Opinion

Sutton

Court
District Court, C.D. Illinois
Filed
Aug 3, 2026
Cited by
0 cases
Authority
More cited than 42.1%

The opinion

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

THELMA SUTTON, )

)

Plaintiff, )

)

v. ) No. 3:25-cv-3142

)

CUSHMAN & WAKEFIELD U.S., )

INC., and SECURITAS SECURITY )

SERVICES USA, INC., )

)

Defendant. )

OPINION AND ORDER

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

This cause is before the Court on Defendant Securitas

Security Services USA, Inc.’s (“Defendant”) Motion to Dismiss the

First Amended Complaint (d/e 24) filed by Plaintiff Thelma Sutton

(“Plaintiff”). Plaintiff’s Amended Complaint (d/e 23) states a claim

upon which relief can be granted, so Defendant’s Motion (d/e 24) is

DENIED.

I. BACKGROUND

The following facts are alleged in Plaintiff's Amended

Complaint (d/e 23) and are accepted as true at the motion to

dismiss stage. Bible v. United Student Aid Funds, Inc., 799 F.3d

633, 639 (7th Cir. 2015).

In January 2022, Plaintiff began working as a security guard

for Defendant Securitas. See d/e 23, p. 3, ¶ 16. She was stationed

at a property owned by Cushman & Wakefield, a bank and co-

defendant in this matter, where a male janitor employed by a third-

party repeatedly made sexually explicit comments towards her. Id.

at pp. 3-4, ¶¶ 15, 20-29. The male janitor told Plaintiff that biscuits

and gravy “reminds me of a woman having an orgasm.” Id. at p. 3,

¶ 22. He also made comments to Plaintiff, a black woman, such as,

“I like black women because they are bigger so you can hold on to

their fat asses so I would know how to handle you.” Id. at p. 3, ¶ 26.

He also asked if Plaintiff had ever been with a white man sexually,

frequently talked about his sex life and porn, and repeatedly tried to

isolate Plaintiff in the boiler room or bring her down into the

basement. Id. at p. 4, ¶¶ 27-29. Plaintiff reported the issues to her

manager, Ken.1 Id. at p. 4, ¶ 30.

1 Ken’s last name was not specified.

In March 2022, shortly after Plaintiff reported the male

janitor’s comments to Ken, Ken relocated her to a different facility.

Id. at p. 4, ¶¶ 30-37. Plaintiff repeatedly followed up with Ken about

the male janitor’s comments and her report. Id. at p. 4, ¶ 40.

Plaintiff alleged that Ken eventually stated, “Yeah, that guy was so

out of pocket, and when I discussed your complaint with the bank

owner [of Cushman & Wakefield], he just told me to get rid of you.”

Id. at pp. 4-5, ¶ 40.

In October 2022, Defendant Securitas terminated Plaintiff,

citing lack of work. Id. at p. 5, ¶ 41.

On September 2, 2023, Plaintiff filed a signed Charge of

Discrimination under the Illinois Human Rights Act (“IHRA”) (d/e

25-1).2 On September 7, 2023, the Illinois Department of Human

Resources (“IDHR”) received Plaintiff’s Charge of Discrimination

against Defendant Securitas and cross-filed it under Title VII with

the U.S. Equal Employment Opportunity Commission (“EEOC”). Id.

On July 26, 2024, IDHR notified Plaintiff of the dismissal of

her charge against Defendant Securitas and issued her a Notice of

2 This Opinion addresses the Court’s consideration of extraneous

documents in the analysis section.

Right to Sue. See d/e 23, Ex. B at p. 22. On March 27, 2025, the

EEOC notified Plaintiff of the dismissal of her charge against

Defendant Securitas and issued her Notice of Right to Sue (d/e 25-

3).

On May 15, 2025, Plaintiff’s then-counsel emailed the EEOC

requesting access to the documentation of charges filed with both

the EEOC and the IDHR against Defendant Securitas and Co-

defendant Cushman & Wakefield. See d/e 23, Ex. A at p. 13.

On May 21, 2025, Plaintiff filed a Complaint in this Court

against Defendant Securitas and Co-defendant Cushman &

Wakefield. See d/e 1, p. 1. Plaintiff filed claims for (1) sex-based

discrimination under Title VII, (2) sex-based discrimination under

the IHRA, (3) sex-based harassment under Title VII, (4) sex-based

harassment under the IHRA, (5) retaliation under Title VII, and (6)

retaliation under the IHRA. Id. at p. 1, ¶ 1.

On January 16, 2026, Defendant Securitas filed a Motion to

Dismiss (d/e 17). Magistrate Judge Douglas Quivey granted Plaintiff

leave to amend her Complaint and, on February 3, 2026, she filed

this Amended Complaint. See February 3, 2026 Text Entry; see also

d/e 23. On February 13, 2026, Defendant Securitas filed this

Motion to Dismiss (d/e 24).

Plaintiff alleges causes of action under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title

VII”), and the Illinois Human Rights Act, 775 ILCS 5/ (“IHRA”). See

d/e 23, p. 1, ¶ 1.

As relevant here, Plaintiff alleges that Defendant Securitas

violated Title VII and the IHRA by “intentionally discriminat[ing]

against Plaintiff based on Plaintiff’s sex.” Id. at pp. 5-6, ¶¶ 51, 59.

Plaintiff alleges that she “is a member of a protected class under

Title VII [and the IHRA] due to [her] sex, female.” Id. at p. 5, ¶¶ 52,

60. Plaintiff claims she “was unlawfully terminated because of her

sex,” “was targeted for termination because of her sex,” and

“suffered multiple adverse employment actions including but not

limited to being terminated.” Id. at p. 5, ¶¶ 43, 46-47.

Plaintiff further alleges that she “met or exceeded performance

expectations.” Id. at p. 5, ¶ 42. Plaintiff also claims that she “was

treated less favorably than similarly situated employees outside of

Plaintiff’s protected class.” Id. at p. 6, ¶ 54.

II. JURISDICTION

This Court has subject matter jurisdiction over Plaintiff’s

claims arising under the Title VII of the Civil Rights Act of 1964,

which is a federal statute. See 28 U.S.C. § 1331 (“The district courts

shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.”). The Court has

supplemental jurisdiction over Plaintiff’s claims arising under the

Illinois Human Rights Act pursuant to its supplemental

jurisdiction. See 28 U.S.C. § 1367(a) (A district court with original

jurisdiction of a civil action “shall have supplemental jurisdiction

over all other claims that are so related to claims in the action

within such original jurisdiction that they form part of the same

case or controversy[.]”).

Venue is proper because Defendant Securitas is

headquartered in the Central District of Illinois and because a

substantial part of the events or omissions giving rise to Plaintiff’s

claims occurred in the Central District of Illinois. See 28 U.S.C.

§ 1391(b), see also d/e 23, p. 2-3, ¶¶ 13-15.

III. LEGAL STANDARD

a. The Court May Consider Extraneous Documents Included

with a Motion to Dismiss Without Converting to a Motion

for Summary Judgment under Federal Rule of Civil

Procedure 12(d).

If a motion under Federal Rule of Civil Procedure 12(b)(6)

presents matters outside the pleadings that the court then

considers, then the court is obliged to convert the motion to one for

summary judgment under Rule 56. Fed. R. Civ. P. 12(d). However,

the Seventh Circuit Court of Appeals in Tierney v. Vahle identified a

narrow exception to allow consideration of attachments to a motion

to dismiss under Rule 12(b)(6). Tierney v. Vahle, 304 F.3d 734, 738-

39 (7th Cir. 2002). This Court may consider such attachments

provided they are (1) at least referenced in the pleadings, (2)

indisputably authentic, and (3) central to the plaintiff’s claim. Id.

b. A Failure to Exhaust Administrative Remedies is an

Affirmative Defense that Should be Properly Raised in a

Defendant’s Answer.

A motion to dismiss under Rule 12(b)(6) challenges the

complaint’s sufficiency. Christensen v. Cnty. of Boone, 483 F.3d

454, 458 (7th Cir. 2007). A complaint must contain “a short and

plain statement of the claim showing that the pleader is entitled to

relief” that puts the defendant on notice of the allegations. Fed. R.

Civ. P. 8(a)(2), see also Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.

2002). The Court accepts all well-pled facts alleged and draws all

possible inferences in the plaintiff’s favor. Tamayo v. Blagojevich,

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

The complaint must put forth plausible grounds to

demonstrate a claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007). A plausible claim is one from which the court can

draw reasonable inferences that the defendant is liable for the

misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Additionally, the complaint must raise a reasonable expectation

that discovery will reveal evidence of liability. Twombly, 550 U.S. at

556. A complaint merely reciting a cause of action or conclusory

legal statements is insufficient. Iqbal, 556 U.S. at 678.

Before bringing a Title VII claim, the plaintiff must have first

exhausted administrative remedies by filing a Charge of

Discrimination with the EEOC and subsequently receiving a Notice

of Right to Sue. See 42 U.S.C. §§ 2000e–5(e)(1), (f)(1). This charge-

filing requirement of a Title VII claim is a nonjurisdictional claim-

processing rule, which must only be enforced if a party properly

raises it at the proper time, as in an affirmative defense for failure

to exhaust administrative remedies. Fort Bend Cnty., Texas v.

Davis, 587 U.S. 541, 552 (2019); see also Henderson v. Shinseki,

562 U.S. 428, 435 (2011); see also Massey v. Helman, 196 F.3d

727, 735 (7th Cir. 1999). Failure to exhaust administrative

remedies is an affirmative defense properly brought in a defendant’s

Answer. Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d 527,

533 (7th Cir. 2006).

c. The Pleading Standards for Title VII and IHRA Sex-based

Discrimination Claims are Minimal, and a Plaintiff Must

only Allege that her Employer Instituted an Adverse

Employment Action Against the Plaintiff on the Basis of

her Sex.

To state a claim for sexual discrimination under Title VII, an

employee must allege that the employer discriminated against her

in a hiring decision, discharge, or other adverse employment action

“because of [her] race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e–2(a)(1). The Seventh Circuit has held that there is a

“minimal pleading standard for simple claims of race and sex

discrimination.” Tamayo, 526 F.3d at 1084 (citing E.E.O.C. v.

Concentra Health Services, Inc., 496 F.3d 773, 781-82 (7th Cir.

2007)).

“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.” Tamayo, 526 F.3d at

1084. In the Seventh Circuit, termination is considered an adverse

employment action. Alamo v. Bliss, 864 F.3d 541, 552 (7th Cir.

2017). Furthermore, an employee must only show that her sex was

a motivating factor, not that her sex was the exclusive reason for

the employer’s adverse employment action. Tamayo, 526 F.3d at

1086. “To survive screening or a motion to dismiss, a plaintiff need

only allege enough facts to allow for a plausible inference that the

adverse action suffered was connected to her protected

characteristics.” Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 777

(7th Cir. 2022) (citing Graham v. Bd. of Educ., 8 F.4th 625, 627

(7th Cir. 2021)).

A discrimination claim may be direct or indirect. Silverman v.

Board of Educ. of the City of Chicago, 637 F.3d 729, 733 (7th Cir.

2011). A plaintiff may have an indirect sex-based discrimination

claim if “(1) she is a member of a protected class, (2) her job

performance met [the employer's] legitimate expectations, (3) she

suffered an adverse employment action, and (4) another similarly

situated individual who was not in the protected class was treated

more favorably than the plaintiff.” Burks v. Wisconsin Dep't of

Transportation, 464 F.3d 744, 750–51 (7th Cir. 2006); see also

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973) (the

indirect method requires a “similarly situated” individual with

whom to compare). However, the McDonnell Douglas burden-

shifting framework tests the sufficiency of evidence, not the

sufficiency of a pleading, and is thus unnecessary at this stage.

Kaminski, 23 F.4th at 777.

IV. ANALYSIS

a. The Court Considers the Extraneous Documents Attached

to Defendant Securitas’ Motion to Dismiss Without

Converting to a Motion for Summary Judgment Because

the Extraneous Documents are Referenced in the Pleading,

Indisputably Authentic, and Central to Plaintiff’s Claim.

Defendant attached the following documents as exhibits to the

Motion to Dismiss: the IDHR’s Notice of Dismissal issued to

Plaintiff; Plaintiff’s Charge of Discrimination filed with the IDHR and

the EEOC; and the EEOC’s Notice of Right to Sue issued to Plaintiff.

See d/e 24, see also d/e 25-2; d/e 25-1; d/e 25-3. Since the IDHR’s

Notice of Dismissal was also attached to Plaintiff’s Amended

Complaint, the document is considered incorporated and adopted

as part of the pleading. See Tierney, 304 F.3d at 739; see also d/e

23, Ex. B at p. 22; d/e 25-2. However, the Charge of Discrimination

and the EEOC’s Notice of Right to Sue were not attached to

Plaintiff’s Amended Complaint and are thus considered extraneous

documents. See d/e 25-1; see also d/e 25-3; Fed. R. Civ. P. 12(d).

Typically, the Court is obliged to disregard extraneous documents

attached to a motion to dismiss under Rule 12(b)(6) or else convert

the motion to one for summary judgment. Tierney, 304 F.3d at 738;

Fed. R. Civ. P. 12(d).

However, Defendant argues that the extraneous documents

attached as exhibits to the Motion should be considered by this

Court, without conversion to a motion for summary judgment, due

to an exception in contract law. See 188 LLC v. Trinity Indus., Inc.

300 F.3d 730, 735 (7th Cir. 2002). Defendant argues, quoting 188

LLC v. Trinity Industry, Inc., that “it is well-settled in this circuit

that ‘documents attached to a motion to dismiss are considered

part of the pleadings if they are referred to in the plaintiff’s

complaint and are central to his claim.” Id. (quoting Wright v.

Associated Ins. Companies Inc., 29 F.3d 1244, 1248 (7th Cir.

1994)). However, this exception’s application has almost exclusively

been limited to contract cases. Both 188 LLC and Wright are

contract cases, and the legal theory Defendant attributes to Wright

is originally from Venture Associates v. Zenith Data Systems, 987

F.2d 429, 431 (7th Cir. 1993), another contract case. See 188 LLC,

300 F.3d at 735; see also Wright, 29 F.3d at 1248; see also Venture

Associates, 987 F.2d at 431. This rule is a narrow exception

intended to apply to contracts and not to “grant litigants license to

ignore the distinction between motions to dismiss and motions for

summary judgment.” Levenstein v. Salafsky, 164 F.3d 345, 347 (7th

Cir. 1998). This line of cases does not expand the limited exception

for extraneous documents to apply to cases outside of contract law,

so the Court, therefore, declines to apply the contracts exception to

the case at bar.

Nonetheless, this Court may still consider the extraneous

documents in addressing Defendant’s Motion to Dismiss without

converting the motion to a motion for summary judgment due to the

expansion of the exception in Tierney. See Tierney, 304 F.3d at 739.

The court in Tierney took a step towards both expanding this

exception, as well as marking its boundaries, by explicitly limiting it

to contract cases unless the attachments are (1) at least referenced

in the pleading, (2) indisputably authentic, and (3) central to the

plaintiff’s claim. Id. at 738-39.

The first prong requires that the documents be, at the very

least, referred to in the pleading to avoid either one of parties

lacking notice of the documents or the plaintiff intentionally

declining to attach documents that would prove the claim had no

merit. Id. at 738.

Here, Plaintiff’s Amended Complaint alleges that she filed a

Charge of Discrimination with the EEOC and the IDHR and received

a Notice of Right to Sue from the EEOC for her filed charge. See d/e

23, p. 2, ¶¶ 9-10. Although these references establish that Plaintiff

has had access to these documents at some point in time, and,

therefore, furnish notice, they do not go so far as to insinuate that

Plaintiff’s claim has no merit. As such, the references are sufficient

to satisfy the first prong of the Tierney test.

The second prong of the Tierney test stipulates that the

documents must be indisputably authentic so as not to require

discovery to authenticate or disambiguate them. Tierney, 304 F.3d

at 739.

The Charge of Discrimination and the EEOC’s Notice of Right

to Sue attached to Defendant’s Motion to Dismiss can be considered

indisputably authentic since both documents include IDHR and

EEOC charge numbers identical to those identified on the email

chain submitted by Plaintiff. See d/e 25-1; d/e 25-3; d/e 23, Ex. A

at p. 13. Moreover, the Charge of Discrimination is signed by

Plaintiff, see d/e 25-1, and Plaintiff does not dispute the

authenticity of either document.

The third prong of the Tierney test requires that the

documents must be central to the plaintiff’s claim. Tierney, 304

F.3d at 738. Since the Charge of Discrimination and the EEOC’s

Notice of Right to Sue are the only known record of Plaintiff’s

allegations, they are central to Plaintiff’s claims. See d/e 25-1; d/e

25-3.

In sum, because the documents attached to Defendant’s

Motion to Dismiss satisfy the exception in Tierney, this Court will

consider the documents attached to Defendant’s Motion to Dismiss

without converting to a motion for summary judgment under Rule

56(a).

b. The Court Denies the Motion to Dismiss All Counts for

Failure to Exhaust Administrative Remedies Because a

Motion to Dismiss Is an Inappropriate Motion to Raise

Affirmative Defenses.

In order to file a Title VII claim in federal court, Title VII

requires a plaintiff to first file a Charge of Discrimination with the

EEOC within 300 days of the alleged behavior. 42 U.S.C. §§ 2000e–

5(e)(1), (f)(1). Then, if the EEOC declines to pursue the filed Charge,

the EEOC must issue to the plaintiff a dismissal of the Charge and

Notice of Right to Sue. 42 U.S.C. §§ 2000e–5(f)(1). Upon receipt of

the EEOC notice, the plaintiff then has 90 days to file suit. 42

U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28(e)(1). The process for

filing under the IHRA is identical to the EEOC, except that the

plaintiff has two years to file a Charge of Discrimination, as opposed

to the EEOC’s 300-day rule. 775 ILCS 5/7A-102(A-1)(3)(A); 42

U.S.C. §§ 2000e–5(e)(1), (f)(1).

Defendant’s Motion to Dismiss argues that all six claims in

Plaintiff’s Amended Complaint should be dismissed under Rule

12(b)(6) due to Plaintiff’s alleged failure to timely exhaust

administrative remedies. See d/e 25, p. 4. Defendant argues that

Plaintiff’s Charge of Discrimination was untimely filed with the

EEOC and that Plaintiff’s claims raised under the IHRA were

untimely filed with this Court. See d/e 25, pp. 5-7. Defendant also

argues that Plaintiff failed to exhaust her administrative remedies

by failing to reference her termination in her Charge of

Discrimination. See id. at p. 8.

However, a failure to exhaust administrative remedies

challenge is an affirmative defense, rendering Defendant’s Motion to

Dismiss under Rule 12(b)(6) an inappropriate motion to raise these

challenges. Mosely, 434 F.3d at 533. The charge-filing requirement

of a Title VII claim is a non-jurisdictional claim-processing rule,

which must only be enforced if a party properly raises it at the

proper time. Fort Bend Cnty., Texas, 587 U.S. at 549-52;

Henderson, 562 U.S. at 435. Failure to exhaust administrative

remedies and the timeliness of any charges filed should be brought

as affirmative defenses in the Defendant’s Answer. Massey, 196

F.3d at 735. Therefore, Defendant’s challenges to Plaintiff’s claims

based upon a failure to exhaust administrative remedies are denied.

c. The Court Denies the Motion to Dismiss Counts I and II for

Failure to State a Claim Because Plaintiff Pleads the

Necessary Elements for Title VII and IHRA Sex-Based

Discrimination Claims.

Defendant’s Motion to Dismiss argues that Plaintiff’s claims

for sex-based discrimination under Title VII and the IHRA should be

dismissed for failure to state a claim. See d/e 25, p. 9-10.

Title VII prohibits an employer from taking a discriminatory

adverse employment action against an individual “because of such

individual's race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e–2(a)(1). The Seventh Circuit has held that there is a

“minimal pleading standard for simple claims of race and sex

discrimination.” Tamayo, 526 F.3d at 1084 (citing Concentra, 496

F.3d at 781-82). “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.” Tamayo, 526

F.3d at 1084.

Plaintiff alleges multiple times that she was terminated

because of her gender and the events leading up to her termination,

which are to be taken as true at this stage, support this conclusion.

Tamayo, 526 F.3d at 1081; see also d/e 23 at p. 5, ¶¶ 43, 46. The

minimal pleading standard of a sex-based discrimination claim can

be simplified into three elements: (1) Plaintiff is a member of a

protected class, (2) Plaintiff suffered an adverse employment action,

and (3) that the adverse employment action was because of her

status as a member of a protected class. See Tamayo, 526 F.3d at

1084. Plaintiff alleging that she “is a member of a protected class

under the Title VII due to Plaintiff’s sex, female” satisfies the first

prong of the claim requirement. See d/e 23 at p. 5, ¶ 52. Plaintiff

also satisfies the second prong since termination is considered an

adverse employment action in the Seventh Circuit, and Plaintiff

alleges that, in October 2022, she was terminated after her

manager, Ken, informed her that there were no available posts for

her. Id. at p. 5, ¶ 41; see also Alamo, 864 F.3d at 552.

As such, this Court must only analyze whether Plaintiff

successfully pled that her termination was “because of” her sex

under the third prong of the claim requirement. Under the third

prong requirement, Plaintiff must allege that the adverse

employment action occurred “because of” her status as a member of

a protected class. Tamayo, 526 F.3d at 1084; see also Kaminski, 23

F.4th at 777-78.

Defendant argues that Plaintiff’s Amended Complaint fails to

connect the adverse employment action, her termination, to her

protected status as female. See d/e 25, p. 9-10. Defendant cites

Kaminski for the proposition that a plaintiff alleging employment

discrimination “must describe ‘what facts or circumstances [led] her

to believe her treatment was because of her membership in a

protected class.’” See id. at p. 9 (quoting Kaminski, 23 F.4th at 777-

78 (emphasis in original)). Defendant argues that Plaintiff alleged

that she “was unlawfully terminated because of her sex” without

explicitly elaborating on what led her to believe her termination was

because of her sex. See d/e 25 at p. 10; see also d/e 23 at p. 5, ¶

43. Defendant concludes that, therefore, “[t]he only reasonable

inference from Plaintiff’s allegations is that her termination was

because of workload issues, not discriminatory animus based on

sex.” See d/e 25 at p. 10.

The Seventh Circuit in Kaminski held that “a litigant’s best

shot at stating a plausible employment discrimination claim is to

explain, in a few sentences, how she was aggrieved and what facts

or circumstances [led] her to believe her treatment was because of

her membership in a protected class.” Kaminski, 23 F.4th at 777-

78 (emphasis in original). In other words, the court in Kaminski

specified that this clear-cut explanation is the best way to state a

plausible employment discrimination claim, not the only way. See

id.

In Kaminski, the plaintiff hardly described her termination

except for including a fact that it was due to a company policy. Id.

at 776-77. The plaintiff primarily focused on communications with

the Human Resources department that were in no way connected to

her termination. Id. As a result, the Seventh Circuit held that the

plaintiff had not provided enough facts to lead to a plausible

inference of sex discrimination. Id. at 777-78. The court suggested

that if the plaintiff had, in clear terms, stated why she believed her

treatment was because of her sex, then that explanation would have

satisfied the pleading standard for a sex-based discrimination

claim. Id. However, the plaintiff did not state why she believed her

treatment was because of her gender, nor did she provide enough

facts that would lead a fact finder to make a reasonable inference of

sex-based discrimination. Id.

Here, in contrast, Plaintiff described in detail the events she

alleged were directly related to her termination. Plaintiff recounted

the sexually explicit comments she received from the janitor

working at the same location as her, which included: “[biscuits and

gravy] reminds me of a woman having an orgasm” and “I like black

women because they are bigger so you can hold on to their fat asses

so I would know how to handle you.” d/e 23 at p. 3, ¶¶ 22, 26. He

also asked Plaintiff if she had ever been with a white man sexually,

talked frequently about his sex life and porn, and tried repeatedly to

isolate Plaintiff in the boiler room or bring her down into the

basement. Id. at p. 4, ¶¶ 27-29. Plaintiff then detailed her efforts to

report the behavior to management, her relocation to a different

facility, and her attempts to follow up on her report with

management. Id. at pp. 4-5, ¶¶ 32-33, 37-40. Most importantly,

Plaintiff alleged that Ken eventually admitted, “Yeah, that guy was

so out of pocket, and when I discussed your complaint with the

bank owner, he just told me to get rid of you.” Id. at pp. 4-5, ¶¶ 39-

40. Ken’s statement that he was told to “get rid” of Plaintiff in

response to her report ties her termination to the events included in

her report. Plaintiff also explicitly attributed her termination to her

sex. See id. at p. 5, ¶ 43.

Further, an employee only must show that her gender was a

motivating factor for her termination, not that her sex was the

exclusive reason for the employer’s adverse employment action.

Tamayo, 526 F.3d at 1086. A fact finder could reasonably infer that

Plaintiff’s termination was effectively a punishment for reporting the

janitor. This case is, therefore, distinguishable from Kaminski,

where the plaintiff alleged so few facts related to her termination

that a plausible inference could not be made linking her

termination and her protected status. See Kaminski, 23 F.4th at

777-78.

Plaintiff further alleges that she “met or exceeded performance

expectations” and there were “similarly situated individuals” who

were treated more favorably. See d/e 23 at p. 5, ¶ 42; see also d/e

23 at p. 6, ¶ 54. From these inclusions, an inference can be made

that Plaintiff may employ the indirect method of establishing a sex-

based discrimination claim under the McDonnell Douglas burden-

shifting framework. Because that framework tests the sufficiency of

evidence, not the sufficiency of a pleading, see Kaminski, 23 F.4th

at 777; see also McDonnell Douglas, 411 U.S. at 793, Plaintiff does

not need to allege or prove at this stage that she “met or exceeded

performance expectations” or that there were “similarly situated

individuals” being treated more favorably. Id.

V. CONCLUSION

For the reasons stated, Defendant’s Motion to Dismiss the

First Amended Complaint (d/e 23) is DENIED.

ENTERED: August 3, 2026.

FOR THE COURT:

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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