This is not the end of the matter, however, because
Plaintiff argues that Defendant waived its administrative
exhaustion argument by failing to raise this defense in its
Answer, or by moving to dismiss the initial Complaint based on
administrative exhaustion. Defendant counters that raising its
administrative exhaustion argument in this Motion to Dismiss is
sufficient, because Plaintiff filed an Amended Complaint, which
supersedes his Original Complaint and now governs this matter.
Defendant is correct.

“It is axiomatic that an amended complaint supersedes an
original complaint and renders the original complaint void.”
Flannery v. Recording Industry Ass'n of America, 354 F.3d 632,
638 (7th Cir. 2004). An amended complaint controls the case from
that point forward. Massey v. Helman, 196 F.3d 727, 735 (7th
Cir. 1999), cert. denied, 532 U.S. 1065 (Jun 04, 2001). In
Massey, the plaintiff argued that the defendants had waived their
right to raise an administrative exhaustion defense, because they
failed to plead it in response to First Amended and Second
Amended Complaints. Id. at 735. The court rejected this waiver
argument, explaining that “because a plaintiff’s new complaint
wipes away prior pleadings, the amended complaint opens the door
for defendants to raise new and previously unmentioned

affirmative defenses.” Id.

Page 13 of 16



be laid off if he continued to complain. The work environment
did not improve.

In the summer of 2003, Plaintiff worked on a pipe welding
job for “a couple of days” prior to realizing he was welding with
the incorrect welding rod. After reporting his error, Plaintiff
was suspended from the Citgo job site for three days. Shortly
thereafter, Plaintiff met with Human Resources and the Citgo
project manager to discuss the incident. This was Defendant’s
first disciplinary action against Plaintiff. They offered him a
demotion to a lower welder classification and the pay of an “A
Mechanic,” an $8.00 hourly decrease. Plaintiff refused to accept
the demotion and was terminated on August 15, 2003.

Plaintiff contends that two other “B Welders”, both white,
Jim Lefowski and Jim Little, made comparable welding mistakes on
the Citgo job site in 2000 and 2001, respectively. Subsequent to
their welding mistakes, both white “B Welders” were also removed
from the Citgo site, however, unlike Plaintiff, Messrs Lefowski
and Little were promoted to foremen at other sites. In addition,
each received a $2.00 hourly pay increase.

PROCEDURAL HISTORY

Plaintiff filed a charge of employment discrimination with
the Equal Employment Opportunity Commission (“EEOC”) on August
20, 2003. Although Plaintiff’s charge is less than

comprehensive, it does specify that he was “subjected to racial

Page 4 of 16


EEOC complaint. It is unreasonable to suggest that Plaintiff did
not intend for the EEOC charge to encompass this precipitating
event. Plaintiff’s allegation of wrongful termination is
reasonably based on a foundation laid in his EEOC charge. Claims
may be linked where they are “so related and intertwined in time,
people, and substance that to ignore that relationship for a
strict and technical application of the rule would subvert the
liberal remedial purposes of the Act.” Kristufek v. Hussmann
Foodservice Co., 985 F.2d 364, 368 (7th Cir.1993) (allowing a
Title VII retaliation complaint, improperly documented on the
EEOC charge, to stand with a properly documented age
discrimination charge because they were both related in time and
substance and both focused on defendant's conduct) .

To analyze the second part of the test, the Court must
speculate as to what the EEOC might or might not discover in the
course of an investigation. Cheek v. Western and Southern Life
Ins. Co. 31 F.3d 497, 500 (7th Cir. 1994). Shortly after he was
fired, Plaintiff requested the EEOC to investigate his claims of
racial harassment and race discrimination. However, in his
amended complaint, Plaintiff alleged that he was terminated based
on his race. He was fired for his welding mistake whereas white
employees who made the same mistake were not terminated, instead
they were promoted. One would reasonably expect that the EEOC’s

investigation would uncover the different treatment afforded

Page 9 of 16



Motion to Dismiss tests the sufficiency of the Complaint, not the
merits of the case. Civil Liberties for Urban Believers v. City
of Chicago, 342 F.3d 752 (7th Cir. 2003). The Court will dismiss
the Complaint 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).

DISCUSSION
I. Plaintiff’s Title VII Wrongful Termination Claim Is Within

The Scope Of The EEOC Charge.

Defendant argues that Plaintiff's Wrongful Termination claim
is beyond the scope of his EEOC charge and should be dismissed
from this suit. The Court disagrees. It is clear on the face of
the EEOC charge that Plaintiff alleged discrimination based on
his race. Furthermore, Plaintiff filed a charge of discrimination
with the EEOC on August 20, 2003, less than 300 days from the
date Plaintiff discovered the unlawful employment practice.

Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir.
2001).

"(A] Title VII plaintiff may bring only those claims that
were included in [his] EEOC charge, or that are like or
reasonably related to the allegations of the charge and growing
out of such allegations." Haugerud v. Amery School Dist., 259

F.3d 678, 689 (7th Cir. 2001) (citing McKenzie v. Ill. Dep't. of

Page 6 of 16


harassment in the form of racial remarks.” (8/20/03 Charge of
Discrimination). The charge also alleges race based
discrimination. Id.

The EEOC issued a Notice of Right to Sue on October 6, 2003.
Plaintiff filed his pro se complaint on December 30, 2003, within
90 days of receipt of the Notice of Right to Sue. The Court
appointed counsel for Plaintiff on January 15, 2004. Originally
assigned to District Judge Castillo, both parties consented to
proceed in this Court on March 31, 2004. On June 28, 2004,
Plaintiff filed an Amended Complaint alleging five causes of
action: 1) hostile work environment under Title VII; 2) race
discrimination under Title VII; 3) retaliation under Title VII;
4) retaliatory discharge under Title VII; and 5) race
discrimination under Section 1981. Defendant moved to Dismiss
Counts II through V of Plaintiff’s Amended Complaint. Plaintiff
voluntarily dismissed Count III in his Opposition Brief. Counts
II, IV and V are the subject of this Memorandum Opinion and
Order.

STANDARD FOR MOTION TO DISMISS

In reviewing Defendant’s Motion to Dismiss pursuant to Rule
12(b) (6) of the Federal Rule of Civil Procedure, the Court
accepts all well-pled factual allegations in the Complaint as
true, making all permissible inferences in Plaintiff’s favor.

Williams v. Seniff, 342 F.3d 774 (7th Cir. 2003). Defendant’s

Page 5 of 16



related” test allows the court to hear claims brought in a
complaint but not raised in an EEOC charge if “(1) the claim is
like or reasonably related to the EEOC charges, and (2) the claim
in the complaint could reasonably develop from the EEOC
investigation into the original charges.” Bouso v. Elkay Manuf.
Co., No. 02 C 6630, 2003 WL 22410076, at *8 (N.D. Ill. Oct. 22,
2003) (citing Harper v. Godfrey Co., 45 F.3d 143, 178 (7th Cir.
1995)).

Plaintiff easily satisfies the first component of the “like
or reasonably related” test. Plaintiff’s written EEOC charge
states, “I believe I have been discriminated against based on my
race, Black in violation of Title VII of the Civil Rights Act of
1964.” (8/20/03 Charge of Discrimination). Count II of
Plaintiff’s Amended Complaint alleges Title VII Race
Discrimination.

Specifically, Plaintiff alleges wrongful termination based
on his race - he was ultimately terminated as a result of
mistakenly welding with the incorrect rod, yet white employees
who made the same mistake were promoted and their pay was
increased. It is reasonable to conclude that although Plaintiff
did not specifically use the word “terminated” in his EEOC
charge, he requested an investigation into his termination based
on his allegation that he was racially discriminated against.

After all, Plaintiff was fired only five days prior to filing his

Page 8 of 16



Minute Orger Form (06817)

United States District Court, Northern District of Illinois

5 Sitting Judge if O
aan Magistrate Judge Arlander Keys “tan Assigned Judge
CASE NUMBER 03 C 9408 DATE 10/20/2004
CASE James Dillard vs. Starcon International
TITLE

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

MOTION:

DOCKET ENTRY:

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

(2) Oo Brief in support of motion due

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

(4) ia) Ruling/Hearing on ___setfor____att

(5) oO Status hearing[held/continued to] [set for/re-set for}on__———s set for__——sat_—
(6) Qo Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_——sat_—
(7) im} 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}

CFRCP4(m) Local Rule 41.1 COFRCP41(a)(1) O FRCP41(a)(2).

a0) =o [Other docket entry) | Memorandum Opinion and Order entered. Defendant’s Motion to Dismiss
Counts II-V of Plaintiff's Amended Complaint [#16] is hereby granted in part and denied in part. AZ|

(il) @f [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

3

No notices required, number of notices

CT 2°1. 2008-

Gale docketed

a | Notices mailed by judge’s staff.

fant

Notified counsel by telephone

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistratc judge.

10/20/2004

courtroom date paited notice

a nA hen?
FT, deputy’s : Le =
initials —
Date/time received, in
. central Clerk’s Office mailing deputy initials



Plaintiff only checked the box on the form marked “Race.” He did
not check the box specifically marked “Retaliation” or the box
marked “Other (Specify Below).” See Sitar v. Indiana Dep’t. of
Transp., 344 F.3d 720, 726 (7th Cir, 2001).

In Sitar, the plaintiff checked only the retaliation box on
the agency's form and alleged there that her termination was in
retaliation for an earlier complaint she had filed about sex
discrimination. 344 F.3d at 726. The court refused to allow
plaintiff’s additional sex harassment and sex discrimination
claims, reasoning that “{nlormally, retaliation, sex
discrimination, and sexual harassment charges are not ‘like or
reasonably related to one another to permit an EEOC charge of one
type of wrong to support a subsequent civil suit for another.”
Id. Because the plaintiff’s sex discrimination and harassment
claims involved separate incidents, conduct, and people, the
Court readily concluded that the claims were not reasonably
related to her retaliation claim. Id. at 726-27. See also,
Lalvani v. Cook County, No. 98 C 2847, 2000 WL 198459, *5 (N.D.
Ill. Feb. 14, 2000) ("(R]etaliation and discrimination are
separate and distinct wrongs. Indeed, the very gist of a
retaliatory harassment action[] is that the employer has ‘lashed
out' against an employee for filing discrimination charges, not

out of animosity for the employee's race or national origin.")

Page 11 of 16



white welders who made similar mistakes because he alleged race
discrimination on his EEOC charge. See Haugerud v. Amery School
Dist., 259 F.3d 678, 690 (7th Cir. 2001).

Because both test components are satisfied, Plaintiff’s
Wrongful Termination claim is deemed “like or reasonably related”
to the EEOC charge he filed on August 20, 2003. Cheek, 31 F.3d
at 500. Accordingly, it is within the scope of his EEOC charge.

II. Plaintiff's Title VII Retaliatory Discharge Claim Is Outside
The Scope Of The EEOC Charge.

Defendant argues that Plaintiff’s Retaliatory Discharge
claim is beyond the scope of his EEOC charge and should be
dismissed from this suit. The Court agrees.

Plaintiff’s Retaliatory Discharge claim is not permissible,
both on its face, as well as when screened through the Jenkins
test outlined above. Plaintiff prevented the EEOC from fully
participating in an “investigative and conciliatory role” when he
failed to allege retaliatory discharge in his administrative
charge. Cheek v. Western and Southern Life Ins. Co., 31 F.3d
497, 500 (7th Cir. 1994). It follows that neither Plaintiff nor
the EEOC provided Defendant with notice of a charge of
retaliation.

First, Plaintiff’s EEOC Charge is devoid of any mention of
retaliation. Plaintiff alleged only that he was subjected to

both racial harassment and racial discrimination. Furthermore,

Page 10 of 16


Transp., 92 F.3d 473, 481 (7th Cir. 1996)). This well
established requirement furthers two goals: 1) the EEOC’s
“investigatory and conciliatory role”; and 2) the EEOC’s policing
function - warning employers of “conduct about which the employee
is aggrieved.” Cheek v. Western and Southern Life Ins. Co., 31
F.3d 497, 500 (7th Cir. 1994). Bypassing the EEOC charge
requirement would not only retard the agency’s ability to play an
intermediary role between employers and the judicial system but
would also hamper the EEOC’s ability to notify employers of
offending conduct. Id.

However, “because most EEOC charges are completed by
laypersons rather than by lawyers, a Title VII plaintiff need not
allege in an EEOC charge each and every fact that combines to
form the basis of each claim in her complaint.” Taylor v.
Western & Southern Life Ins. Co., 966 F.2d 1188, 1195 (7th
Cir.1992). To determine whether an EEOC charge is comprehensive
enough to substantiate a Title VII plaintiff’s complaint, the
following liberal test is applied: “all Title VII claims set
forth in a complaint are cognizable that are ‘like or reasonably
related to the allegations of the charge and growing out of such
allegations.'" Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538
F.2d 164, 167 (7th Cir. 1976) (en banc) (quoting Danner v.
Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971)), cert.

denied, 429 U.S. 986 (1976). The Jenkins “like or reasonably

Page 7 of 16



to mechanical work. In fact, Plaintiff contends that he was
offered only three or four welding jobs during his entire tenure
on site despite the fact that he received positive performance
evaluations as a “B Welder” on the Exxon job site.

Plaintiff complained to Human Resources about this offensive
treatment. Personnel in the Human Resources Department not only
failed to act on his complaints, but also advised Plaintiff that
he would be laid off if he continued to complain.

Plaintiff eventually requested a transfer to an alternate
job site in 2002. In July of 2002, Defendant granted Plaintiff's
request and transferred him to the Citgo Refinery job site.
Again, Plaintiff was classified to work as a “B Welder.” Like
the Exxon job site, the Citgo site was also a racially hostile
environment. Unlike white welders, he was again assigned
primarily mechanical maintenance work, though he was permitted to
do some welding.

Employees on the Citgo job site also told jokes using the
word “nigger” and referred to black employees as “niggers”.
However, this time they were not alone - supervisors joined with
the employees in making racist and bigoted remarks. In one
incident, co-workers told him to “bring his own rope” to the next
company party, implying that he would be lynched. Again
Plaintiff reported this conduct to Human Resources. Personnel

with Human Resources told him for the second time that he would

Page 3 of 16



Plaintiff tucked his disagreement with the Massey holding
into a footnote in his Opposition to Defendant’s Motion to
Dismiss. Plaintiff contends that Massey is distinguishable,
because, although Massey’s defendants raised their defense late,
they gave the plaintiff sufficient notice that they would be
asserting administrative exhaustion as an affirmative defense.

It is easy to see why this argument was hidden under the rug
- it is not accurate. Massey’s holding is based on the
defendant’s inclusion of the defense in its answer to amended
complaints. Noting the potential consequences of not allowing
the defendant to raise an administrative exhaustion defense at a
later date, the court explained that, “[t]o hold to the contrary
would, in essence, enable plaintiffs to change their theory of
the case, while simultaneously locking defendants into their
original pleading. This result would clearly contravene Federal
Rule of Civil Procedure 15(a) which authorizes the amendment of
answers ‘as justice so requires.’” Id.

The Court rejects Plaintiff’s half-hearted attempt to
distinguish Massey, which clearly controls. Accordingly,
Defendant’s administrative exhaustion defense is allowed and

prevails. Count IV is dismissed.

Page 14 of 16


Conclusion
For the reasons stated above, Defendant’s Motion to Dismiss
Counts II, III, and V is denied, and Defendant’s Motion to

Dismiss Count IV is granted.

DATE: October 20, 2004 ENTERED

S

Judge Arlander KeyS
United States Magistrate Judge

Page 16 of 16


BACKGROUND FACTS*

Plaintiff, James Dillard, began working for Starcon on April
18, 1996 as a “B Mechanic Apprentice,” at the JLM job site in
Blue Island, Illinois. By 1998, Plaintiff had been promoted to
the position of “A Mechanic Apprentice.” Plaintiff passed his
plate welder examination and was promoted to “C Plate Welder” in
early 1998. From 1998 through 2000, Plaintiff was employed in
various positions at various job sites for short periods of time.
Beginning in 2000, Plaintiff was sent to the Exxon Mobil job site
in Channahon, Illinois. Plaintiff was certified to weld on site
after passing a site-specific pipe welding test. Between late
2000 and early 2001, Plaintiff passed another pipefitting and
pipe welding course and became a “B Pipe Welder.”

Plaintiff alleges that he was subjected to a racially
hostile work environment during his entire two year stint at the
Exxon site. In addition to telling racially discriminatory and
offensive jokes, employees constantly referred to black workers
on the job site as “niggers.”

Additionally, Plaintiff was not offered opportunities to
weld, despite the fact that he was fully certified to do so.
Plaintiff's white co-workers were offered opportunities to weld

while the majority of Plaintiff's responsibilities were allocated

' In considering the instant Motion, the Court takes the factual
allegations of the Complaint as true.

Page 2 of 16


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

JAMES DILLARD,

Plaintiff,
Case No. 03C 9408
Magistrate Judge
vs. Arlander Keys

STARCON INTERNATIONAL
INC., an Illinois corporation,

Defendant. Weve rey

MEMORANDUM OPINION AND ORDER

Currently before the Court is Defendant’s Motion to Dismiss
Counts II-v of Plaintiff’s Amended Complaint, filed pursuant to
Fed. R. Civ. P. 12(b) (6). Plaintiff claims that, as an employee
for Defendant Starcon International, Inc (“Starcon”), he was
subjected to a hostile work environment, discrimination based on
his race, retaliation, and retaliatory discharge in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et.
seq. (West 2004), and 42 U.S.C. § 1981 (West 2004). For the
reasons set forth below, Defendant’s Motion is granted in part

and denied in part.

Page | of 16


Similarly, Plaintiff’s retaliatory discharge claim is not
“like or reasonably related” to his claims of racial harassment
and discrimination in his EEOC Charge. Although Plaintiff
complained to personnel in the Human Resources department at
least twice, he never alleged in his EEOC Charge that he was
terminated because of these complaints. Plaintiff’s Charge
alleges only that he was subjected to a hostile work environment
and racial discrimination. Plaintiff’s allegations of
retaliation involve a separate set of incidents, conduct and
people - specifically, the conduct and employees of the Human
Resources Department, as opposed to Plaintiff’s interaction with
his coworkers and supervisors.

The Court finds that, while the Charge infers wrongful
termination, it stops well short of inferring that he was
retaliated against because of his complaints to Human Resources.
Accordingly, Plaintiff’s allegation that he was discharged in
retaliation for complaining about racial discrimination is not
reasonably related to the EEOC charge he filed. As a result,
Plaintiff is now time barred from filing a charge of
discrimination with the EEOC, because more than 300 days from the
date Plaintiff discovered the unlawful employment practice have
passed. Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th

Cir. 2001).

Page 12 of 16


III. Plaintiff£’s Section 1981 Wrongful Termination Claim Does Not
Require The Filing Of An EEOC Charge.

Defendant next seeks to dismiss Plaintiff’s Section 1981
Race Discrimination claim, because Plaintiff did not raise the
claim in his EEOC charge?. Plaintiff quickly extinguishes this
argument by pointing out that a Section 1981 claim is a
completely independent avenue of relief than a Title VII claim.
Johnson v. Railway Exp. Agency, Inc., 421 U.S. 454, 460 (1975).
While a timely filed EEOC charge is a prerequisite for Title VII
claim, there is no such prerequisite for Section 1981 claims.

Id.

Defendant also claims that Plaintiff’s Section 1981 claim is
untimely. Again, Plaintiff sets the record straight. “While a
plaintiff must file an EEOC charge within 300 days of the last
discriminatory act in order to pursue a Title VII claim in
federal court, that is not so under Section 1981. The statute of
limitations for a Section 1981 claim in Illinois is two years.”
Smith v. City of Chicago Heights, 951 F.2d 834, 836 (7th Cir.
1990). Plaintiff was terminated on August 15, 2003 and his First
Amended Complaint asserting a claim under Section 1981 was filed
less than two years later, on June 28, 2004. Accordingly,
Plaintiff's Section 1981 Race Discrimination Count is timely and

is not dismissed.

7Although Defendant abandoned its Motion to Dismiss Count V in its Reply, the
Court briefly addresses this issue,

Page 15 of 16