IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

EFREN RESENDEZ, )

)

Plaintiff, ) Case No: 12 C 5697

v. )

) Judge Joan B. Gottschall

)

KLEIN TOOLS, INC., )

)

Defendant. )

MEMORANDUM OPINION & ORDER

Defendant Klein Tools, Inc. (“Klein”) moves to dismiss Plaintiff Efren Resendez’s 

Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Resendez alleges 

claims pursuant to Title VII, 42 U.S.C. § 2000e et seq., and supplemental state-law claims of 

breach of contract and fraudulent misrepresentation. As explained below, because collateral 

estoppel based on Resendez’s state-court criminal conviction prevents him from establishing 

facts essential to his state-law breach of contract claim (Count I), the court grants Klein’s motion 

to dismiss that claim. The motion also granted as to the fraudulent misrepresentation claim

(Count II). The motion is granted in part as to the Title VII claims (Counts III and IV): 

Resendez’s disparate punishment claims may proceed, but his failure-to-promote claims are

dismissed without prejudice.

I. FACTS

The Amended Complaint, filed on October 24, 2012, alleges that Klein employed

Resendez beginning on January 18, 1988. On August 10, 2011, Resendez, a Mexican who 

speaks limited English, held the position of utility helper and was responsible for general 
2

janitorial duties. According to the complaint, those duties included assisting other Klein 

employees as requested. On several occasions, Resendez was asked by a shipping clerk to use a 

forklift to load scrap metal into a truck driven by a Klein truck driver. Although the scrap metal 

was being stolen from Klein, Resendez alleges that he did not steal the scrap metal or know it 

was being stolen, but merely followed the instructions of the shipping clerk.

Resendez was called into a meeting with various supervisors and his union president on 

August 10, 2011. He was questioned in English for a portion of the meeting and was provided 

with a confession written in English. Resendez alleges that he tried to explain that he did not 

commit theft. Another employee, Oscar Orellana, was called into the room to translate for him. 

According to Resendez, rather than translating the confession, Orellana told Resendez in 

Spanish, “You are stealing. It is better for you to sign this form or the police will be called and 

you will go to jail.” He was told the same thing by the union president. Orellana told Resendez 

that his supervisor and the human resources representative said that if he did not sign the 

confession, he would be fired, arrested, and/or deported, and that he had one minute to sign the 

confession or the police would be called. The human resources manager also yelled at him.

Resendez alleges that he signed the paper without understanding it. He was immediately 

terminated. Two other employees accused of theft—the shipping clerk and the truck driver—

were also fired the same day. Resendez contends that he would not have signed the confession 

but for Klein’s promises not to fire him or call the police if he did so. 

On May 9, 2012, after a bench trial, the Circuit Court of Cook County convicted 

Resendez of misdemeanor theft. He was sentenced to one year of supervision. See People v. 

Resendez, 2013 Ill. App. (1st) 121656-U (Ill. App. Ct. Aug. 9, 2013). Resendez filed suit against 
3

Klein in this court on July 19, 2012. At Klein’s request, this court stayed the case until the 

Illinois Appellate court ruled on Resendez’s appeal in the criminal case. (Order Feb. 2, 2013, 

ECF No. 34.) His conviction was affirmed by the Illinois Appellate Court. People v. Resendez, 

2013 Ill. App. (1st) 121656-U. The stay on this litigation was lifted on August 13, 2013. (Order 

Aug. 13, 2013, ECF No. 35.)

According to the transcript of the state-court bench trial, after the evidence was presented, 

the court announced the following factual findings before finding Resendez guilty: 1) Resendez 

spoke with an interpreter in private before signing the confession; 2) Resendez had “previously 

been told that his job was over;” 3) Resendez was paid $30 for his participation in the theft; and 

4) Resendez “acknowledged he was wrong.” (Mot. to Dismiss Ex. A (Trial Tr. May 9, 2012, 

People v. Resendez, 11 MC2 3396 (Cir. Ct. of Cook Cnty.—Crim. Div.)), ECF No. 21-1.) The 

opinion of the Illinois Appellate Court affirming the conviction similarly states that the Cook 

County court made the following factual findings related to the conviction: 1) Resendez did 

something he wasn’t supposed to do, was paid $30 for his cooperation, and acknowledged that 

his actions were wrong; and 2) prior to the August 10, 2011, meeting, Resendez was told that his 

employment had been terminated. People v. Resendez, 2013 Ill. App. (1st) 121656-U. The 

appellate court concluded that these findings were not contrary to the evidence submitted at trial, 

which included the testimony of Resendez and several Klein officials who participated in the 

August 10, 2011, meeting. Id.

In the Amended Complaint, Resendez claims breach of contract (Count I), based on the 

fact that Klein promised not to terminate him if he signed the confession. In the alternative, he 

claims fraudulent misrepresentation (Count II), based on Klein’s promises not to terminate him 
4

or call the police if he signed the confession. He also alleges that he was discriminated against 

based on his national origin and ancestry, in violation of Title VII and the Civil Rights Act of 

1991 (Counts III and IV). In support of his Title VII claim, he alleges that Klein’s investigation 

of his role in the theft was discriminatory, because Klein refused to listen to his explanation 

because of his national origin, ancestry, and poor English skills. He also alleges that Mexican 

workers at Klein are treated with less respect than non-Mexican workers, given tasks that do not 

allow them the same opportunities for promotion, and are not promoted as quickly as nonMexican workers with similar skills. (Am. Compl. ¶¶ 48, 54, 55, 64, 70, 71.) For his alleged 

injuries, Resendez seeks back pay from August 10, 2010, along with compensatory and punitive 

damages.

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, a complaint must comply with Rule 8(a) by 

providing “a short and plain statement of the claim showing that the pleader is entitled to relief.” 

Fed. R. Civ. P. 8(a)(2). A motion to dismiss should be granted if the plaintiff fails to “state a 

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in a complaint 

must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56; see also

Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough 

details about the subject-matter of the case to present a story that holds together.”). For purposes 

of a motion to dismiss, the court takes all facts alleged in the complaint as true and draws all 

reasonable inferences from those facts in the plaintiff’s favor, although conclusory allegations 

that merely recite the elements of a claim are not entitled to this presumption of truth. Virnich v. 
5

Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). The court may also take judicial notice of matters 

of public record, such as court records, when ruling on a motion to dismiss. Gen. Elec. Capital v.

Lease Resolution, 128 F.3d 1074, 1080-81 (7th Cir. 1997). 

III. ANALYSIS

A. Breach of Contract and Fraudulent Misrepresentation (Counts I and II)

1. Collateral Estoppel

Resendez asserts a breach of contract claim (Count I), based on the fact that Klein 

promised not to terminate him if he signed the confession. In the alternative, he claims 

fraudulent misrepresentation (Count II), based on Klein’s promises not to terminate him or to call 

the police if he signed the confession. In its motion to dismiss, Klein argues that under the 

doctrine of collateral estoppel, Resendez is precluded from re-litigating the factual findings made 

by the state court in his criminal case. According to Klein, he is therefore precluded from 

alleging facts in support of his state-law claims that are contrary to those factual findings, and the 

claims must fail. Specifically, in the criminal case, the judge made an express finding that 

Resendez was told his “job was over” before he signed the confession. Klein argues that, given 

that finding, Resendez cannot argue to this court that he signed the confession because he was 

promised that he could keep his job.

As an initial matter, the court notes that collateral estoppel is an affirmative defense. It is 

generally “incorrect to grant a motion to dismiss under Rule 12(b)(6) on the basis of an 

affirmative defense,” as the court must take the allegations in the complaint as true. McCready v. 

eBay, Inc., 453 F.3d 882, 892 n. 2 (7th Cir. 2006). Despite that general rule, if a plaintiff’s 

complaint alleges facts sufficient to establish that an affirmative defense applies to the claim, the 
6

court may consider a motion to dismiss based on the defense. See Muhammad v. Oliver, 547 

F.3d 874, 878 (7th Cir. 2008) (allowing the defense of res judicata to be raised on a Rule 12(b)(6)

motion based on “the principle that a plaintiff can plead himself out of court”). In this case, the 

affirmative defense is based on facts alleged in the complaint itself, and the court will therefore 

consider whether collateral estoppel applies to bar any of Resendez’s claims.

Federal courts must afford full faith and credit to both criminal and civil state-court 

decisions. 28 U.S.C. § 1738; see Loera v. United States, 714 F.3d 1025, 1028 (7th Cir. 2013) 

(“The doctrine of collateral estoppel, an offshoot of res judicata, teaches that a judge’s ruling on 

an issue of law or fact in one proceeding binds in a subsequent proceeding the party against 

whom the judge had ruled.”). In determining the preclusive effect of a state-court judgment, the 

state’s rules of collateral estoppel apply—here, that is Illinois law. See Brown v. City of Chi., 

599 F.3d 772, 774 (7th Cir. 2010). Under Illinois’ law of issue preclusion, further litigation of an 

issue is barred when: “(1) the court rendered a final judgment in the prior case; (2) the party 

against whom estoppel is asserted was a party or in privity with a party in the prior case; and (3) 

the issue decided in the prior case is identical with the one presented in the instant case.” People 

v. Tenner, 794 N.E.2d 238, 247 (Ill. 2002). The court also considers whether the plaintiff was 

denied a full and fair opportunity to litigate the issue in his prior case and whether applying 

collateral estoppel would be unjust. See Brown, 599 F.3d at 775-77. 

In this case, the first two elements are satisfied: the state court rendered a final judgment 

in Resendez’s criminal case, and he was a party in that case. As to the third element, there are 

issues presented in this case that were decided in the prior case. First, the state court found that 

Resendez acknowledged that he knew what he had done was wrong, and that he had been paid—
7

albeit a modest sum—for his cooperation in the theft. Second, prior to (or at the beginning of) 

the August 10, 2011, meeting, Resendez was told that his employment had been terminated. 

Resendez had a full and fair opportunity to litigate these issues in the prior case. It is 

clear from both the trial transcript and the opinion of the Illinois Appellate Court, which 

summarizes the evidence presented during the bench trial, that these issues were central to the 

criminal case. See People v. Resendez, 2013 Ill. App. (1st) 121656-U; (Trial Tr. May 9, 2012, 

People v. Resendez). The state’s witnesses testified that at the beginning of the August 10, 2011, 

meeting, Resendez was informed that his employment had been terminated. They testified that 

during the meeting, Resendez admitted that he knew what he had done was wrong and that he 

had received $30 one time from the theft. They further testified that Resendez was not told that 

he must sign the document or he was going to jail, nor was he told that if he did sign it, he could 

go back to work. Resendez’s supervisor testified that Resendez was not authorized to load scrap 

metal onto the truck and that it was not part of his job to help people who asked him to do things 

on the premises. Orellana testified that he translated the confession (which said “Alex, Victor 

and I have been stealing scrap steel and pallets from Klein Tools.”) word for word into Spanish 

and that no one threatened Resendez, although he was told that if he did not sign the statement, 

Klein would call the police. 

Resendez testified on his own behalf at trial. He stated that he loaded and unloaded items 

when asked to do so, that he did not know where the scrap metal was taken, and that he did not 

know that it was being stolen. He denied that the paper he signed during the August 10, 2011, 

meeting was translated to him, and he testified that he was told he would not lose his job if he 

signed the paper. He explained that the $30 he received was a loan repayment, not payment for 
8

assisting with the theft. In closing argument, defense counsel argued that Resendez did not know 

that he was doing something wrong when he loaded the scrap metal onto the truck and that he 

was “badgered” and “bullied” into signing a confession. (Trial Tr. May 9, 2012, People v. 

Resendez, at 120.) 

The trial court accepted the prosecution’s version of events. The court found that before

the August 10, 2011, meeting, Resendez was told that his employment had been terminated. The 

court thus rejected Resendez’s argument that he signed the confession because he was promised

that he could keep his job. 

2. Breach of Contract (Count I)

With the state court’s factual findings in mind, the court turns to the breach of contract

claim. To state a claim for breach of contract under Illinois law, Resendez must allege: “(1) the 

existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) breach of 

contract by the defendant; and (4) resultant injury to the plaintiff.” Lake Cnty. Grading Co., LLC 

v. Antioch, 985 N.E.2d 638, 644 (Ill. App. Ct. 2013). Resendez’s breach of contract claim rests

on his allegations that Klein offered not to fire him if he signed the confession, that he accepted 

that offer and signed the confession, and that Klein then breached the resulting contract when it 

terminated him. (Am. Compl. ¶¶ 29-32, ECF No. 16-1.) 

The factual findings in Resendez’s criminal case preclude him from alleging in this case

that he signed the confession based on a promise by Klein that he could keep his job. The state 

court found that he was told that he had been terminated before he signed the confession, and he 

may not re-litigate an issue that was decided by the state court. He is therefore collaterally 
9

estopped from asserting a breach of contract claim based on Klein’s alleged promise not to 

terminate him. Klein’s motion to dismiss Count I is granted.

3. Fraudulent Misrepresentation (Count II)

Resendez’s fraudulent misrepresentation claim rests on his allegations that he was told by 

two Klein representatives that Klein would not terminate him or call the police if he signed the 

confession, that Klein knew the statements were false when they were made, and that he signed 

the statement in reliance on the statements. (Id. at ¶¶ 35-41.) To allege a claim of fraudulent 

misrepresentation, Resendez must allege: “(1) a false statement of material fact; (2) known or 

believed to be false by the person making it; (3) an intent to induce the plaintiff to act; (4) action 

by the plaintiff in justifiable reliance on the truth of the statement; and (5) damage to the plaintiff 

resulting from such reliance.” Doe v. Dilling, 888 N.E.2d 24, 35-36 (Ill. 2008). 

Insofar as the fraudulent representation claim relies on the allegation that Klein promised 

not to terminate Resendez, it fails for the same reason as the breach of contract claim: the state 

court found that Resendez was told before he signed the confession that he had lost his job, and 

he is precluded from asserting facts in this case that are contradictory to that finding. The 

fraudulent misrepresentation claim also asserts, however, that Klein promised not to call the 

police if Resendez signed the confession, and that Klein did so despite that promise. The state 

court made no explicit finding as to whether Klein promised not to call the police. Thus, 

Resendez is not precluded from alleging that such a promise was made. 

Klein argues that the claim nevertheless fails, because the statement about not calling the 

police is a promise regarding future conduct, not a misrepresentation of present fact, and is 

therefore not actionable as fraudulent misrepresentation in Illinois. Generally, a false promise 
10

about a future act cannot form the basis of a fraudulent misrepresentation claim. Resendez 

alleges that Klein’s statements were made with the knowledge that they were false, because Klein

knew it would call the police at the time the statements were made. These allegations, construed 

in his favor, support an inference that Klein intended to defraud him. But even when “made 

without a present intention to perform, misrepresentations as to future conduct ‘do not generally 

constitute fraud’” under Illinois law. HPI Health Care Servs., Inc. v. Mt. Verson Hosp., Inc., 545 

N.E.2d 672, 682 (Ill. 1989). Representations based on the future conduct of the defendant have 

been found to be promises of future performance that are not actionable in fraud. See Ault v. 

C.C. Servs., Inc., 597 N.E.2d 720, 722 (Ill. App. Ct. 1992); Wilde v. First Fed. Sav. and Loan 

Ass’n of Wilmette, 480 N.E.2d 1236, 1243 (Ill. App. Ct. 1985). 

There is an exception to this general rule for false promises that form part of a fraudulent 

scheme; this is sometimes labeled “promissory fraud.” Ault, 597 N.E.2d at 722; Desnick v. Am. 

Broadcasting Cos., Inc., 44 F.3d 1345, 1354-55 (7th Cir. 1995). The Seventh Circuit has stated 

that a fraudulent scheme may exist when multiple false promises were made by the defendant, or 

when a false promise made to one person was “particularly egregious.” Desnick, 44 F.3d at 

1354. As he does not allege that multiple false promises were made, to establish that the 

exception applies, Resendez must allege facts sufficient to support an inference that the false 

promise was so “egregious” that it amounts to a fraudulent scheme. Id. The facts alleged in the 

complaint do not support such an inference. As the state court found, before Klein notified the 

police, Resendez acknowledged that he had done something wrong and had been paid for his 

participation in the theft, and he signed a confession admitting to stealing. Klein thus called the 

police based on facts indicating that Resendez had committed a crime, and Resendez is precluded 
11

by the findings of the state court from challenging those facts. Moreover, Resendez was 

convicted of theft, and the conviction was affirmed. The allegations in the complaint do not 

support a promissory fraud claim. The court therefore grants the motion to dismiss Count II.

B. Title VII Claims (Counts III and IV)

In support of his discrimination claims in Counts III (national origin) and IV (ancestry), 

Resendez alleges that Klein’s investigation of his role in the theft was discriminatory, because 

Klein refused to listen to his explanation of his innocence because of his national origin, 

ancestry, and poor English skills. He also alleges that Mexican workers at Klein are treated with 

less respect than non-Mexican workers, given tasks that do not allow them the same 

opportunities for promotion, and are not promoted as quickly as non-Mexican workers with 

similar skills. 

To prove a violation of Title VII, a plaintiff may either present direct evidence that an 

adverse employment action was motivated by discriminatory animus, or proceed indirectly 

through a burden-shifting approach. The latter method requires him to establish a prima facie 

case of discrimination by showing that (1) he belongs to a protected class, (2) his job 

performance met legitimate expectations, (3) he suffered an adverse employment action, and (4) 

another similarly situated individual not in the class was treated more favorably. McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973); Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 

750-51 (7th Cir. 2006). When a claim is based on disparate punishment, “the second and fourth 

prongs . . . merge.” Lucas v. Chi. Transit Auth., 367 F.3d 714, 728 (7th Cir. 2004). If a plaintiff 

establishes a prima facie case, the burden then shifts to the employer to identify a legitimate, nondiscriminatory reason for the adverse employment action. Once the employer has produced such 
12

a reason, the employee must rebut the proffered reason by demonstrating that it is a mere pretext 

for discrimination. Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504, 511-12 (7th Cir. 2012).

Klein argues that Resendez cannot prevail on his Title VII claims because he has alleged 

no direct evidence of discriminatory intent, nor can he succeed under the McDonnell Douglas 

approach because—given his theft conviction—he cannot demonstrate that he was meeting 

Klein’s legitimate expectations, and he has not identified a similarly situated fellow employee 

who received more favorable treatment. Moreover, even if he could establish a prima facie case, 

his theft conviction provides a legitimate nondiscriminatory reason for his termination. Klein 

further argues that Resendez’s claims regarding his working conditions and Klein’s failure to 

promote him should be dismissed because he has not sufficiently alleged an adverse employment 

action with respect to those claims.

1. Disparate Punishment

The court acknowledges that Resendez’s claim that his termination was discriminatory

will be difficult to prove, given the findings of the state court in his criminal case. Even so, 

Klein’s argument for dismissal confuses the burden of producing evidence when faced with a 

motion for summary judgment with the burden of stating a claim sufficient to defeat a motion to 

dismiss. Klein argues that Resendez failed to meet Klein’s legitimate expectations, that his theft 

conviction constitutes a legitimate nondiscriminatory reason for his termination, and that he has 

failed to identify a similarly situated fellow employee who was not comparably disciplined. In

support of these arguments, Klein cites two cases that were resolved on summary judgment. See 

Villa v. City of Chi., 924 F.2d 629 (7th Cir. 1991); Paluck v. Gooding Rubber Co., 221 F.3d 1003 

(7th Cir. 2000). 
13

The sufficiency of a complaint, however, is not subject to review based on the more 

demanding summary judgment standards. For a Title VII claim to survive a Rule 12(b)(6) 

motion, a plaintiff need not allege all of the elements of a prima facie case of discrimination. 

Rather, the plaintiff must meet two requirements:

First, the complaint must describe the claim in sufficient 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 plaintiff 

pleads itself out of court.

Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (quoting Equal Emp’t Opportunity 

Comm’n v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007) (internal citations and 

quotations omitted)). 

Here, the complaint gives Klein fair notice of what Resendez’s claim is, and the question 

before the court is simply whether the complaint plausibly suggests that Resendez has a right to 

relief. Resendez alleges that Klein’s investigation of his role in the theft was discriminatory, 

because Klein refused to listen to him because of his national origin, ancestry, and poor English 

skills. This is a sufficiently detailed explanation of the grounds on which the claim rests. If a 

claim correctly invokes a legal theory and contains plausible allegations, it cannot be dismissed 

pursuant to Rule 12(b)(6). Richards v. Mitcheff, 696 F.3d 635, 638 (7th Cir. 2012). 

“Plausibility” does not mean that the plaintiff is “likely” to prevail. Swanson, 614 F.3d at 404.

Moreover, despite his conviction for misdemeanor theft, it is not so clear that Resendez 

cannot establish facts to support his claim to justify dismissing the complaint. Even at the 

summary judgment stage, an employer must do more than show that a plaintiff committed 

misconduct to defeat a discrimination claim. The plaintiff may be able to show that other 
14

workers who committed similar misconduct were treated more favorably, or that the misconduct 

was a pretext for the adverse action. See, e.g., Perez v. Thorntons, Inc., No. 12-3669, 2013 WL 

5420979, at *9-11 (7th Cir. Sept. 30, 2013); Rabe v. United Air Lines, No. 08 C 6012, 2013 WL 

5433251, at *9 (N.D. Ill. Sept. 30, 2013). The Seventh Circuit recently held in Perez that a 

plaintiff’s claim survived summary judgment, even when she violated a company policy, because 

potentially comparable wrongdoing by someone outside of the protected class was treated less 

harshly. Perez, 2013 WL 5420979, at *5-9 (explaining that the district court should have 

allowed a jury to decide whether the plaintiff and a fellow employee were sufficiently similar to 

support a prima facie case). The motion to dismiss is therefore denied as to Resendez’s claims 

that he received disparate punishment on the basis of his national origin and ancestry. 

2. Failure-to-Promote

Resendez also alleges that Mexican workers at Klein are treated with less respect, given 

tasks that do not allow them the same opportunities for promotion, and are not promoted as 

quickly as non-Mexican workers with similar skills. Klein argues that these allegations do not 

constitute an adverse employment action, which a plaintiff must allege in order to state a Title 

VII claim. The court agrees. An allegation that Resendez was treated with less respect than 

other workers would not in itself constitute an adverse employment action, although it might 

support an inference of discrimination. See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 

901 (7th Cir. 2003) (being “singled out for unfavorable treatment” does not “amount[] to an 

adverse employment action”). Being denied a promotion, however, would constitute an adverse 

employment action. See id. at 899 (denial of a promotion to a “team leader position” with 

“slightly higher pay” constituted an adverse employment action). But Resendez has not 
15

specifically alleged that he was denied a particular promotion or promotions. The complaint is 

too conclusory as to these claims to put Klein on notice as to what the alleged adverse action

entailed, who was responsible, or at what point during Resendez’s eighteen years of employment 

it took place. See Tamayo, 526 F.3d at 1085 (complaint survived a motion to dismiss where the 

plaintiff alleged “specific” adverse employment actions). The motion to dismiss is therefore 

denied without prejudice as to the failure-to-promote claims.

IV. CONCLUSION

Klein’s motion to dismiss the Amended Complaint is granted in part and denied in part. 

Collateral estoppel prevents Resendez from establishing facts essential to his state-law breach of 

contract claim, and the court grants Klein’s motion to dismiss that claim, Count I. The motion is 

also granted as to the fraudulent misrepresentation claim in Count II. As to the Title VII claims

in Counts III and IV, Resendez’s disparate punishment claims may proceed, but his failure-topromote claims are dismissed without prejudice.

ENTER:

 /s/

JOAN B. GOTTSCHALL

United States District Judge

DATED: October 10, 2013