UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ESTER M. MILLER, )

)

Plaintiff, )

) No. 20 C 414

v. )

) Judge Sara L. Ellis

NORTHEAST ILLINOIS REGIONAL )

COMMUTER RAILROAD CORPORATION )

d/b/a METRA, JOHN FRENCHER, and )

JUAN P. RODRIGUEZ, )

)

Defendants. )

OPINION AND ORDER

Plaintiff Ester M. Miller has worked for Defendant Northeast Illinois Regional Commuter 

Railroad Corporation (“Metra”) as a coach cleaner since 2012. In her amended complaint, she 

alleges that Metra and Defendants John Frencher and Juan P. Rodriguez created a sexually 

hostile work environment and retaliated against her for complaining about Frencher’s actions in 

violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. 

Metra has moved to dismiss the amended complaint for failure to state a claim under Federal 

Rule of Civil Procedure 12(b)(6).1

 Because Miller’s complaint does not include any timely act 

of sexual harassment and she has not alleged the required statutorily protected activity to pursue 

her retaliation claim, the Court grants Metra’s motion and dismisses Miller’s amended complaint 

against Metra without prejudice.

 1 Frencher and Rodriguez have not been served and have not filed appearances in this case. Metra has 

asked the Court to dismiss the individual defendants because Title VII does not provide for individual 

liability. Passananti v. Cook Cnty., 689 F.3d 655, 677 (7th Cir. 2012). Miller cannot and does not argue 

otherwise, and so the Court dismisses Frencher and Rodriguez as Defendants. 

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BACKGROUND2

Miller began working for Metra as a coach cleaner at Metra’s 18th Street yard location on 

September 23, 2012. Frencher and Rodriguez also work for Metra at the 18th Street yard, with 

Rodriguez serving as the shop superintendent. The majority of Miller’s coworkers and 

supervisors are men. In March 2013, Frencher began directing sexually charged statements at 

Miller and continued to threaten, bully, and harass her when he encountered her in the 

workplace. In September 2013, Frencher assaulted Miller by grabbing her head and pulling it 

toward his groin area. In October 2017, he chased and tried to grab Miller. In November 2017, 

Frencher asked Miller to look at x-rays related to his knee pain but instead showed Miller a 

picture of a man’s penis. 

Miller confided in a coworker, Rita Falcon, about Frencher’s harassment. On March 7, 

2018, Falcon confronted Frencher and told him to leave Miller alone. Frencher then confronted 

Miller, threatening her because Falcon had told him to leave Miller alone. Later that day, Falcon 

filed a statement of complaint with Metra regarding Frencher’s harassment of Miller. Falcon 

stated that Miller told her that Frencher “was bothering her at work and she wanted for him to 

leave her alone.” Doc. 27-2 at 1. She indicated she was particularly offended by Frencher 

calling Miller names that called into question her mental state. Metra supervisors undertook an 

investigation and determined that Miller and Frencher should not work in the same train car. 

Metra did not share this determination with the supervisors and foremen at the 18th Street yard,

and Frencher continued to harass Miller. 

 2 The Court takes the facts in this section from the amended complaint and exhibits attached thereto and 

presumes their truth for the purpose of resolving Metra’s motion to dismiss. See Virnich v. Vorwald, 664 

F.3d 206, 212 (7th Cir. 2011); Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d 

779, 782 (7th Cir. 2007). 

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In December 2018, Metra began an internal investigation into Miller, led by Rodriguez. 

On March 20, 2019, Metra charged Miller with failing to comply with Metra Employee Code of 

Conduct Rules and Metra’s Mechanical Directive #3 when she failed to properly report and 

protect her work assignment on March 14, 2019. Miller did not have proper representation 

during the proceedings, and Metra employees provided concocted statements against Miller. 

Miller waived her right to a formal hearing but claims that Metra denied her the opportunity to 

produce her requested witnesses. On April 2, 2019, Metra penalized Miller with a one-day 

suspension that it deferred for two years, essentially putting her on probation for those two years. 

Miller filed a charge of discrimination with the Equal Employment Opportunity 

Commission (“EEOC”) on July 22, 2019, alleging sex discrimination and retaliation. 

Specifically, she claimed that she was subjected to sexual harassment, complained about that 

harassment “to no avail,” and was subsequently disciplined and placed on a two-year probation. 

Doc. 27-1 at 2. She indicated January 24, 2019 was the latest date of discrimination. The EEOC 

issued a right to sue letter on October 17, 2019 and Miller timely filed this case thereafter.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not 

its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 

1990). In considering a Rule 12(b)(6) motion, the Court accepts as true all well-pleaded facts in 

the plaintiff’s complaint and draws all reasonable inferences from those facts in the plaintiff’s 

favor. Kubiak v. City of Chicago, 810 F.3d 476, 480–81 (7th Cir. 2016). To survive a Rule 

12(b)(6) motion, the complaint must assert a facially plausible claim and provide fair notice to 

the defendant of the claim’s basis. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007); Adams v. City of Indianapolis, 742 F.3d 720, 728–29 (7th 

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Cir. 2014). A claim is facially plausible “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.

ANALYSIS

I. Hostile Work Environment Claim

Metra first argues that Miller’s hostile work environment claim is untimely because she 

has not alleged any alleged discriminatory conduct that falls within the 300-day window from 

when she filed her EEOC charge. In a deferral state, like Illinois, a plaintiff has a 300-day 

window to file an EEOC charge concerning an alleged unlawful employment practice for a Title 

VII claim based on those practices to be actionable. Bass v. Joliet Pub. Sch. Dist. No. 86, 746 

F.3d 835, 839 (7th Cir. 2014) (“If a plaintiff does not file a charge concerning a discrete act 

within the 300-day window, her claim is time-barred and she may not recover.”); Roney v. Ill. 

Dep’t of Transp., 474 F.3d 455, 460 (7th Cir. 2007) (“A charge of employment discrimination 

must be filed with EEOC within 300 days of the alleged unlawful employment practice.”). For 

hostile work environment claims, the Court may consider the entirety of an employer’s behavior 

to assess the plausibility of the claims as long as one contributing act took place within the 

statutory period. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 115–17 (2002) (“A 

hostile work environment claim is composed of a series of separate acts that collectively 

constitute one ‘unlawful employment practice.’ . . . Provided that an act contributing to the 

claim occurs within the filing period, the entire time period of the hostile environment may be 

considered by a court for the purposes of determining liability.” (citation omitted)).

Here, Miller filed her EEOC charge on July 22, 2019, meaning that she must allege at 

least one contributing act that took place after September 24, 2018. Miller generally alleges that 

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Frencher sexually harassed her beginning in March 2013 and continuing through 2018, but she 

does not identify any acts that could constitute sexual harassment that took place after September 

24, 2018. She cannot use the disciplinary investigation and suspension as a contributing act for 

her hostile work environment claim, particularly where she does not allege that these actions had 

anything to do with her sex. See Novotny v. Plexus Corp., No. 13-cv-05881, 2017 WL 1093161, 

at *6 (N.D. Ill. Mar. 23, 2017) (the plaintiff’s termination did not contribute to hostile work 

environment claim so as to make it timely); Wallin v. THC-Chicago, Inc., No. 99 C 3173, 2004 

WL 2535283, at *7 (N.D. Ill. Sept. 23, 2004) (“[H]er firing was not an act creating a hostile 

environment but was (allegedly) an example of disparate treatment between her and the male 

doctor. It therefore is not part of the same hostile environment claim.”). Miller’s response only 

highlights Frencher’s allegedly harassing actions that occurred prior to 2018, suggesting that she 

cannot point to an act falling within the statutory time period that would make her hostile work 

environment claim timely. Cf. Rosa v. Bd. of Trs. of the Univ. of Ill., No. 18-CV-8477, 2020 WL 

7319574, at *7 (N.D. Ill. Dec. 11, 2020) (sexual harassment claim was timely where the plaintiff 

included specific incidents of sexually harassing conduct within the limitations period). 

Therefore, Miller cannot proceed on her hostile work environment claim based on the current 

allegations of the complaint.3

 

II. Retaliation Claim

A. Scope of EEOC Charge

Metra argues that Miller cannot bring her Title VII retaliation claim because it is outside

the scope of her EEOC charge. A 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 

 3 Because the Court finds that Miller has not alleged a timely hostile work environment claim, it does not 

address Metra’s argument that the complaint does not sufficiently state such a claim.

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growing out of such allegations.’” Geldon v. S. Milwaukee Sch. Dist., 414 F.3d 817, 819 (7th 

Cir. 2005) (quoting McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 481 (7th Cir. 1996)). This 

requirement is intended to provide the employer with notice of the nature of the claims against it 

and provide the EEOC and the employer the opportunity to settle the dispute with the employee 

before the parties turn to litigation. Id. “The relevant claim and the EEOC charge must, at a 

minimum, describe the same conduct and implicate the same individuals.” Huri v. Off. of the 

Chief Judge of the Cir. Ct. of Cook Cnty., 804 F.3d 826, 831–32 (7th Cir. 2015). Because 

lawyers generally do not draft EEOC charges, courts review the scope of EEOC charges 

liberally, and a plaintiff need not include every fact that forms the basis of her claims. Id. at 831. 

In her EEOC charge, Miller alleged that Metra retaliated against her after she complained 

of sexual harassment by conducting a disciplinary hearing and placing her on probation for two 

years. Metra argues that Miller’s contention that it retaliated against her with the April 2, 2019 

imposition of a suspension is outside the scope of her charge because Miller stated that the last 

discriminatory or retaliatory act occurred on January 24, 2019. Although the complaint does not 

include any specific allegations about an act that occurred on January 24, 2019, the body of 

Miller’s charge states that she complained to Metra about sexual harassment and that Metra then 

took retaliatory action by opening a disciplinary hearing and placing her on probation for two 

years. This disciplinary action occurred on April 2, 2019, as alleged in the complaint. See id. (a 

plaintiff need not include every fact in her EEOC charge). Further, Miller’s additional 

allegations concerning the retaliatory nature of the process by which Metra investigated and 

disciplined her are reasonably related to her EEOC charge, as they provide details as to how 

Metra allegedly retaliated against her with respect to the disciplinary hearing and would 

reasonably be expected to form part of the EEOC’s investigation. See Lavalais v. Vill. of 

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Melrose Park, 734 F.3d 629, 634 (7th Cir. 2013) (plaintiff’s EEOC charge and claims described 

the same conduct and implicated the same individuals); Ajayi v. Aramark Bus. Servs., Inc., 336 

F.3d 520, 527 (7th Cir. 2003) (the relevant inquiry is “what EEOC investigation could 

reasonably be expected to grow from the original complaint” (quoting Novitsky v. Am. 

Consulting Eng’rs, L.L.C., 196 F.3d 699, 701 (7th Cir. 1999))). Construing Miller’s EEOC 

charge liberally, the Court finds that Miller sufficiently placed Metra on notice of her retaliation 

claims so that they fall within the scope of her EEOC charge. See Huri, 804 F.3d at 836 

(primary purpose of an EEOC charge is to give the employer notice of the grievances and a 

chance to settle). 

B. Sufficiency of the Allegations

To plead a Title VII retaliation claim, Miller need only “allege that she engaged in 

statutorily protected activity and was subjected to an adverse employment action as a result.” 

Carlson v. CSX Transp., Inc., 758 F.3d 819, 828 (7th Cir. 2014) (quoting Luevano v. Wal-Mart 

Stores, Inc., 722 F.3d 1014, 1029 (7th Cir. 2013)). Metra argues that Miller failed to sufficiently 

plead that she undertook any protected activity prior to the alleged adverse employment action, 

an actionable adverse action, and a causal connection between the two. The Court need only 

address the first argument, that Miller has not sufficiently pleaded that she engaged in protected 

activity. 

“An employee engages in a protected activity by either: (1) filing a charge, testifying, 

assisting or participating in any manner in an investigation, proceeding or hearing under Title 

VII or other employment statutes; or (2) opposing an unlawful employment practice.” 

Northington v. H & M Int’l, 712 F.3d 1062, 1065 (7th Cir. 2013). Aside from the filing of her 

EEOC charge, which occurred after the alleged adverse employment action, Miller only alleges 

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that she complained to a co-worker, Falcon, about Frencher’s conduct. A complaint to a coworker does not qualify as a protected activity; the complaint must be made to a supervisor or 

someone with authority. See Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. 1997) 

(plaintiff did not engage in protected activity where she failed to raise the issue of harassment “to 

anyone in authority”); Duncan v. Thorek Mem’l Hosp., 784 F. Supp. 2d 910, 925 n.6 (N.D. Ill. 

2011) (complaint to a co-worker did not amount to protected activity). But Falcon made a 

complaint to Metra about Frencher’s conduct toward Miller, a complaint that Metra could have 

attributed to Miller. See Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174–75 (2011) (Title 

VII provided a retaliation claim where the employer took an adverse action against the plaintiff 

in retaliation for his fiancée filing an EEOC charge); cf. Clark v. Johanns, 460 F.3d 1064, 1067

(8th Cir. 2006) (a co-worker’s complaint of sexual harassment toward female employees could 

not be attributed to the female plaintiff where the co-worker’s complaint did not identify her). 

This does not save Miller’s claim, however, because Falcon’s complaint to Metra only generally 

raised complaints about Frencher’s behavior without tying that behavior to Miller’s sex. See

Doc. 27-2 at 1. “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.” Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006); see also 

Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 901 (7th Cir. 2016) (statutorily protected 

activity “requires more than simply a complaint about some situation at work, no matter how 

valid the complaint might be”). Because Miller has not sufficiently alleged she engaged in 

protected activity, she cannot proceed on her retaliation claim.4

 

 4 Because the Court concludes that Miller has not stated a retaliation claim, it need not address whether 

the RLA preempts any part of her retaliation claim. 

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CONCLUSION

For the foregoing reasons, the Court grants Metra’s motion to dismiss [33]. The Court 

dismisses Miller’s claims against Metra without prejudice and Miller’s claims against Frencher 

and Rodriguez with prejudice. The Court grants Plaintiff until March 5, 2021 to file an amended 

complaint.

Dated: February 2, 2021 ______________________

SARA L. ELLIS

United States District Judge

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