At paragraphs 12, 15-17, 30, and 35, Guerra alleges discriminatory acts that
occurred prior to November 11, 1999, when he filed his discrimination complaint with
the EEOC. By definition, retaliation claims arise after the filing of an EEOC charge.
McKenzie, 92 F.3d at 482. Thus, the claims in these paragraphs cannot be retaliatory
and are immaterial to a retaliation claim.

Events after November 11, on the other hand, could be considered retaliatory,
but they are subject to the 300-day statutory limit. Guerra filed his retaliation
complaint with the EEOC on May 11, 2001. Thus, he can include only retaliatory acts
that happened after July 15,2000. At paragraphs 25-27, Guerra alleges discriminatory
acts that occurred prior to July 2000. The claims in these paragraphs cannot be used as
basis for a retaliation claim and are stricken for that purpose.

The ISP also asks that this court strike paragraph 15 as it applies to count I
because it occurred prior to the 300-day filing period. Guerra filed his original
discrimination complaint with the EEOC on November 11, 1999. The acts in
paragraph 15 are alleged to have happened in 1994. This is clearly outside the time
limit. Paragraph 15 is therefore stricken as it applies to count I.

A plaintiff may obtain relief for wrongful acts that would otherwise be time-

barred under the continuing violation doctrine. See Place v. Abbott Labs., 215 F.3d
803, 807 (7th Cir. 2000). The continuing violation doctrine allows a plaintiff to
connect acts of discrimination that occurred outside the EEOC filing limitations period
to acts that occurred within the limitations period and view all the discriminatory acts

-4.


In the instant case, Guerra generally alleges in paragraph 23 of the complaint that
he has been “subjected to persistent, repeated and systematic retaliation by the
defendant . . . in various ways . . .plaintiffhas been denied promotional opportunities,
denied education opportunities, poorly and unfairly evaluated, subjected to wrongful
treatment and harassment . . .” The complaint then follows with specific examples of
retaliation. Paragraph 28 alleges Guerra stopped receiving jobs instructing at narcotics
and new agents schools. Paragraphs 29 and 31 allege that Guerra received a low
review score on two specific evaluations. Paragraph 32 alleges Guerra was denied a
meeting with a supervisor. Paragraph 33 alleges that Guerra’s poor evaluations were
unfounded. Paragraphs 34 and 37 allege Guerra was denied the opportunity to receive
other available positions, and paragraph 36 alleges that Guerra was denied a transfer.
Finally, paragraph 39 alleges Guerra was denied requested shifts.

Guerra was never fired. His salary was never decreased, nor was his title of
Master Sergeant ever removed. Although he was not asked to conduct certain training
sessions, this is not alleged to have caused a significant reduction in his wages or his
responsibilities. Furthermore, Guerra’s negative evaluations do not constitute adverse
job actions. See Rabinovitz, 89 F.3d at 488-89; Mata v. Illinois State Police, 2001 U.S.

Dist. LEXIS 3564, *16 (N.D. Ill. Mar. 22, 2001). Guerra’s lack of instructional

assignments does not constitute adverse job actions. See Flaherty v. Gas Research

Institute, 31 F.3d 451, 456 (7th Cir. 1994) (holding that a “bruised ego” is not enough

for adverse job action). Nor has Guerra alleged that the ISP’s failure to transfer him

-7-


see also Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993); Sherwin

Manor Nursing Center, Inc. v. McAuliffe, 37 F.3d 1216, 1219 (7th Cir. 1994),

Nonetheless, in order to withstand a motion to dismiss, a complaint must allege facts
sufficiently setting forth the essential elements of the cause of action. See Lucien v.

Preiner, 967 F.2d 1116, 1168 (7th Cir. 1992). In reviewing a Rule 12(b)(6) motion to

dismiss for failure to state a claim, the Court must limit itself to the allegations
contained in the pleadings themselves.

In granting a motion to strike, the court may order stricken from any pleading
any insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter. Fed. R. Civ. Proc. 12(f).

DISCUSSION

For an unlawful employment practice to form the basis of a retaliation charge
under Title VII, the practice must happen after, or in response to, the filing of the
charge. See McKenzie v. Illinois Dep’t of Transp., 92 F.3d 474, 482-83 (7th Cir.
1996). Title VII also requires a plaintiff to file a charge of retaliation with the EEOC
no later than 300 days after the alleged unlawful employment practice occurred. 42

U.S.C. § 2000(e)-5; Hentosh v. Herman M. Finch Univ. Sciences, 167 F.3d 1171,

1173-74 (7th Cir. 1999). The ISP seeks to strike all paragraphs that reference events
that occurred before Guerra filed his discrimination charge with the EEOC as well as
those that occurred more than 300 days before Guerra’s second EEOC charge on the
grounds that they are immaterial to a retaliation charge.

-3-


as one continuous act that is not time-barred. See id.; Selan y. Kiley, 969 F.2d 560,
564 (7th Cir. 1992). However, the scope of the continuing violation doctrine is
extremely limited. As discussed in our prior opinion, the continuing violation doctrine
will not apply to a time-barred act that is discrete in time and circumstances and
involves a single, significant event that is a concrete, separate development rather that
a continuing act. Generally, it will not apply to acts such as firing or demoting a
plaintiff, or failing to promote or transfer a plaintiff.

Each paragraph we have described contains a discrete event that is on its face
separate from the others, especially those he alleges occurred after Guerra filed his first
complaint. “When evaluating whether the continuing violation doctrine applies, what
the plaintiff knew or should have know is also relevant.” Place, 215 F.3d at 808. The
events alleged in paragraphs 24-27 all happened after Guerra filed his first complaint.
Thus, Guerra knew or should have known that these subsequent acts were retaliatory
in nature at the time they occurred, and the continuing violation doctrine does not
apply.

Accordingly, we strike paragraph 15 as it applies to both counts I and II. All
other paragraphs that make reference to events prior to November 11, 1999, and July
2000 are stricken as they apply to count II (12, 13, 16, 17, 24-27, 30, 35).

The ISP next argues that the retaliation claim should be dismissed in its entirety

pursuant to Fed. R. Civ. Proc. 12(b)(6) because Guerra failed to state a claim of


has substantially affected his salary or responsibilities. See Crady, 993 F.2d at 136.
Thus, even if all the allegations made by Guerra are true, the actions of the ISP do not
qualify as adverse employment actions. Because Guerra has not sufficiently pleaded
the second element of retaliation, there is no need to determine whether there is a
causal link between the filing of the EEOC charge and the subsequent actions taken by
the ISP.
CONCLUSION

We grant the ISP’s motion to strike paragraph 15 as it applies to counts I and II,
and all other paragraphs that make reference to events prior to November 11, 1999, and
July 2000 as they apply to count II (12, 13, 16, 17, 24, 25, 26, 27, 30, 35). Based on

the remainder of the complaint, we dismiss count II in its entirety.

CR Caan Choc oa

Charles P. Kocoras
United States District Judge

Dated: November 14, 2001


Mincte Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER 01 C 2839 DATE 11/14/2001
CASE Guerra vs. Illinois State Police et al
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
qd) im} Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Qa Answer brief to motion due. . Reply to answer brief due :
(4) im} Ruling/Hearing on set for at :
(5) | Status hearing re-set for 2/25/2002 at 9:30 A.M..
(6) im) Pretrial conference[held/continued to] [set for/re-set for] on set for at
(e) Oo Trial[set for/re-set for] on at
(8) im {Bench/Jury trial] [Hearing] held/continued to at
(9) ao This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (General Rule 21 ClFRCP41(a)\(1) O FRCP41(a)(2).
ao =f [Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: Defendants’ motion
(Doc 12-1) to strike and dismiss is granted. We grant the motion to strike paragraph 15 as it applies to
Counts I and I, and all other paragraphs that make reference to events prior to November 11, 1999, and
July 2000 as they apply to Count II ( 12, 13, 16, 17, 24, 25, 26, 27, 30, 35). Based on the remainder of
the complaint, we dismiss Count II in its entirety. Discovery cut-off date is hereby extended to February
25, 2002.
(i) lf [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of notices +
Notices mailed by judge's staff. -
Notified counsel by telephone. NOV 1.5.20
v | Docketing to mail notices, QQ
Mail AO 450 form. ce ting deputy initials |
Copy to jpdge/magistate judge, ve EN eee ‘
\ Uh io 3 \ 4 i u wed date mailed notice
courtroom
scT deputy’s
initials
Date/time received in
central Clerk’s Office trailing deputy nitals



retaliation. We must view only the acts alleged in paragraphs not stricken from the
complaint to determine whether Guerra has made out a prima facie case.

Title VII prohibits retaliation against an employee who has engaged in activity
protected by the Act. 42 U.S.C. § 2000(e) et seq. To establish a prima facie case of
retaliation, a plaintiff must show: (1) that he engaged in statutorily protected activity;
(2) that he suffered an adverse employment action; and (3) that there is a causal link
between the protected activity and the adverse action. Wilson v. Chrysler Corp., 172
F.3d 500, 504 (7th Cir. 1999).

Filing a complaint with the EEOC is clearly a statutorily protected activity.
Rabinovitz v. Honorable Federico Pena, 89 F.3d 482, 488 (7th Cir. 1996); Smart v. Bal]
State University, 89 F.3d 437, 441 (7th Cir. 1996). In the instant case, there is no
dispute that on November 11, 1999, Guerra filed a complaint for discrimination based
on race and national origin with the EEOC. Thus, Guerra has sufficiently pleaded the
first element of a prima facie case for retaliation.

We turn to the second element. For the purposes of a retaliation claim, an
adverse employment action must consist of more than a’mere inconvenience.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998), quoting Crady v.
Liberty National Bank, 993 F.2d 132, 136 (7th Cir. 1993). Examples include
“termination of employment, a demotion evidenced by a decrease in wage or salary,
a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a particular situation.” Id.

-6-


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
FRANK GUERRA, )
Plaintiff, }
vs. 01 C 2839
ILLINOIS STATE POLICE and the }
STATE OF ILLINOIS, )
Defendants. } vi
Noy | ; "9
MEMORANDUM OPINION Loy

CHARLES P. KOCORAS, District Judge:

This matter is before the Court on Defendant Illinois State Police’s motions to
dismiss count II and to strike certain portions of the complaint pursuant to Fed. R. Civ.
Proc. 12(b)(6) and (f). For the reasons set forth below, we grant the motion to strike
in part and dismiss count II.

BACKGROUND

After our August 30 dismissal of his first complaint, Plaintiff Frank Guerra
(“Guerra”) filed a two-count amended complaint against the Defendant, Ilinois State
Police (“ISP”). Count I alleges discrimination on the basis of race and national origin
in violation of 42 U.S.C. 2000(e) et seq. Count II alleges retaliation for the filing of

the discrimination charge. The ISP seeks to strike all parts of Guerra’s complaint that

14


allege retaliatory acts occurring before Guerra filed his EEOC charge and those that
allege retaliatory acts that happened outside of the 300-day filing limitation period.
The ISP also seeks to dismiss count II for failure to state a claim.

Guerra, a Hispanic/Mexican male, was employed by the ISP as a Master
Sergeant. Guerra alleges that he was unfairly passed over for promotions to achieve
the rank of Lieutenant. He filed a charge with the EEOC on November 11, 1999,
alleging that the ISP discriminated against him on the basis of his race and national
origin. He filed a second charge on May 11, 2001, alleging that he was retaliated
against for filing the first charge. Guerra’s complaint states that he was passed over for
promotions, denied transfer requests, and restricted in certain duties.

LEGAL STANDARD

The purpose of a motion to dismiss pursuant to Rule 12(b6)(6) is to test the
sufficiency of the complaint, not to decide the merits of the case. In ruling on a motion
to dismiss, the Court must construe the complaint’s allegations in the light most
favorable to the plaintiff and accept as true all well-pleaded facts and allegations. See
Bontkowski v. First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). The
allegations of a complaint should not be dismissed for failure to state a claim “unless
it appears beyond a doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957);