IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

ROBERT SMITH, ) 

 ) 

 Plaintiff, ) 

) 

 v. ) CASE NO. 11-cv-9147 

) 

ROSEBUD FARMSTAND, ET AL., ) Judge Robert M. Dow, Jr. 

 ) 

Defendant. ) 

MEMORANDUM OPINION AND ORDER

Plaintiff Robert Smith has sued Defendants Rosebud Farmstand, Rocky Mendoza, and 

Carlos Casteneda for sexual and racial harassment (Counts I and II), retaliation (Count III), and 

constructive discharge (Count IV) pursuant to Title VII of the Civil Rights Act of 1964 (“Title 

VII”), a violation of the Illinois Gender Violence Act (Count V), and for violating 42 U.S.C. § 

1981 (Count VI). Before the Court is Defendants’ motion to dismiss [12] parts of Plaintiff’s 

complaint. Defendants move to dismiss all claims except Plaintiff’s sexual harassment claim 

against Defendant Rosebud. For the reasons set forth below, the Court grants in part and denies 

in part Defendants’ partial motion to dismiss [12]. 

I. Background

Plaintiff worked as a butcher for Rosebud Farmstand from November 14, 2003 until June 

2008. Plaintiff alleges that he was subjected to repeated sexual harassment by his co-workers, 

including co-workers grabbing and touching his penis and grabbing and slapping his buttocks. 

He also maintains that co-workers used racial and sexual slurs around him. Plaintiff alleges that 

he complained to his managers—Defendants Rocky Mendoza, and Carlos Casteneda—about the 

ongoing racial and sexual harassment, but that they did nothing to stop the harassment and 

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instead participated in the harassment. He also alleges that he was suspended for nine days for 

failing to report to work on December 13, 2007, even though he had previously requested the day 

off. Finally, Plaintiff alleges that Rosebud reduced Plaintiff’s average weekly hours from 34 to 

30 hours per week. 

On January 7, 2008, Plaintiff filed a Charge of Discrimination (“Charge”) with the 

Illinois Department of Human Rights and the Equal Employment Opportunity Commission. In 

his Charge, Plaintiff maintained that he had been sexually harassed by male co-workers, 

including Defendants Mendoza and Castaneda, from July 2007 through January 6, 2008. He also 

maintained that he had been subjected to race discrimination because he was sent home for nine 

days without pay after failing to report to work on December 13, 2007, and because his work 

hours were reduced from thirty-four to thirty hours per week. 

Plaintiff continued to work for Rosebud Farms until June 2008, when he terminated his 

employment due to “intolerable” working conditions. On September 26, 2011, the EEOC issued 

a Notice of Right to Sue with respect to Plaintiff’s Charge, stating conciliation failure. On 

December 23, 2011, Plaintiff filed his complaint in this action, alleging same-sex sexual 

harassment (Count I); racial harassment (Count II); retaliation (Count III); constructive discharge 

(Count IV); violation of the Illinois Gender Violence Act (Count V); and violation of § 1981 of 

the Civil Rights Act (Count VI). 

II. Legal Standard for Rule 12(b)(6) Motions to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the 

sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 

1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first 

must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that 

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the pleader is entitled to relief” (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given “fair 

notice of what the * * * claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. 

Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 

Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief 

above the “speculative level,” assuming that all of the allegations in the complaint are true. 

E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 

127 S.Ct. at 1965, 1973 n.14). “[O]nce a claim has been stated adequately, it may be supported 

by showing any set of facts consistent with the allegations in the complaint.” Twombly, 127 

S.Ct. at 1969. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and 

all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 

(7th Cir. 2005). 

III. Analysis

Defendants contend that multiple shortcomings in Plaintiff’s complaint warrant 

considerable pruning of the claims at the outset of the case. Defendants make several arguments: 

(1) Plaintiff’s racial harassment, retaliation, and constructive discharge claims exceed the scope 

of his EEOC Charge (and thus were not properly exhausted before filing federal suit), (2) the 

claims against Mendoza and Castaneda must be dismissed because individual defendants cannot 

be held liable under Title VII, (3) Illinois law does not recognize a common law cause of action 

for constructive discharge, (4) Plaintiff’s Illinois Gender Violation Act claim should be 

dismissed for failure to state a claim upon which relief can be granted; and (5) Plaintiff’s 

allegations in Count VI fail to state a claim under § 1981. The Court takes up each argument in 

turn. 

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A. Scope of the EEOC Charge

The scope of a judicial proceeding subsequent to an EEOC charge “is limited by the 

nature of the charges filed with the EEOC.” Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 

(7th Cir. 1992). The limitation, like the statutory limitations period, is not jurisdictional, but is a 

condition precedent to recovery. See id. & n.20. “To determine whether the allegations in the 

complaint fall within the scope of the earlier EEOC charge,” a court must decide whether “the 

allegations are like or reasonably related to those contained in the [EEOC] charge.” Kersting v. 

Wal-Mart Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001). The rule is designed at once to give 

notice to the employer of the nature of the claims against it and to provide an opportunity for the 

EEOC and the employer to settle the dispute. Geldon v. S. Milwaukee Sch. Dist., 414 F.3d 817, 

819 (7th Cir. 2005). Nonetheless, the standard is a liberal one. Miller v. Am. Airlines, Inc., 525 

F.3d 520, 525-26 (7th Cir. 2008). Claims are reasonably related—and hence properly raised in a 

subsequent lawsuit—“if there is a factual relationship between them.” Kersting, 250 F.3d at 118. 

The factual information provided in the charge is “[m]ore significant” than “technical defect[s].” 

Cable v. Ivy Tech State College, 200 F.3d 467, 477 (7th Cir. 1999); Ajayi v. Aramark Bus. Svcs., 

Inc., 336 F.3d 520, 528 (7th Cir. 2003) (“we do not rest our decision here on an omitted 

checkmark”). In short, the pertinent inquiry is “what EEOC investigation could reasonably be 

expected to grow from the original complaint.” Ajayi, 336 F.3d at 527. 

Although Plaintiff’s EEOC charge is not attached to the complaint, it is referenced in the 

complaint and central to the allegations contained in Plaintiff’s complaint. It is well-established 

that a court may consider documents that are concededly authentic, referenced in a plaintiff’s 

complaint, and central to a plaintiff’s claims, even if those documents are not attached to the 

complaint. See Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir.2009) (“This court has been 

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relatively liberal in its approach to the rule articulated in Tierney and other cases.”); see also 

Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994) (upholding consideration of 

an agreement quoted in the complaint and central to the question whether a property interest 

existed for purposes of 42 U.S.C. § 1983); Venture Associates v. Zenith Data Sys., 987 F.2d 429, 

431 (7th Cir. 1992) (admitting letters, to which the complaint referred, that established the 

parties’ contractual relationship); Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 

739 (7th Cir. 1986) (permitting reference to a welfare plan referred to in the complaint in order to 

decide whether the plan qualifies under ERISA). Because Plaintiff’s EEOC charge was 

referenced in his complaint and is central to his claims, the Court may (and will) consider it 

when evaluating Plaintiff’s prospects on a motion to dismiss. See Hecker, 556 F.3d at 582; see 

also Kuhn v. United Airlines, 2012 WL 3582209, at *2 (N.D. Ill. Aug. 17, 2012). 

 1. Plaintiff’s claim of racial harassment 

 Defendants contend that Plaintiff’s racial harassment claim exceeds the scope of his 

EEOC Charge. “Normally, retaliation, sex discrimination, and sexual harassment charges are not 

‘like or reasonably related’ to one another to permit an EEOC charge of one type of wrong to 

support a subsequent civil suit for another.” Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 726 

(7th Cir. 2003); see also Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 

1994) (“Because an employer may discriminate on the basis of sex in numerous ways, a claim of 

sex discrimination in an EEOC charge and a claim of sex discrimination in a complaint are not 

alike or reasonably related just because they both assert forms of sex discrimination.”); see also 

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110-15, 122 S.Ct. 2061, 153 

L.Ed.2d 106 (2002) (emphasizing the separate nature of claims based on specific discriminatory 

or retaliatory acts for purposes of the limitations period). Plaintiff’s EEOC Charge describes 

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sexually offense conduct by male co-workers that created “a hostile and intimidating work 

environment.” He also describes two specific instances in which he was prevented from 

working—being sent home for nine days without pay and having his hours reduced—due to his 

race. 

Nothing in the Charge suggests that Plaintiff was alleging that he was the victim of racial 

harassment (as opposed to racial discrimination, a claim clearly set forth in his EEOC charge but 

not included as a claim in his complaint). Plaintiff makes no mention of harassment on account 

of race in either his statement of the bases for his Charge or the body of the Charge. He does not 

mention any of the alleged comments (racial slurs, racial remarks, and racial epithets), conduct, 

or incidents that he now alleges in Count II of his complaint. Instead, Plaintiff specifically 

alleges that he was “sent home * * * due to his race” and that he had a “reduction in hours * * * 

due to his race.” Being sent home from work and suffering a reduction in hours are classic 

examples of race discrimination, which is a different claim from being harassed with racial 

epithets, slurs, and comments. See Rush v. McDonald’s Corp., 966 F.2d 1104, 1110-1111 (7th 

Cir. 1992) (concluding that racial harassment claim was beyond the scope of plaintiff’s charge 

where plaintiff included a specific race discrimination claim in her charge, but failed to include 

any reference to racial harassment). 

The specificity in Plaintiff’s Charge with respect to his claims for sexual harassment and 

race discrimination belie his argument that he did not understand how to plead a racial 

harassment claim. He set forth detailed facts to support both sexual harassment and race 

discrimination claims, yet failed to include any reference to conduct that would support a racial 

harassment claim. To allow him now to claim additional instances of racial harassment would 

not be consistent with Title VII’s goal of providing notice to an employer of the nature of the 

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claims. See Rush, 966 F.2d at 1110 (“In many cases challenging the allegations in the complaint 

for failure to come within the charge filed with the EEOC, the question of congruence arises 

because the charge was fairly detailed and the subsequent complaint deviated form the specific 

instances of discrimination.”). 

Plaintiff also maintains that his allegations of sexual harassment and racial harassment 

are intertwined and that his racial harassment claims “grew from” the sexual harassment. While 

Plaintiff has connected these claims in his complaint, the Charge allegations do not support this 

connection. None of the alleged racial remarks appear, directly or indirectly, in his Charge, 

despite his very specific sex and race allegations. Thus, the Court concludes that Plaintiff’s 

racial harassment claim (Count II) falls outside the scope of his EEOC charge and is barred. 

 2. Plaintiff’s claims of retaliation and constructive discharge 

 Defendants also allege that Plaintiff’s claims of retaliation (Count III) and constructive 

discharge (Count IV) exceed the scope of the Plaintiff’s EEOC charge. Although these claims 

have similarities, Title VII treats them as discrete causes of action. Title VII provides that an 

employer may not “discharge any individual * * * because of such individual’s race, color, 

religion, sex or national origin.” 42 U.S.C. § 2000e–2(a)(1). A constructive discharge occurs 

where an employer “makes an employee’s working conditions so intolerable that the 

[reasonable] employee is forced into an involuntary resignation.” Saxton v. American Tel. & Tel. 

Co., 10 F.3d 526, 536–37 (7th Cir. 1993) (quoting Weihaupt v. American Medical Ass'n, 874 

F.2d 419, 426 (7th Cir. 1989)). In order to recover under a constructive discharge theory of 

discrimination, the plaintiff must show that (1) he was actually constructively discharged; and (2) 

that the constructive discharge resulted from his membership in a protected class. Saxton, 10 

F.3d at 526. On the other hand, a Title VII retaliation charge requires the following three 

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elements of proof: “(1) [the plaintiff] must show that she engaged in statutorily protected 

expression; (2) [the plaintiff] suffered an adverse action by her employer; and (3) there is a 

causal link between her protected expression and the adverse action.” McKenzie v. Illinois Dep't 

of Transportation, 92 F.3d 473, 483 (7th Cir. 1996). A plaintiff can prove the “causal link” by 

demonstrating that her employer would not have acted adversely “but for” the protected 

expression. Id.

Defendants correctly point out that Plaintiff’s EEOC Charge does not refer to or allege 

any instances of retaliation and constructive discharge. However, with respect to a retaliation 

claim, it is “the nature of retaliation claims that they arise after the filing of the EEOC charge. 

Requiring prior resort to the EEOC would mean that two charges would have to be filed in a 

retaliation case—a double filing that would serve no purpose except to create additional 

procedural technicalities when a single filing would comply with the intent of Title VII.” 

McKenzie, 92 F.3d at 482 (quoting Gupta v. East Texas State University, 654 F.2d 411, 414 (5th 

Cir. 1981)); see also Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066 (2d Cir. 1980) (holding that 

the act of retaliation was “directly related” to plaintiff’s initiation of litigation and that no second 

EEOC charge was necessary); Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992) (holding that 

retaliation claim may be raised for the first time in federal court); Bouman v. Block, 940 F.2d 

1211 (9th Cir. 1991) (holding that retaliation claim was “reasonably related” to prior sex 

discrimination claim); Brown v. Hartshorne Public Sch. Dist. No. 1, 864 F.2d 680 (10th Cir. 

1988) (holding that retaliation arising out of first EEOC filing was “reasonably related” to that 

filing, obviating the need for a second EEOC charge).1 Here, the only incidents of retaliation 

 

1

 The Seventh Circuit has identified a limit to this reasoning. In Steffen v. Meridian Life Ins. Co., 859 

F.2d 534 (7th Cir. 1988), the court noted that Gupta and similar cases “all involved situations where the 

alleged retaliation arose after the charge of discrimination had been filed.” Id. at 545. In such cases, only 

a single filing was necessary to comply with the intent of Title VII; a double filing “would serve no 

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alleged by Plaintiff occurred after the filing of his EEOC charge, and therefore those incidents 

(occurring between January 2008 and June 2008) may be considered as evidence of Plaintiff’s 

retaliation claim, despite the fact that “retaliation” was not alleged in his administrative filing.2 

Turning to his constructive discharge claim, Plaintiff’s EEOC Charge does not allege that 

sexual harassment prompted him to leave his job in June 2008. Indeed, it would have been 

impossible for his EEOC charge to have mentioned his departure from Rosebud or to have 

alleged a constructive discharge because his EEOC Charge preceded his resignation from 

Rosebud. But the Seventh Circuit does not treat retaliation and constructive discharge claims in 

the same manner. In Herron v. DaimlerChrysler Corp., 388 F.3d 293 (7th Cir. 2004), the 

Seventh Circuit held that EEOC charges alleging “racial discrimination, retaliation, and 

harassment, [but] not constructive discharge,” were an insufficient predicate for bringing a 

constructive discharge claim in federal court. Id. at 303 n. 2; see also Dixon v. Americall Grp., 

Inc., 390 F.Supp.2d 788, 791 (C.D. Ill. 2005) (“when a plaintiff’s EEOC charge alleges 

discrimination, but does not state that his decision to stop working is based on that 

discrimination, the charge does not support a constructive discharge claim”). This was 

particularly so because the EEOC charges in Herron preceded the plaintiff's resignation; as the 

 

purpose except to create additional procedural technicalities.” But in instances where incidents of 

retaliation could have been—and should have been—included in the administrative charge, those 

incidents cannot serve as the basis of a retaliation claim alleged in a federal complaint. 

2

 Defendants argue in their reply brief that “Plaintiff claims he was retaliated against for allegedly 

complaining internally about alleged harassment” and therefore his claims of retaliation stem from 

conduct that occurred prior to the filing of the EEOC Charge in early 2008. This argument is 

unpersuasive and directly contrary to the allegations in Plaintiff’s complaint. In his complaint, Plaintiff 

specifically alleges that “[i]n 2008 after the plaintiff’s EEOC charge of 7 January 2008, until the plaintiff 

terminated his employment in June 2008, the defendants would ignore the plaintiff, give him the cold 

shoulder, exclude him from meetings, scratch his car, slash his tires, expose meat knives threateningly 

and so forth.” See Compl. at ¶ 25 (emphasis added). Plaintiff’s response brief confirms that his 

retaliation claim centers on “retaliatory behavior that results from filing an EEOC charge.” Pl.’s Resp. at 

7. Thus, Plaintiff’s retaliation claim is limited to instances of retaliation which occurred after the filing of 

his EEOC charge (or to ongoing sexual harassment and race discrimination). 

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Seventh Circuit explained, the “delay between [the] EEOC complaint and [the plaintiff's] 

decision to leave was inconsistent with notice [in the EEOC charge] of constructive discharge.” 

Herron, 388 F.3d at 303 n. 2; see also Conner v. Ill. Dep't of Natural Res., 413 F.3d 675, 680 

(7th Cir. 2005) (holding that discriminatory non-promotion claim could not have been exhausted 

in the EEOC charge where the non-promotion occurred one month after the charge was filed); 

Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000) (holding that 

discriminatory failure to rehire claim was not exhausted where the EEOC charge was filed prior 

to the plaintiff's applying for the position). 

 Plaintiff’s constructive discharge claim suffers from the same infirmities as those in 

Herron and the cases cited above. It might have been a different case if Plaintiff alleged that the 

sexually harassing conduct continued until he resigned in June 2008, but his complaint clearly 

states that following the filing of his EEOC Charge, the complained of conduct was that 

“defendants would ignore the plaintiff, give him the cold shoulder, exclude him from meetings, 

scratch his car, slash his tires, expose meat knives threateningly and so forth,” not that 

Defendants continued to sexually harass him and cut his pay and hours. The post-EEOC filing 

conduct is different from both the sexually harassing conduct and the racially discriminatory 

conduct alleged in his EEOC Charge. Therefore, Plaintiff cannot argue that his constructive 

discharge claim is “like or reasonably related to those contained in the [EEOC] charge.” 

Kersting, 250 F.3d at 1118. In short, Plaintiff has not exhausted his administrative remedies with 

respect to his constructive discharge claim. 

 At the end of the day, the decision to allow Plaintiff’s retaliation claim to go forward, 

while dismissing his constructive discharge claim for failure to exhaust, may have little effect on 

the litigation of this case. This is so because Plaintiff may argue that Defendants constructively 

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discharged him in retaliation for his complaints of sex discrimination. See Fischer v. Avanade, 

Inc., 519 F.3d 393, 408-09 (7th Cir. 2008); Williams v. Waste Mgmt. of Ill., Inc., 361 F.3d 1021, 

1032 (7th Cir. 2004) (discussing how constructive discharge can serve as the adverse 

employment action in a retaliation claim). Constructive discharge does constitute an adverse 

employment action and is deemed to have occurred when the plaintiff shows that he was forced 

to resign because his working conditions, from the standpoint of the reasonable employee, had 

become unbearable. EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 331 (7th Cir. 2002). 

Here, one could reasonably infer from the allegations in Plaintiff’s complaint that he engaged in 

protected activity, which led to Plaintiff’s constructive discharge from Rosebud. Therefore, 

while Plaintiff’s legal claims have been truncated, the factual presentation of the evidence may 

well proceed as he originally intended. 

In sum, the Court grants Defendants’ motion to dismiss as to Plaintiff’s racial harassment 

and constructive discharge claims (Counts II and IV), but denies Defendants’ motion as it 

pertains to Plaintiff’s retaliation claim (Count III). 

B. Title VII claims against Mendoza and Castaneda 

In his response brief, Plaintiff asserts that he is not suing Defendants Mendoza and 

Castaneda as individuals under Title VII, but rather sues them only under § 1981 and the Illinois 

Gender Violence Act. Therefore, Defendants’ motion to dismiss the Title VII claims against 

Defendants Mendoza and Castaneda is denied as moot. 

C. Constructive Discharge under Illinois Law 

In both his complaint and his response brief, Plaintiff asserts that his constructive 

discharge claim is brought pursuant to Title VII, not Illinois state law. The Court takes no 

position on whether Plaintiff could state a claim for constructive discharge under Illinois law 

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because Plaintiff maintains that “count VI, constructive discharge, is not under Illinois State 

law.” See Pl.’s Resp. at 3. As previously set forth, Plaintiff cannot sustain a claim that he was 

constructively discharged in violation of Title VII because Plaintiff did not file a charge of 

discrimination relating to his separation from employment or seek to amend his original charge 

to encompass discharge claims. Therefore, Count IV is dismissed.3

 

D. Illinois Gender Violence Act 

In his complaint, Plaintiff alleges that Defendants Rosebud, Castaneda, and Mendoza 

violated the Illinois Gender Violence Act. Section 10 of the Act provides a civil cause of action 

for victims of gender-related violence: 

Any person who has been subjected to gender-related violence as defined in 

Section 5 may bring a civil action for damages, injunctive relief, or other 

appropriate relief against a person or persons perpetrating that gender-related 

violence. For purposes of this Section, ‘perpetrating’ means either personally 

committing the gender-related violence or personally encouraging or assisting the 

act or acts of gender-related violence.” 740 ILCS 82/10 (West 2008). 

Section 5 of the Act defines “gender-related violence” to include: “[o]ne or more acts of violence 

or physical aggression satisfying the elements of battery under the laws of Illinois that are 

committed, at least in part, on the basis of a person’s sex” and “[a] physical intrusion or physical 

invasion of a sexual nature under coercive conditions satisfying the elements of battery under the 

laws of Illinois.” 740 ILCS 82/5. 

Plaintiff has pleaded facts that lead to an inference that Rosebud (via its managers and 

supervisors) received Plaintiff’s complaints of sexual harassment or assault by its managers and 

employees and that it took no action against these managers and employees as a result of the 

 

3

 Count IV is dismissed without prejudice. To the extent that Plaintiff is able to marshal evidence that 

the sexual harassment or racial discrimination continued after the filing of his EEOC Charge and that this 

conduct, rather than the conduct alleged in ¶ 25 of the complaint, made his working conditions too 

intolerable, Plaintiff may seek leave of court to amend his complaint. However, at this time, the 

allegations in the complaint do not support a separate constructive discharge claim. 

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complaints, choosing to punish Plaintiff instead. There is no question that the alleged conduct of 

Defendants Castaneda and Mendoza—if supported by evidence—would be considered acts of 

gender-related violence, and Defendants’ one-sentence support for dismissal inherently suggests 

tacit agreement with this conclusion. It is less clear whether Rosebud is susceptible to liability, 

but once again Defendants provide the Court with minimal support for dismissal. Defendants 

appear to argue that Rosebud cannot be held liable for a violation of the Act because Plaintiff has 

not sufficiently alleged that Rosebud was personally involved in an act of gender-related 

violence on account of Rosebud’s corporate identity (see Defs.’ Mem. at 8 (“Plaintiff is unable to 

demonstrate * * * that Rosebud personally committed gender-related violence or personally

encouraged or assisted the acts of gender-related violence”)), although the one case cited by 

Defendants addresses only with whether the Act applies retroactively. (It does not, but that is not 

at issue here.) Defendants have not provided any other basis for dismissing Plaintiff’s Gender 

Violence Act claim. Thus, Plaintiff’s allegations are enough to state a claim against Rosebud for 

encouraging or assisting the individual Defendants’ acts of gender-related violence and against 

Plaintiff’s manager and assistant manager for perpetrating the violence. See also Cruz v. 

Primary Staffing, Inc., 2011 WL 1042629, at *1-2 (N.D. Ill. Mar. 22, 2011). 

E. Section 1981 

In Count VI, Plaintiff alleges that Defendants discriminated against him on the basis of 

his race in the terms and conditions of his employment and thus violated 42 U.S.C. § 1981, as 

amended by the Civil Rights Act of 1991. The legislative history of the Civil Rights Act of 1991 

indicates that it was enacted in response to a number of decisions by the United States Supreme 

Court that were perceived to sharply cut back on the scope and effectiveness of federal civil 

rights laws. See H.R.Rep. No. 102–40(I), at 18, reprinted in 1991 U.S.C.C.A.N. 549, 556. The 

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Act overruled the Supreme Court’s decision in Patterson v. McLean Credit Union, 491 U.S. 164 

(1989), in which the Court held that § 1981 did not apply to conduct after a contractual 

relationship had been established. 491 U.S. at 171. Section 12 of the Act amended § 1981 to 

reaffirm that the right “to make and enforce contracts” includes the enjoyment of all benefits, 

privileges, terms and conditions of the contractual relationship. See H.R. Rep. 102–40(II), at 37, 

reprinted in 1991 U.S.C.C.A.N. 549, 730–31. Specifically, Congress added subsection (b) to § 

1981: “For the purposes of this section, the term “make and enforce contracts” includes the 

making, performance, modification, and termination of contracts, and the enjoyment of all 

benefits, privileges, terms, and conditions of the contractual relationship.” H.R. Rep. 102–40(II), 

at 37, reprinted in 1991 U.S.C.C.A.N. 549, 730–31; see also Jones v. R.R. Donnelley & Sons 

Co., 541 U.S. 369, 383 (2004) (“The 1991 Act overturned Patterson by defining the key ‘make 

and enforce contracts' language in § 1981 to include the ‘termination of contracts, and the 

enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.’”); 

Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012). Thus, a plaintiff bringing a Title VII claim 

often includes a § 1981 claim as well. The substantive standards and methods of proof that apply 

to claims of racial discrimination and retaliation under Title VII also apply to claims under § 

1981. See Humphries v. CBOCS West, Inc., 474 F.3d 387, 403–04 (7th Cir. 2007), aff'd, 553 

U.S. 442 (2008).4

 

4

 One key difference between § 1981 and Title VII is that the latter authorizes suit only against the 

employer as an entity rather than against individual people who are agents of the employer. Under § 

1981, individuals may be liable. Compare Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995) 

(holding that supervisor may not held liable in his individual capacity for discrimination under Title VII), 

with Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) ( “individuals may be held liable 

under §§ 1981 and 1983 for certain types of discriminatory acts”). Other important differences are that 

claims under § 1981 have a relatively long four-year statute of limitations, see Jones v. R.R. Donnelley & 

Sons Co., 541 U.S. 369, 382 (2004); Dandy v. United Parcel Service, Inc., 388 F.3d 263, 269 (7th Cir. 

2004), are not subject to the damage caps enacted in the Civil Rights Act of 1991, see 42 U.S.C. § 

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In briefing their motion to dismiss, Defendants acknowledge that “there can be scenarios 

where Title VII and Section 1981 claims might factually overlap,” but contend that Plaintiff has 

failed to allege that “Defendants had intended to discriminate against him on the basis of race in 

the making or enforcing of a contract of for ‘asserting the right to substantive contractual 

equality provided by § 1981.’” Defs’ Reply at 8-9. Defendants interpret the term “contract” too 

narrowly. As the Seventh Circuit explained in Walker v. Abbott Laboratories, “at-will 

employment, though capable of being terminated by either party at any time, is nonetheless a 

contractual relationship.” 340 F.3d 471, 476 (7th Cir. 2003). Moreover, the court noted, 

excluding at-will employment relationships from the ambit of § 1981 would “contravene 

Congress’s intention [that] the Civil Rights Act of 1991 * * * restore the broad scope of Section 

1981 to ensure that all Americans may not be harassed, fired or otherwise discriminated against 

in contracts because of their race.” Id. at 477 (quotation omitted). Thus, the Seventh Circuit has 

concluded that at-will employment relationships are governed by § 1981. See id. at 476-77. In 

his complaint, Plaintiff clearly has alleged facts that give rise to an inference that he was an “atwill” employee of Rosebud and that Defendants discriminated and retaliated against him on the 

basis of his race. Therefore, Defendants sole argument for dismissal of Plaintiff’s § 1981 

claim—that he has failed to plead a contractual relationship—fails. 

IV. Conclusion 

For these reasons, the Court grants in part and denies in part Defendants’ motion to 

dismiss [12]. The Court grants the motion with respect to Plaintiff’s claims of racial harassment 

(Count II) and constructive discharge (Count IV) and dismisses those claims without prejudice. 

The Court denies the motion in all other respects, and Plaintiff may proceed with his claims of 

 

1981a(b)(4), and do not require exhaustion of administrative remedies. See, e.g., Fane v. Locke Reynolds, 

LLP, 480 F.3d 534, 539 (7th Cir. 2007).

Case: 1:11-cv-09147 Document #: 30 Filed: 11/15/12 Page 15 of 16 PageID #:181
16 

sexual harassment (Count I), retaliation (Count III), violation of the Illinois Gender Violence Act 

(Count V), and violation of § 1981 of the Civil Rights Act (Count VI). 

Dated: November 15, 2012 

 

______________________________ 

 Robert M. Dow, Jr. 

 United States District Judge 

Case: 1:11-cv-09147 Document #: 30 Filed: 11/15/12 Page 16 of 16 PageID #:182