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, )

)

Defendant.

1 )

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 third amended complaint, 

she alleges that Metra created a sexually hostile work environment (Count I) and retaliated 

against her for complaining about employees’ actions in violation of Title VII of the Civil Rights 

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (Count II). Metra has moved to dismiss the 

third amended complaint for failure to state a claim under Federal Rule of Civil Procedure 

12(b)(6). Because Miller’s complaint includes a timely act of sexual harassment and she has 

pleaded enough facts that could plausibly amount to a hostile work environment, the Court 

denies Metra’s motion to dismiss the hostile work environment claim. But because Miller has 

not sufficiently alleged that she experienced an actionable adverse action, she cannot proceed 

with her retaliation claim. 

1 The caption of Miller’s third amended complaint also includes John Frencher and Juan P. Rodriguez as 

Defendants, but Miller does not direct her claims against them. As the Court noted in its earlier opinion 

addressing Metra’s motion to dismiss Miller’s amended complaint, Title VII does not provide for 

individual liability and so Miller cannot pursue such claims against Frencher and Rodriguez. Doc. 45 at 1 

n.1. 

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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. John Frencher, Juan Rodriguez, and Rich Pickens also work for Metra at 

the 18th Street yard, with Pickens and Rodriguez serving as superintendents. 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. 

Beginning in 2015, Miller began confiding 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 [Miller] at 

work and she wanted for him to leave her alone.” Doc. 50-2 at 1. Falcon 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 third 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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On September 12, 2018, Metra employee Gina Drinkwater took an unauthorized photo of 

Miller wearing a dress at a Metra-sponsored work event. On September 14, 2018, Drinkwater

showed the photo to numerous employees at a Metra safety meeting and made statements 

concerning Miller wearing a dress. Metra employee Louis Valdery then approached Miller and 

used sexual vulgarity in referring to the photo. On the same day, Miller reported the incident 

regarding Drinkwater and Valdery to Pickens. Pickens directed Miller to report the incident to 

Metra Director Ed Whitham.

Employees who attended the safety meeting continued to harass Miller throughout

September and October 2018. In October 2018, Valdery and Jordan Vaughn, another Metra 

employee, approached Miller and made sexually vulgar comments. Several months later, Metra 

transferred Vaughn out of the 18th Street yard and fired him for improper workplace conduct.

Despite raising complaints about the harassment, Miller found that Metra did not 

properly investigate them. Instead, in December 2018, Metra began an internal investigation into 

Miller, led by Pickens. 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 her. Rodriguez served as a witness in the disciplinary proceedings 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. 

Miller filed a charge of discrimination with the Equal Employment Opportunity 

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

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

harassment “to no avail,” and was subsequently disciplined and placed on probation for two 

years. Doc. 50-1 at 2. She indicated January 24, 2019 as the latest date of discrimination. The 

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

thereafter.3

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 

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.

3 The third amended complaint states the EEOC issued a Notice of Right to Sue on November 17, 2019. 

Doc. 50 at 7. However, Exhibit A to the third amended complaint shows the right to sue letter as being 

dated October 17, 2019, and so the Court uses this date. Doc. 50-1 at 1; see N. Ind. Gun & Outdoor 

Shows, Inc. v. City of S. Bend, 163 F.3d 449, 454 (7th Cir. 1998) (where an exhibit contradicts the 

allegations in the complaint, the exhibit controls).

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ANALYSIS

I. Hostile Work Environment Claim

A. Timeliness of the Claim

As it did with respect to Miller’s amended complaint, Metra first argues that Miller’s 

hostile work environment claim is untimely because she has not alleged any 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)).

As the Court previously determined, because Miller filed her EEOC charge on July 22, 

2019, she must allege at least one contributing act that took place after September 24, 2018. 

Doc. 45 at 4. The Court already concluded that Miller had not identified any acts committed by 

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Frencher that that took place after September 24, 2018, id. at 4–5, and she does not include any 

additional specific actions taken by Frencher in the third amended complaint. The Court also 

determined that Miller could not use the disciplinary investigation and suspension as a 

contributing act for her hostile work environment claim. Id. at 5. 

In her third amended complaint, Miller adds allegations that, on September 12, 2018, 

Drinkwater took an unauthorized photo of Miller in a dress and displayed the photo to numerous 

employees, including Valdery, who made sexually vulgar comments to Miller with respect to the 

photo. But these actions again occurred outside of the 300-day window and so do not provide 

the hook for a timely claim. But Miller additionally alleges that, in October 2018, Valdery and 

Vaughn approached her and made sexually vulgar comments. These incidents do fall within the 

300-day window.

Metra nonetheless argues briefly that these incidents cannot make Miller’s claim timely 

because they exceed the scope of her EEOC charge. See Sommerfield v. City of Chicago, 863 

F.3d 645, 648 (7th Cir. 2017) (“A plaintiff suing under Title VII ‘may pursue a claim not 

explicitly included in an EEOC complaint only if her allegations fall within the scope of the 

earlier charges contained in the EEOC complaint.’” (emphasis added) (quoting Ezell v. Potter, 

400 F.3d 1041, 1046 (7th Cir. 2005))); see also Brindley v. Target Corp., 761 F. Supp. 2d 801, 

806 (N.D. Ill. 2011) (“[T]he scope of the subsequent judicial proceedings is limited by the nature 

of the charges filed with the EEOC.” (quoting Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 

(7th Cir. 1992))). This argument has no merit, given that, in her EEOC charge, Miller generally 

claims that other employees subjected her to sexual harassment and that the discrimination 

continued through January 24, 2019. See Huri v. Off. of the Chief Judge of the Cir. Ct. of Cook 

Cnty., 804 F.3d 826, 831–32 (7th Cir. 2015) (a plaintiff need not include every fact in her charge, 

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with general reference to harassment sufficient to place an employer on notice of hostile work 

environment allegations).

Metra also argues that the October 2018 incidents of sexual harassment cannot make 

Miller’s claim timely because they do not relate to the acts that took place outside the statutory 

period. “Sexual harassment claims may involve a series of discrete incidents that individually 

would not qualify as actionable claims but taken together form ‘an actionable pattern of 

harassing behavior.’” 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) (quoting Garner v. Nat’l Ry. Corp., No. 18-cv-3789, 

2019 WL 414711, at *3 (N.D. Ill. Feb. 1, 2019)). “The violation at issue does not need to be 

continuous, only cumulative.” Id. Although large gaps of time between incidents may keep 

them from forming one continuing violation, “facts such as the harassers’ identities, whether 

they acted in concert or isolation, and whether they harassed in distinct or similar fashions are 

irrelevant to whether the allegations form a single unlawful practice.” Milligan-Grimstad v. 

Stanley, 877 F.3d 705, 712 (7th Cir. 2017). Here, Miller has alleged that both before and after 

September 24, 2018, she repeatedly experienced sexual harassment, which Metra failed to 

remedy despite her complaints. Although discovery may reveal that the incidents are not 

sufficiently connected or that too much time passed between Frencher’s allegedly harassing 

conduct and that which Miller experienced at the hands of Drinkwater, Valdery, Vaughn, and 

others, at this stage, drawing all inferences in Miller’s favor, the Court concludes that Miller may 

proceed on her hostile work environment claim given that she has alleged at least one timely act. 

See Lepka v. Help At Home Inc., No. 17 C 733, 2018 WL 4281955, at *3 (N.D. Ill. Sept. 7, 2018)

(considering allegations of harassment involving different harassers and separated by 

approximately a year and a half as a single employment practice); Renfroe v. IAC Greencastle, 

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LLC, 385 F. Supp. 3d 692, 701 (S.D. Ind. 2019) (finding continuing violation where the alleged 

harassing incidents were “all racial in nature, occurred throughout Renfroe’s employment, and 

were perpetrated each time by Renfroe’s co-workers”). 

B. Sufficiency of the Allegations

Additionally, Metra argues that Miller’s third amended complaint does not include 

sufficient facts to state a hostile work environment claim based on sex discrimination. To state a 

hostile work environment claim, Miller must allege (1) she was subject to unwelcome 

harassment, (2) the harassment was based on her gender, (3) the harassment was severe or 

pervasive as to alter the conditions of employment and create a hostile or abusive working 

environment, and (4) a basis exists for employer liability. Huri, 804 F.3d at 834. 

A hostile work environment claim requires that the harassment be “sufficiently severe or 

pervasive to alter the conditions of employment and create an abusive working environment.” 

Ezell, 400 F.3d at 1047. Whether an environment is sufficiently hostile “can be determined only 

by looking at all the circumstances,” which “may include the frequency of the discriminatory 

conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive 

utterance and whether it unreasonably interferes with an employee’s work performance.” Harris 

v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

Metra argues that the third amended complaint lacks details surrounding the alleged 

incident in October 2018 and therefore the allegations do not rise to the required level of sexually

offensive conduct. It is premature for the Court to dismiss hostile work environment claims at 

the pleadings stage when the plaintiff has pleaded facts that could consist of violations of the 

relevant laws. See Huri, 804 F.3d at 834 (dismissal of hostile work environment claims would 

be premature where the plaintiff pleaded facts “that could have happened and which discovery 

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can be reasonably expected to reveal” (citing Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th 

Cir. 2010))); see also E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 781 (7th Cir. 

2007) (plaintiff alleging racial discrimination can allege employers’ intent “quite generally” and 

still proceed beyond pleadings). 

Here, Miller has pleaded that her co-workers at Metra repeatedly made sexually vulgar 

comments to her. She also alleges that Drinkwater took an unauthorized photo of her and passed

it around to employees who then made derogatory comments to her about it. Additionally, 

Frencher assaulted and threatened Miller and showed her dirty pictures. Although Metra 

contends that these allegations fail to reach the level of actionable sexual harassment, Miller has 

pleaded sufficient facts to satisfy the pleading standard and provide Metra with fair notice of her 

claim. See Huri, 804 F.3d at 834 (“[I]t is premature to conclude just how abusive Huri’s work 

environment was.”); Swanson, 614 F.3d at 404 (“[T]he statement need only give the defendant 

fair notice of what the . . . claim is and the grounds upon which it rests.” (quoting Erickson v. 

Pardus, 551 U.S. 89, 93 (2007))); James v. Lydon, No. 19 C 3366, 2020 WL 3192286, at *5 

(N.D. Ill. June 15, 2020) (“[C]ourts in this district have tended to deny motions to dismiss where 

plaintiffs alleged some ongoing or repeat instances of harassment.”).

II. Retaliation Claim

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 reprises its argument that Miller has 

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. 

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The Court agrees with Metra that Miller has not sufficiently alleged an actionable adverse 

action. For an action to qualify as materially adverse, “a plaintiff must show that the action 

would have ‘dissuaded a reasonable worker from’ engaging in protective activity.” Freelain v. 

Vill. of Oak Park, 888 F.3d 895, 901–02 (7th Cir. 2018) (quoting Burlington N. & Santa Fe Ry. 

Co. v. White, 548 U.S. 53, 68 (2006)). As to this element, Miller refers to her April 2, 2019 oneday deferred suspension. While “[a] suspension without pay . . . would constitute an adverse 

employment action,” the Seventh Circuit has concluded that a suspension that is never served 

does not, even under the more lenient standard for adverse employment actions for retaliation 

claims. Whittaker v. N. Ill. Univ., 424 F.3d 640, 647 (7th Cir. 2005); see also Nagle v. Vill. of 

Calumet Park, 554 F.3d 1106, 1120–21 (7th Cir. 2009) (an unfulfilled threat, such as a 

suspension that is never served, does not amount to a materially adverse action). Here, Miller

does not allege that she served the deferred suspension or that it otherwise caused her any 

hardship. Therefore, following the Seventh Circuit’s decisions in Whittaker and Nagle, the Court 

cannot conclude that Miller experienced an adverse employment action. Nagle, 554 F.3d at

1120–21; Whittaker, 424 F.3d at 647. The failure to allege an actionable adverse action requires 

dismissal of her retaliation claim. And because Miller has already had several chances to plead a

retaliation claim, the Court dismisses this claim with prejudice. 

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CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part Metra’s motion to 

dismiss [53]. The Court dismisses Miller’s retaliation claim (Count II) with prejudice. The 

Court orders the Clerk of Court to terminate Frencher and Rodriquez as Defendants in this case. 

Dated: August 31, 2021 ______________________

SARA L. ELLIS

United States District Judge

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