Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000).

In the case at bar, Mehringer alleges that she “was treated differently than her male
counterparts” and was “subjected to disparate treatment from managers, supervisors, agents,
and/or employees...than the male employee at issue. (PI’s Am. Compl. 4 16, 42). While these
statements are somewhat vague and do not specifically allege how she is similarly situated to the
male employee, Federal Rule of Civil Procedure 8(a) requires only a “short and plain statement
of the claim,” that gives the defendant “fair notice” of the nature of the claim. Consequently,
because the Court must consider all of Mehringer’s allegations as true and make all reasonable
inferences in her favor, Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir. 1995), this
Court finds that Mehringer has fulfilled her burden by identifying the male employee at issue and
alleging that her “male counterparts” were treated differently. See Russell, 243 F.3d at 342
(finding sufficient evidence for prima facie case of sexual discrimination when female plaintiff
identified one other similarly situated male employee, who was treated differently after making
similar time sheet error as plaintiff). Therefore, this Court finds that Mehringer has sufficiently
pled a prima facie case of Title VII sexual discrimination.

Il. Scope of the EEOC Complaint

Bloomingdale also contends that the sex discrimination allegations in Count IV fall outside
the scope of Mehringer’s Equal Employment Opportunity Commission (“EEOC”) complaint. As
a general rule, a plaintiff may only include claims in her judicial complaint that were included in
the EEOC complaint. Cheek v. W. and S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). This
tule serves the dual purpose of allowing the EEOC and the employer an opportunity to settle the
dispute and to give the employer warning of the conduct about which the employee is aggrieved.

Id. The rule is not jurisdictional, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392 (1982),

4


CONCLUSION
For the foregoing reasons, Defendant’s Bloomingdale’s Motion to Dismiss Count IV [28-

1) is DENIED. It is so ordered.

ENTER: Blanes Mn Ware,

BLANCHE M. MANNIN;
U.S. DISTRICT COURT JUDGE



of sex discrimination.’ By alleging that she is female (a protected class), performed her job

satisfactorily, was constructively discharged, Vitug v. Multistate Tax Comm’n, 88 F.3d 506, 517

(7th Cir, 1996) (stating that constructive discharge is adverse employment action and creates a
cognizable Title VII claim), and was treated differently than a similarly situated employee, her
charge sufficiently alleges the four elements of the McDonnell! Douglas test.

Moreover, even if sex discrimination is not specifically stated in the EEOC charge, the
claim falls within the scope of the EEOC charge. In her EEOC charge, Mehringer marked the
boxes for sex discrimination, retaliation, and sexual harassment and included descriptions, like
“treating me differently,” that allude to sexual discrimination. While simply checking the box for
sexual discrimination will not then allow all types of sexual discrimination charges in a federal
complaint, Cf Vela v. Vill. of Sauk Vill., 218 F.3d 661, 664 (7th Cir. 2000) (stating that simply
checking sex discrimination box did not allow sexual harassment claim because EEOC charge
only complained of disparate treatment, a wholly diverse claim from harassment); Auston y.
Schubnell, 116 F.3d 251, 254 (7th Cir. 1997) (finding retaliation claim not within scope of
EEOC charge because retaliation box not marked and no mention of retaliation made in factual
statement), Mehringer’s allegations in her EEOC charge and complaint do have a factual
relationship in that they both involve the same individuals and conduct, namely the harassment
by the male employee followed by retaliation and disparate treatment by Bloomingdale. Cf,
Cheek v. Peabody Coal Co., 97 F.3d 200, 202-03 (7th Cir. 1996) (finding that harassment claim
and disparate treatment claim in regards to job training and placement were both unrelated to

EEOC charge challenging only disparate treatment in regards to medical leave policy); Cheek, 31

* Documents attached to a motion to dismiss are considered part of the pleadings if they are
referred to in the plaintiff's complaint and are central to her claims. Venture Assocs. Corp. v.
Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993).

6


and must be raised by the defendant as an affirmative defense. Cheek, 31 F.3d at 500.

Mehringer contends that Bloomingdale waived this defense by answering the allegations
in the Original Complaint and failing to bring a motion to dismiss alleging failure to exhaust
administrative remedies. However, as Bloomingdale correctly points out in its Reply Brief, the
Original Complaint did not allege a claim of disparate treatment, but only hostile environment
sexual harassment and retaliation. The Amended Complaint was the first opportunity
Bloomingdale had to respond to the disparate treatment charge, and thus it did not waive its
affirmative defense of failure to exhaust administrative remedies. Cf. Pafford v. Herman, 148
F.3d 658, 670 (7th Cir. 1998) (finding that defendant waived its affirmative defense after plaintiff
alleged retaliation in original, first, second, and third amended complaint and defendant never
once raised issue of exhaustion).

For a claim to fall within the scope of an EEOC charge and be allowed in a Title VII
complaint, the claim must be “like or reasonably related” to the allegations in the EEOC charge
or reasonably be expected to grow out of an EEOC investigation. Jenkins-v. Blue Cross Mut.
Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976). The charge and the complaint “must, at

minimum, describe the same conduct and implicate the same individuals.” Cheek, 31 F.3d at 501

(emphasis in original). Because EEOC charges are completed by laypersons and not lawyers,
plaintiffs are given significant leeway and are not required to allege each and every fact that
forms the basis of their claims, Id, at 500. Title VII should be broadly construed to further its

remedial purpose of “protecting those who cannot protect themselves.” Jenkins, 538 F.2d at 168.

In the present case, looking at Mehringer’s EEOC charge and drawing all reasonable

inferences in her favor, as is required, the Court finds that her charge appears to include a charge


Therefore, because discrimination and retaliation are two distinct wrongs, a plaintiff is permitted
to pursue both claims. See Spearman v. Ford Motor Co., 231 F.3d 1080, 1086 (7th Cir. 2000)
(stating that Title VII not only protects people from discrimination and harassment, but also from
retaliation for complaining about discrimination). Consequently, given the liberal pleading
requirements of Rule 8(a) and the requirement to construe pleadings to achieve substantial
justice, this Court finds that it is possible that there are sufficient facts to establish a
discrimination and retaliation claim, and therefore, Count IV is not a simple “regurgitation” of

Count II.


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Jud; j Sitting Judge if O1
or Magistrate Judge Blanche M. Manning than Assigned Judge
CASE NUMBER 00 C 7095 DATE August 13, 2002
CASE Shelly Mehringer and Ray Mehringer v. Village of Bloomingdale
TITLE

Un the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented.)

MOTION:
DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

Q) a Brief in support of motion due

(3) im) Answer brief to motion due___. Reply to answer brief due.

(4) o Ruling/Hearingon set for at

(5) oO Status hearing{held/continued to] [set for/re-set for]on__——sset fora

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_—at_
(7) Q Trial(set for/re-set for]on at

(8) im) [Bench/Jury trial] [Hearing] held/continued to____at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

QQPRCP4(m) CO General Rule 21 © FRCP41(a)(1) © FRCP41(a)(2).

(10) @ (Other docket entry] For the reasons set forth in the attached Memorandum and Order, Defendant’s
Bloomingdale’s Motion to Dismiss Count IV [28-1] is DENIED. It is so ordered.

ql) Oo [For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court. Document
Number.

No notices required.
equired umber of oat

V_ | Notices mailed by judge’s staff. ANS 4 4 .

Notified counsel by telephone.

ate dicks

Docketing to mait notices.

Mail AO 450 form. Ang Aeputy initials

Copy to judge/magistrate judge.

date mailed notice

courtroom
RTS deputy’s ods
initials cual

or
Datertime received in -
central Clerk's Office nating deputy inals



F.3d at 501 (finding that complaints of sex discrimination in regards to transfer did not relate to
EEOC complaints of sex discrimination alleging intimidation and forced payments to clients
because of lack of factual relationship).

It would also be reasonable to believe that an EEOC investigation into the harassment

and retaliation charges would grow into an investigation into disparate treatment. Jenkins, 538

F.2d at 169 (finding statement about being “leader of the girls” in EEOC charge sufficient to
allow sexual discrimination claims to fall within the scope of the charge even though only race
box marked on charge because EEOC investigation would have uncovered sexual
discrimination). It is true that this second prong is hard to apply and requires speculation, Cheek,
31 F.3d at 500, but this Court is required to make all reasonable inferences in favor of Mehringer.
By allowing Mehringer’s claim for disparate treatment to go forward, the Court would be
furthering the broad, remedial purposes of Title VII, while still affording Bloomingdale proper
notice of her claims and allowing potential settlement between the EEOC and Bloomingdale.
Therefore, this Court finds that Mehringer’s sexual discrimination claim falls within the scope of
her EEOC charge.
Ii. Redundancy of Disparate Treatment Claim

Bloomingdale further contends that Count IV should be dismissed because the allegations
set forth therein are redundant to those made in Count II. Retaliation and discrimination are
distinct wrongs and involve different questions of intent. See, e.g., Nair v. Bank of Am. Illinois,
991 F. Supp. 940, 953-55 (N.D. Ill. 1997). Retaliation is action taken to lash out at an employee
for engaging in a protected activity while discrimination shows a general animosity for a
particular race. Id. at 954. Title VII also distinguishes between the two wrongs. 42 U.S.C. §

2000¢e-2 (defining sex discrimination); 42 U.S.C. § 2000 e-3 (defining unlawful retaliation).


ANALYSIS
Bloomingdale contends that this Court should dismiss Count IV because: (I) Mehringer

has failed to sufficiently allege a prima facie case of sexual discrimination, (I]) Mehringer’s
claim fails to fall within the scope of her EEOC complaint; and (III) Count IV is duplicative of
Count II. The Court will address each of these contentions in turn.
I, Prima Facie Case of Sexual Discrimination

Title VII makes it unlawful 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). A plaintiff may directly or
indirectly establish a discrimination claim. Oest v. Illinois Dept. of Corrections, 240 F.3d 605,
611 (7th Cir. 2001). Under the indirect method articulated in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-05 (1973), a plaintiff must show: (1) she belongs to a protected class;

(2) she performed her job in a satisfactory manner; (3) she was subjected to an adverse
employment action; and (4) similarly situated employees were treated more favorably. Id; See

also Russell v. Bd. of Trs. of the Univ. of Illinois, 243 F.3d 336, 341 (7th Cir. 2001). Once she

has done so, the burden shifts to the defendant to put forth a legitimate, non-discriminatory
reason for the challenged action. Russell, 243 F.3d at 341. If the defendant meets this burden, the
burden then shifts back to the plaintiff to show that the articulated reason is pretextual. Id.

Here, Bloomingdale does not challenge the sufficiency of the first three prongs, but
contends that Mehringer has failed to properly allege that the male employee, about whom
Mehringer complained and who was promoted and given a pay raise, is a similarly situated
employee. To be “similarly situated”, the employees do not need to be completely identical, but

must be “substantially similar” and hold the same or equivalent positions. Radue v. Kimberly-


and seriously affected her physical and psychological well-being. After complaining to
Bloomingdale about the alleged harassment, Mehringer was allegedly subjected to disparate
treatment from managers, supervisors, agents, and/or employees of Bloomingdale. She allegedly
received a negative annual review due to her complaints, while the alleged male harasser was not
adversely affected, and in fact was given a promotion and pay increase. Mehringer left her
position on March 10, 2000, allegedly because she was unable to endure the male employee’s
continuing harassment, and because Bloomingdale had not responded to her repeated complaints.

On September 18, 2001, this Court denied Bloomingdale’s Motion to Dismiss Counts I
and II, but granted the Motion as to Count III. Mehringer then amended her complaint adding a
charge of sexual harassment (Count IV) based on the alleged disparate treatment to which she
was subjected after complaining of the alleged harassment. In response, Bloomingdale has filed
the instant Motion to Dismiss Count IV,

STANDARD OF REVIEW

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court must accept as true
all well-pled allegations in the complaint, and draw all reasonable inferences in favor of the
plaintiff. Antonelli vy. Sheehan, 81 F.3d 1422, 1427 (7th Cir. 1996). Dismissal is only appropriate
when it appears beyond doubt that no relief could be granted under any set of facts proven
consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A motion to
dismiss does not test whether the plaintiff will prevail on the merits, but instead on whether she
has properly stated a claim. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). However, the
complaint must state either direct or inferential allegations concerning all material elements
necessary to recover under the chosen legal theory. Glatt v. Chicago Park Dist. 847 F. Supp. 101,

103 (N.D. Ill. 1994).


ca

”

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SHERRY MEHRINGER, )
)
Plaintiff, )
) Hon. Blanche M. Manning
vy. )
) 00 € 7095 DOCKE TEN
VILLAGE OF BLOOMINGDALE ) Aug 7 .
) 1 4 2002
Defendant. )
MEMORANDUM AND ORDER

Plaintiff Sherry Mehringer brought this action against Defendant Village of Bloomingdale
(“Bloomingdale”) pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq.
(Counts I and ID), alleging hostile environment sexual harassment and retaliation, and breach of
contract under state law (Count III). On October 3, 2001, after this Court dismissed Count III,
Mehringer amended her complaint adding Count IV in which she alleged sexual discrimination,
specifically disparate treatment, in violation of Title VII. The instant matter comes before this
Court on Bloomingdale’s Motion to Dismiss Count IV of Mehringer’s Amended Complaint,
pursuant to Federal Rules of Civil Procedure 12(b)(6). For the reasons that follow, the Motion to
Dismiss Count IV is DENIED. ;

BACKGROUND!

During Mehringer’s employment with Bloomingdale, a male co-employee allegedly

subjected her to unwelcome and frequent sexual advances, offensive conduct, and inappropriate

gestures and comments. This conduct allegedly interfered with Mehringer’s work performance

' The facts set forth in this background section are taken from Mehringer’s Amended Complaint
and only relate to the instant motion. The complete background facts are set forth in this Court’s
Memorandum and Order dated September 18, 2001, and will not be restated here.