:

however, on September 27, 2001, plaintiff requested that the IDHR and EEOC not make a
finding on that portion of plaintiff's sex discrimination charge related to defendant’s washroom
policy. On October 11, 2001, withdrew her charge from the IDHR and requested a right to sue
letter from the EEOC. Within 90 days of receiving her right to sue letter from the EEOC,
plaintiff filed the instant suit.
ANALYSIS

In the instant motion, defendant asserts three grounds for dismissing plaintiff's Title VI
claim. First, defendant maintains that plaintiff's withdrawal of her charge before the IDHR
constitutes a failure to exhaust administrative remedies. Moreover, defendant argues that the
instant complaint exceeds the scope of the charge submitted by plaintiff to the EEOC and IDHR.
Last, defendant argues that plaintiff fails to state a claim for retaliation under Fed, R. Civ. P.
12(b)(6). For the reasons stated below, the court denies defendant’s motion on all three grounds.

As a Starting point, the court finds that defendant’s argument regarding plaintiff's failure
to exhaust administrative remedies is without merit, 42 U.S.C. § 2000e-5(c) provides that, when
a state has its own laws prohibiting a particular employment practice, a complainant must not file
a Title VII charge in federal court until after providing state and local agencies with an initial
deferral period of at least sixty days to investigate his or her claim. Title VII does not require,
however, that plaintiff complete the state administrative process before instituting a suit in
federal court. See Guse v. J.C. Penney Co., Inc., 562 F.2d 6, 8 (7 Cir. 1977).

Accordingly, in Zugay v. Progressive Care, $.C., 180 F.3d 901, 903 (7" Cir. 1999), the
Seventh Circuit held that a plaintiff exhausted her administrative remedies by providing the

IDHR with sixty days to act before withdrawing her claim, and that she was therefore “free to file



;
H
j
é

In addition, the court does not find that plaintiff's reference to “sexual harassment”
exceeds the scope of her EEOC/IDHR charge. The only reference to sexual harassment in
plaintiff's complaint is contained within subsection (a) of her prayer for relief, in which she
requests that the court “declare that defendant’s conduct constitutes unlawful sexual
discrimination and sexual harassment in violation of Title VII.” Plaintiff contends that she is not
asserting sexual harassment as a basis for recovery in the four counts of her complaint, but rather
that the sexual harassment reference grows out of Count III for hostile work environment.
According to plaintiff, “(The sexual harassment reference] was not meant to assert an additional
fifth claim, if that is how Defendant perceived it.” Looking at the plain language of plaintiff's
complaint, the court finds that she has not attempted to state a claim for sexual harassment.”

Last, with respect to plaintiff’s retaliation claim, the court concludes that she has
sufficiently stated a claim to withstand a 12(b)(6) motion. 42 U.S.C. § 2000e-3(a) provides that
“{i]t shall be an unlawful employment practice for an employer to discriminate against any of his
employees or applicants for employment.... because he has opposed any practice made an
unlawful employment practice by this subchapter.” In order to establish a prima facie case of
retaliation under this section, a plaintiff must demonstrate that: (1) she engaged in statutorily

protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal

Moreover, even if plaintiff were attempting to state a claim for sexual harassment, that
claim would not be beyond the scope of her EEOC/IDHR charge. The court recognizes that
harassment claims are “not limited to acts of sexual desire,” and include “all forms of conduct
that unreasonably interfere with an individual’s work performance or create an intimidating,
hostile or offensive working environment.” Haugerud v, Amery School District, 259 F.3d 678,
692 (7" Cir. 2001) (citations omitted).



When plaintiff and other female employees objected to this rule, Mr. Mahalick allegedly
informed them that they were permitted to use the women’s bathroom in the old facility only
during designated breaks. Failure to abide by this policy would result in a written warming. Ata
September 2000 meeting during which Mr. Mahalick reiterated this policy, he explained that
female employees would be terminated after receiving three written warnings for using the
women’s bathroom in violation of these newly-imposed rules.

Plaintiff alleges that on September 8, 2000, she went to defendants old facility to use the
women’s washroom and subsequently received a written warning, which she refused to sign.
When she objected to the rule, Mr. Mahalick allegedly threatened to destroy her reputation and
block unemployment benefits. On September 13, 2000, upon reporting to work, plaintiff was
informed that she had been fired because of the bathroom incidents.

On September 15, 2000, plaintiff cross-filed a charge of sex discrimination against
defendant with the Equal Employment Opportunity Commission (EEOC) and the Illinois
Department of Human Rights (IDHR). In pertinent part, the charge alleged that plaintiff was
“required to produce more work products (sic) than [her] male counterparts,” was “forced to use
the men (sic) washroom facilities,” and was subsequently discharged in retaliation for
complaining about defendant’s washroom policy.

Pursuant to a workshare agreement, the IDHR undertook a factual investigation of
plaintiff's charge. Although the IDHR’s investigation was supposed to be concluded within 365
days of the filing of her complaint, on July 11, 2001, plaintiff agreed to a 90-day extension.

In July 2001, the IDHR conducted its factfinding conference. On September 24, 2001,

plaintiff agreed to another 120 day extension of the IDHR’s investigation. Shortly thereafter,



suit in federal court once she received her right to sue letter from the EEOC.” Notwithstanding
defendant’s arguments to the contrary, in Zugay, the Seventh Circuit did not limit its holding to
cases in which complainants had not yet undergone a factfinding conference. Rather, the court’s
articulated rationale focused on providing the IDHR with “its chance to reach the merits” of the
plaintiff's claim. Id,

Plaintiff in the instant dispute gave the IDHR more than one year to investigate the merits
of her claim and conciliate before withdrawing her charge and requesting a right to sue letter.
Moreover, plaintiff affirmatively cooperated with the IDHR throughout its investigation of her
claim, even consenting to an extension of time within which the IDHR could complete its
factfinding conference. This is not, therefore, a case in which plaintiff frustrated the IDHR’s
efforts to investigate her claim, thereby forfeiting her right to seek redress in federal court. See
Morris v. Albertson, Inc., 2001 WL 936118, at *4 (“[W]here... a claimant chooses to pursue the
administrative process but then affirmatively frustrates the agency’s efforts to investigate the
charge, thus triggering a dismissal... for failure to cooperate, sound policy calls for the denial of
the claimant’s later effort to file suit in federal court.”). Accordingly, the court concludes that
plaintiff has exhausted her state remedies and properly filed suit in federal court.

Defendant’s arguments regarding the scope of plaintiff's complaint are similarly
unavailing. Defendant maintains that plaintiff has asserted two new types of discrimination in
her complaint, harassment and disparate impact, that were not included in her charge of

discrimination that was cross-filed with the EEOC and IDHR. The court finds that plaintiff's



link between the protected expression and the adverse action. Dey v, Colt Const. & Dev. Co., 28
F.3d 1446, 1457 (7" Cir. 1994),

Defendant asks this court to dismiss plaintiff's retaliation claim because neither party has
“uncovered any authority which stands for the proposition that complaining about a unisex
bathroom is protected speech” under Title VII. The court notes, however, that to qualify as
statutorily protected expression under Title VII, the complained of practice need not actually
violate Title VII. Id, Rather, plaintiff's reasonable belief that she is challenging conduct that
violates Title VII is sufficient to establish the element of protected expression. Id, at 1458.

Viewing the facts in the light most favorable to the plaintiff, and drawing all inferences in
her favor, the court concludes that plaintiff could have reasonably believed that defendant’s
policies violated Title VI. Thus, the court denies defendant’s Rule 12(b)(6) motion to dismiss
plaintiff's claim of retaliation for failure to demonstrate that she engaged in statutorily protected
speech,

CONCLUSION

For the reasons stated herein, defendant’s motion to dismiss plaintiff's claims is denied in
its entirety.

ENTER: November 14, 2002

“Choy Coke

Robert W. Gettleman
United States District Judge



ros
~ Minute Ore Form (0697)

United States District Court, Northern District of Dlinois

Name of Assigned Jud; Sitting Judge if Othe
sor Magist ate Sade Robert W. Gettleman than Assigned Judge
CASE NUMBER 02 C 4410 DATE Nov. 14, 2002
CASE Dolores Martinez v Universal Laminating, Ltd.
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) oO Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) o Answer brief to motion due . Reply to answer brief due. :
(4) Qa Ruling/Hearing on set for at :
6) Oa Status hearing
(6) im Pretrial conference{held/continued to] [set for/re-set for] on set for at .
(7) a Trial[set for/re-set for] on at :
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (General Rule21 CUFRCP41(a)(1) C1 FRCP41(a)(2).

ao 4 [Other docket entry]
Memorandum opinion and order entered. Accordingly, defendant’s
motion to dismiss plaintiff's claims is denied in its entirety.

al @f (For further detail see order attached to the original minute order.}
No notices required, advised in open court,
No notices required,

X= | Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form, ynod LorLsia "Ss
Copy to judge/magistrate judge. A waa 9
courtroom to 6 WY SI AGN
ps deputy's

i $F ASOT
Date/time revei

central Clerk’s Office ‘nailing deputy isin



claim of disparate impact is well within the scope of her EEOC/IDHR charge, and she is not
asserting a fifth claim on the basis of harassment.'

Ordinarily, a Title VII plaintiff cannot bring claims in a lawsuit that were not included in
her EEOC charge. Taylor v. W. & S. Life Ins, Co, 966 F.2d 1188, 1194 (7" Cir. 1992).
Nonetheless, recognizing that laypeople often draft EEOC charges, the courts have carved out an
exception for claims that are “reasonably related” to or grow out of the allegations in the EEOC
charge. Jenkins y. Blue Cross Mut. Hosp. Ins,, Inc., 538 F.2d 164, 167 (7" Cir. 1976). This
means that the EEOC charge and the complaint must, at a minimum, describe the same conduct
and implicate the same individuals. Gawley v. Indiana Univ., 276 F.3d 301, 313 (7" Cir. 2001).

Without question, plaintiff's disparate impact claim is reasonably related to the charges of
unequal terms and conditions of employment and retaliation enumerated in plaintiff's
EEOCADRR claim. In her EEOC/IDHR charge, plaintiff explicitly referenced defendant’s
“fifteen minutes (sic) break policy” and being forced to use the men’s washroom, as well as her
subsequent alleged dismissal. In contrast to the cases cited by defendant, plaintiff's disparate
impact claim does not involve individuals or events that differ from those included in her

EEOC/IDHR charge.

' Defendant further maintains that plaintiff's complaint includes numerous factual
allegations that are far beyond the scope of her EEOC charge, such as unequal pay and being
forced to clean the women’s restroom at the pre-August 2000 facility. Even if the court agreed
with defendant that plaintiff’s allegations regarding unequal pay and cleaning the bathroom
facility were in fact outside the scope of her EEOC/IDHR charge, this would not render
plaintiff's claims of disparate impact and harassment as being beyond the scope of the
EEOC/IDHR charge. Indeed, as described herein, the allegations regarding defendant’s
bathroom and rest break policies, as well as unequal work product demands, are certainly
adequate to support her claims for disparate impact and harassment.

6



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

i EASTERN DIVISION
DOLORES MARTINEZ, )
)
Plaintiff, )
) No. 02C 4410 .
v. ) Do
) Judge Robert W. Gettleman No : CKETED
UNIVERSAL LAMINATING, LTD., an Illinois) "18 amp
corporation, )
A )
: Defendant. )
H

MEMORANDUM OPINION AND ORDER
Plaintiff Dolores Martinez brought this suit for damages and declaratory relief against

defendant Universal Laminating, Ltd., alleging sex discrimination under Title VII, 28 U.S.C. §

20006, et. seq. In her four-count complaint, plaintiff alleges disparate treatment, disparate
impact, hostile work environment, and retaliation. Defendant has filed a motion to dismiss,
contending that, (1) plaintiff has failed to exhaust administrative remedies, (2) plaintiff's
complaint exceeds the scope of her administrative charges, and (3) plaintiff has failed to state a

claim for retaliation. For the reasons discussed below, defendant’s motion to dismiss is denied.

BACKGROUND

|

"
i

The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule

on its merits. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When
considering the motion, the court accepts the allegations of the complaint as true and views the

facts in the light most favorable to the plaintiff. Travel All Over the World, Inc. v. Kingdom of

Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996).

~



In distilling the factual background of the instant dispute, the court is not limited merely
to the allegations in the complaint, however. Documents that a defendant attaches to a motion to
dismiss are considered part of the pleadings if they are both central to the plaintiff's claim and
referenced in the complaint. Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d
429, 431 (7" Cir. 1993). Moreover, the court may take judicial notice of matters of public
record, including records of administrative bodies, without converting a 12(b)(6) motion into a

motion for summary judgment. Henson v. CSC Credit Services, 29 F.3d 280, 284 (7" Cir, 1994).

With these standards in mind, the court turns to the factual allegations surrounding the instant
dispute.

According to the complaint, plaintiff began working for defendant Universal Laminating,
Ltd. (“Universal”) in April 1994, performing various functions in defendant’s factory and
working with laminating machines. Beginning in March 2000, plaintiff alleges that, unlike
similarly situated male employees, she and her female colleagues were pressured to increase
production levels and were disciplined for returning late from breaks. Moreover, she contends
that female employees were required to use their personal time and own cleaning supplies to
clean the women’s bathroom.

In August 2000, defendant finished construction of a new factory building in which
plaintiff was required to work. According to plaintiff's complaint, the new facility contained
only one bathroom, which was designated for men.

Plaintiff alleges that her supervisor, John Mahalick, called a meeting of the female factory
workers on August 25, 2000, during which he told them that “he was making a rule that they

would have to use the men’s bathroom if they needed to use the restroom during work hours.”