UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

DEBRA RICHTER, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:14-CV-261-TLS

)

BOB EVANS, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on Defendant Bob Evans Farms, LLC’s Motion to

Dismiss Plaintiff’s First Amended Verified Complaint [ECF No. 19]. The Plaintiff filed her First

Amended Verified Complaint after the Court issued an Opinion and Order [ECF No. 14]

dismissing the Plaintiff’s original Complaint without prejudice and with leave to file an amended

complaint. The Court had concluded that the original Complaint did not give the Defendant “fair

notice of what the claim is and the grounds upon which it rests,” Tamayo v. Blagojevich, 526

F.3d 1074, 1083 (7th Cir. 2008), because it was not clear whether the Plaintiff’s retaliation claim

was a third party reprisal claim based on her son’s protected activity, or was based on her own

participation in an investigation. The Court noted that the Plaintiff’s pleading contained only a

conclusory allegation that her employer investigated her son’s complaint, but no factual

allegations to suggest that she participated in any manner in the Defendant’s investigation of her

son’s charge of discrimination. But the Complaint did not allege that the Defendant took adverse

action against the Plaintiff as a means to punish her son for his protected activity either. Thus, it

was unclear what the Plaintiff was claiming as the reason her employer took adverse action.

In its Motion to Dismiss the First Amended Verified Complaint, the Defendant complains
that the Plaintiff’s amended pleading does not cure the original deficiencies, and points to

several confusing statements. For example, the Plaintiff alleges that her son filed a complaint

with Metro on December 6, 2012, which alleged “that Defendant retaliated against her in

employment.” (First Am. Compl. ¶ 8(b) (emphasis added)). The Defendant notes that the son’s

charge did not make any claims related to the Plaintiff. The Court reads the reference to “her” as

a typographical error, and finds that it is a reasonable to infer that the Plaintiff intended to allege

that her son filed a charge complaining that he was retaliated against. In any event, the important

aspect of the allegation is that the Plaintiff’s son engaged in protected activity by filing a charge

of discrimination against his employer. The exact contours of his charge is extraneous material

that does not undermine the presentation of the pertinent fact. 

In the original Complaint, the Plaintiff alleged that staff and management participated in

an investigation of her son’s complaint during the week of August 5, 2013. As the Defendant

points out, the Plaintiff now confusingly alleges that “Metro investigate[d] Plaintiff’s charge of

discrimination with defendant on August 8, 2013.” (Am. Compl. ¶ 8d.) This cannot be correct.

The Plaintiff did not file her charge of discrimination with Metro until eleven days later, on

August 19, 2013. It is reasonable to infer that the Plaintiff intended to allege that Metro was

investigating her son’s complaint on August 8, 2013.

The Defendant argues that the allegations the Plaintiff added in paragraphs 8 and 10 do

not address the pleading deficiencies identified by the Court. Specifically, the Defendant claims

that nowhere in Plaintiff’s First Amended Complaint did the Plaintiff allege: “(1) that Bob

Evans took adverse action against her in order to punish her son for filing a charge of

discrimination; or (2) any factual details to indicate how (or whether) she participated in the

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investigation of her son’s charge.” (Def.’s Br. in Supp. 4, ECF No. 20.) The Court agrees with

respect to the latter, but takes a different view of the former. In paragraph 8(c), the Plaintiff

provides factual support for her claim that the Defendant took adverse action against her as a

means to punish her son. She alleges that the Defendant was aware of her familial relationship,

and that she complained “as to her son’s charge of discrimination.” Although the exact nature of

these complaints are not provided, the fact that her employer was aware that it was the Plaintiff’s

son who had filed the charge of discrimination lends factual support to her claim that she was

penalized to dissuade her son from complaining. It is sufficient to put the Defendant on notice of

the nature of her claim, particularly in light of her Charge of Discrimination, in which she

alleged that she believed her employer’s actions were “in retaliation for my son’s complaint of

discrimination.” (Ex. A to First Am. Compl., ECF No. 16-1.) The pleading also sets forth the

specific adverse actions that the Plaintiff maintains her employer took against her, and when

these actions took place, which was shortly after her employer was required to deal with Metro’s

investigation into her son’s complaint.

Although it must be somewhat cobbled together, the Plaintiff has set forth a discernable

claim upon which relief may be granted, specifically a claim based on third party reprisal. See

Thompson v. N. Am. Stainless LP, 562 U.S. 170, —, 131 S. Ct. 863, 867–68 (2011) (finding that

if an employer fired the fiancé of the employee who filed a charge of discrimination it would

constitute unlawful retaliation). The basic notice-pleading standard of Federal Rule of Civil

Procedure 8 remains intact, see Tomayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008), and

the Plaintiff has set forth enough to show that recovery is plausible. In other words, as the Court

asks “could these things have happened, not did they happen,” the Plaintiff has “give[n] enough

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details about the subject-matter of the case to present a story that holds together.” Swanson v.

Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). She has identified the type of discrimination

she thinks occurred, by whom, and when. In making this finding at this preliminary stage of the

litigation, the Court concludes only that the Plaintiff is entitled to take the next step in the

litigation.

The Amended Complaint, however, contains no facts to support the conclusory allegation

that her employer took adverse action “in retaliation for Plaintiff’s participation in her son’s

complaint for discrimination.” (First Am. Compl. ¶ 8(g).) There is simply no factual assertion

that she ever participated in an investigation. Thus, there is no plausible claim before the Court

that the Defendant took adverse actions against the Plaintiff in response to her own protected

activity.

Finally, the Court notes that the Defendant’s Motion incorporates and reasserts the

entirety of its original Motion to Dismiss [ECF No. 7], which argued several grounds for

dismissal. As the Court explained in its previous Order, the other grounds for dismissal that the

Defendant argued would require the Court to consider matters outside the pleadings, which is not

proper under Rule 12(b)(6) unless the Court converts the Motion to a motion for summary

judgment. See Fed. R. Civ. P. 12(d). The Court declines to convert the Motion.

CONCLUSION

For the reasons stated above, the Court DENIES Defendant Bob Evans Farms, LLC’s

Motion to Dismiss Plaintiff’s First Amended Verified Complaint [ECF No. 19].

SO ORDERED on December 10, 2014.

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 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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