UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MEMORANDUM IN SUPPORT OF DEFENDANTS’ PARTIAL MOTION TO DISMISS

Introduction

Plaintiff Elizabeth Gonzalez brings this employment discrimination suit alleging that her 

former employer, the U.S. EEOC, discriminated against her on the basis of sex, national origin, 

and disability, failed to provide reasonable accommodations, and retaliated against her. 

Defendants (“the EEOC”) have partially answered, denying the core of Gonzalez’s complaint—

her claims related to her resignation in November 2015. However, the EEOC moves to dismiss 

claims from Gonzalez’s Second EEO Complaint that Gonzalez did not timely exhaust: her claim 

that the EEOC improperly included her reasons for resignation on the SF-50 form and her claim 

that the EEOC provided incorrect information to U.S. Customs and Border Protection during a 

subsequent background check. Gonzalez did not initiate counselor contact within the required 45-

day window related to this alleged wrongful conduct—initiating it instead over seven months and 

over two years later, respectively. 

Thus, Gonzalez’s claims from her Second EEO Complaint should be dismissed for failure 

to timely exhaust.

ELIZABETH GONZALEZ,

Plaintiff,

v.

JANET DHILLON, Chair of the U.S. Equal 

Employment Opportunity Commission, and 

the UNITED STATES EQUAL 

EMPLOYMENT OPPORTUNITY 

COMMISSION,

Defendants.

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No. 20 C 2111

Judge Kennelly

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Facts

I. First Amended District Court Complaint

Plaintiff Elizabeth Gonzalez filed her original complaint pro se on March 31, 2020, against 

the chair of the EEOC. Dkt. 1. On September 3, 2020, counsel was appointed on plaintiff’s behalf,

and she was provided the opportunity to amend her complaint, which she did on December 1, 

2020. Dkts. 20, 24-25. In her First Amended Complaint, Gonzalez added the agency itself as a 

defendant to the suit. 1st Am. Compl. ¶ 5, Dkt. 25. The following facts are taken from Gonzalez’s 

First Amended Complaint.

Gonzalez is a former employee of the Chicago District Office of the EEOC. 1st Am. 

Compl. ¶¶ 23, 39, Dkt. 25. She was hired in December 2014 as an information intake 

representative, where she would receive and respond to telephone calls from individuals seeking 

information on employment discrimination, the charge filing process, and pre-charge counseling, 

among other things. Id. ¶¶ 23-25. Gonzalez resigned on November 25, 2015. Id. ¶ 39. Gonzalez 

alleges that she was constructively discharged, id. ¶ 64, and that the EEOC discriminated against 

her based on national origin and sex, id. ¶¶ 47-54, failed to accommodate her disability, id. ¶¶ 55-

65, and retaliated against her, id. ¶¶ 66-71. Gonzalez seeks monetary damages and other available 

remedies. Id. ¶ 72.

The vast majority of Gonzalez’s allegations involve her employment at the Chicago 

District Office of the EEOC and the events surrounding her resignation. 1st Am. Compl. ¶¶ 23-

42. However, the subject of this motion to dismiss does not involve those allegations. This motion 

to dismiss involves solely the claims in her Second EEO Complaint—claims involving Gonzalez’s

allegations of wrongful conduct that occurred after Gonzalez’s resignation on November 25, 2015 

(id. ¶¶ 45-46, 69). Gonzalez alleged that the EEOC improperly included the reasons Gonzalez

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provided for her resignation on the Standard Form 50 (SF-50), issued on January 5, 2016 (id. ¶¶ 45, 

69), and that the EEOC provided negative information to U.S. Customs and Border Protection 

during its background check related to Gonzalez’s potential employment with U.S. Customs and 

Border Protection (id. ¶¶ 46, 69).

II. Administrative Proceedings

Gonzalez has filed multiple EEO complaints based on her EEOC employment, but only 

two are relevant to the operative complaint.

A. First EEO Complaint

Gonzalez filed her “First EEO Complaint” (No. 2016-0014) on January 12, 2016, alleging 

discrimination, failure to offer reasonable accommodation, and retaliation based on her November 

25, 2015 resignation and a subsequent paycheck issue. 1st Am. Compl. ¶ 10; First EEO Complaint, 

Ex. A (see also Dkt. 1 at 52-53). The agency issued its notice of dismissal. Id. ¶ 11. Gonzalez 

appealed and on appeal, the agency’s decision was vacated and the case remanded to provide 

Gonzalez an opportunity for a hearing on her claims. Id. ¶ 13. Gonzalez requested a hearing on 

January 11, 2020. Id. ¶ 14. On March 27, 2020, Gonzalez withdrew her request for a hearing. Id. 

The agency then issued a final decision on her First EEO Complaint on August 3, 2020. Id. ¶ 15. 

On March 31, 2020, Gonzalez filed this suit. Dkt. 1.

The EEOC is not moving to dismiss Gonzalez’s claims related to her First EEO Complaint. 

Answer, Dkt. 19, and Am. Answer, Dkt. 22.

B. Second EEO Complaint

Gonzalez initiated EEO counselor contact on November 16, 2018. 1st Am. Compl. ¶ 17. 

She filed a formal complaint of discrimination (the “Second EEO Complaint”) on March 2, 2019, 

alleging that the Commission subjected her to reprisal by including her reasons for resignation on 

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the standard form 50 (“SF-50”) and by providing incorrect information to the Customs and Border 

Protection background investigator, among others. Id. ¶18; Second EEO Complaint, Ex. B (see 

also Dkt. 1 at 9-10). On May 6, 2019, the agency issued a notice of dismissal. 1st Am. Compl. 

¶ 19. On May 9, 2019, Gonzalez filed an appeal from the agency’s decision. Id. ¶ 20. On 

December 27, 2019, the EEOC issued a final agency decision on the Second EEO Complaint. Id.

¶ 21; FAD, Ex. C (see also Dkt. 1 at 32-40).

Argument

I. Motion to Dismiss Standard

The Federal Rules require a complaint to “contain sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). A complaint should be 

dismissed pursuant to Rule 12(b)(6) if it does not meet this requirement. St. John’s United Church 

of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007). In ruling on a motion to dismiss, 

the court may consider documents referred to and thereby incorporated into the complaint. 

Thompson v. Ill. Dept. of Professional Regulation, 300 F.3d 750, 754 (7th Cir. 2002); Fed. R. Civ. 

P. 10(c). The court should accept the plaintiff’s allegations as true but need draw only reasonable 

inferences in her favor. Williams v. Seniff, 342 F.3d 774, 781 (7th Cir. 2003).

II. The U.S. EEOC Is Not a Proper Defendant and Should Be Dismissed.

The U.S. EEOC is not a proper defendant here. In Gonzalez’s pro se complaint, she 

properly initiated this suit solely against the head of the agency, Janet Dhillon, Chair of the U.S. 

Equal Employment Opportunity Commission. See generally Compl., Dkt. 1. However, in 

Gonzalez’s First Amended Complaint, she adds the U.S. Equal Employment Opportunity 

Commission as a defendant to this suit. 1st Am. Compl. ¶ 5. This change was improper. The 

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“only proper defendant in a Title VII suit is the head of the agency accused of having discriminated 

against the plaintiff. See 42 U.S.C. § 2000e–16(c).” McGuinness v. U.S. Postal Serv., 744 F.2d 

1318, 1322 (7th Cir. 1984); Shapiro v. United States, No. 18 C 3361, 2018 WL 11230467, at *2 

(N.D. Ill. May 31, 2018). Accordingly, the U.S. Equal Employment Opportunity Commission

should be dismissed.

III. Gonzalez’s Claims related to her SF-50 and Background Check Should Be Dismissed. 

A. Gonzalez Failed to Timely Exhaust her SF-50 and Background-Check Claims.

Gonzalez did not timely exhaust her administrative remedies as required for claims related 

to her SF-50 form (1st Am. Compl. ¶¶ 45, 69) or claims related to her Customs and Border 

Protection background check (id. ¶¶ 46, 69). She did not include any of these claims in her First 

EEO Complaint. See generally Ex. A; see also Dkt. 1 at 52-53. Although she asserted these claims 

in her Second EEO Complaint, she had not initiated counselor contact within 45 days of the alleged 

conduct. It is well-established that a Title VII plaintiff must exhaust her administrative remedies 

before bringing a cause of action for employment discrimination under Title VII. Ester v. Principi, 

250 F.3d 1068, 1071 (7th Cir. 2001). Her failure to do so bars these claims. 

1. Gonzalez Did Not Allege Any Misconduct Related to These Two Claims 

in Her First EEO Complaint.

Gonzalez’s claims that the EEOC discriminated against her by including improper 

information on her SF-50 and providing erroneous information for a background check must be 

dismissed because she never exhausted those claims in her First EEO Complaint that gave rise to 

this action and, as argued below, she never timely exhausted those claims in her Second EEO 

Complaint either. Title VII plaintiffs must exhaust their administrative remedies before bringing 

suit, and as a general rule, “a Title VII plaintiff cannot bring claims in a lawsuit that were not 

included in her EEOC charge.” Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009) (internal citation 

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and quotation marks omitted). “The purpose of this requirement is twofold: to promote resolution 

of the dispute by settlement or conciliation and to ensure that the sued employers receive adequate 

notice of the charges against them.” Id. at 691. It is beyond dispute that Gonzalez’s First EEO

Complaint made no mention of any wrongful conduct related to her SF-50 form or to her Customs 

and Border Protection background check. See generally Ex. A; see also Dkt. 1 at 52-53.

That said, Title VII plaintiffs may also bring claims that are “like or reasonably related to” 

the allegations asserted in the EEOC charge. Id. at 691-92 (internal citation and quotation marks 

omitted). To meet that standard, “the EEOC charge and the complaint must, at a minimum, 

describe the same conduct and implicate the same individuals.” Id. at 692 (emphasis in original; 

internal citation and quotation marks omitted); see also Conner v. Ill. Dep’t of Natural Res., 413 

F.3d 675, 680 (7th Cir. 2005) (“The complaint filed in the district court and the charge filed with 

the EEOC must, at a minimum, describe the same circumstances and participants.”). But 

Gonzalez’s SF-50 and background-check claims and her First EEO Complaint indisputably 

involve different conduct and likely implicate different individuals. Her First EEO Complaint 

focuses on her alleged constructive discharge in November 2015 and her allegations that the EEOC 

failed to provide reasonable accommodations; those claims are not reasonably related to her SF50 and her background check with a separate agency—which occurred at different times and

involve substantively different conduct. Thus, these claims are not “like or reasonably related to” 

the allegations asserted in her First EEO Complaint.

2. Gonzalez Failed to Timely Initiate Counselor Contact.

Gonzalez’s Second EEO Complaint does not save her claims related to the SF-50 (1st Am. 

Compl. ¶¶ 45, 69) or her claims related to the Customs and Border Protection’s background check

(1st Am. Compl. ¶¶ 46, 69) because she failed to timely exhaust those claims at the administrative 

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level. Gonzalez waited more than 45 days—in fact, multiple months—after the conduct occurred 

before initiating contact with an EEO counselor. Gonzalez’s delay bars any allegations in her 

complaint based on this conduct.

Claimants alleging discrimination “must initiate contact with [an EEO] Counselor within 

45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, 

within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). The 45-day time 

limit is strictly observed, and failure to comply with it requires dismissal. 29 C.F.R. §§ 

1614.107(a)(2) & 1614.109(b); Smith v. Potter, 445 F.3d 1000, 1006-07 (7th Cir. 2006) (overruled 

in part on other grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n. 1 (7th Cir. 2013)) (failure to 

meet with EEO counselor within 45 days “equates to the violation of a statute of limitations and, 

notwithstanding extenuating circumstances, would bar a federal employee from pursuing any 

action against the government”).

Gonzalez alleges that she contacted an EEO counselor on November 16, 2018, in regards 

to the allegations of her Second EEO Complaint. 1st Am. Compl. ¶ 17. Regarding her SF-50 

claims, Gonzalez alleges that, on or around January 5, 2016, the EEOC improperly included the 

reasons for Gonzalez’s resignation on the Standard Form 50 (“SF-50”). 1st Am. Compl. ¶ 45. She 

also alleges that she emailed the agency about the SF-50 in July 2017. Id. Based on her own 

allegations, Gonzalez failed to initiate counselor contact within 45 days of the allegedly 

discriminatory act. Id. Gonzalez initiated EEO counselor contact regarding the allegations of her 

Second EEO Complaint on November 16, 2018 (1st Am. Compl. ¶ 17), over two years later, well 

after the required 45-day window had passed. 29 C.F.R. §1614.105(a)(1). Thus, Gonzalez’s 

claims related to the SF-50 (1st Am. Compl. ¶ 45) were not properly exhausted and should be 

dismissed.

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Similarly, Gonzalez’s allegations are also untimely with respect to her claims about her 

background check with United States Customs and Border Protection. Gonzalez alleges that she 

learned, on or around April 6, 2018, that the EEOC provided incorrect information to the Customs 

and Border Protection background investigator that negatively affected her ability to secure 

employment with Customs and Border Protection. Second EEO Complaint, Ex. B (see also Dkt. 

1 at 9-10); Ex. C at 2 (see also Dkt. 1 at 33); Dkt. 1 at 12-13. Gonzalez failed to initiate counselor 

contact within 45 days of the allegedly discriminatory act. Gonzalez first initiated EEO counselor 

contact on November 16, 2018, over seven months after she first learned of the allegedly wrongful 

conduct in April 2018. Thus, the claims alleged in her suit related to the Customs and Border 

Protection’s background check (1st Am. Compl. ¶¶ 46, 69) are untimely and should be dismissed. 

Rodriguez v. Napolitano, No. 12 C 7838, 2014 WL 1276193, at *7 (N.D. Ill. Mar. 27, 2014) (“The 

45–day window acts as a statute of limitations, and the failure to consult with an EEO counselor 

within the required time frame is grounds for dismissing an employee’s . . . claim.”). 

Conclusion

The court should dismiss the agency from this suit. The court should also dismiss 

Gonzalez’s allegations related to her Second EEO Complaint for failure to timely exhaust her 

administrative remedies.

Respectfully submitted,

JOHN R. LAUSCH, Jr.

United States Attorney

By: s/ Valerie R. Raedy

 VALERIE R. RAEDY

Assistant United States Attorney

219 South Dearborn Street

Chicago, Illinois 60604

(312) 353-8694

valerie.raedy@usdoj.gov

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Exhibit A

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Exhibit B

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Exhibit C

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