IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

KATRINA B. COMER, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) No. 2:14-CV-467 

 ) 

SCHOOL CITY OF HAMMOND ) 

INC., DIANE SCHWEITZER, ) 

in her Official Capacity, ) 

 ) 

 Defendants. ) 

 

OPINION AND ORDER

 

 This matter is before the Court on Defendants’ Motion to 

Dismiss Amended Complaint, filed on April 6, 2015. For the reasons 

set forth below, this motion is DENIED in part and GRANTED in part. 

The motion is GRANTED as to (1) Plaintiff’s Title VII claims arising 

from EEOC Charge Nos. 24B-2011-0040 and 24B-2013-0016; (2) 

Plaintiff’s claims under Section 1981 and Section 1983; and (3) 

Plaintiff’s claims against Diane Schweitzer. The motion is DENIED

as to Title VII claims arising under EEOC Charge Nos. 470-2014-

01277 and 470-2014-02282. 

 

 
2

BACKGROUND 

Katrina B. Comer (“Comer”) was employed by the School City of 

Hammond, Inc. (“Hammond School”) as a painter from May 2010 until 

July 1, 2014. During her time with Hammond School, Comer filed 

several EEOC charges. 

 On March 22, 2011, Comer filed her first discrimination charge 

against Hammond School (Charge No. 24B-2011-00040). Comer alleged 

that, because of the constant harassment and intimidation from her 

white, male coworkers, Hammond School was liable to her for 

discrimination based on her race and sex, in violation of Title 

VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. §

2000e-5. 

 Thereafter, in February of 2013, Comer filed Charge No. 24B2013-00016 against Hammond School. Here, Comer alleged that Diane 

Schweitzer, the Director of Buildings and Grounds, harassed her 

and retaliated against her because Comer made an internal complaint 

and filed the previous EEOC complaint. 

 Over a year later, on March 29, 2014, Comer filed Charge No. 

470-2014-01277 against the Hammond School. In this charge, Comer 

alleged that she was retaliated against for filing the two previous 

charges and discriminated against due to her race and sex by being 

prevented from operating school-owned vehicles. 

 A few months later, on July 10, 2014, Comer filed Charge No. 

470-2014-02282 against the Hammond School. Under this charge, 
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Comer alleged Defendants terminated her position in retaliation 

for filing the three previous charges. The EEOC issued its 

Dismissal and Notice of Rights on September 30, 2014, for Charge 

No. 470-2014-02282. 

 On December 29, 2014, Comer filed a pro se employment 

discrimination complaint against Defendants. The complaint 

alleged discrimination and retaliation under Title VII, 42 U.S.C. 

section 1981, and 42 U.S.C section 1983. Thereafter, on January 

30, 2015, Defendants filed a motion to dismiss. In response, Comer 

secured legal representation and filed an amended complaint. The 

amended complaint alleges multiple claims, as follows: 1) unlawful 

discrimination and job elimination based on race and sex in 

violation of Title VII; 2) retaliation in violation of Title VII; 

3) a claim pursuant to 42 U.S.C. section 1983 for a violation of 

the Fourteenth Amendment; and 4) a violation of 42 U.S.C. section 

1981. 

 On April 6, 2015, the Defendants filed the instant motion to 

dismiss the amended complaint. The motion is now fully briefed 

and ripe for adjudication. 

 

DISCUSSION 

 Federal Rule of Civil Procedure 12(b)(6) allows a complaint 

to be dismissed if it fails to “state a claim upon which relief 

can be granted.” Allegations other than fraud and mistake are 
4

governed by the pleading standard outlined in Federal Rule of Civil 

Procedure 8(a), which requires a “short and plain statement” 

showing that the pleader is entitled to relief. 

 In order to survive a 12(b)(6) motion, “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) (quoting Bell Atlantic Corp. v. Twombly, 

550 U.S. 544,570 (2007)). All well-pleaded facts must be accepted 

as true, and all reasonable inferences from those facts must be 

resolved in the plaintiff’s favor. Pugh v. Tribune Co., 521 F. 3d 

686, 692 (7th Cir. 2008). However, a plaintiff may plead himself 

out of court if the complaint includes allegations that show he 

cannot possibly be entitled to the relief sought. McCready v. 

eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006). 

 In her response to the instant motion to dismiss, Comer has 

agreed to dismiss Diane Schweitzer in her official capacity. She 

has also agreed to withdraw all claims under 41 U.S.C. section 

1981 and 42 U.S.C. section 1983. Accordingly, the motion to 

dismiss is GRANTED as to Comer’s claims against Diane Schweitzer 

in her official capacity and all claims arising under 41 U.S.C. 

section 1981 and 42 U.S.C. section 1983. 

 This leaves only Comer’s Title VII claims against Hammond 

School to address. Hammond School has attached numerous exhibits 

to their motion to dismiss. The documents include EEOC charges, 
5

right to sue letters, and the contents of EEOC files. When 

reviewing a motion to dismiss, the court generally considers only 

the factual allegations of the complaint and any reasonable 

inferences that can be drawn from those allegations. See Gessert 

v. United States, 703 F.3d 1028, 1033 (7th Cir. 2013). The court 

may, however, examine information from documents attached to a 

motion to dismiss “if they are referred to in the plaintiff’s 

complaint and are central to his claim.” Adams v. City of 

Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014) (quotation 

omitted).1 Such documents may be considered by the court in ruling 

on the motion to dismiss without converting the motion into a 

motion for summary judgment. See Burke v. 401 N. Wabash Venture, 

LLC, 714 F.3d 501, 505 (7th Cir. 2013). However, this is a “narrow 

exception” to the general rule that consideration of extraneous 

material requires conversion to a summary judgment motion. 188 

LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002). 

When extraneous materials are presented, it is within the court’s 

discretion either to exclude the materials and handle the case as 

a straightforward motion to dismiss, or to consider the materials 

                                                            

1 Defendants argue that “documents that are critical to the 

complaint” can be considered, citing Geinowski v. City of Chicago, 

675 F.3d 743, 745 n.1 (7th Cir. 2012). Geinowski, however, 

consistent with Adams, actual states that “documents that are 

critical to the complaint and referred to in it” can be considered 

in ruling on a motion to dismiss. Id. (emphasis added). 
6

and convert to summary judgment. See Levenstein v. Salafsky, 164 

F.3d 345, 347 (7th Cir. 1998). In the instant case, this Court 

declines to convert the motion to dismiss into a summary judgment 

motion. Accordingly, before addressing the Title VII claims, the 

Court must determine which, if any, of these exhibits can be 

properly considered in conjunction with the motion to dismiss. 

The EEOC charges are referenced in the amended complaint and 

are central to Comer’s claims. Therefore, they can be properly 

considered by this Court. Likewise, one of the right to sue 

letters (for Charge No. 470-2014-02282) is referenced in the 

amended complaint and can be properly considered by the Court – in 

fact, Comer attached it to the amended complaint. The other 

materials, however, are not necessary to resolving the instant 

motion and will be disregarded. See Macias v. Bakersfield 

Restaurant, 54 F.Supp.3d 922, 927 (N.D. Ill. 2014). 

 Comer’s amended complaint references each of the four EEOC 

charges discussed above. Hammond School claims that Comer’s Title 

VII claims arising from two of the four charges are time barred: 

Charge Nos. 24B-2011-0040 or 24B-293-0016. In response, Comer 

concedes that claims arising from these two charges are timebarred because she did not file any action within 90 days of her 

receipt of the right to sue letters. Hammond School has not 
7

challenged the timeliness of Comer’s claims arising from Charge 

Nos. 470-2014-01277 No. 470-2014-02282.2 

 Hammond School, however, wants more than just a ruling that 

Comer cannot proceed on claims stemming from these two earlier 

EEOC charges – Hammond School has asked this Court to dismiss 

paragraphs 17 through 22 of the amended complaint with prejudice. 

The aforementioned paragraphs contain factual allegations, not 

legal claims. Whether those facts are relevant to the remaining 

timely claims stemming from EEOC Charge Nos. 470-2014-01277 and 

470-2014-02282 is a question more appropriately resolved at a later 

stage of this litigation. 

CONCLUSION 

 For the reasons set forth above, Defendants’ Motion to Dismiss 

Plaintiff’s Amended Complaint, filed on January 30, 2015, is GRANTED 

as to (1) Plaintiff’s Title VII claims arising from EEOC Charge Nos. 

24B-2011-0040 and 24B-2013-0016; (2) Plaintiff’s claims under 

Section 1981 and Section 1983; and (3) Plaintiff’s claims against 

Diane Schweitzer. The motion is DENIED as to Plaintiff’s Title 

                                                            

2 Hammond School’s reply brief claims that “Plaintiff does not dispute that 

all of her previous EEOC claims are time barred with the exception of the 

last one, No. 470-2014-02282.” (DE #23 at 2). Hammond School, however, only 

argued that the first two EEOC claims were untimely. Comer cannot be 

expected to respond to arguments that were not made. The burden of 

demonstrating dismissal is appropriate rests with the movant, and here, 

Hammond School has not offered any argument that claims arising from Charge 

Nos. 470-2014-01277 and 470-2014-02282 are untimely. 
8

VII claims arising under EEOC Charge Nos. 470-2014-01277 and 470-

2014-02282. 

 

DATED: December 15, 2015 /s/RUDY LOZANO, Judge 

 United States District Court