UNITED STATES DISTRCT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DION GAINES, )

)

Plaintiff, )

) Case No. 20-CV-03487

v. ) Judge Marvin E. Aspen

)

SHERIFF OF COOK COUNTY 

THOMAS J. DART, in his official 

capacity, and COUNTY OF COOK, 

ILLINOIS,

)

)

)

)

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Dion Gaines alleges that he suffered a hostile work environment and was 

retaliated against following the filing of another lawsuit that alleged violations of the Family 

Medical Leave Act (“FMLA”). (Complaint (“Compl.”) (Dkt. No. 1) ¶¶ 41 – 45.) See Gaines v. 

Dart, et al., 16-CV-08809 (N.D. Illinois) (Gettleman, J.) Presently before us is Defendants’ Rule 

12(b)(1) and (6) Motion to Dismiss Plaintiff’s Complaint. (Motion to Dismiss (Dkt. No. 10).) 

For the reasons set forth below, Defendants’ motion is granted. Counts I and II are dismissed 

with prejudice, and Counts III, IV, and V are dismissed without prejudice. 

BACKGROUND

The following allegations are culled from the Complaint and are taken as true for the 

purposes of this Rule 12 motion. See Bell v. City of Chi., 835 F.3d 736, 738 (7th Cir. 2016); see 

also Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

Plaintiff has been employed by Defendants as a correctional officer since 2005. (Compl. 

¶¶ 2, 11, 16.) About one-month after he filed a 2016 lawsuit, Gaines v. Dart, et al., 16-CV08809 (N.D. Illinois), Plaintiff “received notification that he had to report to the Office of 

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Professional Regulation (“OPR”) in regards to an allegation made against him for ‘failure to 

perform assigned task’ in relation to [an] April 2016 incident.” (Compl. ¶¶ 24 – 25.) “Plaintiff 

was advised that this allegation was because Plaintiff was viewed on the camera with his back to 

the tier; however, Plaintiff monitored the tier via the video monitoring system.” (Id. ¶ 33.)1 That 

OPR investigation has been pending for over four years. (Id. ¶¶ 27, 48.) Plaintiff theorizes that 

“The County arbitrarily brought these allegations against Plaintiff as a way to charge him with a 

separable offense” and to prevent him from getting promoted. (Id. ¶¶ 34, 39.) 

Plaintiff alleges in a conclusory fashion that “Defendants’ policies, practices, and 

decision had a disparate impact upon him based on his race, African-American.” (Compl. ¶¶ 3, 

11.) Plaintiff filed a discrimination charge with the EEOC that was cross-filed with the Illinois 

Department of Human Rights (“IDHR”) on March 4, 2020. (Id. ¶¶ 7 – 8.) The EEOC issued a 

right to sue letter on March 12, 2020. (Id. at 18.) Plaintiff concedes that the IDHR has not done 

so. (Response (Dkt. No. 16) at 6 (“Plaintiff concedes that Counts III and IV are untimely as the 

IDHR has not issued a final order.”).)

STANDARD OF LAW

Rule 12(b)(1) asks the court to dismiss a lawsuit for lack of subject matter jurisdiction. 

In ruling on a Rule 12(b)(1) motion, we draw all reasonable inferences in the plaintiff’s favor 

and accept all well-pleaded allegations as true. Johnson v. Apna Ghar, Inc., 330 F.3d 999, 1001 

(7th Cir. 2003); Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). 

A motion to dismiss under Rule 12(b)(6) is meant to test the sufficiency of the complaint, 

not to decide the merits of the case. McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th 

1 The Complaint does not explain what a “tier” is. Based on context, we infer that the internal 

investigation into Plaintiff is rooted in the allegation that he was not correctly performing the 

duties of a correctional officer.

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Cir. 2012); Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In evaluating a motion 

to dismiss, we “construe the complaint in the light most favorable to the plaintiff, accepting as 

true all well-pleaded facts alleged, and drawing all possible inferences in her favor.” Tamayo, 

526 F.3d at 1081. A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint 

lacks enough facts “to state a claim for 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, 570 (2007)). “A claim 

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 

678. Although a facially plausible complaint need not give “detailed factual allegations,” it must 

allege facts sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. 

at 555. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Iqbal, 556 U.S. at 678. These requirements ensure that the defendant 

receives “fair notice of what the ... claim is and the grounds upon which it rests.” Twombly, 550 

U.S. at 555.

ANALYSIS

Plaintiff brings five Counts: Title VII Retaliation (Count I), Title VII Hostile Work 

Environment (Count II), IDHA Retaliation (Count III), IDHA Hostile Work Environment (Count 

IV), and declaratory relief (Count V). We analyze each in turn.

I. Title VII Counts

We first turn to the Title VII counts: Count I (Retaliation) and Count II (Hostile Work 

Environment). 

To plead a hostile work environment under Title VII, Plaintiff must allege, among other 

things, that the harassment was based on membership in a protected class or in retaliation for 

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protected Title VII behavior. See Abrego v. Wilkie, 907 F.3d 1004, 1015 (7th Cir. 2018).

Protected categories include race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2; 

see also Abrego, 907 F.3d at 1015; Tarpley v. City Colls. of Chi., 87 F.Supp.3d 908, 913 (N.D. 

Ill. 2015). “Merely complaining in general terms of discrimination or harassment, without 

indicating a connection to a protected class or providing facts sufficient to create that inference, 

is insufficient.” Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 718 (7th Cir. 2018) (quoting 

Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006)).

The only allegations in the Complaint related to a Title VII protected class is that Plaintiff 

is African-American and the boilerplate sentence that “Defendants’ policies, practices, and 

decision had a disparate impact upon him based on his race, African-American.” (Compl. ¶¶ 3, 

11.) The Complaint makes no factual allegation whatsoever showing that Plaintiff was harassed 

because of his race. Nor does Plaintiff explain what policy, practice, or decision allegedly 

impacted him based on his race. Rather, the Complaint suggests that his Title VII retaliation 

claims are rooted in the filing of his FMLA complaint: “Plaintiff participated in protected 

activity when he filed his federal lawsuit for violations of FMLA,” that he “was subjected to the 

adverse employment actions because of his participation in filing under FMLA,” and that the 

“adverse employment actions directed at Plaintiff would not have occurred but for Plaintiff filing 

under FMLA.” (Compl. ¶¶ 41, 57, 58.) Nor did Plaintiff allege that that FMLA complaint had 

anything to do with race. Simply put, “Title VII does not provide a basis to redress a FMLA 

violation.” Smith v. Aptar Grp., Inc., Case No. 12-cv-8630, 2013 WL 655523, at *8-9 (N.D. Ill. 

Feb. 21, 2013).

To the extent that Plaintiff does attempt to redress race-based discrimination under Title 

VII, he argues that his two race-based allegations (that he is African-American and a boilerplate 

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disparate impact sentence) are enough to state a claim for relief. Those two factual allegations, 

with nothing more, are “[t]hreadbare recitals of the elements of a cause of action, supported by 

mere conclusory statements,” that “do not suffice” to state a claim for relief. Iqbal, 556 U.S. at 

678. Although a complaint need not give “detailed factual allegations,” it must allege enough 

facts “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A 

plaintiff cannot survive a Rule 12(b)(6) motion to dismiss merely by stating that he is a member 

of a protected class and then reciting a boilerplate sentence about discrimination. More 

allegations are needed to comply with Rule 8.

Count I’s retaliation claim suffers a similar downfall as Count II. To plead a retaliation

claim under Title VII, Plaintiff must have alleged that he was retaliated against for having 

opposed a discriminatory practice related to the basis of race, color, religion, sex, or national 

origin. 42 U.S.C. § 2000e-2(a)(1). For the reasons discussed above within Count II’s context, 

Count I also fails. See Smith, 2013 WL 655523 at *8 – 9 (“As exercise of FMLA rights does not 

fall under the classification of opposing an unlawful employment practice for the purposes of 

Title VII”).

Accordingly, Counts I and II are dismissed. 

II. IHRA Counts

Counts III and IV echo Counts I and II, except they seek relief under the Illinois Human 

Rights Act instead of Title VII. 

Before filing an IHRA lawsuit, a plaintiff must first exhaust his administrative remedies 

through the IDHR. See, e.g., Talley v. Washington Inventory Service, 37 F.3d 310, 312-13 (7th 

Cir. 1994). Thus, until the IDHR issues a final order, such as a “Notice of Right to Sue,” we are 

without jurisdiction to hear those IHRA claims. Id. at 312-13 (“judicial review is only available 

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under the Act after the Human Rights Commission has issued a final order on a complaint.”); see 

also Garcia v. Village of Mount Prospect, 360 F.3d 630 (7th Cir. 2004) (“The administrative 

process under the Act must be completed before a circuit court can exercise jurisdiction over 

these types of claims.”).

Here, Plaintiff merely pleaded that he cross filed a discrimination charge with the IDHR. 

(Compl. ¶ 7.) He did not plead that he received a final order from the IDHR. Indeed, Plaintiff’s 

Response wrote that “Plaintiff concedes that Counts III and IV are untimely as the IDHR has not 

issued a final order.” (Response at 6.) As such, Plaintiff failed to exhaust his administrative 

remedies for the IHRA claims, such that we lack jurisdiction to hear the IHRA counts. 

Accordingly, Counts III and IV are dismissed without prejudice for lack of jurisdiction. See Fed. 

R. Civ. P. 12(b)(1).

Even had Plaintiff exhausted his administrative remedies, we would have still dismissed 

the IHRA counts for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 

12(b)(6). The IHRA prohibits retaliation “against a person because he or she has opposed that 

which he or she reasonably and in good faith believes to be unlawful discrimination . . . [or] 

because he or she has made a charge, filed a complaint, testified, assisted, or participated in an 

investigation, proceeding, or hearing under this Act.” 775 ILCS 5/6-101 (emphasis added). The

IHRA specifically defines unlawful discrimination to be discrimination against an individual on 

the basis of their “race, color, religion, national origin, ancestry, age, sex, marital status, order of 

protection status, disability, military status, sexual orientation, pregnancy, or unfavorable 

discharge from military service.” 775 ILCS 5/1-103. Neither FMLA grievances nor FMLA 

litigation are processes that fall under the IHRA. See id. For reasons like those discussed above 

with respect to Plaintiff’s Title VII counts, primarily, that Plaintiff does not allege enough facts 

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to show that any harassment was due to an IHRA protected class or that he was retaliated for 

having participated in an IHRA or IDHR process, the IHRA counts would also fail for failure to 

state a claim. 

Accordingly, we dismiss Counts III and IV without prejudice.

III. Count V

We last address Plaintiff’s claim for declaratory judgment. Count V states that a “present 

and actual controversy exists between Plaintiff and Defendants concerning their rights and 

respective duties” under Title VII and the IHRA. (Compl. ¶ 76.) Plaintiff therefore “seeks a 

declaration of the rights and duties of the respective parties.” (Id. ¶ 77.) Since we dismissed 

Counts I, II, III, and IV, there is no longer a “present and actual controversy” under which this 

claim for declaratory judgment is based. Therefore, Plaintiff’s declaratory judgment claim is 

dismissed as moot without prejudice.

CONCLUSION

For the reasons stated above, Defendants’ motion to dismiss is granted. (Mot. (Dkt. No. 

10).) Counts I and II are dismissed with prejudice since Plaintiff provided no justification to 

suggest that he could cure the pleading deficiencies in an amended complaint. Counts III and IV 

are dismissed without prejudice since those are dismissed under Rule 12(b)(1) for failure to 

exhaust administrative remedies. Count V is likewise dismissed without prejudice. It is so 

ordered.

______________________________

Honorable Marvin E. Aspen

United States District Judge

Dated: February 4, 2021

Chicago, Illinois

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