UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ELIZA GONZALEZ, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:13-CV-207-JTM-JEM

)

HAMMOND SCHOOL CORPORATION, )

Defendant. )

FINDINGS, REPORT AND RECOMMENDATION OF 

UNITED STATES MAGISTRATE JUDGE PURSUANT TO

28 U.S.C. § 636(b)(1)(B) & (C)

This matter is before the Court on Defendant’s Motion to Dismiss [DE 10], filed by

Defendant on July 29, 2013, and on a Motion for to File Amended Complaint [sic] [DE 15], filed

by Plaintiff on September 10, 2013. Plaintiff filed a response to Defendant’s Motion to Dismiss on

September 17, 2013, after the time to do so had expired. Also on September 17, 2013, Defendant

filed an objection to Plaintiff’s Motion for to File Amended Complaint. Plaintiff did not file a reply,

and the time do so has passed.

On November 6, 2013, District Court Judge James T. Moody entered an Order [DE 20]

referring Defendant’s Motion to Dismiss to the undersigned Magistrate Judge for a report and

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned

Magistrate Judge’s combined proposed findings and recommendations pursuant to 28 U.S.C. §

636(b)(1)(C). The Motion for to File an Amended Complaint is not subject to the Order of Referral.

For the following reasons, the Court grants the Motion for to File an Amended Complaint 

and recommends that the District Court deny Defendant’s Motion to Dismiss as moot.
FACTUAL AND PROCEDURAL BACKGROUND

On November 9, 2010, Plaintiff filed a charge with the Equal Employment Opportunity

Commission (“EEOC”) against the Hammond School District, alleging discrimination based on

national origin and disability. In it, Plaintiff alleged numerous specific incidents of discriminatory

treatment, including being prohibited from speaking Spanish and being paid less than non-Hispanic

administrators. Plaintiff received a Right to Sue letter from the EEOC on July 11, 2011, but she did

not pursue litigation within the ninety days allotted to do so. 

On August 10, 2012, Plaintiff filed a second charge with the EEOC against the Hammond

School Corporation, alleging discrimination based on national origin and retaliation. In the

statement of particulars, Plaintiff wrote:

I am a Hispanic American who was hired by the Respondent on June

1, 2006. My recent position was Chief Administrator of Human

Resource. On December 9, 2010, I filed a complaint with the EEOC

(24B-2011-0011), the investigation was concluded around October

2011. Since then I have been denied terms and conditions of

employment by Respondent’s Supervisor, Walter Watkins (African

American) that Respondent’s other non Hispanics were afforded. 

The last act occurred on January 23, 2012, when I was forced to

tender my resignation or be terminated. The reason given by

Supervisor, Walter Watkins was allegedly due to my creating a

hostile work environment, and people not liking me and not wanting

to work with me.

I have been discriminated against based on my National

Origin/Hispanic, and in retaliation of my filing an EEOC complaint

in violation of Title VII of the Civil Rights Act of 1964, as amended.

The EEOC mailed a Right to Sue letter on March 13, 2013. Plaintiff commenced this lawsuit

with a Complaint filed on June 12, 2013. In it, she asserts claims pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the First Amendment of the U.S.

Constitution.

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The first Count in the Complaint asserts a claim of racial discrimination in violation of Title

VII. In support of that claim, Plaintiff alleges that Defendant was aware of and condoned

“discriminatory behavior” against Plaintiff, including:

[p]aying her less than her white male predecessor, denying her use of

a credit card, denying her a stipend, making her perform additional

work duties and work hours, denying her bonuses in comparison to

her white counterparts who had fewer educational qualifications than

she, forbidding her from speaking Spanish to other Spanish speaking

employees, denying her the right to exercise her authority as Chief

Administrator of Human Resources and abusing and berating her in

public, among other acts.

Compl. ¶ 33. Some of these alleged incidents of discrimination were reported in Plaintiff’s first

EEOC charge. None were alleged in Plaintiff’s second EEOC charge. 

On July 29, 2013, Defendant filed a partial Motion to Dismiss, asking the Court to “dismiss

those allegations in Plaintiff’s Complaint that are untimely and/or not raised in previous EEOC

charges.” Def. Br. at 1 [DE 11]. It argues that the claims arising from the first EEOC charge were

barred as untimely because Plaintiff did not file suit on those claims within ninety days of receiving

her Right to Sue letter as required. The rest it argues are barred because they were not found in or

reasonably related to the claims in the second EEOC charge upon which Plaintiff bases the instant

lawsuit.

Plaintiff did not respond to Defendant’s partial Motion to Dismiss within the time allowed

to do so, but on September 10, 2013, she filed the instant Motion for to File Amended Complaint. 

Among the proposed amendments, Plaintiff removed from the Title VII section of the Complaint

the allegations to which Defendant objects in its partial Motion to Dismiss. The relevant paragraph

as amended reads, in part, that Defendant was aware of and condoned “discriminatory behavior”

against Plaintiff, including:

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Denying her terms and conditions of employment that were afforded

to non-Hispanic employees by her African American supervisor;

forcing her to resign based on false allegations and retaliating against

her for having filed a previous charge of discrimination against

defendant with the Equal Employment Opportunity Commission,

among other acts that were taken against her due to her national

origin.

Amended Compl. ¶ 33. This proposed paragraph tracks almost exactly the language of the statement

of particulars in the second EEOC charge. 

However, the allegations to which Defendant objects remain in the “Factual Background”

section common to and incorporated by reference into all counts. Defendant asks that Plaintiff’s

Motion for to File an Amended Complaint be denied to the extent that inclusion of those allegations

not be allowed.

ANALYSIS

I. Motion Amend Complaint

Federal Rules of Civil Procedure provide that a Complaint may be amended “only with the

opposing party’s written consent or the court’s leave” if, as is the case here, more than 21 days have

passed since the filing of an Answer or a motion under Rule 12(b). Fed. R. Civ. P. 15(a)(1)-(2). 

When a motion to amend a Complaint is made, “[t]he court should freely give leave when justice

so requires.” Fed. R. Civ. P. 15(a)(2). A court may, however, decline to grant leave for reasons

such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182

(1962). The decision whether to grant or deny a motion to amend lies within the sound discretion

of the district court. See Campbell v. Ingersoll Milling Mach. Co., 893 F.2d 925, 927 (7th Cir.

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1990).

Defendant asks only that the Motion to Amend “be denied to the extent that the allegations

subject to the Motion to Dismiss be eliminated from the Proposed Amended Complaint.” Resp. 8. 

As it does in its partial Motion to Dismiss, Defendant argues that certain allegations are barred as

untimely because they were not filed within ninety days of Plaintiff’s receipt of her first Right to Sue

letter. The rest it argues are barred because they are not found in or reasonably related to the claims

in the second EEOC charge upon which Plaintiff bases her lawsuit.

Any Title VII claims arising out of an EEOC charge must be filed within ninety days of the

receipt of a Right to Sue letter. 42 U.S.C. § 2000e–5(f)(1); Lee v. Cook Cnty., Ill., 635 F.3d 969, 971

(7th Cir. 2011). A Title VII claim must also be limited to the allegations that were contained in or

reasonably related to the EEOC charge from which it arises. Cheek v. Western & Southern Life Ins.

Co., 31 F.3d 497, 500 (7th Cir. 1994) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47

(1974)); see also Babrocky, 773 F.2d 857, 864 (7th Cir. 1985). A claim is “reasonably related” to

an EEOC charge “if the claim in the complaint can reasonably be expected to grow out of an

investigation of the allegations in the charge.” Cheek, 31 F.3d at 500.

Plaintiff does not challenge Defendant’s arguments that the allegations from her first EEOC

charge are time-barred or that any allegation not contained within or reasonably related to her

second EEOC charge cannot form the basis of her current Title VII claim. Accordingly, Plaintiff

may not rely on those alleged discriminatory actions as the basis of her Title VII claims. However,

the allegations to which Defendant objects have been removed from the Title VII section of

Plaintiff’s proposed Amended Complaint. Only allegations that her supervisor retaliated against her

for filing her first EEOC charge and that her forced resignation was the result of discrimination

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based on her national origin, the exact allegations contained in her second EEOC charge, are left in

that section.

The proposed Amended Complaint does still include allegations from Plaintiff’s first EEOC

charge and allegations contained in neither EEOC charge in the “Factual Background” section. 

However, as Plaintiff points out in her belatedly filed response to Defendant’s partial Motion to

Dismiss, Plaintiff’s claim under Section 1981 of Title 42 of the U.S. Code is independent of her Title

VII claim. See Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 461 (1975) (“[T]he remedies

available under Title VII and under § 1981, although related, and although directed to most of the

same ends, are separate, distinct, and independent.”) Accordingly, her Section 1981 claim is not

subject to the same administrative limitations as her Title VII claim. That is, the same allegations

that would be time-barred as Title VII claims if not filed within ninety days of receipt of a Right to

Sue letter are not barred if alleged within a Section 1981 claim. There is also no requirement that

a Section 1981 claim be limited to allegations included in an EEOC charge. As Defendant has at

no point objected to the inclusion of these allegations in relation to Plaintiff’s Section 1981 claim,

the Court finds no reason to deny their inclusion from the “Factual Background” of the Amended

Complaint or any other reason to not “freely give” Plaintiff leave to amend her Complaint. Should

Plaintiff attempt to impermissibly use any of the alleged incidents of discriminatory treatment to

which Defendant objects as a basis for her Title VII claims in future motions or at trial, Defendant

can address the issue again then.

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II. Motion to Dismiss

Because the Motion to Amend is granted and the proposed Amended Complaint adequately

addresses Defendant’s arguments for partial dismissal, Defendant’s partial Motion to Dismiss is now

moot. Accordingly, the Court will recommend that the District Court deny the Motion as moot.

CONCLUSION

For the foregoing reasons, the Court hereby GRANTS the Motion for to File Amended

Complaint [DE 15] and ORDERS that Plaintiffs shall have through February 17, 2014, within

which to file the Amended Complaint, currently docketed as an attachment to the instant Motion.

The Court further RECOMMENDS that the District Court DENY as moot Defendant’s

Motion to Dismiss [DE 10]. This Report and Recommendation is submitted pursuant to 28 U.S.C.

§ 636(b)(1)(C). Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have fourteen (14) days after

being served with a copy of this Recommendation to file written objections thereto with the Clerk

of Court. The failure to file a timely objection will result in waiver of the right to challenge this

Recommendation before either the District Court or the Court of Appeals. Willis v. Caterpillar,

Inc., 199 F.3d 902, 904 (7th Cir. 1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); The

Provident Bank v. Manor Steel Corp., 882 F.2d 258, 260-261 (7th Cir. 1989); Lebovitz v. Miller, 856

F.2d 902, 905 n.2 (7th Cir. 1988). 

SO ORDERED this 11th day of February, 2014.

 s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES MAGISTRATE JUDGE

cc: All counsel of record

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