to Brown while he

was in the office and would harass him “with a gun and a knife.” R. 20 ¶ 37. Kornfiend

“openly stated that he disliked gays and blacks and is a conservative man.” R. 26 at

4. Brown’s EEOC intake notes indicate that Kornfiend would stand next to a “Blue

Lives Matter” flag during video calls on work from home days, which Brown believed

was an attempt to intimidate him. R. 25 at 43. Brown reported Kornfiend’s actions to

HR and Ferrara’s safety manager and requested that he be transferred to a different

workspace. R. 20 ¶¶ 37–38. These requests were denied. Id.

Brown alleges that his supervisors allowed Kornfiend to harass him so that he

would either quit his job or stop complaining to HR. Id. ¶ 64.While the harassment

was ongoing, Brown alleges that Ferrara continued to assign him additional tasks

outside of his job description. Id. ¶ 17. He claims that Henderson and Kausbaum

micromanaged him. Id. ¶ 34. As a result, Brown’s health deteriorated. Id. ¶ 42.

Brown’s EEOC intake notes indicated that he was diagnosed with hyperthyroid. R.

25 at 43. Brown asked for increased work from home privileges but did not receive

them. R. 20 ¶ 43. When he informed Kasbaum of his health condition, she was

dismissive, stating “luckily you’re not a woman going through menopause.” Id. ¶ 42.

Eventually, Brown applied for unpaid medical leave under the FMLA. See id.

¶ 43. He alleges that his FMLA request was approved on April 1, 2022. Id. ¶ 44. After

Brown’s FMLA application was approved, Kasbaum attempted to require him to use

up his paid time off (“PTO”) before accessing his FMLA. Id. ¶¶ 46–48. Brown

overheard Kasbaum tell Kornfiend that “I’m not letting him work from home, he has

to use his PTO and when that’s exhausted, I will write him up.” Id. ¶ 26(m). In an

email addressed to Kasbaum and Brown, HR indicated that Brown had to be given

FMLA leave prior to leave being deducted from his PTO. Id. at 49–51. Despite this

guidance, Brown alleges that Kasbaum nonetheless reduced his pay, continued to

deny his telework request, and required him to exhaust his PTO. Id. ¶¶ 45–49, 53.

After Brown took FMLA leave, he alleges that Kasbaum met with Kornfiend

and Henderson to devise a plan to terminate him. Id. ¶¶ 47, 48, 53, 56. Brown

overheard Kasbaum say “I don’t want him on my team” and Henderson say “[w]e

have to get him out.” Id. ¶ 50. On April 25, Kasbaum eliminated Brown’s “work flex”

benefit (which allowed him to work from home a limited number of days every week),

and Brown was required to come into the office five days a week. Id. at 39. In May,

Brown alleges that he attempted to apply for another “Planning” position at Ferrara.

Id. ¶ 35. Once again, Brown alleged that Ferrara pre-selected another individual for

the job and failed to hire him in retaliation for his HR complaints. Id. This individual’s

race and sexual orientation is not specified. Id.

On May 24, 2022, Brown filed a charge with the EEOC alleging harassment,

retaliation, and discrimination on the basis of his race and sexual orientation. R. 25

at 34. On May 31, Brown was called into a meeting with HR and Kasbaum and was

“written up” for poor performance. R. 20 ¶ 57–58. During this meeting, Brown alleges

that Kasbaum made an inappropriate comment regarding his sexual orientation by

pointing at a “Gay Pride” flag in the office, stating “oh Ken look at all the nice stuff

they have for you,” and laughing. Id. ¶ 57.

On June 1 and June 3, 2022, Brown was called into another meeting with

Henderson and Kasbaum to address his performance. R. 20 at 65–66 (Exhibit K-1).

At the end of the June 3 meeting, he was suspended pending investigation for

insubordination. Id. He was terminated shortly thereafter. See generally id. Brown

filed an amended charge with the EEOC on June 9, indicating that he had been

terminated after filing his initial charge. R. 25 at 32. The EEOC sent Brown a “Notice

of Right to Sue” authorizing his suit to proceed. Id. at 27. Brown filed the instant suit,

asserting discrimination, hostile work environment, retaliation, and wrongful

termination under Title VII and violations of FMLA. R. 1. He filed an amended

complaint on November 21, 2022. R. 20. Ferrara now moves to dismiss. R. 22.

LEGAL STANDARD

“To survive a motion to dismiss under Rule 12(b)(6), the complaint need

contain only ‘a short and plain statement of the claim showing that the pleader is

entitled to relief.’” Huri v. Off. of the Chief Judge of the Cir. Ct. of Cook Cnty., 804

F.3d 826, 832 (7th Cir. 2015) (quoting Fed. R. Civ. P. 8(a)(2)). At the pleading stage,

“[s]pecific facts are unnecessary.” Id. Rather, the complaint must give the defendant

fair notice of what the claim is and the grounds upon which it rests. Olson v.

Champaign Cnty., 784 F.3d 1093, 1098 (7th Cir. 2015) (citing Erickson v. Pardus, 551

U.S. 89, 93 (2007) (per curiam), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)). Although a claim must be “plausible” to pass muster, Twombly 550 U.S. at

570; Iqbal, 556 U.S. at 678, “[p]lausibility does not mean probability: a court

reviewing a 12(b)(6) motion must ask itself could these things have happened, not

did they happen.” Huri, 804 F.3d at 833 (citation omitted) (emphasis in original).

In Title VII cases such as this one, a complaint need only identify “the type of

discrimination the plaintiff thought occurred,” “by whom,” and “when” in order to

sufficiently state a claim. Id. (citing Swanson v. Citibank, N.A., 614 F.3d 400, 405

(7th Cir. 2010)) (cleaned up). Moreover, where the defendant is proceeding pro se, the

complaint is “to be liberally construed.” Erickson, 551 U.S. at 94. “[A] pro se

complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.” Id.

ANALYSIS

Ferrara’s motion to dismiss pertains solely to Brown’s Title VII claims.

Title VII forbids an employer “to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race . . .

[or] sex . . .” 42 U.S.C. § 2000e-2(a)(1).

Brown alleges several counts under Title VII: workplace harassment due to a

hostile work environment, retaliation, and wrongful termination.2 See generally

R. 20. Ferrara does not dispute that Brown exhausted his administrative remedies

by timely filing an EEOC charge. See generally 42 U.S.C.A. § 2000e-5 et seq.; see also

Gibson v. West, 201 F.3d 990, 993 (7th Cir. 2000) (holding that “a failure to exhaust

administrative remedies” by filing an EEOC charge “is not a jurisdictional flaw” and

is therefore subject to waiver or estoppel).

Instead, Ferrara argues that Brown has failed to state a claim for hostile

workplace environment under Title VII, and that, to the extent that Brown’s

discrimination and retaliation claims are based on failure to hire, they must be

dismissed as improperly pleaded or outside the scope of his amended EEOC charge.

We consider each of these arguments.

I. PLAINTIFF’S HOSTILE WORK ENVIRONMENT CLAIM

Harassment that is “sufficiently severe or pervasive to alter the terms and

conditions of employment” is actionable under Title VII as a claim of hostile work

environment. Cole v. Bd. of Tr. of N. Ill. Univ., 838 F.3d 888, 895–96 (7th Cir. 2016)

(citations omitted). To state a claim for hostile work environment based on race or

sex, Brown must plausibly allege that: (1) he was subject to unwelcome harassment;

(2) the harassment was based on his race or sex; (3) the harassment was severe or

2 Count IV of the amended complaint is styled as “Wrongful Termination and Hostile

Work Environment.” We construe this count as asserting two distinct claims: one for wrongful

termination and one for hostile work environment. See Kakkanathu v. Rohn Indus., Inc., No.

05-1337, 2009 WL 322236, at *3 (C.D. Ill. Feb. 9, 2009) (wrongful termination is “an entirely

different claim” than hostile work environment).

pervasive so as to alter the conditions of his work environment by creating a hostile

or abusive situation; and (4) there is a basis for employer liability. Cooper-Schut v.

Visteon Auto. Sys., 361 F.3d 421, 426 (7th Cir. 2004).

Discrimination on the basis of sexual orientation is a form of sex discrimination

under Title VII. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1746–47 (2020). In

considering allegations of Title VII discrimination that are based on multiple

protected classes—like the race-based and sexual orientation-based discrimination

alleged here—we do not consider the protected classes separately but rather address

the cumulative effect of the claimed discrimination. See White v. Fid. Brokerage

Servs., LLC, No. 19-CV-00582, 2019 WL 6052398, at *4 (N.D. Ill. Nov. 15, 2019)

(citing Masud v. Rohr-Grove Motors, Inc., No. 13 C 6419, 2015 WL 5950712, at *4

(N.D. Ill. Oct. 13, 2015)); accord Shazor v. Prof’l Transit Mgmt., 744 F.3d 948, 958

(6th Cir. 2014) (rejecting separation of hostile work environment by characteristic

and observing “the realities of the workplace, let alone the purpose of Title VII, will

not allow such an artificial approach”); Lam v. Univ. of Haw., 40 F.3d 1551, 1562 (9th

Cir. 1994) (“[W]here two bases for discrimination exist, they cannot be neatly reduced

to distinct components”).

In determining whether a workplace is objectively hostile for the purposes of

Title VII, we must consider “the totality of the circumstances.” Alamo v. Bliss, 864

F.3d 541, 549 (7th Cir. 2017). These include “the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s work

performance.” Harris v. Forklift Sys. Inc., 510 U.S. 17, 23 (1993). The Seventh Circuit

has indicated that there is no “magic number” of instances required to demonstrate

a hostile work environment. Bliss, 864 F.3d at 550 (citation omitted). Both “[a] severe

episode that occurs as rarely as once and a relentless pattern of less harassment both

may violate Title VII.” Id. (quotation marks omitted).

Two Seventh Circuit cases, Huri v. the Office of the Chief Judge of the Circuit

Court of Cook County, and Alamo v. Bliss, illustrate how allegations of hostile work

environment should be addressed at the motion to dismiss stage.

In Huri, a Saudi Arabian Muslim woman alleged that she was subjected to a

hostile work environment based on her nationality and religion. 804 F.3d at 829.

Reversing the district court’s dismissal, the Seventh Circuit emphasized that the

pleading burden in Title VII hostile work environment cases is low—a complaint need

only identify “’the type of discrimination’ that the plaintiff thought occurred, ‘by

whom, . . . and when.’” Id. at 833 (quoting Swanson, 614 F.3d at 405). The plaintiff

was only required to “describe events that could have happened and which discovery

[could] reasonably [be] expected to reveal” in order to plead her case. Id. at 834

(emphasis in original). Allegations that the plaintiff was subjected to “false

allegations, different rules, and greater scrutiny” on account of her religion and

nationality were therefore sufficient. Id. at 830, 834.

In Bliss, a Puerto Rican employee of the Chicago Fire Department alleged that

he was subjected to a hostile work environment based on his race and nationality.

864 F.3d at 545–46. Again reversing the district court’s dismissal, the Seventh Circuit

stressed the need to consider the totality of the circumstances in determining whether

the plaintiff had alleged a hostile work environment. The Seventh Circuit rejected

the argument that so-called “trivial incidents”—like the plaintiff’s food being thrown

out of the fridge or being stolen by co-workers—could not support a hostile work

environment claim because, taken in connection with incidents of more severe

harassment like racial slurs, they were plausibly part of a “multifaceted effort” to

harass the plaintiff. Id. at 550–51.

Bliss and Huri indicate that Brown’s burden at the pleading stage is light.

Brown need only describe the “who,” “what,” and “where” of the harassment he

suffered to prevent dismissal—exhaustive detail is not required. Huri, 804 F.3d at

833. Moreover, if Brown can allege at least one incident of sufficiently severe sex or

race-based harassment, this may be sufficient to support a hostile environment claim

or render other “trivial incidents” actionable under the totality of the circumstances

analysis. Bliss, 864 F.3d at 550–51.

With these principles in mind, we turn now to Brown’s allegations. The

amended complaint alleges that Brown was denied benefits that were provided to

non-African American employees (like phone reimbursement and working from

home) and was assigned tasks outside of his job description. When Brown complained

to HR that this disparate treatment was discriminatory, he was yelled at by his

supervisors, micromanaged, and subjected to increased scrutiny. The amended

complaint details at least four instances of coworkers and supervisors making

comments directed at Brown’s race or his sexual orientation. Brown further alleges

that a fellow employee, John Kornfiend, made unspecified comments toward him

reflecting racial animus, said that he did not like black and gay people, and harassed

him with a gun and knife. When Brown notified his supervisors about this

harassment, they did not address his concerns, made inappropriate comments about

Brown’s sexual orientation, and conspired to terminate him.

Viewing these allegations in the light most favorable to Brown and considering

the liberal construction that we must give his pleadings, we find that they are

sufficient to state a claim for hostile work environment under Title VII.

The key allegation supporting this conclusion is that Kornfiend made

threatening or racially hostile remarks to Brown while carrying a gun and a knife,

and that Ferrara failed to respond. While “[o]ffhand comments, isolated incidents,

and simple teasing do not rise to the level of conduct that ‘alters the terms and

conditions of employment,’ for a hostile work environment claim,” Scruggs v. Garst

Seed Co., 587 F.3d 832, 840-41 (7th Cir. 2009), the fact that Kornfiend made

harassing remarks to Brown while armed with a gun and knife changes the calculus.

Harassing comments made while carrying a weapon in close physical proximity (an

8x8 foot workspace) to the plaintiff are plausibly both “severe” and “physically

threatening.” See Harris, 510 U.S. at 23; see also Gomez v. City of Chi., No. 16 C 7743,

2017 WL 131565, at *4 (N.D. Ill. Jan. 13, 2017) (allegations that coworker acted in a

threatening manner with a knife supported plaintiff’s hostile work environment

claim); Tolbert v. Dave Miller Olds, Inc., No. 98 C 5312, 2000 WL 655958, at *4 (N.D.

Ill. May 19, 2000) (allegations that plaintiff felt threatened by coworker because “he

bragged about carrying a gun and having a license to kill” and because “he had in fact

shown her the gun on one occasion” supported hostile work environment claim).

Moreover, this was not a one-time occurrence—Brown alleges that he was harassed

“daily, in person and online,” and “whenever” Kornfiend came to the office. R. 20 ¶¶

36–37. Brown also asserts that Kornfiend’s actions negatively impacted his work by

creating a “highly stress[ful], scary environment.” R. 25 at 5. Based on these

assertions, Brown has plausibly alleged severe race or sex-based harassment. See

Harris, 510 U.S. at 23

Ferrara raises several arguments in response. First, it argues that Brown’s

allegations regarding Kornfiend’s harassment are conclusory and insufficiently

specific. R. 22 at 4–7. This argument is unpersuasive. Ferrara cites no case law for

the proposition that a plaintiff must specifically allege exactly what was said to him

at the pleading stage. See id. Rather, Huri indicates that alleging “the type of

discrimination the plaintiff thought occurred,” “by whom,” and “when” is sufficient.

804 F.3d at 833; see also Curde v. Xytel Corp., 912 F. Supp. 335, 341 (N.D. Ill. 1995)

(“[T]he fact that [the plaintiff] cannot remember [the defendant’s] exact words or the

timing of several of the alleged incidents is not fatal to her claim.”). Brown has

satisfied this modest burden.

Ferrara also argues that “a reasonable fact finder” would not deem Brown’s

work environment hostile. R. 22 at 5. Perhaps. But “it is premature at the pleadings

stage to conclude just how abusive [a] work environment was.” Huri, 804 F.3d at 834.

The court’s role at this stage is not to speculate as to what a “reasonable fact finder”

would determine, but rather to determine whether the amended complaint has

plausibly stated a claim on which relief may be granted. See id. at 833 (“Plausibility

does not mean probability.”). Here, Brown’s claims of harassment are plausible.

Ferrara cites several cases dismissing hostile work environment claims where

the alleged harassment was insufficiently severe as a matter of law. See R. 22 at 6.

But none of these cases involve allegations of racist or anti-gay remarks directed

toward the plaintiff by an individual who was wielding a weapon. Compare Boniface

v. Westminster Place, No. 18-CV-4596, 2019 WL 479995, at *3 (N.D. Ill. Feb. 7, 2019)

(dismissing hostile environment claim where there were “no specific allegations

suggesting that any conduct was physically threatening or verbally abusive or how it

interfered with her work performance.”); Adam v. Obama for Am., 210 F. Supp. 3d

979, 991 (N.D. Ill. 2016) (dismissing hostile environment claim where plaintiff merely

“alleged that her co-workers and supervisors were mean to her and humiliated her.”);

Triplett v. Starbucks Coffee, No. 10 C 5215, 2011 WL 3165576, at *5–7 (N.D. Ill. July

26, 2011) (dismissing hostile work environment based on store manager’s statement

that “there were not as many black people in Boston, where she was from, as there

were in Chicago.”). We decline to dismiss Brown’s claims based on a lack of severity

at this juncture.

Ferrara also attacks the nexus between the harassment and Brown’s protected

status, arguing that Brown fails to connect the allegation that Kornfiend carried a

gun or a knife to his race or sexual orientation. See R. 22 at 5. To support a hostile

work environment claim, however, Brown “need not show that the complained-of

conduct was explicitly racial” (or sexually discriminatory) but “must show” that the

conduct “had a racial character or purpose” (or sexist character or purpose). Yancick

v. Hanna Steel Corp., 653 F.3d 532, 544 (7th Cir. 2011). Ferrara argues that fact that

Kornfiend carried a gun and knife at work cannot constitute harassment of Brown

because Kornfiend would have carried those items around other employees as well.

R. 22 at 5. This is not a fair reading of the allegations in the amended complaint,

however. The amended complaint does not allege that Kornfiend merely carried a

gun and knife in Brown’s presence, it alleges that Brown “was harassed by []

Kornfiend with a gun and knife,” that Kornfiend made “racial, political, and radical

comments” to Brown, and that Kornfiend stated “that he disliked gays[] and blacks.”

R. 20 ¶¶ 36–37 (emphasis added); R. 25 at 4. Interpreting these allegations in the

light most favorable to Brown indicates that the alleged harassment plausibly had “a

racial character or purpose.” Yancick, 653 F.3d at 544.

Finally, in its reply brief, Ferrara argues that Brown waived arguments

concerning severity and nexus by failing to adequately address them in his response.

R. 30 at 3 (citing Lee v. Ne. Ill. Reg’l Commuter R.R. Corp., 912 F.3d 1049, 1054 (7th

Cir. 2019). But Ferrara expects too much of a pro se litigant. “A pro se plaintiff may

‘simply rest on the assumed truthfulness and liberal construction afforded his

complaint’ and ‘the nonmovant’s lack of response to a motion to dismiss constitutes

no admission of the proponent’s factual assertions.’” Johnson v. Bucky’s Express, No.

19 C 420, 2021 WL 5833976, at *1 (N.D. Ill. Dec. 9, 2021) (quoting Curtis v. Bembenek,

48 F.3d 281, 287 (7th Cir. 1995)). Lee does not help Ferrara because it involved

litigants who, unlike Brown, had retained counsel. See generally 912 F.3d 1049.

Having concluded that Brown has plausibly alleged severe harassment based

on his protected status, Ferrara’s failure to take “prompt and appropriate corrective

action” establishes a basis for employer liability. Cerros v. Steel Techs., Inc., 398 F.3d

944, 954 (7th Cir. 2005) (collecting cases). Brown alleges that his supervisors, as well

as Ferrara’s HR team and safety managers, were notified of Brown’s concerns, but

denied his request to move to a separate workspace and otherwise took no remedial

action. R. 20 ¶ 38. Indeed, Brown alleges that Ferrara actively encouraged the

harassment. Id. ¶ 64. This is a basis for liability under Title VII. See Bliss, 864 F.3d

at 550 (considering allegations that the plaintiff’s supervisor was informed of the

allegations but “did not ameliorate the conditions of [the plaintiff’s workplace”); Huri,

804 F.3d at 830 (alleging that supervisor responded to internal complaints with

further harassment).

Not only does Brown allege that his supervisors failed to act in response to his

complaints of harassment—he alleges that they engaged in harassment of their own

by subjecting Brown to greater scrutiny, micromanaging him, and making

inappropriate comments about his sexual orientation. See Huri, 804 F.3d at 830, 834

(allegations that supervisors implicitly criticized the plaintiff, “subjected her to

greater scrutiny than her coworkers,” and made her suffer “uniquely bad treatment”

were sufficient to state a claim for hostile work environment).

Specifically, Brown alleges that Henderson and Kusbaum told him he should

“act like a man” in response to allegations of discrimination, made jokes about a Gay

Pride flag at his expense, and negatively compared his health issues to a woman going

through menopause. R. 20 ¶¶ 18, 42, 57. On their own, none of these comments would

necessarily be actionable—Title VII does not impose a “general civility code.”

Faragher, 524 U.S. at 788. But, like the “trivial incidents” at issue in Bliss, they must

be considered as part of the greater context of harassment and disparate treatment

that Brown alleges he suffered. See Bliss, 864 F.3d at 550 (quoting Robinson v.

Sappington, 351 F.3d 317, 330 (7th Cir. 2003)) (“[T]he specific circumstances of the

working environment and the relationship between the harassing party and the

harassed . . . bear on whether [the] line is crossed.”).

Ferrara implies that we must consider Brown’s allegations of sex orientation-

based discrimination separately from his allegations of race-based discrimination.

R. 22 at 4–7. But a plaintiff is not required to state separate hostile work environment

claims for each protected characteristic where the alleged harassment targets

multiple characteristics. See White LLC, 2019 WL 6052398, at *4. In Shazor, the

Sixth Circuit recognized that “African American women are subjected to unique

stereotypes that neither African American men nor white women must endure.” 744

F.3d at 958. Similarly, gay African American men conceivably face prejudices that

neither white men nor heterosexual men face.

Ferrara also points to the fact that Henderson was Black to suggest he did not

discriminate against Brown because of his race. R. 22 at 3. But “it would be unwise

to presume as a matter of law that human beings of one definable group will not

discriminate against other members of their group.” Castaneda v. Partida, 430 U.S.

482, 499 (1977). Moreover, Brown has plausibly alleged that Henderson made

disparaging comments about Brown’s sexual orientation, telling him to “act like a

man.” R. 1 ¶ 18.

In sum, we find that Brown’s allegations are sufficient, when considered under

the totality of the circumstances, to plausibly allege that he was subjected to a hostile

work environment on account of his race or sexual orientation, especially considering

Brown’s pro se status and the liberal construction we are obligated to give the

pleadings. Erickson, 551 U.S. at 94. Brown must provide evidence of these allegations

to prevail at summary judgment. “But that question can safely be postponed until

another day.” Huri, 804 F. 3d at 834. We therefore deny Ferrara’s motion to dismiss

with respect to Brown’s hostile work environment claim.

II. PLAINTIFF’S FAILURE-TO-HIRE CLAIM

Next, Ferrara moves to dismiss Counts I and II of the complaint in part to the

extent that they assert a failure-to-hire theory. To state a Title VII claim based on a

failure to hire, a plaintiff must plausibly allege that (1) he is a member of a protected

class, (2) he applied for and was qualified for an open position, (3) despite his

qualifications, he was rejected for the position, and (4) a similarly situated person

outside of his protected class was hired for the position instead, or the position

remained open. Sweatt v. Union Pac. R. Co., 796 F.3d 701, 709 (7th Cir. 2015). In

addition, to establish retaliation, a plaintiff must also allege that the failure to hire

was done in response to the plaintiff engaging in a “protected activity.” See Cichon v.

Exelon Generation Co., 401 F.3d 803, 812 (7th Cir. 2005).

Ferrara raises two arguments in support of partial dismissal. First, Ferrara

argues that Brown fails to state a claim based on failure to hire since there are no

allegations that Brown applied or asked to be hired for the position, or that Ferrara

hired an individual outside of his protected class. R. 22 at 8–10. Second, Ferrara

argues that Brown’s failure to hire theory is outside of the scope of his EEOC charge

and should be dismissed on that basis. Id. at 7–8.

We agree with Ferrara. First, Brown has failed to adequately plead a claim for

failure to hire in the amended complaint. The amended complaint contains just two

potentially relevant allegations concerning failure to hire: (1) that another individual

was preselected for a VMS Distribution Analyst position and Brown was told not to

apply, R. 1 ¶ 26(b); and (2) Brown applied for a “Planning” position and that another

individual was informed she had the job and that her offer would be submitted after

Brown completed his interview. Id. ¶ 35.

With respect to the first incident, Brown does not even allege that he applied

for the VMS Distribution Analyst position, much less that the individual who Ferrara

hired was outside of his protected class. Thus, his allegations are facially insufficient.

With respect to the second incident, while Brown does allege that he applied for the

Planning position, he does not elaborate on his qualifications for the job or allege that

the individual who was ultimately selected for the position was outside of his

protected class. Even viewing these allegations liberally, they are insufficient to state

a prima facie claim based on failure to hire.

Better pleading would not have helped, however. Brown’s failure to hire claims

suffer from an even more fundamental defect: they were not included in his amended

EEOC charge. “Generally a plaintiff may not bring claims under Title VII that were

not originally brought among the charges to the EEOC.” Douglas v. Alfasigma USA,

Inc., No. 19-CV-2272, 2021 WL 2473790, at *16 (N.D. Ill. June 17, 2021) (quoting

Harper v. Godfrey Co., 45 F.3d 143, 147–48 (7th Cir. 1995)). The purpose of this rule

is to “afford an opportunity for the EEOC to settle the dispute between the employee

and employer and put the employer on notice of the charge against it.” Harper, 35

F.3d at 148.

There is a limited exception to this rule; a plaintiff may assert a claim that was

not included in his EEOC charge where the new claim is “like or reasonably related

to the allegations of the charge and growing out of such allegations.” Chaidez v. Ford

Motor Co., 937 F.3d 998, 1004 (7th Cir. 2019) (citation omitted). This standard is only

satisfied if (1) “there is a reasonable relationship between the allegations in the

charge and the claims in the complaint” and (2) “the claim in the complaint can

reasonably be expected to grow out of an EEOC investigation of the allegations in the

charge.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). The charge

and complaint “must, at minimum, describe the same conduct and implicate the same

individuals.” Id. at 501 (emphasis in original).

Here, neither the general rule nor the exception brings Brown’s failure to hire

claims within the scope of his amended EEOC charge. First, Brown’s amended EEOC

charge does not mention that he applied for or wanted to apply for any other positions

at Ferrara and was denied. The charge refers to allegations of harassment,

intimidation, and discrimination, as well as Ferrara’s failure to provide an

accommodation for Brown’s health issues—it does not mention failure to hire. R. 25

at 32.

Nor is Brown’s failure to hire theory reasonably related to the claims set forth

in his amended EEOC charge. Courts in this District have held that “an

administrative charge alleging discriminatory discharge does not imply that

discriminatory failure to promote occurred.” Sutton v. Apple Inc., No. 10-CV-08176,

2011 WL 2550500, at *2 (N.D. Ill. June 23, 2011) (allegations in EEOC charge that

plaintiff had been terminated due to mental disability were not reasonably related to

allegations of failure to promote and failure to hire); Borromeo v. City of Chi., No. 04

C 4078, 2004 WL 2966925, at *3 (N.D. Ill. Nov. 16, 2004) (striking failure to hire

claims not included in EEOC charge). Even construing the charge liberally, we cannot

conclude that it is sufficient to put Ferrara on notice of Brown’s failure to hire claim.

In sum, Brown’s failure to hire claims are clearly outside of the scope of his

EEOC charge and therefore must be dismissed. We therefore dismiss Brown’s failure

to hire claims. Dismissal due to failure to exhaust administrative remedies is

typically without prejudice. See Teal v. Potter, 559 F.3d 687, 693 (7th Cir. 2009). In

this case, however, Brown would have needed to file a charge within three hundred

days after the failure to hire occurred—a time period that has already expired. See 2

USCA § 2000e-5(e)(1). Because more than three hundred days have passed since the

alleged failure to hire, “there is no practical distinction between a dismissal without

prejudice and a dismissal with prejudice.” Brown v. United Airlines, Inc., No. 15 C

2751, 2015 WL 5173646, at *4 (N.D. IIL. Sept. 2, 2015).

CONCLUSION

Defendant Ferrara Candy Company’s motion to dismiss, R. 22, is granted in

part and denied in part. The plaintiffs “failure to hire” claims are dismissed with

prejudice. Ferrara will have 14 days to answer the amended complaint. It is so

ordered. Status hearing set for October 25, 2023, at 9:30 a.m.

Date: 10/5/2023 4 §-

JEREMY C. DANIEL

United States District Judge

22