determine the actual date of discrimination.” Tinner v. United Ins. Co. of Am., 308 F.3d 697,
707-08 (7" Cir. 2002), pet. for cert. filed Jan. 8, 20032 Thus, acts leading to a discriminatory
decision are actionable until “the employee knew or should have known that he or she was

discriminated against.” Stewart v. CPC Intern., Inc., 679 F.2d 117, 120 (7" Cir. 1982).

Here, plaintiffs allegations that she was denied promotion at any time before March 3,
2001, are time barred under Title VII.* (Compl. Attach. {ff 3, 5-6, 8-10, 17-19, 21); see National
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, __, 122 S. Ct. 2061, 2072-73 (2002) (stating
“discrete discriminatory acts are not actionable if time barred, even when they are related to acts
alleged in timely filed charges. * * * Discrete acts such as . . . failure to promote . . . are easy to
identify.”)’; Jagielski v. Chicago Statler Chicago Hilton Hotel, No. 00 C 1324, 2002 WL 27626,
at *2 (N.D. Ill. Jan. 10, 2002) (dismissing Title VII and § 1981 failure to promote claims because
they were discrete acts which fell outside of the limitations period). The court, therefore,

dismisses the complaint insofar as it seeks recovery for denial of promotions prior to March 3,

3In Tinner, the court reiterated the continuing violation doctrine as follows: a continuing violation occurs
(1) “when an employer makes employment decisions over time that make it difficult for the employee to determine
the actual date of discrimination,” or (2) (although not applicable here) “when the employer has an express
discriminatory policy” (such as a mandatory retirement age that continues to be applied over a period of time, in
which instance an employee may file a charge as long as the policy is applicable to her), 308 F.3d 707-08.

‘Plaintiff alleges that defendant failed to promote her on ten separate occasions, namely, (1) for writer in the
Communications Department in 1998 (Compl. Attach { 3), (2) for manager of the Accounts Receivable Department
in May 1999 (Compl. Attach, {{] 5-6), (3) for team leader in May 1999 (Compl. Attach. {| 8-10), (4) for a position in
the Communications Department in November 1999 (Compl. Attach. ] 21), (5) for trainer in the Human Resources
Department in 2001 (Compl. Attach. {{{ 17-18), (6) for a position in the Corporate Relations Department in 2001
(Compl. Attach. | 19), (7) for team Jeader in Benefits Determination in 2001 (Compl. Attach. f 23-25), (8) for
benefit educator in the Communications Department in 2002 (Compl. Attach. § 13), (9) for research assistant in the
Strategic Relations Department in 2002 (Compl. Attach. § 14-16), and (10) for plan sponsor manager in February
2002 (Compl. Attach. {{] 27-29).

5 In Tinner, the court explained that the Supreme Court in National R.R, Passenger Corp. v. Morgan, 536
U.S. 101, __, 122 S. Ct. 2061, 2070-73 (2002), determined that “a plaintiff who feels discriminated against by a
discrete act, but fails to timely file charges on that act, cannot later reach back to those events when the statute of
limitations expires in order to form a continuing violation claim.” Tinner, 308 F.3d at 708.

4


promote plaintiff, of which only three are not time barred.” Nonetheless, defendants argue, and
the court agrees, that plaintiff does not allege Jung is individually liable for other acts of
discrimination.’ The court, therefore, will allow plaintiff to proceed against Jung with respect to

the three promotion incidents.
ORDER

Accordingly, for the reasons set forth above, defendants’ partial motion to dismiss is
granted in part and denied in part [#6]. Plaintiff is given leave to replead in accordance with this
opinion. The clerk is directed to appoint counsel for plaintiff. A status hearing will be held on

March 18, 2002, at 9:30 a.m., at which time a date for an amended pleading will be set.

ENTER: (et vA Keper—
/ JOAN HUMPHREY LEFKOW
Dated: February 10, 2003 United States District Judge

7Phese acts are (1) for manager of Accounts Receivable in May 1999 (Compl. Attach. {ff 5-6), (2) for team
leader in May 1999 (Compl. Attach. 491 8-10), (3) for team leader in Benefits Determination in 2001 (Compl. Attach.
{4 23-25), (4) for trainer in Human Resources in 2001 (Compl. Attach. ff] 17-18), and (5) for plan sponsor manager
in February 2002 (Compl. Attach. {{] 27-29).

8These acts are (1) plaintiff's exclusion from in-house training/home study time in August 1999 (Compl.
Attach. § 11), (2) the conference and phone coverage assignments in September 1999 (Compl. Attach § 12), GB)a
desk search in October 1999 (Compl. Attach § 20), (4) plaintiff's attempts to open an internal investigation in
December 1999 (Compl. Attach. § 22), and (5) a negative performance evaluation in June 2002 (Compl. Attach.
35)



claim that defendants failed to accommodate her medical condition in June, 1999.

Moreover, with respect to plaintiff's § 1981 claims, the statute of limitations is two years.
See Jones v. R.R. Donnelley & Sons Co., 305 F.3d 717, 728 (7" Cir. 2002). As such, any claims
based on acts that occurred prior to July 23, 2000 (two years prior to when plaintiff filed her

complaint) are time barred.
B. Exhaustion Of Administrative Remedies

In general, Title VII claims in a complaint must rest on the facts presented in the EEOC
charge, but “plaintiffs [may] proceed on claims not explicitly set forth in a charge of
discrimination if the claim is like or reasonably related to the EEOC charge, and the claim in the
complaint “reasonably could be expected to grow out of an EEOC investigation of the charge.”
Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 550 (7" Cir. 2002); see Cheek v. W. &
S. Life Ins. Co., 31 F.3d 497, 500-01 (7" Cir. 1994) (internal quotations omitted). ““This means
that the EEOC charge and the complaint must, at minimum, describe the same conduct and
implicate the same individuals.’” Haugerud v. Amery Sch. Dist., 259 F.3d 678, 689 (7" Cir.
2001), quoting Cheek, 31 F.3d at 501 (emphasis in original). The purpose behind this rule is to
permit the EEOC to investigate these claims before the plaintiff files suit and to give the

employer some warning of the unlawful conduct. Cheek, 31 F.3d at 500.

In her complaint, plaintiff alleges acts that occurred after she filed her EEOC charge on
December 28, 2001. Specifically, she alleges that defendant failed to promote her on three
occasions and gave her a poor performance evaluation. (See Compl. Attach. J 13-16, 27-29,

35.) Defendant argues that these post-charge events must be dismissed for failure to exhaust


2001.

Defendant further argues that plaintiff’s various allegations of discrimination (exclusion
from in-house training/home study time in August 1999, conference and phone coverage
assignments in September 1999, a desk search which led to plaintiff making a complaint in
October 1999, and plaintiff’s being rebuffed when she suggested in December 1999 that General
open an internal investigation of discrimination) are discrete acts, which are also time barred. In
Tinner, drawing on Filipovic v. K & R. Exp. Sys., Inc., 176 F. 3d 390, 396 (7 Cir. 1999), the
court considered whether various discriminatory acts that occurred over a period of time were
“related closely enough” to the acts occurring within the established time frame “to be considered
one ongoing violation,” id. at 396, or “linked together in a single chain.” Tinner, 308 F. 3d at
708.° This entails a determination (a) whether the acts involve the same subject matter; (b) the
frequency with which the acts occur; and (c) the degree of permanence of the alleged acts of
discrimination that should trigger an employee’s awareness and duty to assert his rights. Tinner,
308 F. 3d at 708, citing Filipovic, 176 F.3d at 396. The last of these acts occurred before March
3, 2001, and they are not linked in time (she makes no allegations of acts during 2000, for
example that would link the 1999 conduct to post-March 3, 2001), type (these may at best be
discrete examples of a discriminatory attitude by supervisors) or permanence to an act that
occurred after March 3, 2001. For these reasons, any claim under Title VII based on these acts is

time barred. (See Compl. Attach. ff] 11-12, 20, 22.) This ruling applies as well to plaintiff’s

‘The court discerns (it hopes accurately) from the Tinner opinion that the court in the cited text was
referring to criterion (1): whether the employer’s decisions that occurred more than 300 days before the charge filing
date would have permitted an employee to determine the actual date of the discrimination (or, on the other hand,
whether the violation continued until the employee had reason to know of the discrimination).

5s


accommodation claim in her EEOC charge and, therefore, she could not pursue her religious
accommodation claim against the defendant). There is no basis in the charge or the complaint to
support a claim for failure to accommodate a religious belief. The claim for religious

discrimination, however, is dismissed without prejudice.
D. Jung’s Individual Liability Under Title VII and § 1981

Under Title VII, a defendant must be an employer to be liable. See EEOC v. AIC Security
Investigations, Ltd., 55 F.3d 1276, 1279 (7" Cir. 1995) (stating “individuals who do not
independently meet the ADA’s definition of ‘employer’ cannot be held liable under the ADA.”);
see also Williams v. Banning, 72 F.3d 552, 554 (7" Cir. 1995) (applying AIC Security
Investigations, Ltd. to Title VII claims). Under Title VII and the ADA, an employer is defined as
“a person engaged in an industry affecting commerce who has fifteen or more employees . . . and
any agent of such a person.” 42 U.S.C. § 2000e(b); see § 12111(5)(A). Jung does not meet the
statutory definition of “employer.” As such, the court dismisses the Title VII and ADA claims

against Jung.

Furthermore, pursuant to § 1981, individual liability may only be found where the
individual herself “participated in the alleged discrimination against the plaintiff.” Behnia v.
Shapiro, 961 F. Supp. 1234, 1237 (N.D. Ill. 1997); Daulo v. Commonwealth Edison, 892 F.
Supp. 1088, 1091 (N.D. Ill. 1995) (“Section 1981 liability against an individual demands
personal involvement in discrimination.”). Defendants concede the complaint sufficiently

alleges individual liability against Jung on five separate occasions where defendants failed to


M Form (06/97)
United States District Court, Northern District of Hlinois
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Joan H. Lefkow than Assigned Judge
CASE NUMBER 02 C5221 DATE 2/10/2003
CASE Johnson vs. Jung, et al.
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:

(dD a] 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) Oo Ruling/Hearing on set for at

(5) o Status hearing[held/continued to] [set for/re-set for] on set for at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(7) Qo 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]

OOFRCP4(m) O Local Rule 41.1 OC FRCP41(a)(1) [ FRCP41(a)(2).

(ao) [Other docket entry] | Enter Memorandum Opinion and Order. Defendant’s partial motion to
dismiss [6-1] is granted in part and denied in part. Plaintiff is given leave to replead in accordance with
this opinion. Status hearing of 2/11/03 is reset to 3/18/03 at 9:30 a.m. Ruling date of 2/11/03 is stricken.

(11) | [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2
‘No notices required. umber of notices
a | Notices mailed by judge’s staff.

1 2003

d docketed

FEB

Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
MD deputy’s \
initials

im

Date/time received in
central Clerk’s Office

suiting deputy initials



administrative remedies. There is supporting authority, however, that post-charge events that are
like or reasonably related may be considered in a pending case. Cf. Witherspoon v. Roadway
Express, Inc., 782 F. Supp. 567 (D. Kan. 1992) (discriminatory termination claim which arose
during pendency of administrative investigation of discriminatory promotion claim was not
barred by failure to exhaust administrative remedies); see also Harper v. Godfrey Co., 45 F.3d
143, 148 (7" Cir. 1995) (discussing Witherspoon but determining that the plaintiff must still
allege same conduct and individuals in the underlying EEOC charge). Here, at the very least,
these acts may support plaintiff's retaliation claim. See Aviles v. Cornell Forge Co., 183 F.3d
598, 606 (7" Cir. 1999) (ruling that “a plaintiff need not bring a separate EEOC charge in making
a claim for retaliation[,]” citing Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7 Cir. 1989)).

Thus, the court will allow plaintiff to allege these post-charge acts.
Cc. Religious Discrimination And Accommodation Claims

Defendants argue that plaintiff fails to plead her prima facie case for religious
discrimination and accommodation. (See Compl.§§ 9, 12 and EEOC charge.) A Title VII
plaintiff, however, to satisfy the notice pleading requirements under Rule 8, Fed. R. Civ. P., need
not plead a prima facie case of discrimination (or accommodation). Swierkiewicz v. Sorema, 534
U.S. 506, 515 (2002). Nevertheless, the complaint makes no allegations of religious
discrimination occurring after March 3, 2001, and the charge merely alleges discrimination (“not
being a Methodist”) as the basis for her claim. To the extent plaintiff seeks to advance a claim
for failure to accommodate a religious belief, there is nothing in the charge or complaint about
this claim. See Novitsky v. Am. Consulting Eng’rs, L.L.C., 196 F.3d 699, 701-03 (7" Cir. 1999)
(holding that the plaintiff alleged a religious discrimination claim but not a religious

7


the Benefits Determination Department. She alleges that beginning in 1998 and on specific
occasions thereafter she applied for positions within General and was always turned down in
favor of others outside her protected group(s) who were less qualified. She also alleges
discrimination in opportunities for training; a racially hostile work environment based on
negative and derogatory statements made to her during the course of her employment; and
retaliation in that after she complained about discrimination, she was told complaining about
discrimination would impair her chance of promotion and her supervisor gave her less favorable
performance ratings than he previously had. Plaintiff further alleges that in June, 1999,
defendants failed to restructure her work station to accommodate an unspecified medical
condition. Further details will be addressed within the analysis sections below.
A. Timeliness Of Claims

With respect to plaintiff's Title VIL and ADA claims, plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”) on or about
December 28, 2001. (Compl. {| 7.) In Illinois, “[a] plaintiff. . . must file a charge of
discrimination with the EEOC or equivalent state agency within 300 days after the ‘alleged
unlawful employment practice.” Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7" Cir.
2001), quoting 42 U.S.C. § 2000e-5(e)(1); see 42 U.S.C. § 12117 (for ADA charge). In general,
this means that any discriminatory act that occurred more than 300 days before the charge was
filed (here, before March 3, 2001) is not grounds for liability. A time barred discriminatory act,
however, may form a part of an actionable Title VII (or ADA) claim if the plaintiff can show the
act is part of a continuing violation. In brief, a continuing violation occurs (1) “when an

employer makes employment decisions over time that make it difficult for the employee to


plaintiff's complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon
which relief may be granted. Although plaintiff did not file a response brief, the court may rule
on the motion pursuant to Local Rule 78.3.” For the reasons set forth below, the court grants in
part and denies in part the motion.
MOTION TO DISMISS STANDARDS

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint for
failure to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1080 (7" Cir. 1997). Dismissal is appropriate only if it appears
beyond a doubt that the plaintiff can prove no set of facts in support of its claim that would
entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v. Nat'l Juvenile Det.
Assoc., 187 F.3d 690, 695 (7" Cir. 1999). In ruling on a motion to dismiss, the court accepts as
true all well-pleaded facts alleged in the complaint, and it draws all reasonable inferences from
those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7" Cir. 2002); Jackson v.
E.J. Brach Corp., 176 F.3d 971, 977 (7" Cir, 1999). Further, when a plaintiff is proceeding pro
se, the court liberally construes the complaint. Kyle v. Patterson, 196 F.3d 695, 697 (7" Cir.
1999),

DISCUSSION
In brief, plaintiff alleges that she was employed by General from March, 1998 to June

1999 in the Accounts Receivable Department and thereafter in the position of team member in

Local Rule 78.3 provides in pertinent part,
Failure to file a supporting or answering memorandum shall not be deemed to be a waiver of the

motion or a withdrawal of opposition thereto, but the court on its own motion or that of a party
may strike the motion or grant the same without further hearing.

2


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION Do
MERDELIN V. JOHNSON, ) FEB 1 1 2003
)
Plaintiff, )
)
vs. ) No. 02 C 5221
) Judge Joan H. Lefkow
ALEXANDRA JUNG and )
GENERAL BOARD OF PENSION AND )
HEALTH BENEFITS, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Pro se plaintiff, Merdelin V. Johnson, alleges under Title VII of the Civil Rights Act of
1964 (“Title VII”), as amended by the Civil Rights Act of 1991, 42 U.S.C. §§ 2000¢ et seq.,
against her employer, General Board of Pension and Health Benefits of The United Methodist
Church (“General”), and her supervisor, Alexandra Jung (“Jung”), discrimination based on her
national origin (Jamaican/West Indian), race (“black”), and religion (non-Methodist') and failure
to accommodate her religion. Further, plaintiff alleges discrimination under 42 U.S.C. § 1981 on
the basis of national origin and race. Plaintiff also alleges failure to accommodate an
unidentified medical condition, which the court construes as being brought under the Americans

with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seg. Defendants move to partially dismiss

‘The charge asserts that discrimination was based on not being a Methodist. The complaint makes one
reference to plaintiff being a Christian but does not directly allege that she was discriminated against because of her
Christian faith. The context suggests that the environment was Methodist, thus Christian, so the court infers that
plaintiff is alleging discrimination as a non-Methodist.