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