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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DISTRICT

ERIC MOORE, )

)

Plaintiff, )

)

v. ) Case No. 20-cv-04541

)

ST. PAUL LUTHERAN CHURCH ) Judge Steven C. Seeger

AND SCHOOL, )

)

Defendant. )

PLAINTIFF’S MEMORANDUM IN OPPOSITION

TO DEFENDANT’S MOTION TO DISMISS

A motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of 

Civil Procedure challenges the sufficiency of the complaint, not the merits of the case

Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990); Taylor v. City of 

Chicago, 2015 WL 739414 (14 C 737) at 3 (N.D.Ill. February 19, 2015). When 

considering a motion to dismiss under Rule 12(b)(6), a federal court must construe the 

operative complaint in a light most favorable to the plaintiff and, accept as true, all well

pled facts and draw all reasonable inferences in the plaintiff’s favor E.g. Fortres Grand 

Corp. v. Warner Bros. Entertainment, Inc., 763 F.3d 696, 700 (7

th Cir. 2014); 

AnchorBank FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). 

To survive a motion to dismiss for failure to state a claim, the complaint must 

provide fair notice of the basis for the claim and must be facially plausible Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009). A claim has facial plausibility when the plaintiff pleads 

factual content that allows the Court to draw the reasonable inference that the defendant 

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is liable for the misconduct alleged Id. at 678. Determining the plausibility of the claim is 

“a context specific task that requires the reviewing court to draw on its judicial 

experience and common sense” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 

2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

A plaintiff need not load his complaint with facts Burks v. Raemisch, 555 F.3d 

592, 594 (7th Cir. 2009). Moreover, “specific facts are not necessary; the complaint need 

only give the defendant fair notice of what the ...claim is and the grounds upon which it 

rests” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (ellipsis in original). The plaintiff must 

present a story that holds together Swanson v. Citibank N.A., 614 F.3d 400, 404 (7th Cir. 

2010). 

A Rule 12(b)(6) motion to dismiss usually limits this Court’s consideration to the 

allegations set forth in the complaint itself, documents that are attached to the complaint, 

documents that are central to the complaint and that are referred to in it and information 

that is properly subject to judicial notice Williamson v. Curran, 714 F.3d 432, 436 (7

th

Cir. 2013). A party opposing a motion to dismiss for failure to state a claim may, 

however, submit materials outside the pleadings to illustrate facts the party expects to be 

able to prove and is free to assert new facts in the brief opposing a motion to dismiss

Derfus v. City of Chicago, 42 F.Supp.3d 888, 900, n.1 (N.D.Ill. 2014). 

While the Defendant ST. PAUL LUTHERAN CHURCH AND SCHOOL 

(hereinafter referred to as “ST. PAUL”) acknowledges some of these rules (ST. PAUL 

Motion, pp. 3-4), it, nevertheless, maintains that the Plaintiff ERIC MOORE’s

(hereinafter referred to as “MOORE”) amended complaint should be dismissed pursuant 

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to Rule 12(b)(6) because MOORE’s hostile work environment cause of action does not 

demonstrate that the conduct in question was sufficiently severe or pervasive to alter his 

employment conditions (ST. PAUL Motion, p. 4). It first claims that MOORE fails to 

show that the conduct of Glenn Kuck, the former Caucasian principal of ST. PAUL, 

displayed any racial hostility toward MOORE and that Mr. Kuck was merely providing 

MOORE with just information and assistance with ST. PAUL’s operations (ST. PAUL 

Motion, p. 5). 

It next maintains that MOORE failed to show how the conduct of Harry Strong, 

Chairman of the Board for ST. PAUL, was motivated by an animus toward African

Americans because Mr. Strong is African American (ST. PAUL Motion, p. 6). Further, it 

contends that the harassment conducted by certain teachers and board members (ST. 

PAUL Motion, pp. 7-8) is not actionable because MOORE does not connect these 

incidents to his race. ST. PAUL then concludes that MOORE merely did not appreciate 

when individuals disagreed with him and that he wanted to use his position as principal 

of ST. PAUL to run the school by dictate rather than by collaboration (ST. PAUL 

Motion, p. 8). 

None of ST. PAUL’s self-serving contentions can circumvent that MOORE’s 

amended complaint provides more than enough factual information to state a claim for 

relief that is plausible on the face of this pleading and raises the right to relief above the 

speculative level. MOORE’s amended complaint does satisfy the requisite elements for a 

cause of action for hostile work environment based on race. The well pled statements in 

MOORE’s amended complaint demonstrate that (i) he was subject to unwelcome 

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repeated harassment at ST. PAUL, (ii) the harassment was based on his race, (iii) the 

harassment was severe or pervasive so as to alter the conditions of his employment and 

created a hostile or abusive working environment and (iv) there is a basis here for 

employer liability especially since ST. PAUL either condoned, sanctioned or instigated 

the harassment to which MOORE was subjected. 

It, therefore, follows that ST. PAUL’s motion to dismiss should be denied and ST. 

PAUL should be ordered to promptly file its answer to the well pled statements in 

MOORE’s amended complaint so discovery can proceed in this matter. 

II. MOORE’S AMENDED COMPLAINT DOES SUFFICIENTLY 

ALLEGE THE REQUISITE ELEMENTS FOR A CAUSE OF 

ACTION FOR A TITLE VII HOSTILE WORK ENVIRONMENT 

CLAIM BASED ON RACE.

It is well settled that to state a Title VII hostile work environment claim based on 

race, a plaintiff must allege (i) he was subject to unwelcome harassment, (ii) the 

harassment was based on his race, (iii) the harassment was severe or pervasive so as to 

alter the conditions of his employment and create a hostile or abusive working 

environment and (iv) there is a basis for employer liability Robinson v. Perales, 894 F.3d 

818, 828 (7th Cir. 2018). Concerning the third element of whether the harassment was 

severe or pervasive, this element is in the disjunctive; accordingly, the conduct must be

either severe or pervasive Vance v. Ball State University, 646 F. 3d 461, 469 (7th Cir.

2011). One instance of conduct that is sufficiently severe may be enough. Conversely, 

conduct that is not particularly severe, but is an incessant part of the workplace 

environment may...be pervasive...and corrosive enough that it meets the standard for 

liability Jackson v. City of Racine, 474 F.3d 493, 499 (7th Cir. 2007). 

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When addressing this third element, a court must look to all the circumstances, 

including 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 Russell v. Board of 

Trustees of the University of Illinois at Chicago, 243 F.3d 336, 343. 

The workplace does not have to be “hellish” in order for a plaintiff to proceed with 

a Title VII hostile work environment cause of action. While a “hellish” workplace is 

surely actionable, a plaintiff’s evidence need not show a descent into the inferno Gates v. 

Board of Education of the City of Chicago, 916 F.3d 631, 637 (7th Cir. 2019). 

As the Supreme Court held in Harris v. Forklift Systems, Inc.:

“Title VII comes into play before the harassing conduct leads to a nervous 

breakdown. A discriminatorily abusive work environment, even one that 

does not seriously affect employees’ psychological wellbeing, can and 

often will detract from employees’ job performance, discourage employees 

from remaining on the job or keep them from advancing in their 

careers....the appalling conduct alleged in Meritor, and the reference in that 

case to environments “so heavily polluted with discrimination as to destroy 

completely the emotional and psychological stability of minority group

workers,” merely presents some especially egregious examples of 

harassment. They do not mark the boundary of what is actionable.”

510 U.S. 17, 22 (1993).

Applying these controlling rules here, MOORE’s amended complaint states facts 

that are not only consistent with his claim to relief, but plausibly suggest one McCauley

v. City of Chicago, 671 F.3d 611, 616-617 (7th Cir. 2011); Bell Atlantic Corporation v.

Twombly, 550 U.S. 544, 557 (2007). ST. PAUL does not contest that MOORE was 

subject to unwelcome harassment or that there was a basis for employer liability here. 

Rather, it contends that the statements in MOORE’s amended complaint do not show that 

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harassment was based on his race or was severe or pervasive so as to alter the conditions 

of MOORE’s employment. ST. PAUL first contends that the statements in the amended 

complaint about Glenn Kuck fail to show any racial hostility toward MOORE and Mr. 

Kuck was merely providing MOORE with information and assistance with ST. PAUL’s 

operations (ST. PAUL Motion, p. 5). ST. PAUL’s contentions are without merit and

ignore the well pled statements in MOORE’s amended complaint.

Contrary to ST. PAUL’s contention, Mr. Kuck was not merely providing MOORE 

with information and assistance since MOORE’s hire. Rather, the well pled statements in

MOORE’s amended complaint demonstrate that Mr. Kuck, with the approval of ST. 

PAUL, was harassing MOORE based on his race by taking over MOORE’s job 

responsibilities or making it extremely difficult for MOORE to successfully carry out his 

job responsibilities (Amended Complaint, pars. 14-25). 

While ST. PAUL maintains that the amended complaint does not show Mr. 

Kuck’s racial animus toward African Americans, that pleading clearly states that Mr. 

Kuck engaged in this conduct because of MOORE’s race (Amended Complaint, pars. 15, 

17-19 and 23). Thus, this is not a case of MOORE merely not wanting Mr. Kuck’s 

assistance. Rather, it is a situation where ST. PAUL authorized Mr. Kuck to repeatedly 

harass MOORE based on his race almost immediately after he was hired. It, therefore, 

follows, that ST. PAUL’s motion to dismiss should be denied.

Similarly, the conduct of Harry Strong, Chairman of the Board, also confirms the 

viability of MOORE’s cause of action against ST. PAUL. Merely because Mr. Strong is 

African American is irrelevant for purposes of MOORE’s cause of action against ST. 

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PAUL. The fact that the decision maker is in the same protected class as the plaintiff does 

not immunize an employer from employment discrimination claims See Oncale v. 

Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998) (nothing in Title VII 

necessary bars a claim of discrimination because of sex merely because the plaintiff and 

the defendant or the person charged with acting on behalf of the defendant are of the

same sex; Williams v. Windler, 530 F.3d 584, 587 (7th Cir. 2008) (There can be racial 

discrimination within the same race.) Thus, merely because Mr. Strong is African 

American has no bearing on how he inexplicably sanctioned the racial hostile work 

environment to which MOORE was subjected.

While ST. PAUL maintains that MOORE fails to show how Mr. Strong’s 

directives were motivated by race, the well pled facts in MOORE’s amended complaint 

show that Mr. Strong, instead of ending Mr. Kuck’s unwelcome racial harassment, began 

harassing MOORE himself on the basis of MOORE’s race. For example, on August 14, 

2019, MOORE entered the building and observed Mr. Strong, along with another board 

member and the mother of a preschooler, praying out loud that he be removed due to the 

resignation of Mr. Strong’s daughter as a pre-k teacher (Amended Complaint, par. 29). 

Moreover, the amended complaint establishes that Mr. Strong continued his racial 

harassment of MOORE in October, 2019 when he circumvented MOORE’s authority by 

eliminating certain Title I Instructional Consultation pullouts during the day (pars. 34-

35). He also ordered MOORE to have a student’s mother transfer the student to another 

school based on MOORE’s race (pars. 37-38). Further, he fired Marquita Dixon over 

MOORE’s objection (pars. 40-45). 

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ST. PAUL fails to consider that MOORE reported to the Board, who was his 

supervisor for all intents and purposes. As Chairman of the Board, Mr. Strong clearly 

established the harassing pervasive conduct sufficient to establish a hostile work 

environment claim based on race See Passananti v. Cook County, 689 F.3d 655, 663 (7th

Cir. 2012). (A supervisor created a hostile work environment by demeaning, degrading 

and demoralizing the plaintiff.)

Thus, this is not a case in which MOORE simply disagreed with the Board’s

directives. Rather, this case involves direct pervasive conduct by Mr. Strong to 

undermine MOORE’s job responsibilities and preclude him from being able to function 

in his position as principal because of his race. Thus, MOORE’s amended complaint does 

adequately state a cause of action for a hostile racial work environment under Title VII.

ST. PAUL’s contentions regarding the incident with Mr. Bersie, the complaints 

against Marcus Pass and the actions of the Board against him (ST. PAUL’s motion, pp. 7-

8) also do not warrant the dismissal of MOORE’s amended complaint. These incidents all 

demonstrate the pervasive conduct on the part of the faculty and the Board to strip 

MOORE of his responsibilities as principal of ST. PAUL and to make the environment so 

intolerable that it would unreasonably interfere with his work performance and make him 

leave the school.

Once again, merely because some of these individuals were African American

does not preclude MOORE from proceeding with his racial hostile work environment 

claim against ST. PAUL. ST. PAUL’s argument that MOORE fails to explain how these 

actions from the Board were motivated by racial animus toward him misses the point. 

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The well pled statements in MOORE’s amended complaint clearly show that the Board, 

the Chairman of the Board and various teachers hired by the Board engaged in frequent, 

discriminatory conduct against MOORE because of his race that was not only 

humiliating, but also unreasonably interfered with his work performance. Accordingly,

MOORE has pled pervasive conduct based on his race that more than sufficiently 

apprises ST. PAUL as to his Title VII claim. It, therefore, follows that there is no merit to 

ST. PAUL’s motion. Accordingly, it should be denied. 

CONCLUSION

MOORE’s amended complaint does state facts that are not only consistent with his 

claim for a racial hostile work environment, but plausibly suggest that one existed at ST. 

PAUL while he was principal. Regardless of the race of the individuals engaging in the 

complained of conduct, the well stated facts in MOORE’s amended complaint establishes 

that MOORE has pled pervasive conduct sufficient to state a hostile work environment 

claim based on race. ST. PAUL engaged conduct that demeaned, degraded and 

demoralized MOORE. Moreover, it undertook efforts to make sure that MOORE could 

not carry out his responsibilities as principal of ST. PAUL. 

Thus, MOORE has presented in his amended complaint a story that does hold 

together. The requisite elements for a Title VII hostile work environment claim based on 

race are present here, ST. PAUL’s motion to dismiss should be denied and it should be 

ordered to promptly file its answer to MOORE’s amended complaint so that discovery 

may proceed in this case. 

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Respectfully submitted,

/s/Joel F. Handler 

JOEL F. HANDLER (#1115812)

One E. Wacker Drive, Suite510

Chicago, Illinois 60601

(312) 832-0008

jhandler@handlerlawgroup.com

Attorney for the Plaintiff,

ERIC MOORE

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