Tamayo, Jeannette v. Blagojevich, Rod R.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2975

JEANNETTE P. T AMAYO ,

Plaintiff-Appellant,

v.

R OD R. B LAGOJEVICH, Governor, B RIAN

H AMER, sued in his individual and

official capacity, A LONZO M ONK, sued

in his individual capacity, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 3151—Samuel Der-Yeghiayan, Judge.

____________

A RGUED JANUARY 24, 2008—D ECIDED M AY 27, 2008

____________

Before P OSNER, R IPPLE and T INDER, Circuit Judges.

R IPPLE, Circuit Judge. Jeannette Tamayo brought this

action under Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq.; the Equal Pay Act, 29 U.S.C.

§ 206 et seq.; and 42 U.S.C. § 1983. The district court

dismissed her complaint for failure to state a claim. See

Fed. R. Civ. P. 12(b)(6). Ms. Tamayo timely appealed. For

the reasons set forth in this opinion, we affirm in part and

reverse in part the judgment of the district court.

2 No. 07-2975

I

BACKGROUND

A.

Because this case comes to us after the district court

dismissed the complaint for failure to state a claim, we

must take as true the facts alleged in Ms. Tamayo’s com-

plaint. Killingsworth v. HSBC Bank Nevada, N.A., 507

F.3d 614, 618 (7th Cir. 2007).

In 1990, in an effort to increase tax and licensing revenue

for the state, the Illinois legislature enacted the Riverboat

Gambling Act, 230 ILCS 10/1 et seq. In addition to legal-

izing riverboat gambling operations within the state, the

Act established the Illinois Gaming Board (“IGB”), a five-

member regulatory and licensing board, whose members

are appointed by the Governor and confirmed by the

Senate. 230 ILCS 10/1. The IGB is charged with regulating,

administering and enforcing the riverboat gambling

system. Id. It operates under the Illinois Department of

Revenue (“IDOR”), an executive agency broadly empow-

ered to oversee the collection of revenue for the state.

Jeannette Tamayo began her work with the IGB in

October 1999, when she was hired as its Deputy Chief

Counsel. Her duties included representing the IGB in

licensing investigations and enforcement matters and

drafting rules for the IGB. Her salary as Deputy Chief

Counsel was $107,000 per year.

The daily work of the IGB is the responsibility of an

Administrator, who is charged with overseeing the

agency’s operations and maintaining the IGB’s records. The

Administrator’s salary is determined by the IGB, but it is

subject to approval by the Director of the IDOR. On July 1,

1999, the IGB appointed Sergio Acosta, a male, as its

No. 07-2975 3

Administrator. Acosta received a salary of $140,000 per

year during his tenure as Administrator. In September

2001, Acosta resigned, and the IGB appointed another

man, Thomas Swoik, to serve as the Interim Administrator.

He also received a salary of $140,000. In November of that

year, the IGB appointed another male Administrator,

Philip Parenti, at a salary of $160,000.

In January 2003, Rod Blagojevich became Governor of

Illinois. A few months later, in June 2003, Parenti resigned

his position as Administrator of the IGB. Soon thereafter,

the IGB appointed Ms. Tamayo as its Interim Administra-

tor. She was the first female ever to hold the position. With

this promotion, Ms. Tamayo was promised a salary of

$160,000 per year, significantly more than she had made

in her previous position as Deputy Chief Counsel.

Almost immediately upon assuming the position of

Interim Administrator, however, Ms. Tamayo began

having significant disagreements with the Governor’s

office and the IDOR. According to Ms. Tamayo, Governor

Blagojevich utilized Alonzo Monk, his Chief of Staff, and

Brian Hamer, the Director of the IDOR, in an attempt to

take control of the operational, budgetary and personnel

decisions of the IGB. Some of their actions allegedly

included: attempting to force the IGB to hire, and to pay

out of its own budget, personnel who actually worked for

the IDOR or the Governor; attempting to assume control

of the IGB’s administrative hearings; interfering with the

established casino bidding process; demanding that the

IGB cease its investigation of certain casinos; demanding

that it release the confidential financial information of

other casinos; and interfering with the IGB’s command

and control personnel structure. Ms. Tamayo made it

known that she objected to these practices; consequently,

4 No. 07-2975

she became quite unpopular with the Governor’s office

and the IDOR. Her complaint alleges that she was warned

twice by Mr. Hamer to cooperate.

Ms. Tamayo also had significant disputes with the IGB

and IDOR regarding her compensation. Despite the fact

that she had been promised an annual salary of $160,000

upon assumption of the Interim Administrator position,

Ms. Tamayo never saw an increase in her paychecks.

During the time that she acted as Interim Administrator,

she continued to be paid at her previous salary of

$107,000 per year. In August 2003, Ms. Tamayo com-

plained to both the IGB and the IDOR that she was not

receiving the correct salary; however, her monthly pay-

checks never increased.

In November and December of 2003, after being paid at

the lower Deputy Chief Council salary rate for a number

of months, Ms. Tamayo advised the IGB that she be-

lieved her lack of compensation was based on the fact

that (1) she was a woman, and (2) she was not cooperating

with the Governor’s office and the IDOR in their at-

tempts to control the IGB. The IGB thereafter attempted to

remedy the situation, but its efforts allegedly were

stymied by the Governor’s office and the IDOR, which

controlled the IGB’s personnel and budget. In March 2004,

the IGB advised Ms. Tamayo to file a discrimination

charge with the EEOC.

On April 6, 2004, Ms. Tamayo took the advice of the IGB

and filed a discrimination charge. The charge named the

IDOR as her employer. It complained that the IDOR had

failed to approve her promised salary increase at least

in part because she was a woman, and it alleged gender-

based discrimination in violation of Title VII. Ms. Tamayo

immediately informed the IGB of her actions.

No. 07-2975 5

On February 24, 2005, Ms. Tamayo publicly testified

before the Illinois House Gaming Committee about the

Governor and the IDOR’s alleged interference with IGB

operations, their alleged misuse of public funds and their

alleged attempts to influence the outcome of licensing

investigations and sales of casinos. In March, after this

testimony, the Governor replaced the entire IGB Board

with new Commissioners. Ms. Tamayo alleges that,

immediately after the new Commissioners were ap-

pointed, she began to be excluded from all meetings and

activities necessary for the proper performance of her

duties as IGB Administrator. On November 4, 2005,

Ms. Tamayo was removed officially from the Administra-

tor position. Her replacement was Mark Ostrowski, a

male, and he was paid substantially more than Ms. Tamayo

had been paid during her time as Administrator.

After her replacement, Ms. Tamayo returned to her

position as Deputy Chief Counsel; however, she was

given routine work assignments, banned from important

IGB meetings, prohibited from working on any licensing

matters and prohibited from attending staff meetings.

In effect, she claims, she was ostracized within the

agency. Accordingly, she resigned her employment on

May 22, 2006; she claims that this resignation constituted

a constructive discharge. On March 29, 2006, Ms.

Tamayo filed a second charge with the EEOC, again

naming the IDOR as the respondent employer, but this

time alleging retaliation in violation of Title VII and the

Equal Pay Act.1

1

Ms. Tamayo received a right-to-sue letter from the EEOC

regarding her first discrimination charge on March 13, 2006.

(continued...)

6 No. 07-2975

B.

On June 8, 2006, Ms. Tamayo filed a complaint in the

United States District Court for the Northern District of

Illinois. The complaint named as defendants the IGB and

the IDOR; it also named Governor Blagojevich, IDOR

Director Hamer and Chief of Staff Monk (“the individual

defendants”) in both their official and their individual

capacities. The defendants filed motions to dismiss on

numerous grounds. On December 22, 2006, the district

court dismissed the claims against the individual defen-

dants in their official capacities with prejudice, and it

dismissed the claims against the individual defendants

in their individual capacities without prejudice.

On January 15, 2007, Ms. Tamayo filed an amended

complaint, the complaint at issue in this appeal. Her

complaint alleged six counts, four naming the IDOR and

the IGB, and two naming the individual defendants.

Against the IDOR and the IGB, she alleged both retalia-

tion and discrimination claims under the Equal Pay Act

and Title VII. Against the individual defendants, she

alleged violations of the First and Fourteenth Amend-

ments, pursuant to 42 U.S.C. § 1983.

After this amended complaint was filed, the individual

defendants moved to dismiss the claims against them

based upon qualified immunity. On May 30, 2007, the

district court granted their motion. In its view, Ms.

Tamayo’s complaint established “that her salary dispute

involved personal animosity between her and the in-

1

(...continued)

She received her right-to-sue letter regarding the second charge

on July 22, 2006.

No. 07-2975 7

dividual defendants rather than animosity based on her

gender”; therefore, she could not succeed on a sex dis-

crimination claim. R.112 at 11. Additionally, the court

concluded that Ms. Tamayo’s complaint had not alleged

facts sufficient to establish a First Amendment claim.

Because her testimony before the state legislature had

been given pursuant to her duties as an employee, and

not as a citizen, her First Amendment claim could not

succeed under Garcetti v. Ceballos, 547 U.S. 410 (2006).

Accordingly, the court dismissed Ms. Tamayo’s claims

against the individual defendants under Federal Rule

of Civil Procedure 12(b)(6).

The IDOR then moved to dismiss the claims against it

on the ground that the complaint showed that the IGB,

not the IDOR, in fact was Ms. Tamayo’s employer. On

May 30, 2007, the district court granted the IDOR’s

motion to dismiss under Rule 12(b)(6) as well. It held that

Ms. Tamayo had pleaded herself out of court by alleging

that she was employed by the IGB, not the IDOR. Addition-

ally, it noted, her allegations established that the IDOR

did not have de facto control over her employment,

and therefore it could not be considered liable as her

indirect employer.

The court then invited the IGB to file a motion to dis-

miss Ms. Tamayo’s remaining claims, citing the recent

Supreme Court ruling in Bell Atlantic Corp. v. Twombly,

127 S. Ct. 1955 (2007). The IGB complied. Its subsequent

motion to dismiss contended that Ms. Tamayo had failed

to allege enough facts to show that the actions taken

against her were motivated by sex discrimination or

retaliation by the IGB, rather than by a political motive.

On July 26, 2007, the district court granted the IGB’s

motion to dismiss the remaining claims. The court con-

8 No. 07-2975

cluded that Ms. Tamayo’s complaint had established that

her problems were a result of a political power struggle

between herself and the Governor’s office, and not a

result of discrimination or retaliation on the part of the

IGB. It also held that her Title VII claims necessarily failed

because she had not properly named the IGB as the

respondent in her EEOC charges, a prerequisite to filing

suit against it.

After dismissing the claims against each named party,

the court entered judgment in favor of the defendants on

July 26, 2007. Ms. Tamayo timely appealed.

II

ANALYSIS

Ms. Tamayo challenges the dismissal of her complaint.

The defendants maintain that Ms. Tamayo’s complaint

is infirm on two general grounds: First, they contend that

she did not plead enough facts regarding her sex discrimi-

nation and First Amendment claims to “plausibly sug-

gest” a right to relief; second, they contend that she alleged

too many facts regarding the actual reasons for her con-

structive discharge and effectively pleaded herself out

of court. For the reasons discussed below, we conclude

that Ms. Tamayo alleged sufficient facts in her complaint

to prevent dismissal of her sex discrimination and re-

taliation claims at this stage. On the other hand, we con-

clude that the district court properly dismissed Ms.

Tamayo’s First Amendment claims against the indi-

vidual defendants. We first address Ms. Tamayo’s claims

involving sex discrimination and retaliation; we then

shall turn to her First Amendment claims.

No. 07-2975 9

A.

We review de novo a district court’s grant of a motion

to dismiss based upon Rule 12(b)(6). McCready v. Ebay,

Inc., 453 F.3d 882, 888 (7th Cir. 2006). A plaintiff’s com-

plaint need only provide a “short and plain statement of

the claim showing that the pleader is entitled to relief,”

sufficient to provide the defendant with “fair notice” of

the claim and its basis. Fed. R. Civ. P. 8(a)(2); Bell Atlantic,

127 S. Ct. at 1964. We construe the complaint in the light

most favorable to the plaintiff, accepting as true all well-

pleaded facts alleged, and drawing all possible inferences

in her favor. Id.; Killingsworth, 507 F.3d at 618.

We previously have stated, on numerous occasions,

that a plaintiff alleging employment discrimination under

Title VII may allege these claims quite generally.2 A

complaint need not “allege all, or any, of the facts logically

entailed by the claim,” and it certainly need not include

evidence. Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir.

1998) (quoting Am. Nurses’ Ass’n v. Illinois, 783 F.2d 716,

727 (7th Cir. 1986)); see also Kolupa v. Roselle Park Dist., 438

F.3d 713, 714 (7th Cir. 2006) (“Federal complaints plead

claims rather than facts.”). Indeed, “[l]itigants are entitled

to discovery before being put to their proof, and treating

the allegations of the complaint as a statement of the

party’s proof leads to windy complaints and defeats the

2

See, e.g., Kolupa v. Roselle Park Dist., 438 F.3d 713, 714 (7th

Cir. 2006) (“[A]ll a complaint in federal court need do to state

a claim for relief is recite that the employer has caused some

concrete injury by holding the worker’s religion against him.”);

Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (“ ’I was

turned down for a job because of my race’ is all a complaint

has to say.”).

10 No. 07-2975

function of [Federal Rule of Civil Procedure] Rule 8.”

Bennett, 153 F.3d at 519.

The defendants submit that the Supreme Court’s recent

decision in Bell Atlantic, 127 S. Ct. 1955, dramatically

altered the earlier legal landscape. In Bell Atlantic, con-

sumers brought a lawsuit against local telephone and

internet exchange carriers, alleging that these companies

had entered into a conspiracy to violate the antitrust laws.

The plaintiffs’ complaint alleged facts showing that the

companies had engaged in parallel conduct. The com-

plaint then simply asserted that, “upon information and

belief,” the defendants had “entered into a contract,

combination or conspiracy to prevent competitive entry

in their respective local telephone and/or high speed

internet services markets.” Id. at 1962-63. The United States

District Court for the Southern District of New York

dismissed the complaint according to Rule 12(b)(6), noting

that the facts in the complaint suggested only that the

companies were engaged in parallel conduct—the com-

plaint failed to allege any facts suggesting the existence

of an agreement. Id. at 1963. The district court noted that

parallel conduct alone is no more indicative of a con-

spiracy than it is indicative of sound business practices.

Id. Therefore, the court concluded that the complaint

had not alleged sufficient facts to survive a 12(b)(6) mo-

tion to dismiss. Id.

The Second Circuit reversed. Relying on Conley v. Gibson,

355 U.S. 41, 47 (1957), it held that a complaint need not

specifically allege any of the antitrust “plus factors,”

because “to rule that allegations of parallel anticompetitive

conduct fail to support a plausible conspiracy claim, a

court would have to conclude that there is no set of facts

that would permit a plaintiff to demonstrate that the

No. 07-2975 11

particular parallelism asserted was the product of col-

lusion rather than coincidence.” Bell Atlantic, 127 S. Ct. at

1963 (quoting Twombly v. Bell Atl. Corp., 425 F.3d 99, 114 (2d

Cir. 2005)). Under the Supreme Court’s holding in

Conley, the Second Circuit concluded, mere allegations

of parallel conduct sufficed to prevent dismissal at this

stage. Id.

The Supreme Court granted certiorari in Bell Atlantic “to

address the proper standard for pleading an antitrust

conspiracy through allegations of parallel conduct.” Id.

The Court acknowledged that, under its prior Conley

precedent, the complaint had alleged sufficient facts to

survive Rule 12(b)(6) dismissal. Nevertheless, the Court

reversed the Second Circuit’s ruling. Its opinion expressly

disavowed the oft-quoted Conley standard that “a com-

plaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which

would entitle him to relief.” Bell Atlantic, 127 S. Ct. at

1968 (quoting Conley, 355 U.S. at 45-46). Instead, it held

that allegations of parallel business conduct, along with

a bare assertion of conspiracy, are not sufficient to state

a claim under the Sherman Act. Id. To survive dismissal,

the Court concluded, the complaint must allege enough

factual matter which, if taken as true, would suggest that

an agreement had been made. Id. at 1965. Allegations of

parallel conduct with an assertion of conspiracy “gets the

complaint close to stating a claim, but without some fur-

ther factual enhancement it stops short of the line be-

tween possibility and plausibility of entitlement to relief.”

Id. at 1966 (internal quotation marks omitted).

Since Bell Atlantic, we cautiously have attempted neither

to over-read nor to under-read its holding. We have

12 No. 07-2975

stated that the Supreme Court in Bell Atlantic “retooled

federal pleading standards,” and retired “the oft-quoted

Conley formulation.” Killingsworth, 507 F.3d at 618-19

(quoting Bell Atlantic, 127 S. Ct. at 1968 (quoting Conley, 355

U.S. at 45-46)). We also have cautioned, however, that

Bell Atlantic “must not be overread.” Limestone Dev. Corp.

v. Vill. of Lemont, Ill., ___ F.3d ___, No. 07-1438, 2008

WL 852586, at *5 (7th Cir. 2008). Although the opinion

contains some language that could be read to suggest

otherwise, the Court in Bell Atlantic made clear that it

did not, in fact, supplant the basic notice-pleading stan-

dard. Bell Atlantic, 127 S. Ct. at 1973 n.14 (expressly dis-

claiming the establishment of any “heightened pleading

standard”); see also Lang v. TCF Nat’l Bank, No. 07-1415,

2007 WL 2752360, at *2 (7th Cir., Sept. 21, 2007) (noting

that notice-pleading is still all that is required); Limestone,

2008 WL 852586, at *5 (same). A plaintiff still must pro-

vide only “enough detail to give the defendant fair

notice of what the claim is and the grounds upon which

it rests, and, through his allegations, show that it is plausi-

ble, rather than merely speculative, that he is entitled

to relief.” Lang, 2007 WL 2752360, at *2 (citing Bell Atlantic,

127 S. Ct. at 1964) (internal quotation marks and ellipses

omitted).

The task of applying Bell Atlantic to the different types

of cases that come before us continues. In each context,

we must determine what allegations are necessary to

show that recovery is “plausible.” See Limestone, 2008 WL

852586, at *5 (noting that specific requirements “will

depend on the type of case”). For complaints involving

complex litigation—for example, antitrust or RICO

claims—a fuller set of factual allegations may be neces-

sary to show that relief is plausible. Id. The Court in Bell

No. 07-2975 13

Atlantic wished to avoid the “in terrorem” effect of allow-

ing a plaintiff with a “largely groundless claim” to force

defendants into either costly discovery or an increased

settlement value. 127 S. Ct. at 1965-66; see also Blue Chip

Stamps v. Manor Drug Stores, 421 U.S. 723, 741 (1975).

Therefore, we have explained, “[i]f discovery is likely to

be more than usually costly, the complaint must include

as much factual detail and argument as may be required

to show that the plaintiff has a plausible claim.” Lime-

stone, 2008 WL 852586, at *5.

In Equal Employment Opportunity Commission v. Concentra

Health Services, Inc., 496 F.3d 773 (7th Cir. 2007), a case

decided shortly after Bell Atlantic, we were asked to

determine the minimum pleading requirements in the

Title VII context. There, an employee alleged that he

had been discharged from his employment in violation of

the retaliation provisions of Title VII. The complaint

asserted that the employee had been fired after re-

porting that his boss was having a sexual relationship

with another subordinate and, as a result of that rela-

tionship, was favoring her in the workplace. The com-

plaint did not allege that the employee had objected to

his boss’ conduct because he believed that it was

quid-pro-quo sexual harassment; instead, the complaint

alleged that the employee had reported his boss for

“favoring a paramour.” Id. at 777. Because employees

are protected against retaliation only when they rea-

sonably believe that the activities they oppose violate

Title VII, and because favoring a paramour in the work-

place, absent some quid-pro-quo relationship, does not

constitute a violation of Title VII, the employee’s subse-

quent report was not protected conduct. Id. at 775. Accord-

ingly, the district court dismissed the complaint for

14 No. 07-2975

failure to state a claim. Id. It noted that the facts alleged,

although not logically foreclosing the possibility that some

other aspect of the employee’s report may have been

covered under Title VII, did not themselves suggest that

a violation of Title VII had occurred. Id. at 775, 777. On

appeal we noted, in dicta, that this dismissal “was

probably correct,” because the plaintiff’s actions were

“logically consistent with the possibility that the affair

was caused by quid-pro-quo sexual harassment, but

[did] not suggest that possibility any more than money

changing hands suggests robbery.” Id. at 777.

The plaintiff then filed an amended complaint, almost

identical to the first complaint, but omitting any facts

describing the content of the employee’s report. Instead,

it summarily asserted that the defendant had violated

Title VII by “retaliating against [the employee] after he

opposed conduct in the workplace that he objectively

and reasonably believed in good faith violated Title VII.”

Id. at 776. Simply removing unfavorable facts, however,

did not save the plaintiff’s claim. The district court dis-

missed the complaint again, this time because it alleged

too few facts rather than too many. The court noted that

the amended complaint offered only conclusory allega-

tions, and it failed to provide the defendants with suf-

ficient notice of the nature of the claim. Id. We affirmed,

concluding that a general allegation of retaliation for

reporting some unspecified act of discrimination did not

provide the necessary notice to the defendant so that it

could begin investigating and defending against the

claim. Id. at 781.

In Concentra, we described the Supreme Court’s Bell

Atlantic opinion as establishing “two easy-to-clear hurdles”

for a complaint in federal court:

No. 07-2975 15

First, the complaint must describe the claim in suffi-

cient detail to give the defendant fair notice of what

the claim is and the grounds upon which it rests.

Second, its allegations must plausibly suggest that the

plaintiff has a right to relief, raising that possibility

above a “speculative level”; if they do not, the plain-

tiff pleads itself out of court.

Id. at 776 (internal citations and quotation marks omitted).

We further explained that, after Bell Atlantic, it is no

longer sufficient for a complaint “to avoid foreclosing

possible bases for relief; it must actually suggest that

the plaintiff has a right to relief, by providing allega-

tions that raise a right to relief above the speculative

level.” Id. (citing Bell Atlantic, 127 S. Ct. at 1968-69, 1965).

Acknowledging that a complaint must contain some-

thing more than a general recitation of the elements of

the claim, however, we nevertheless reaffirmed the mini-

mal pleading standard for simple claims of race or sex

discrimination. Concentra, 496 F.3d at 781-82. Reaffirming

our prior holdings in Bennett, 153 F.3d at 518, and Kolupa,

438 F.3d at 714, we noted:

[O]nce a plaintiff alleging illegal discrimination

has clarified that it is on the basis of her race, there is no

further information that is both easy to provide and of

clear critical importance to the claim. Requiring a more

detailed complaint in Bennett would have replicated the

inefficient chase for facts decried in Bennett and

Dioguardi.

Concentra, 496 F.3d at 781-82. Even after Bell Atlantic,

Concentra affirmed our previous holdings that, in order

to prevent dismissal under Rule 12(b)(6), a complaint

alleging sex discrimination need only aver that the em-

16 No. 07-2975

ployer instituted a (specified) adverse employment action

against the plaintiff on the basis of her sex.

Additionally, Bell Atlantic’s explicit praise of Form 9 of

the Federal Rules of Civil Procedure illustrates that

conclusory statements are not barred entirely from fed-

eral pleadings. The Court noted that a complaint of negli-

gence in compliance with Form 9 provides sufficient notice

to defendants, even though it alleges only that the defen-

dant, on a specified date, “negligently drove a motor

vehicle against plaintiff who was then crossing [an iden-

tified] highway.” Bell Atlantic, 127 S. Ct. at 1977; see also

Iqbal v. Hasty, 490 F.3d 143, 156 (2d Cir. 2007). To sur-

vive dismissal at this stage, the complaint need not state

the respects in which the defendant was alleged to be

negligent (i.e., driving too fast, driving drunk, etc.),

although such specificity certainly would be required at

the summary judgment stage. Bell Atlantic, 127 S. Ct. at

1977; Iqbal, 490 F.3d at 156. In these types of cases, the

complaint merely needs to give the defendant sufficient

notice to enable him to begin to investigate and prepare

a defense.

With this precedent in mind, we conclude that Ms.

Tamayo’s complaint included enough facts in support of

a claim of sex discrimination under Title VII and the

Equal Pay Act to survive dismissal at this stage of the

proceedings. She alleged that she is a female. R.76 at ¶4.

She alleged facts regarding her promised and actual

salary, as well as the salaries of other similarly situated

male employees. Id. at ¶¶16-21, 71-74. She stated her

belief that she was paid less than the similarly situated

male employees both “because she was a woman and

because she was ‘not cooperating’ with the Governor’s

Office and the IDOR in their attempts to control the IGB.”

No. 07-2975 17

Id. at ¶34 (emphasis added). She further alleged that

she “has been subjected to adverse employment actions

by Defendants on account of her gender,” id. at ¶83, and

she listed specific adverse employment actions. She

stated that “Defendants have treated Plaintiff differently

than similarly situated male employees and exhibited

discriminatory treatment against Plaintiff in the terms

and conditions of her employment on account of Plain-

tiff’s gender.” Id. at ¶85. Finally, she stated that she

filed two EEOC charges alleging sex discrimination and

that she was issued a right-to-sue notice. Id. at ¶¶10-11.

These facts certainly provide the defendants with suf-

ficient notice to begin to investigate and defend against her

claim. As we explained in Concentra, it is difficult to

see what more Ms. Tamayo could have alleged, with-

out pleading evidence, to support her claim that she

was discriminated against based—at least in part—on her

sex.

Similarly, we conclude that Ms. Tamayo’s complaint

alleged enough facts to state a claim for retaliation. She

alleged that she had performed her job satisfactorily at all

times. R.76 at ¶82. She stated that she filed two EEOC

charges alleging sex discrimination and that she was

issued a right-to-sue notice. Id. at ¶¶10-11. She then

alleged: “Since Plaintiff began to complain about her

lack of equal pay and filing her charge of discrimination

with the EEOC, Plaintiff has been subjected to adverse

employment actions by Defendants in retaliation for her

complaints.” Id. at ¶78; see also id. at ¶90 (an almost identi-

cal statement, substituting “complain about the sexual

discrimination she was experiencing” for “complain

about her lack of equal pay”). The complaint then listed a

number of specific adverse employment actions. The

18 No. 07-2975

defendants were put on notice about the nature of the

claims; and, unlike in Concentra, Ms. Tamayo did not

attempt to obfuscate the facts to avoid dismissal. The

allegations in her complaint were sufficient to state a

claim of retaliation under the notice-pleading standard

outlined in Bell Atlantic and Concentra.

Finally, we conclude that Ms. Tamayo has alleged

sufficient facts regarding her section 1983 sex discrimina-

tion claim to survive dismissal at this stage. In addition

to the above-mentioned allegations, she specified that

“Defendants Blagojevich, Hamer and Monk treated

Plaintiff less favorably than such similarly-situated male

employees on account of her gender.” Id. at ¶97. Despite

the individual defendants’ contention that Ms. Tamayo

failed to allege that they personally had violated her

rights, the complaint further alleged that the individual

defendants “intentionally engaged in a course of conduct

to prevent Plaintiff from being paid the $160,000 per

year that Plaintiff was told that she would receive.” Id. at

¶98. Drawing all inferences in Ms. Tamayo’s favor,

these allegations are sufficient to state a claim of sex

discrimination under section 1983.

B.

Having determined that Ms. Tamayo pleaded sufficient

facts to state a claim of discrimination, we must now

decide whether she effectively pleaded herself out of court

by also including in her complaint additional facts that

suggest that the defendants’ actions were motivated by

a political power struggle rather than by gender-based

animus.

Our case law recognizes that a party may plead itself

out of court by pleading facts that establish an impenetra-

No. 07-2975 19

ble defense to its claims. Massey v. Merrill Lynch & Co.,

464 F.3d 642, 650 (7th Cir. 2006). A plaintiff “pleads him-

self out of court when it would be necessary to contra-

dict the complaint in order to prevail on the merits.”

Kolupa, 438 F.3d at 715. If the plaintiff voluntarily pro-

vides unnecessary facts in her complaint, the defendant

may use those facts to demonstrate that she is not

entitled to relief. McCready, 453 F.3d at 888; Jackson v.

Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995).

The district court concluded that Ms. Tamayo pleaded

herself out of court by filling twenty-two pages of her

complaint with facts showing the political motivations

behind her low pay and constructive discharge. The

defendants submit that the district court was correct. They

rely upon Bell Atlantic’s statements that a plaintiff must

do more than avoid foreclosing possible bases for relief

in her complaint; she must also show that relief actually

is plausible. See Bell Atlantic, 127 S. Ct. at 1965, 1968-69. In

the defendants’ view, when Ms. Tamayo voluntarily

alleged facts that suggested her ill treatment was for

some other, non-discriminatory reason, her pleading

burden effectively increased; she then should have

alleged additional facts to suggest that her sex discrim-

ination theory was not mere speculation.

Ms. Tamayo undoubtedly did allege a number of facts

in support of her First Amendment claim that tend to

suggest an alternative, non-gender-related motivation

for the defendants’ actions; however, this alternative is

not mutually exclusive with sex discrimination. Unlike

20 No. 07-2975

the plaintiffs in Massey, 464 F.3d at 650,3 Ms. Tamayo does

not allege any facts that establish an “impenetrable

defense” to her sex discrimination claim; she merely

alleges facts that ultimately make her success on the

merits less likely. Recovery is still plausible under her

complaint.

Although our pleading rules do not tolerate factual

inconsistencies in a complaint, they do permit incon-

sistencies in legal theories. See, e.g., Cleveland v. Policy

Mgmt. Sys. Corp., 526 U.S. 795, 805 (1999). To succeed in

a Title VII discrimination action, an employee need not

show that her sex was the exclusive reason for her em-

ployer’s actions. She must prove only that sex was a

motivating factor. Hossack v. Floor Covering Assocs. of Joliet,

492 F.3d 853, 860 (7th Cir. 2007); Bellaver v. Quanex Corp.,

200 F.3d 485, 492 (7th Cir. 2000). Although the defendants

ultimately may be able to prove that they would have

engaged in the same conduct based on their political

disagreements with Ms. Tamayo, it is not implausible

that Ms. Tamayo’s sex also was a motivating factor in

their behavior. The complaint certainly shows that the

defendants were upset with Ms. Tamayo’s failure to

cooperate with their policies; however, it leaves open

the possibility that, had she been a non-cooperative

male, they would not have reacted by blocking her

3

The plaintiffs in Massey alleged fraud in a direct, not deriva-

tive, lawsuit. Their complaint, however, plainly stated that

the allegedly fraudulent representations were made to the

corporation itself, not to the plaintiffs as individual share-

holders. Accordingly, the facts alleged in the complaint made

recovery in a non-derivative shareholder action impossible.

See Massey v. Merrill Lynch & Co., 464 F.3d 642, 650 (7th Cir.

2006).

No. 07-2975 21

salary increase or ostracizing her in the office. Such a

contention may be difficult for Ms. Tamayo to prove;

however, that is a question to be confronted later in

the litigation when the plaintiff is put to her proof.

C.

We next must address the district court’s alternative

ground for dismissing Ms. Tamayo’s claims against the

IDOR and the IGB: that Ms. Tamayo’s complaint failed

for want of an employer. Title VII and the Equal Pay

Act impose liability upon the complaining employee’s

“employer.” 42 U.S.C. § 2000e-2(a); 29 U.S.C. § 206(d)(1).

The IDOR contends that it cannot be held liable because

Ms. Tamayo’s complaint alleged that the IGB, and not

the IDOR, was her employer. Conversely, the IGB asserts

that it cannot be held liable because Ms. Tamayo named

the IDOR, and not the IGB, as her employer in her

EEOC charges. Filing an EEOC charge against the de-

fendant is, the IGB notes, a prerequisite to suit under Title

VII. The district court agreed with both the IDOR and

the IGB and granted both defendants’ motions to dismiss.

We first address the IDOR’s assertion that it cannot be

considered Ms. Tamayo’s employer because the IGB, and

not the IDOR, actually employed Ms. Tamayo. The IDOR

is correct that the complaint alleges that the IGB hired,

promoted, demoted and ultimately constructively dis-

charged Ms. Tamayo. Nevertheless, the complaint also

asserts that the IDOR, not the IGB, controlled her com-

pensation. Consistent with the Riverboat Gambling Act,

the complaint states that the salary of the Administrator

was “determined by the IGB and approved by the Director of

the IDOR.” R.76 at ¶15 (emphasis added); see also 230 ILCS

22 No. 07-2975

10/5(a)(9). Furthermore, it alleges that the IDOR in fact

exercised control over Ms. Tamayo’s salary by refusing

to authorize her promised raise. Ms. Tamayo’s salary is

the subject of her Equal Pay Act claim, as well as one of

the adverse employment actions alleged in her Title VII

claim, and the complaint alleges that the IDOR exercised

control over this highly significant aspect of her employ-

ment.

The IDOR also is alleged to have exercised at least

some control over the IGB’s personnel decisions. Ms.

Tamayo’s complaint states that the IDOR “sought to

require the IGB to hire outside counsel,” R.76 at ¶25, and

“sought to cause the IGB to lay off five employees,” id. at

¶29. Additionally, she alleges that Mr. Hamer, the Di-

rector of the IDOR, “asked her how she, ‘as my em-

ployee and being paid by us,’ would handle his request

to discontinue the Isle of Capri investigation.” Id. at ¶54.

Finally, the complaint asserts that the IGB advised

Ms. Tamayo to file an EEOC charge against the IDOR,

informing her that it could not do anything to help her

because the IDOR “was controlling the personnel and

budget.” Id. at ¶45. Such allegations, if true, suggest that

the IDOR functioned as Ms. Tamayo’s employer for the

purposes of Title VII and the Equal Pay Act.

Despite these allegations, the defendants contend that

Ms. Tamayo’s complaint also alleges facts that conclu-

sively show the IDOR was not her employer. They point

to her statements, made to Mr. Hamer and others, that

the IDOR’s attempts to control the IGB were improper;

they also highlight the fact that she “told Hamer that the

IGB was an independent agency under the law and that

she reported to the IGB and not Hamer, IDOR or the

Governor’s Office.” Id. at ¶38. Particularly at this stage of

No. 07-2975 23

the proceedings, however, the defendants’ contention is

without merit. Certainly, Ms. Tamayo has made clear

her belief that the IDOR and the Governor’s Office should

not have exercised any control over her employment.

However, her statements that the IDOR should not con-

trol the IGB do not preclude the possibility of her other

allegation: that the IDOR did in fact control the IGB’s

personnel decisions. Similarly, her assertion that the

IGB was an independent agency, id. at ¶56, is neither

conclusive nor an admission that the IDOR was not also

her employer for the purposes of Title VII and the Equal

Pay Act.

The Equal Pay Act defines an “employer” as including

“any person acting directly or indirectly in the interest

of an employer in relation to an employee and includes a

public agency.” 29 U.S.C. § 203(d). Title VII defines

“employer” as “a person engaged in an industry af-

fecting commerce who has fifteen or more employees

for each working day in each of twenty or more

calendar weeks in the current or preceding calendar

year, and any agent of such a person.” 42 U.S.C. § 2000e(b).

The Equal Pay Act expressly contemplates that an

employee may have multiple employers. See 29 U.S.C.

§ 203(d). We have also held that multiple entities may

be considered an employee’s “employer” for the pur-

poses of Title VII liability. Worth v. Tyer, 276 F.3d 249, 259

(7th Cir. 2001) (noting that “any of the Affiliates that

possibly maintained an employment relationship with

Worth may be named as a defendant under Title VII”).

Although we no longer apply the “integrated enterprise”

test in Title VII cases, id. at 260, we explained in Worth that

an affiliated corporation nevertheless may be considered

an employer under Title VII, in addition to the direct

24 No. 07-2975

employer, if the affiliate “directed the discriminatory

act, practice, or policy of which the employee is com-

plaining.” Id. at 260; see also Papa v. Katy Indus., Inc., 166

F.3d 937, 941 (7th Cir. 1999) (looking to whether the

parent corporation had “directed the discriminatory

act”); EEOC v. Illinois, 69 F.3d 167, 169 (7th Cir. 1995)

(acknowledging that a defendant may be a “de facto or

indirect employer” of the plaintiff so far as it “controlled

the plaintiff’s employment relationship”). In Heinemeier

v. Chemetco, Inc., 246 F.3d 1078, 1080, 1083 (7th Cir. 2001),

we held that a plaintiff had presented a question of fact

as to whether a party was her employer by submitting

evidence that the party determined her salary, even

though another entity determined the other aspects of

her employment. We explained that courts must look to

the “economic realities” of the employment relationship,

as well as “the degree of control the employer exercises,”

to determine whether an entity may be considered

an employer for the purposes of Title VII liability. Id. at

1082-83; see also Little v. Ill. Dep’t of Revenue, 369 F.3d 1007,

1008-09 (7th Cir. 2004) (noting that an employee

who worked for the IGB was, for the purposes of Title

VII, also an employee of the IDOR).

The IDOR does not dispute that multiple entities may

be considered an employer under Title VII and the

Equal Pay Act. Instead, it contends that Ms. Tamayo’s

complaint failed to allege that the IDOR exerted sufficient

control over her conditions of employment to be consid-

ered an employer. It relies upon Carver v. Sheriff of LaSalle

County, Ill., 243 F.3d 379, 382 (7th Cir. 2001), for the propo-

sition that control over the budget alone does not amount

to “control” in an employment sense. This case is distin-

guishable, however, because the alleged adverse em-

No. 07-2975 25

ployment action at issue in Carver was termination of

employment, not unequal pay. Here, Ms. Tamayo alleges

that the IDOR controlled her salary—the basis of her

alleged adverse employment action—as well as a num-

ber of other personnel decisions of the IGB. These allega-

tions are more than sufficient to avoid dismissal of the

IDOR as a defendant at this stage of the proceedings.

Having concluded that the IDOR is a proper defendant

in this lawsuit, we now turn to the IGB. The district court

concluded that Ms. Tamayo’s claims against the IGB

were improper because she failed to exhaust her adminis-

trative remedies against it. Ordinarily, a party not named

as the respondent in an EEOC charge may not be sued

under Title VII. Olsen v. Marshall & Ilsley Corp., 267 F.3d

597, 604 (7th Cir. 2001); Schnellbaecher v. Baskin Clothing

Co., 887 F.2d 124, 126 (7th Cir. 1989). Ms. Tamayo named

only the IDOR as the “respondent” in her EEOC filings;

therefore, the district court concluded that only the IDOR

was put on notice of her complaints, and only the IDOR

could be sued as her employer.

The requirement that a party be named in the EEOC

charge is not jurisdictional, and it is subject to defenses

such as waiver and estoppel. Olsen, 267 F.3d at 604;

Schnellbaecher, 887 F.2d at 126. The purpose of requiring the

complaint to match the EEOC charge is to “give[] the

employer some warning of the conduct about which the

employee is aggrieved and afford[] the EEOC and the

employer an opportunity to attempt conciliation

without resort to the courts.” Ezell v. Potter, 400 F.3d

1041, 1046 (7th Cir. 2005). Therefore, we have recognized

an exception to the rule “where an unnamed party has

been provided with adequate notice of the charge,

under circumstances where the party has been given the

26 No. 07-2975

opportunity to participate in conciliation proceedings.”

Schnellbaecher, 887 F.2d at 126.

Ms. Tamayo contends that the IGB was on notice of her

charge, and therefore she should be allowed to proceed

in her claims against it. First, Ms. Tamayo submits that

she indicated in her charge questionnaire that she was

employed by the IGB, placing it on notice of the charge.

Under Title VII, however, “it is the charge rather than

the questionnaire that matters.” Novitsky v. Am. Consulting

Eng’rs, 196 F.3d 699, 702 (7th Cir. 1999); see also 42 U.S.C.

§ 2000e-5(b). Assertions in the questionnaire, without

more, are not enough to put the IGB on notice that it

was being charged. Second, Ms. Tamayo invites our

attention to the allegation in her complaint that she

“immediately advised the IGB” upon filing her charge

with the EEOC. R.76 at ¶46. Although Ms. Tamayo may

have notified the IGB that an EEOC charge had been

filed against someone, however, her complaint does not

allege that she notified the IGB that a charge had been

filed against it. Indeed, the circumstances alleged in

Ms. Tamayo’s complaint indicate that the IGB was not on

notice that it was being charged because the IGB had

encouraged her to file a charge against the IDOR to

recover her salary. Id. at ¶45. This lack of notice defeats

her claim against the IGB here. See Schnellbaecher, 887

F.2d at 127 (“Although HSSI had notice of the charges

against Baskin, it did not thereby have any notice of any

charges against it, nor did it have an opportunity to

conciliate on its own behalf.”).

Accordingly, we conclude that the district court properly

dismissed Ms. Tamayo’s Title VII claims against the IGB

for failure to exhaust administrative remedies. Never-

theless, because the Equal Pay Act does not require that

No. 07-2975 27

a plaintiff first submit a charge with the EEOC, Ledbetter

v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162, 2176

(2007), she may proceed against the IGB on those claims.

Additionally, as the IDOR properly was named as a

defendant in this case, she may receive from it any relief

to which she is entitled.

D.

We now turn to Ms. Tamayo’s claims against the indi-

vidual defendants. Governmental actors performing

discretionary functions are “shielded from liability for

civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.” Sallenger

v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). In Saucier v. Katz,

533 U.S. 194, 201 (2001), the Supreme Court articulated a

two-part test for determining whether an actor is en-

titled to qualified immunity: (1) “Taken in the light most

favorable to the party asserting the injury, do the facts

alleged show the officer’s conduct violated a constitu-

tional right?” (2) “[I]f a violation could be made out on a

favorable view of the parties’ submissions, the next,

sequential step is to ask whether the right was clearly

established.” Id. If either of these prongs is not

satisfied, then the individual is entitled to qualified im-

munity.

The district court concluded, as it had regarding the

claims against the IDOR and IGB, that Ms. Tamayo’s

allegations of sex discrimination by the individual defen-

dants did not include sufficient facts to state a plausible

claim under the standard set forth in Bell Atlantic. The

28 No. 07-2975

court emphasized that Ms. Tamayo’s complaint itself

indicated that the parties’ dispute grew out of a political

power struggle; therefore, held the court, there had been

a nondiscriminatory basis for the individuals’ actions.

Accordingly, the court concluded that Ms. Tamayo had

failed to show that there had been a deprivation of a

constitutional right, and it dismissed her complaint

against the individual defendants on qualified immunity

grounds.

At the Rule 12(b)(6) stage of the proceedings, however,

Ms. Tamayo was required only to allege—not prove—the

deprivation of a constitutional right. We already have

explained that Ms. Tamayo’s complaint alleged sufficient

facts to state a claim for sex discrimination under Bell

Atlantic. The pleading standard is no different simply

because qualified immunity may be raised as an affirma-

tive defense. Crawford-El v. Britton, 523 U.S. 574, 595 (1998).

Consequently, we have cautioned that the rule that quali-

fied immunity must be resolved at the earliest possible

stage, see Leatherman v. Tarrant County Narcotics Intelligence

& Coordination Unit, 507 U.S. 163, 166 (1993); Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985), must be tempered by

the notice pleading requirements of Rule 8. See Jacobs

v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000); see

also Alvarado v. Litscher, 267 F.3d 648, 651-52 (7th Cir. 2001)

(“Because an immunity defense usually depends on the

facts of the case, dismissal at the pleading stage is inap-

propriate: The plaintiff is not required initially to plead

factual allegations that anticipate and overcome a de-

fense of qualified immunity.”). In any event, the right to

be free from sex discrimination is clearly established.

Taking all facts pleaded in Ms. Tamayo’s complaint as true,

the defendants violated a clearly established constitu-

No. 07-2975 29

tional right; therefore, a grant of qualified immunity is

inappropriate at this point in the proceedings.

E.

Finally, we turn to Count VI of the complaint, a section

1983 claim alleging that Governor Blagojevich, Mr. Hamer

and Mr. Monk impermissibly retaliated against Ms.

Tamayo for speaking out against their attempts to con-

trol the IGB. The complaint alleged the following facts:

On February 24, 2005, Plaintiff publicly testified before

the Illinois House Gaming Committee about Governor

Blagojevich’s and IDOR’s interference with IGB opera-

tions, including the misuse of public funds, hiring

unqualified personnel for unnecessary positions, and

attempts to influence the outcome of the Isle of Capri

licensing investigation, litigation involving Emerald

Casino, and the sale of Emerald Casino.

R.76 at ¶61. Ms. Tamayo then asserted that she had been

the subject of retaliation because she had “engaged in

speech as a citizen on matters of public concern outside

the duties of her employment.” Id. at ¶106.

The district court concluded that Ms. Tamayo’s First

Amendment claim was barred by the Supreme Court’s

recent decision in Garcetti v. Ceballos, 547 U.S. 410 (2006).

That decision confirms that, for a Government employee’s

speech to qualify for First Amendment protection, she

must have been speaking “as a citizen on a matter of

public concern.” Id. at 418. Garcetti also makes clear that

public employees who speak “pursuant to their official

duties” speak as employees rather than as citizens, and

thus their speech is not protected by the First Amend-

30 No. 07-2975

ment regardless of its content. Id. at 421-22 (“Restricting

speech that owes its existence to a public employee’s

professional responsibilities does not infringe any liberties

the employee might have enjoyed as a private citizen.”); see

also Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007). Ac-

cordingly, if Ms. Tamayo’s testimony before the House

Gaming Committee was given as part of her official duties,

then her speech was not protected by the First Amend-

ment.

At the time that Ms. Tamayo gave the testimony at

issue here, she held the position of Interim Administrator,

the senior position within the IGB. Ms. Tamayo’s testi-

mony was given to the House Gaming Committee, a

legislative committee responsible for overseeing the

activities of the IGB, and her testimony involved the

alleged wrongdoing of public officials in their attempts to

encroach on the agency’s independence. As the Adminis-

trator of the agency, she had a duty to see that the law

was administered properly. This responsibility encom-

passed a duty to bring alleged wrongdoing within her

agency to the attention of the relevant public authori-

ties—here, the House Gaming Committee. Following

Garcetti, other courts have determined that reports by

government employees to their superiors concerning

alleged wrongdoing in their government office were

within the scope of their job duties, and, therefore, the

employees were not speaking as private citizens. See, e.g.,

Boyce v. Andrew, 510 F.3d 1333, 1346-47 (11th Cir. 2007)

(holding that social workers who complained to their

supervisors and their union that the child welfare man-

agers were overworked and endangering children had

spoken as employees, not as citizens); Phillips v. City of

Dawsonville, 499 F.3d 1239, 1241-43 (11th Cir. 2007) (con-

No. 07-2975 31

cluding that the City Clerk, whose position gave her

control and accountability for city funds, was acting

within the scope of her job duties when she reported to

the city council that the mayor was improperly charging

the city for his personal expenses); Vila v. Pedron, 484

F.3d 1334, 1339 (11th Cir. 2007) (holding that a com-

munity college vice president, whose employment con-

tract was not renewed following her reports of illegal and

unethical conduct by the college president, was not en-

titled to reinstatement because her allegations fell

“squarely within her official job duties”). Similarly, report-

ing alleged wrongdoing to those with the responsibility

for legislative oversight should be governed by the same

principle.

Ms. Tamayo cannot escape the strictures of Garcetti by

including in her complaint the conclusory legal4 state-

ment that she testified “as a citizen . . . outside the duties

of her employment,” R.76 at ¶106. A plaintiff cannot rely

on “labels and conclusions.” Bell Atlantic, 127 S. Ct. at

1965. Nor are we “bound to accept as true a legal conclu-

sion couched as a factual allegation.” Papasan v. Allain, 478

U.S. 265, 286 (1986). Cases such as the one before us re-

quire that we take special care to keep these principles

in mind. While Garcetti explicitly admonishes us not to

tolerate “excessively broad job descriptions” that might

restrict artificially an employee’s First Amendment

rights, 547 U.S. at 424, we also are directed to take a

“practical” view of whether an employee is speaking as

an employee or as a citizen, id. In taking such a “prac-

4

See, e.g., Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007)

(considering, as a matter of law, whether the plaintiff spoke as

a citizen or as an employee).

32 No. 07-2975

tical” view, we must take into account the employee’s

level of responsibility. An employee with significant and

comprehensive responsibility for policy formation and

implementation certainly has greater responsibility to

speak to a wider audience on behalf of the govern-

mental unit. When, as here, a complaint states that the

senior administrator of an agency testified before a com-

mittee of the legislature charged with oversight of the

agency about allegedly improper political influence over

that agency, the natural reading of such an allegation

is that the official, in so informing the legislators, was

discharging the responsibilities of her office, not ap-

pearing as “Jane Q. Public.” Reporting alleged miscon-

duct against an agency over which one has general super-

visory responsibility is part of the duties of such an office.

See Sigsworth v. City of Aurora, 487 F.3d 506, 511 (7th Cir.

2007); Spiegla, 481 F.3d at 966. While it is possible to

construct a speculative scenario to the contrary, we

cannot adopt such an improbable reading of the com-

plaint without some factual statement to justify indulging

in such an assumption. At a minimum, there must be

factual allegations that “raise a right to relief above the

speculative level.” Bell Atlantic, 127 S. Ct. at 1965.

Here, conclusory legal allegations aside, a natural

reading of the complaint is that Ms. Tamayo testified

before the House Gaming Committee because of the

position she held within the agency; she testified about

matters within the scope of her job duties as Interim

Administrator. Accordingly, we must conclude that Ms.

Tamayo’s testimony was given as an employee and not as

a citizen; therefore, her speech is not protected under

the First Amendment.

No. 07-2975 33

Conclusion

Because Ms. Tamayo failed to exhaust her administra-

tive remedies against the IGB, we conclude that the dis-

trict court properly granted the IGB’s motion to dismiss

the Title VII claims brought against it. Additionally, we

conclude that the district court properly dismissed

Ms. Tamayo’s First Amendment claims. The remaining

counts in the complaint, however, allege facts sufficient

to survive dismissal at the Rule 12(b)(6) stage. Accord-

ingly, we reverse the judgment of the district court as to

Counts I and III against the IDOR; Counts II and IV against

both the IDOR and the IGB; and Count V against the in-

dividual defendants and remand for further proceedings

consistent with this opinion. The parties shall bear their

own costs in this appeal.

A FFIRMED IN PART,

R EVERSED IN PART, R EMANDED

USCA-02-C-0072—5-27-08