IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

KIMBERLY HIVELY, )

)

Plaintiff, )

)

vs. ) No. 3:14-cv-1791

)

IVY TECH COMMUNITY COLLEGE, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the Motion to Dismiss,

filed by Defendant, Ivy Tech Community College (“Ivy Tech”), on

September 29, 2014 (DE #8). For the reasons set forth below, the

motion (DE #8) is GRANTED. The Clerk is ORDERED to DISMISS

Plaintiff’s complaint WITH PREJUDICE in its entirety, and to CLOSE

this case. 

BACKGROUND

Pro se Plaintiff, Kimberly Hively, filed her two-count

complaint against Ivy Tech on August 15, 2014. (DE #1.) She

alleges she was “[d]enied fulltime employment and promotions based

on sexual orientation” in violation of Title VII of the Civil

Rights Act of 1964 and 42 U.S.C. § 1981. (DE #1, p. 2.) She

attached her administrative charge of discrimination which stated

as follows:

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I have applied for several positions at IVY TECH,

fulltime, in the last 5 years. I believe I am

being blocked from fulltime employment without just

cause. I believe I am being discriminated against

based on my sexual orientation. I believe I have

been discriminated against and that my rights under

the Title VII of the Civil Rights Act of 1964 were

violated. 

(DE #1-1, p. 2.) 

Ivy Tech filed the instant motion to dismiss on September 29,

2014 (DE #8), arguing Plaintiff failed to set forth a claim upon

which relief may be granted, and the complaint should be dismissed

under Federal Rule of Civil Procedure Rule 12(b)(6). Specifically,

Ivy Tech contends that sexual orientation is not a protected class

under Title VII or Section 1981. (DE #9.) 

Hively filed a response in opposition on November 12, 2014 (DE

#12). In it, she sets forth facts about the percentage of states

recognizing same sex marriages/civil unions, and argues that sexual

orientation should be protected. Additionally, she quotes Ivy

Tech’s employee handbook, which states that the College “will not

discriminate against any person because of . . . sexual

orientation. . . .” (DE #12, p. 2.) Finally, in the last sentence

of her response, Hively requests permission “to amend the initial

complaint to include the state and local rules and Ivy Tech

Community College’s employment policy.” (Id., p. 3.) 

Ivy Tech filed a reply in support of its motion to dismiss on

November 21, 2014 (DE #13). As such, this motion is fully briefed

and ripe for adjudication. 

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DISCUSSION

Motion to Dismiss for Failure to State a Claim

Federal Rule of Civil Procedure 12(b)(6) provides for the

dismissal of a complaint, or any portion of a complaint, for

failure to state a claim upon which relief can be granted. “To

survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotations omitted); see also Ray v. City of

Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011) (citation omitted)

(“While the federal pleading standard is quite forgiving . . . the

complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.”).

A complaint 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 Corp. v. Twombly, 550 U.S. 544, 561 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Plus, Iqbal

requires that a plaintiff plead content which allows this Court to

draw a reasonable inference that the defendant is liable for the

alleged misconduct. 556 U.S. at 678.

In ruling on a motion to dismiss brought pursuant to Federal

Rule of Civil Procedure 12(b)(6), the court must draw all

reasonable inferences that favor the plaintiff, construe the

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allegations of the complaint in the light most favorable to the

plaintiff, and accept as true all well-pleaded facts and

allegations in the complaint. Thompson v. Ill. Dep't of Prof'l

Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v.

Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to

withstand a motion to dismiss, a complaint must allege the

“operative facts” upon which each claim is based. Kyle v. Morton

High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner,

967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to

include allegations in the complaint that “plausibly suggest that

the plaintiff has a right to relief, raising that possibility above

a ‘speculative level’ ” and “if they do not, the plaintiff pleads

itself out of court.” E.E.O.C. v. Concentra Health Servs., Inc.,

496 F.3d 773, 776 (7th Cir. 2007) (quoting in part Twombly, 550

U.S. at 569 n. 14 (2007)). “Factual allegations must be enough to

raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true (even

if doubtful in fact).” Twombly, 550 U.S. at 555 (quotation marks,

ellipsis, citations and footnote omitted). Thus, a “plaintiff must

do better than putting a few words on paper that, in the hands of

an imaginative reader, might suggest that something has happened to

her that might be redressed by the law.” Swanson v. Citibank,

N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original).

The Court notes that Plaintiff is appearing pro se in this

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matter. Generally, although "pro se litigants are masters of their

own complaints," and "[d]istrict judges have no obligation to act

as counsel or paralegal to pro se litigants," Myles v. United

States, 416 F.3d 551, 552 (7th Cir. 2005), a document filed pro se

is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S.

89, 94 (2007). However, “on a motion to dismiss, courts are not

bound to accept as true a legal conclusion couched as a factual

allegation.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain,

478 U.S. 265, 286 (1986) (quotation marks omitted)).

Title VII

Title VII states that:

It shall be unlawful employment practice for an

employer - (1) to fail or refuse to hire or to

discharge any individual, or otherwise to

discriminate against any individual with respect to

his compensation, terms, conditions, or privileges

of employment, because of such individual’s race,

color, religion, sex, or national origin[.]

42 U.S.C. § 2000e-2(a)(1). While Title VII expressly prohibits

employers from refusing to hire employees “because of [their] sex,”

the Seventh Circuit has held that “Congress intended the term ‘sex’

to mean ‘biological male or biological female,’ and not one’s

sexuality or sexual orientation. Hamner v. St. Vincent Hosp. and

Health Care Center, Inc., 224 F.3d 701, 704 (7th Cir. 2000). Thus,

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“harassment based solely upon a person’s sexual preference or

orientation . . . is not an unlawful employment practice under

Title VII.” Id., see also Wright v. Porters Restoration, Inc.,

2:09-CV-163-PRC, 2010 WL 2559877, at *4 (N.D. Ind. June 23, 2010)

(granting dismissal of claim alleging discrimination for sexual

orientation, stating “[t]o the extent the Plaintiff may be alleging

discrimination based on sexual orientation, the Seventh Circuit has

unequivocally held that this type of discrimination is not, under

any circumstances, proscribed by Title VII”); Hamzah v. Woodmans

Food Market, Inc., No. 13-cv-491, 2014 WL 1207428, at *2 (W.D. Wis.

Mar. 24, 2014) (finding “[t]o the extent [plaintiff] claims

harassment due to his heterosexuality - that is, his sexual

orientation, not his sex - he cannot bring a Title VII claim

against [defendant] for these alleged instances of harassment, and

the court will dismiss that claim with prejudice.”). 

While this Court is sympathetic to the arguments made by

Hively in her response brief, this Court is bound by Seventh

Circuit precedent. Because sexual orientation is not recognized as

a protected class under Title VII, that claim must be dismissed.

Section 1981

Although Hively has alleged a claim under Section 1981, it is

clear that section 1981 covers only racial discrimination. “[O]nly

race discrimination claims may be brought under [Section 1981]” and

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“sexual orientation based claims are not cognizable under § 1981.” 

Perez v. Norwegian-American Hosp., Inc., 93 Fed. Appx. 910, 913 n.1

(7th Cir. 2004); Bratton v. Roadway Package Sys., Inc., 77 F.3d

168, 177 (7th Cir. 1996) (Section 1981 also “does not provide a

cause of action for sex discrimination claims”); Friedel v.

Madison, 832 F.2d 965, 967 n. 1 (7th Cir. 1987). As such, Hively’s

section 1981 claim must also be dismissed for failure to state a

claim. 

Request to Amend the Complaint

At the end of her response in opposition to the motion to

dismiss, Hively requests “permission to amend the initial complaint

to include the state and local rules and Ivy Tech Community

College’s employment policy.” (DE #12, p. 3.) She references

“regulations that govern both the State and City” in which Ivy Tech

operates, Indiana’s constitution, and an employee handbook. (Id.,

pp. 1-2.) First, this request is procedurally improper as motions

should not be combined (N.D. Ind. L.R. 7-1(a)), and Hively did not

include a “signed proposed amendment as an attachment” in

accordance with N.D. Ind. L.R. 15-1(a). Additionally, any

amendment would be futile. This Court would have no jurisdiction

over the proposed amendment “to include the state and local rules

and [an] employment policy” as these would be purely state claims

and diversity is lacking. See Ind. Code § 21-22-2-2 (“Ivy Tech

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Community College of Indiana” is a “state educational

institution”); DE #1 (Plaintiff’s address is in South Bend,

Indiana). Here, where an amendment would be futile, it is

appropriate to dismiss the case without leave to amend. See, e.g.,

Braun v. Gonzales, No. 13-3183, 2013 WL 3038630, at *1 (E.D. Pa.

June 18, 2013) (denying pro se motion to amend as “amendment would

be futile because it is apparent that this case concerns matters of

state law and that there is no basis for diversity jurisdiction”);

Disanto v. Genova Prods., Inc., No. 1:10-cv-120, 2011 WL 90243, at

*1 (N.D. Ind. Jan. 10, 2011)(finding it futile to grant motion to

amend where proposed amended complaint does not establish diversity

jurisdiction). Moreover, if Hively attempted to articulate a

different federal claim, Ivy Tech, as an arm of the state, would

likely be immune under the Eleventh Amendment. See McCullough v.

IPFW Univ., No. 1:12-cv-398, 2013 WL 587886, at *1-*2 (N.D. Ind.

Feb. 11, 2013) (denying motion to amend complaint as state

university was immune from federal claims). As such, Plaintiff’s

request to amend her complaint is futile, and is DENIED. 

CONCLUSION

For the reasons stated above, the Motion to Dismiss (DE #8) is

GRANTED. The Clerk is ORDERED to DISMISS Plaintiff’s complaint

WITH PREJUDICE in its entirety, and to CLOSE this case. 

DATED: March 3, 2015 /s/ RUDY LOZANO, Judge

United States District Court

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