Any ambiguities in the complaint are construed in favor of the plaintiff, Kelly, 135 F.3d at 1205.

Cobb has alleged that he was given “a poor performance evaluation and otherwise subjected]
... to different terms and conditions of employment.” (Compl. {| 7(d).) Tellabs argues that this
allegation is insufficient to state a claim for race discrimination because negative performance
reviews do not constitute adverse employment actions.

Negative performance reviews are “not... adverse employment action[s] unless . . . [they
are] accompanied by some other action, such as job loss or demotion.” Krause v. City of La Crosse,
246 F.3d 995, 999 (7th Cir. 2001). In reviewing a motion to dismiss, the court reviews all facts
alleged in the complaint and any inferences reasonably drawn therefrom in the light most favorable
to the plaintiff. See Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir.
2000). While Cobb has not specifically alleged an action, such as job loss or demotion, that would
make a negative performance review into an adverse employment action, he has alleged (1) a poor
performance review and (2) terms and conditions of employment different than those afforded other
employees. These allegations support the inference that there were other actions, in addition to the
poor performance review and, thus, that there was an adverse employment action. Therefore, Cobb
has stated a claim for racial discrimination, and dismissal of this claim is inappropriate.

Cobb also claims that he was retaliated against for complaining about racial discrimination.
A retaliation claim may be proved by indirect evidence under the burden-shifting method of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Kersting v. Wal-Mart Stores, Inc., 250
F.3d 1109, 1117 (7th Cir. 2001). In order to plead a claim of retaliation under Title VII, Cobb must
plead that: (1) he engaged in statutorily protected expression, (2) he suffered an adverse employment

action, and (3) there is a causal link between the protected expression and the adverse employment

4.


through the burden-shifting mechanism of McDonnell Douglas.|_ McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). To prove discrimination indirectly, Cobb must establish that: (1) he
is a member of a protected class, (2) he suffered an adverse employment action, (3) he was meeting
his employer’s legitimate performance expectations, and (4) his employer treated similarly situated
employees who were not in the protected class more favorably. Maarouf v. Walker Manufacturing
Co., 210 F.3d 750, 751 (7th Cir. 2000).

Cobb has alleged that he, as an African-American, is a member of a protected class. He has
also alleged that he was subjected to different terms and conditions of employment and was ignored,
ridiculed and embarrassed by a Tellabs manager because he is black. These allegations support the
inference that Tellabs treated similarly situated employees who were not black more favorably.
“TA] complaint does not fail to state a claim merely because it does not set forth a complete and
convincing picture of the alleged wrongdoing.” Bennet v. Schmidt, 153 F.3d 516, 518 (7th Cir.
1998) (quoting American Nurses’ Ass’n v, Illinois,783 F.2d 716, 727 (7th Cir. 1986))

Cobb does not specifically allege that he was meeting Tellabs’ legitimate expectations.
However, he does allege that he was given a poor performance review in retaliation for complaining
about racially discriminatory practices. This allegation fairly supports the inferences that Cobb
would not have been given a negative performance review if he had not complained and that,

therefore, he was meeting Tellabs’ legitimate expectations.

' Under the McDonnell Douglas framework, a prima facie case of employment

discrimination creates a rebuttable presumption that employer’s actions, if unexplained, were the
result of impermissible factors and shifts the burden of production to the employer to articulate
some legitimate, nondiscriminatory reason for its actions; if the employer satisfies that burden,
plaintiff must then show that articulated reasons were pretextual. Hong v. Children’s Memorial
Hospital, 993 F.2d 1257, 1261 (7th Cir. 1994).

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action. Stutler v. Ill. Dep’t of Corrections, 263, F.3d 698, 702 (7th Cir. 2001) (citations omitted).

The complaint adequately states a claim of retaliation. Cobb has alleged that he engaged in
statutorily protected expression: he complained about racial discrimination to his employer. See,
e.g., Lambert vs Ackerly, 180 F.3d 997, 1002-03 (9th Cir. 1999); EEOC v. Romeo Cmty. Schs., 976
F.2d 985, 989 (6th Cir. 1992) (holding plaintiff's complaint to school district that she was being paid
less than male custodians constituted protected expression for retaliation claim); EEOC v. White &
Sons Enters., 881 F.2d 1006, 1011 (11th Cir. 1989) (holding “unofficial complaints expressed by
the women to their employees about unequal pay constituted an assertion of rights protected under”
the Fair Labor Standards Act and Title VII); Love v. Re/Max of Am., Inc., 738 F.2d 383, 385 (10th
Cir. 1984) (holding female employee’s memorandum to the president of her company requesting to
be paid at the same rate as male employees constituted protected expression under Title VID.
Furthermore, Cobb has alleged that he suffered an adverse employment action, as was discussed
earlier. Moreover, Cobb has alleged a causal link between his protected expression and the adverse
employment action. Cobb alleged that he was given a poor performance review and subjected to
different terms and conditions of employment because he complained about racial discrimination.
Therefore, dismissal of this claim is inappropriate.

Complaints “serve[] to put . . . defendant[s] on notice.” Toth v. USX Corp., 883 F.2d 1297,
1298 (7th Cir. 1989). The allegations in the complaint are sufficient to place Tellabs on notice of

the claim being asserted against it. Therefore, Tellabs’ motion to dismiss is denied.


Mirite Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 01 C 5086 DATE 1/8/2002
CASE DEVIN W. COBB vs. TELLABS, INC.
TITLE
{In the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3d party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) go Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) o Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (General Rule21 OFRCP41{a)(1) 0 FRCP41(a)(2).
ao) [Other docket entry] | Enter Memorandum Opinion And Order. Tellabs’ motion to dismiss the
complaint [5-1] is denied.
(i) [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.
; JAN 11 2002
Notified counsel by telephone. ate dgckered
vw | Docketing to mail notices.
Mail AO 450 form,
Copy to judge/magistrate judge. wl

courtroom
deputy’s
initials

LG

+e
QS

Date/time received in, 5’ |
central Clerk’s Office’ _“*~

nailing deputy initials



CONCLUSION

For the reasons stated above, Tellabs’ Motion to Dismiss the\Complaint [5-1] is denied.

IT IS SO ORDERED.

. Darrah, Judge
States District Court

-6-


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

EASTERN DIVISION
)
DEVIN W. COBB, ) Oe
) Case No. 01 C 5086 Gl ian
Plaintiff, ) Jay def iD
) Hon. John W. Darrah Ll 24
v. ) 2
)
TELLABS, INC., )
)
Defendant. )
)

MEMORANDUM OPINION AND ORDER

Defendant Tellabs, Inc. moves, pursuant to Federal Rule of Civil Procedure 12(b)(6), to
dismiss Plaintiff Devin W. Cobb’s Complaint. For the reasons set forth below, Tellabs, inc.’s
Motion to Dismiss the Complaint [5-1] is denied.

LEGAL STANDARD

When considering a motion to dismiss, well-pleaded allegations in the complaint are accepted
as true. Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1319 (7th Cir. 1997). Any ambiguities
in the complaint are construed in favor of the plaintiff. Kelly v. Crosfield Catalysts, 135 F.3d 1202,
1205 (7th Cir, 1998). Dismissal is proper only when it appears beyond doubt that Plaintiff can prove
no set of facts to support the allegations in his or her claim. Strasburger v. Board of Education, 143
F.3d 351, 359 (7th Cir. 1998).

“Although the Federal Rules of Civil Procedure do not require a plaintiff ‘to set out in detail

the facts upon which he bases his claim’” [citation omitted], he must “set out sufficient factual

matter to outline the elements of his cause of action or claim, proof of which is essentiah to his

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recovery.” Benson v. Cady, 761 F.2d 335, 338 (7th Cir. 1985). A complaint will not avoid
dismissal if it contains “bare legal conclusions” absent facts outlining the basis of the claims.
Perkins v. Silverstein, 939 F.2d 463, 467 (7th Cir. 1991).

BACKGROUND

Plaintiff Devin W. Cobb (“Cobb”) has filed a single-count complaint against Defendant
Tellabs, Inc. (“Tellabs”), alleging a federal claim for violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 20008, et seg., as amended by the Civil Rights Act of 1991, and section 102
of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. For purposes of this Motion to Dismiss, the
following allegations are taken as true.

Cobb, a black man, was employed by Tellabs at its Bolingbrook, Illinois facility. During
Cobb’s employment, Tellabs subjected Cobb to the following indignities because of his race: (1) he
was subjected to different terms and conditions of employment; (2) he was ridiculed, embarrassed
and ignored by a manager; (3) he was given a poor performance evaluation and subjected to different
terms and conditions of employment in retaliation for complaining about racial discrimination; and
(4) Tellabs failed to take appropriate action after he complained about racial discrimination on more
than one occasion.

DISCUSSION

Tellabs has moved to dismiss the complaint, arguing that Cobb cannot state a claim for relief
because the only adverse employment action he alleges is a negative performance review. Cobb
argues that dismissal is inappropriate because his complaint puts Tellabs on notice that he is
asserting a claim of racial discrimination and retaliation under Title VII.

Cobb may prove discrimination under Title VII through direct evidence or, indirectly,

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