1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TARIQ ABNEY,

Plaintiff,

v.

BOARD OF EDUCATION OF THE CITY 

OF CHICAGO d/b/a City of Chicago School 

District 299 d/b/a Chicago Public Schools, 

Defendant.

 

No. 20 CV 3621

Judge Ellis

Magistrate Judge Cummings

PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO DISMISS 

By his attorneys of record, the plaintiff, TARIQ ABNEY (“Abney”), responds to the 

motion filed by the defendant, BOARD OF EDUCATION OF THE CITY OF CHICAGO

(“Defendant”), styled “Defendant’s Motion to Dismiss Count IV of Plaintiff Tariq Abney’s 

Complaint” [Doc. 20] as follows:

I. SUMMARY

When stripped to its core, Defendant’s motion claims Abney must plead more facts to 

survive Rule 12. But, “in the context of a straight-forward employment discrimination case, 

courts have found that largely conclusory statements are sufficient.” Jibson v. Ne. Ill. Reg'l 

Commuter R.R. Corp., No. 18 C 5594, at *8 (N.D. Ill. May 29, 2019) (citing Swanson v. 

Citibank, N.A., 614 F.3d 400, 404-05 (7th Cir. 2010)). To state a claim at the pleading stage, 

“plaintiffs need not plead evidence; they need only to allege enough to make their claim 

plausible.” Carmona v. Professionals, Inc., No. 15 C 8362, at *4 (N.D. Ill. Apr. 14, 2017) (citing 

Tamayo v. Blagojevich, 526 F.3d 1074, 1085 (7th Cir. 2008). Indeed, “[s]pecific facts are not 

[even] necessary.” Swanson, 614 F.3d 400 at 404 (citing Erickson v. Pardus, 551 U.S. 89 

(2007)).

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Defendant tries to graft the more stringent summary judgment standard onto its Rule 12 

motion by citing cases that treat “hostile work environment” claims in the context of summary 

judgment1 (the cases Defendant cites, which actually treat the Rule 12 standard, are all 

distinguishable from the captioned case). 

Abney’s complaint alleges he was harassed throughout his employment because of his 

race (Black or African American) and that the harassment became progressively worse 

throughout his employment – ultimately culminating in the wrongful termination of his 

employment. In a strikingly similar case (albeit one treating the more stringent summary 

judgment standard), the Seventh Circuit jettisoned the confusing, and often erroneously applied, 

“convincing mosaic” language that had invaded employment discrimination cases by refocusing 

on “the sole question that matters: Whether a reasonable juror could conclude that [the plaintiff]

would have kept his job if he had a different ethnicity, and everything else had remained the 

same.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016) (Easterbrook, J.) (the 

plaintiff in Ortiz had also alleged harassment that culminated in termination). Here, when 

Abney’s allegations are taken as true, as they must be at this stage, a reasonable juror could 

indeed conclude Abney would have kept his job if he were of a different race.

Defendant focuses entirely on the fact that Abney pleaded he was harassed because of his 

race, but completely ignores the fact that he also pleaded he was fired because of his race. 

Defendant does this because the bar Abney must cross to survive summary judgment with a 

“hostile work environment” claim is higher than it would be with a wrongful termination claim. 

However, “‘[c]omplaints plead grievances, not legal theories,’ and a plaintiff's complaint need 

only ‘spell[ ] out his grievance.’” Prayitno v. Nextep Funding LLC, No. 17 C 4310, at *8 (N.D. 

 1 (Vance v. Ball State University, 646 F.3d 461, 469 (7th Cir. 2011); Swyear v. Fare Foods Corp., 911 F.3d 874, 881 

(7th Cir. 2018); and Boebel v. Combined Insurance Co. of America, No. 02 C 1772, 2004 U.S. Dist. LEXIS 535, at

*4, 6 (N.D. Ill. Jan. 16, 2004)).

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Ill. June 22, 2020) (quoting Koger v. Dart, 950 F.3d 971, 974 (7th Cir. 2020)). Abney has done 

exactly that in his complaint by stating what happened and how it harmed him. He pleaded that, 

because of his race, Defendant: suspended him without pay; fired him; and subjected him 

harassment throughout the course of his employment. Comp. at ¶¶ 82-4, 87-90, 92-4. He 

pleaded plausible facts sufficient to put Defendant on notice of what his claims are about. See 

Swanson, 614 F.3d at 405-6. While perhaps later Abney may need to produce evidence to satisfy 

his burden of production in the context of summary judgment, he need not do so now at the 

pleading stage – and he need not plead more facts than he already has in order to survive 

Rule 12. See Id. at 404; See also Jibson, No. 18 C 5594, at *8 (collecting cases). 

II. LEGAL STANDARD

In the context of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6):

“the court accepts all well-pleaded factual allegations as true and construes all 

reasonable inferences in the plaintiff's favor.” Mutter, 17 F. Supp. 3d at 756. To 

survive a motion to dismiss under Rule 12(b)(6), a plaintiff's complaint must 

allege facts which, when taken as true, “‘plausibly suggest that the plaintiff has a 

right to relief, raising that possibility above a speculative level.’” Cochran v. 

Illinois State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir. 2016) (quoting 

EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)). The 

Court reads the complaint and assesses its plausibility as a whole. See Atkins v. 

City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).

Clay v. Cook Cty., 2017 WL 878451, at *2 (N.D. Ill., 2017) (internal quotation marks, 

parentheticals and citations unaltered).

Ultimately, “[a] complaint that invokes a recognized legal theory . . . and contains 

plausible allegations on the material issues . . . cannot be dismissed under Rule 12.” Robrinzine 

v. Big Lots Stores, Inc., 156 F. Supp. 3d 920, 925 (N.D. Ill. 2016) (citing Richards v. Mitcheff, 

696 F.3d 635, 638 (7th Cir. 2012) and Erickson v. Pardus, 551 U.S. 89, 93 (2007)).

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III.ARGUMENT

A. Defendant “cherry-picks” examples of conduct alleged in the complaint

to imply they were the only instances of harassment; they were not. When 

Abney’s complaint is assessed as a whole, one can clearly see they are 

examples that describe pervasive, and oft-repeated, conduct. 

Abney’s complaint provides Defendant with adequate notice of what his claims are 

about: that Defendant harassed him and, ultimately fired him, because of his race. The facts he 

pleaded are more than sufficient to find his allegations rise above mere speculation (as the 

harassment was perpetrated by supervisory employees of Defendant who expressly stated their 

belief in the negative stereotype that African Americans are substandard workers). 

The Court “reads the complaint and assesses its plausibility as a whole.” Clay, 2017 WL 

878451, at *2 (Citing Atkins, 631 F.3d at 832). “‘Courts should not carve up the incidents of 

harassment and then separately analyze each incident, by itself, to see if each rises to the level of 

being severe or pervasive.’” Nichols v. Mich. City Plant Planning Dep't, 755 F.3d 594, 601 (7th 

Cir. 2014) (quoting Hall v. City of Chicago, 713 F.3d 325, 331 (7th Cir.2013)) (in the context of 

summary judgment). Defendant wrongly invites the Court to do just that when it “cherry-picks” 

the examples of harassment Abney alleged, setting them forth starkly without the context 

supplied in the complaint (and thus invites the Court to misapply the summary judgment 

standard at the pleading stage). 

Contrary to Defendant’s assertion, Abney did not simply allege isolated incidents of 

objectionable conduct like the plaintiff did in Bakker v. Mokena Fire Prot. Dist., No. 19 C 5586 

(N.D. Ill. Mar. 9, 2020) (one of the cases treating Rule 12 upon which Defendant relies). Rather, 

he alleged:

Defendant subjected Abney to a hostile work environment that became 

increasingly hostile during the course of his employment.

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Comp. at ¶ 81.

Defendant subjected Abney to pervasive and ongoing harassment that 

centered on his race: Black or African American. 

Id. at ¶ 82.

Among other things, Abney’s superiors within Defendant’s organization 

(who were predominantly Hispanic) would often call to him by saying “boy” 

instead of using his name. 

Id. at ¶ 83 (emphasis added) (parenthetical in original).

 

Among other things, Abney’s superiors within Defendant’s organization 

would often tell Abney that his predecessor was a better worker than Abney 

because he was Hispanic; on one occasion in particular during the 2018 school 

year, a cook told Abney in front of Abney’s manager that Abney would work 

faster and better if he were Hispanic – in front of Abney and the cook, Abney’s 

manager nodded her head “yes” in agreement and verbally expressed agreement 

by saying “uh-huh.” 

Id. at ¶ 84 (emphasis added).

 

This alone is enough. It shows Abney was often subjected to racial epithets – “boy” –

and was often subjected to negative, racial stereotypes about work ethic, and that such conduct 

was perpetrated by supervisory employees and ratified by Abney’s manager. Abney pleaded 

more however. Defendant subjected him to unwarranted, hypervigilant monitoring and 

pervasive badgering: taking pictures and videos of him as he performed his job duties; finding

fault with the smallest minutiae when evaluating his work; inviting and encouraging his coworkers to unjustifiably criticize his work; requiring him to re-do tasks he had already 

performed, when nothing was objectively wrong with his work; calling him “slow” without 

objective justification; telling him he was not a good worker without objective justification; 

telling him “I think you should quit because they are trying to fire you.” Id. at ¶¶ 85-89. 

Abney’s supervisor would make him wait outside for ten to fifteen minutes before she “buzzed” 

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him into the building to work each morning, but would not make his Hispanic co-workers’ wait. 

Id. at ¶ 90. Ultimately, Defendant terminated Abney’s employment. Id. at ¶ 93. 

In Bakker, upon which Defendant relies, the plaintiff had in fact identified only three, 

isolated instances, that had occurred over the course of two and a half years, in which his 

superiors made off-color, teasing remarks about his perceived sexual orientation. 2020 U.S. 

Dist. LEXIS 40147 at 2-3. Conversely, Abney alleged at least nine different types of offensive 

conduct perpetrated by his superiors, and claims they occurred pervasively throughout the course 

of his employment – becoming progressively worse until he was ultimately fired. Reading the 

complaint as a whole, one can clearly see Abney did not merely plead that, on one occasion, 

Defendant engaged in unwarranted, hypervigilant monitoring of his work and badgering. Nor 

did he for that matter plead Defendant engaged in such conduct on one hundred occasions. 

Rather, Abney alleged that such conduct was pervasive throughout his employment and 

specifically provided examples of Defendant’s conduct among other things.

2

 Must the complaint 

include an exhaustive, daily log of each and every slight? Each and every utterance of “boy” by 

Abney’s boss? Of course not.3 “[P]laintiffs need not plead evidence; they need only to allege 

enough to make their claim plausible.” Carmona, No. 15 C 8362, at *4 (citing Tamayo, 526 F.3d 

at 1085). Abney has done exactly that.

Unlike in Bakker, where the defendant’s conduct truly consisted of only three, isolated 

instances of off-color teasing, Defendant’s conduct in the captioned case was “over the top” and 

expressly racist. Moreover, in Bakker, the plaintiff had not clearly pleaded that a termination 

 2 If required to amend, Abney could plead even more examples, such as: his manager would intentionally throw fruit 

and other food items onto areas of the floor that Abney had just cleaned, and then order him to clean it again. 3 Responding to the defendants’ characterization, that the plaintiffs’ provision of examples (of construction materials 

that had moved in interstate commerce), was “conclusory,” the court in Juarez v. Sobie Builders, Inc. said “As 

plaintiffs ask, must they ‘identify the particular batch and lot numbers of the acetylene they used to cut steel in their 

demolition work?’ . . . . Of course not.” Juarez v. Sobie Builders, Inc., No. 09 C 4671, at *5 (N.D. Ill. Dec. 5, 2012).

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occurred (though the court noted a termination was referenced cryptically). 2020 U.S. Dist. 

LEXIS 40147 at 11. But in Abney’s case, Defendant’s racially motivated harassment did in fact

culminate with his firing. Comp. at ¶¶ 93-94. “The sole question that matters [even in the 

context of summary judgment, is]: Whether a reasonable juror could conclude that [Abney]

would have kept his job if he had a different ethnicity, and everything else had remained the 

same.” Ortiz, 834 F.3d at 764. Reading the allegations in Abney’s complaint as a whole, a 

reasonable juror could indeed conclude that Abney would not have been fired if he were of a 

different race.

“[E]laborating on the complaint is exactly what plaintiffs are supposed to do in discovery. 

See Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (‘A complaint 

under Rule 8 limns the claim; details of both fact and law come later, in other documents.’).” 

Prayitno, No. 17 C 4310, at *10 (N.D. Ill. June 22, 2020) (parenthetical and citation in original). 

The Oxford English Dictionary defines the rather obscure word “limn,” a transitive verb, as “[to] 

[d]epict or describe in painting or words.”4 By its very nature, a depiction or description is an 

example; it is not an exhaustive marshalling of evidence. In his complaint, Abney plausibly 

described harassment and termination based on race. He described what happened and how it 

harmed him – he spelled out his grievance. See Id. at 8. “[Y]ou need a theory to decide which 

facts to allege and prove. But the complaint need not identify a legal theory, and specifying an 

incorrect theory is not fatal.” Bartholet, 953 F.2d at 1078 (emphasis added); see also Koger, 

950 F.3d at 974.

B. In his complaint, Abney tied Defendant’s conduct to racial

discrimination, and supervisory employees’ frequent use of the racial slur

“boy” – directed to Abney – is in itself enough to sustain a claim for 

hostile work environment even in the context of summary judgment, let 

alone Rule 12.

 4 https://www.lexico.com/en/definition/limn (last accessed 10/4/20).

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Defendant cites Concentra for the premise that a plaintiff can plead herself out of court 

by failing to allege sufficient facts. Mtn. p. 3 (“Legal Standard”). However, in Concentra, the 

court drew a distinction between what is necessary to plead discrimination versus retaliation. 

496 F.3d at 782 (“The simple allegation of racial discrimination described in Bennett [v. Schmidt, 

153 F.3d 516, 518 (7th Cir.1998)] is factually richer than the empty assertion of Title VII 

retaliation here”). The court felt that, in order to provide the defendant sufficient notice of what 

action allegedly led to retaliation against him, the plaintiff needed to allege more than the simple 

allegation “the defendant retaliated against me because I engaged in protected activity.” Id.

(citation and quotation marks omitted). 

An allegation of retaliation:

for some unspecified act does not narrow the realm of possibility nearly as much

[as the simple allegation in Bennett]. Further, once a plaintiff alleging illegal 

discrimination has clarified that it is on the basis of her race, there is no further 

information that is both easy to provide and of clear critical importance to the 

claim. Requiring a more detailed complaint in Bennett would have replicated the 

inefficient chase for facts decried in Bennett . . . 

Id.

Here, Abney described Defendant’s harassment and alleged it was motivated by race. He 

said Defendant fired him and alleged it was motived by race. And Abney’s omission from the 

complaint of a day-to-day log of slights (see above) is not at all the same as the omission from 

the complaint in Concentra of the specific action for which the plaintiff alleged the defendant 

retaliated against him. As Concentra aptly opined, omission of the specific action in a retaliation 

case would be akin to the omission of the basis in a discrimination case:

The proper analogue for the present complaint is not a complaint alleging racial 

discrimination in hiring; it is a complaint in which the plaintiff withholds the basis 

upon which she suspects her employer acted: “I was turned down for a job for a 

reason forbidden by Title VII.”

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Id. 

If Abney were required to allege more facts about the particulars of the harassment, how 

much is enough? A daily log? A weekly log? A quarterly summary? Something like that might 

be appropriate in the context of summary judgment (and the evidence adduced in discovery will 

necessarily provide the foundation for such a summary – a name even exists for it in the 

Northern District of Illinois: a LR 53 statement). At the pleading stage however, Abney’s 

description using examples is efficient (the ancient purpose of the shift to notice pleading), and it 

is more than sufficient. “Requiring a more detailed complaint would . . . replicate[ ] the

inefficient chase for facts decried in Bennett . . . .” Id. 

Nonetheless, the allegations in Abney’s complaint go far beyond what Concentra and a 

host of other case law requires (see Jibson, No. 18 C 5594, at *8 (collecting cases)). People:

have reasonably clear ideas of how a racially biased person might behave, and a 

defendant responding to an allegation of racial bias can anticipate the sort of 

evidence that may be brought to bear and can investigate the claim (by inquiring 

if any decision-making employees have a background of making racially 

insensitive comments and the like).

Concentra, 496 F.3d at 782 (parenthetical in original). Not only did Abney describe Defendant’s 

harassment and allege that it was motivated by race (all that is required), but he unequivocally 

tied it to race with examples of how his superiors in the organization, and his manager, expressly 

admitted as they harassed him that they held a belief in negative stereotypes about race and work 

ethic (see above).

What is more, Abney alleged his superiors5 in the organization often called to him by 

saying “boy” (an unquestionably racist epithet in the circumstances) (see above). In Nichols, in 

 5 For the proposition that, “Illinois courts apply the federal Title VII framework to IHRA claims . . . ,” Defendant 

cites Volling v. Kurtz Paramedic Services, 840 F.3d 378, 383 (7th Cir. 2016). Mtn. p. 5, n4. Defendants are 

generally correct. Yet subtle differences exist. For example, under federal law, employers are strictly or vicariously 

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the context of summary judgment, the court said it was “a close call whether the conduct here is 

severe or pervasive” enough for a hostile work environment claim to survive. 755 F.3d at 601. 

The plaintiff in Nichols did not survive summary judgment; but it was a “close call.” Id. In 

Nichols, the plaintiff cited:

six incidents of harassment that he claims occurred during the 2 1/2 weeks that he 

worked at Springfield Elementary: (1) Johnston (his co-worker) calling him 

“black n––––r”; (2) Johnston saying “where that boy at?” without knowing that 

Nichols was within earshot; (3) Johnston bringing Nichols food, but slamming the 

tray into his chest; (4) Springfield employees not telling him where the janitor's 

closet was located; (5) Springfield employees making a mess for him to clean up; 

and (6) Springfield employees allegedly baiting him to steal a purse and money 

from an open register.

Experiencing six instances of harassment, if true, over the course of 2 1/2 weeks 

weighs in his favor . . .

Id. (emphasis added). Abney’s case sits at the pleading stage and he has alleged at least nine 

different types of harassment to which Defendant subjected him throughout the course of his 

employment, becoming progressively worse until he was ultimately fired.

Further, the racial epithets in Nichols were uttered on three occasions, over the course of 

two and half weeks, by the plaintiff’s co-worker. Abney’s superiors in Defendant’s organization 

called him “boy” often, throughout the course of his employment. “We have repeatedly treated a 

supervisor’s use of racially toxic language in the workplace as much more serious than a coworker’s . . . , [and it] is particularly true when supervisors address these derogatory and 

humiliating remarks directly to the employees in question.” Gates v. Bd. of Educ. of Chi., 916 

F.3d 631, 638 (7th Cir. 2019). “This distinction [between co-workers and supervisors] is critical. 

 

liable for harassment only if perpetrated by a supervisor or manager who had authority to “hire, fire, demote, 

promote, transfer, or discipline” the complaining employee. Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 

2002) (overruled on other grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013)). Not so under Illinois law. 

See Rozsavolgyi v. City of Aurora, 2016 Ill. App. 2d 150493 at ¶ 29 (citing Sangamon County Sheriff's Department 

v. Human Rights Comm'n, 233 Ill.2d 125, 138–41, (2009)) (“employers are strictly liable for sexual harassment by 

supervisory employees, even where the supervisory worker has no authority to affect the terms and conditions of the 

complaining employee's employment and regardless of whether the employer was aware of the harassment or took 

measures to correct it”). 

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Id. In Gates, Seventh Circuit reversed the district court’s grant of summary judgment and held 

that, “if a jury credits Gates’s testimony about [his supervisor] Rivera’s comments, it could 

reasonably find that Gates suffered an actionable hostile work environment.” Id. at 640. Rivera 

had used “three racial slurs in a sixth-month period of a four-year employment . . . , [which the 

district court had erroneously found to be] not objectively offensive, and not particularly severe, 

physically threatening, or humiliating’” Id. at 639 (internal quotation marks omitted) (emphasis 

added).

6

 

Not only did Abney’s superiors in Defendant’s organization often call him “boy,” they 

called him “slow” without objective justification and said he was not a good worker without 

objective justification. Comp. at ¶ 89. They often told him his predecessor was a better worker 

specifically because he [Abney’s predecessor] was Hispanic.

7

 Comp. at ¶ 84. According to the 

National Museum of African American History & Culture, negative stereotypes abound 

regarding African Americans and work ethic.

8

 Many:

of the stereotypes created during the height of the trans-Atlantic Slave Trade and 

were used to help commodify black bodies and justify the business of slavery. For 

instance, an enslaved person, forced under violence to work from sunrise to 

sunset, could hardly be described as lazy. Yet laziness . . . historically became [a] 

stereotype[ ] assigned to African Americans.

Id.; see also Cordell, LaDoris Hazzard, Black Immigration: Disavowing the Stereotype of the 

Shiftless Negro, 25 Judges J. 19 (1986). Defendant left Abney no doubt that they believed this 

 6 Gates was another case against Defendant in which an Hispanic supervisor harassed an African American 

employee. 7 Defendant tries to make an issue of the fact that Abney does not remember (or perhaps he was never told) the name 

of his predecessor. This is a red herring. It makes no difference whether Abney knew his predecessor’s name or, 

for that matter, whether his predecessor were actually Hispanic or whether he even existed at all. For obvious 

reasons, what matters is that Abney’s supervisors said he was Hispanic and made the negative, racial comparison 

often. 

8 Popular and Pervasive Stereotypes of African Americans, https://nmaahc.si.edu/blog-post/popular-and-pervasivestereotypes-african-americans (last accessed 10/10/20). 

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stereotype: they told him expressly that he would be a better worker if only he were Hispanic. 

Comp. at ¶ 84.

“The Supreme Court’s decision in Harris [v. Forklift Systems, Inc., 510 U.S. 17 (1993)]

established that something short of the Ninth Ring may violate Title VII.” Gates, 916 F.3d at 637 

(citation and quotation marks omitted; bracketed text added). A workplace “need not be ‘hellish’ 

to constitute a hostile work environment” Id. (quoting Alamo v. Bliss, 864 F.3d 541, 550 (7th Cir. 

2017)) (some internal quotation marks omitted). “‘Title VII comes into play before the harassing 

conduct leads to a nervous breakdown.’” Id. at 633 (quoting Harris, 510 U.S. at 21-2). 

As noted above, “People have reasonably clear ideas of how a racially biased person 

might behave.” Concentra, 496 F.3d at 782. Abney alleged more than enough to give 

Defendant “notice of what the case is all about and to show how, in the plaintiff's mind at least, 

the dots should be connected” Swanson v. Citibank, 614 F.3d 400, 405 (7th Cir. 2010). If what is 

alleged in the complaint were evidence, reasonable jurors could decide that what befell Abney, 

the ongoing harassment and ultimate firing, was motivated by the admitted racial bias of his 

manager and supervisors (which can be imparted vicariously to Defendant) (see Rozsavolgyi v. 

City of Aurora, 2016 Ill. App. 2d 150493 at ¶ 29). A fortiori, in the context of Rule 12, where 

the allegations in the complaint must be taken as true, Abney has stated a claim upon which 

relief can be granted. 

C. Unlike retaliation, harassment is just a species of discrimination, and 

Defendant’s focus upon it at this stage is premature.

“‘Complaints plead grievances, not legal theories,’ and a plaintiff's complaint need only 

‘spell[ ] out his grievance.’” Prayitno, No. 17 C 4310, at *8 (quoting Koger, 950 F.3d at 974). 

A “complaint need not identify a legal theory, and specifying an incorrect theory is not fatal” 

Bartholet, 953 F.2d at 1078. “Complaints in a system of notice pleading initiate the litigation but 

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recede into the background as the case progresses. Later documents, such as the pretrial order 

under Rule 16(e), refine the claims; briefs and memoranda supply the legal arguments that bridge 

the gap between facts and judgments.” Id.

The “hostile work environment” claim that Defendant attacks is a legal theory. Indeed, 

“harassment,” or “hostile work environment,” on the basis of race was not explicitly set forth in 

the Illinois Human Rights Act (“IHRA”), 775 ILCS 5/1-101 et seq., until Illinois Public Act 

101-0221 became effective on January 1, 2020, which amended to IHRA to explicitly define 

“harassment” (other than sexual harassment) and add it to the express list of what constitutes a 

civil rights violation. See 775 ILCS 5/2-102(A); 775 ILCS 5/2-101(E-1). Defendant fired 

Abney on January 23, 2019, before the enactment of Public Act 101-0221. Comp. at ¶ 21. 

Theretofore, actions under the IHRA, for “hostile work environment” based on race, were 

analyzed as a species of discrimination. See Rozsavolgyi, 2016 Ill. App. 2d 150493 at ¶ 39

(“First District upheld the Commission's determination that a racially charged atmosphere in a 

police department amounted to racial harassment, and thus, constituted discrimination based on 

race within the meaning of the Human Rights Act . . . [even though] [r]acial harassment, like 

disability harassment, is not explicitly addressed in the statute.”) (quoting parenthetically Village 

of Bellwood Board of Fire & Police Commissioners v. Human Rights Comm'n, 184 Ill.App.3d 

339, 351, (1989)) (emphasis added; quotation marks and parentheses omitted; bracketed text 

supplied).9

Prior to the enactment of Public Act 101-0221, during which time Abney was harassed 

and fired, an IHRA “hostile work environment” claim was a legal construct of the courts – a 

 9 The amendment to the IHRA was not a sub silencio statement by the legislature implying harassment had not been 

actionable before Public Act 101-0221 because the addition of the express language treating harassment based on 

race only served to clarify the statute’s intent; the same situation occurred when the legislature amended the IHRA 

to expressly include nearly identical language treating sexual harassment. See Rozsavolgyi, 2016 Ill. App. 2d 

150493 at ¶ 42, 48, 50. 

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legal theory. Abney was not required to plead it by name in his complaint. Rather, Abney 

alleged what happened and the harm it caused him, and that it constituted unlawful 

discrimination under the IHRA based on race. It remains to be seen whether Abney can satisfy 

his burden of production by marshalling sufficient evidence to support a hostile work 

environment theory, a wrongful termination theory, or both, but this must be hashed out at 

summary judgment time and at trial. The claims will be refined and circumscribed by the LR 53 

statement, the pretrial order, motions in limine and remittitur as they may, or may not be, 

supported by the evidence.

At the summary judgment stage, to sustain an IHRA harassment claim, Abney must 

produce sufficient evidence to show that a jury could find: “(1) he was subject to unwelcome 

harassment; (2) the harassment was based on race (or another protected category);10 (3) the 

harassment was severe or pervasive to a degree that altered the conditions of employment and 

created a hostile or abusive work environment; and (4) there is a basis for employer liability.” 

Gates, 916 F.3d at 636. When taken as true, the facts alleged in the complaint establish all of 

these four elements.

Elements (1) and (2) are established above; they are more than satisfied. With regard to 

element (3), especially when Defendant’s actions (hypervigilant monitoring, ordering Abney to 

re-do tasks without objective reason, etc.) were inextricably intertwined with admitted, racial 

prejudice about work ethic, the prejudice is itself what caused the conditions to be altered (for 

example: Hispanic employees were not required to perform tasks multiple times for no objective 

reason; Hispanic employees were not reprimanded and disciplined for minutiae that would go 

 10 Interestingly, Defendant answered Abney’s allegations concerning harassment based on disability (and for that 

matter, failure to accommodate) instead of making a Rule 12 motion. This reinforces the fact that, despite its 

apparent complexity, Defendant’s motion really just claims that Abney needs to plead more facts in order to tie his 

harassment allegations to race. But as shown above, Abney has more than adequately tied the harassment he 

endured to racial prejudice. 

Case: 1:20-cv-03621 Document #: 24 Filed: 10/16/20 Page 14 of 16 PageID #:134
15

unnoticed but for the hypervigilant monitoring; Hispanic employees were not required to wait 

ten to fifteen minutes each morning before being let into the building). Ultimately, Defendant 

fired Abney for pretextual reasons that were infected with racial prejudice and “teed-up” by the 

underlying harassment. Lastly, with regard to element (4), Defendant is strictly or vicariously 

liable for the harassing conduct of supervisory employees (even where the supervisory worker 

has no authority to affect the terms and conditions of the complaining employee's employment 

and regardless of whether the employer was aware of the harassment or took measures to correct 

it). See Rozsavolgyi, 2016 Ill. App. 2d 150493 at ¶ 29 (citing Sangamon County Sheriff's 

Department v. Human Rights Comm'n, 233 Ill.2d 125, 138–41, (2009).

Relevant to this inquiry are “the severity of the alleged conduct, its frequency, whether it 

[wa]s physically threatening or humiliating (or merely offensive), and whether it unreasonably 

interfere[d] with the employee’s work performance.” Gates, 916 F.3d at 636 (emphasis added; 

citation and quotation marks omitted; brackets and parentheses in original). As shown above, 

Defendant’s conduct was more severe and frequent than the conduct of the defendant in Gates

(in which case the plaintiff survived summary judgment). Defendant’s conduct was humiliating 

objectively. It was humiliating subjectively. See Comp. at ¶ 96. It interfered with Abney’s

work (see above). 

D. Like Bakker, Defendant’s other Rule 12 cases are distinguishable.

In Bakker, the plaintiff’s own allegations ruled out the kind of ongoing harassment Abney 

described in his complaint, and it is therefore distinguishable. The other cases Defendant cites,

that address Rule 12, treat similar circumstances in which plaintiffs’ allegations themselves 

foreclose actionable, pervasive harassment. Defendants cherry-pick from the examples used by 

Abney, and reference cases that might be applicable to each of them when isolated in a vacuum, 

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16

but not in the context of Abney’s complaint as a whole. The allegations in the complaint satisfy 

the test in Gates in the context of summary judgment. A fortiori, then, they state a claim upon 

which relief can be granted and Defendant’s Rule 12 motion must be denied. 

WHEREFORE, the plaintiff prays that this Court will:

A. Deny Defendant’s motion to dismiss styled “Defendant’s Motion to Dismiss Count IV of 

Plaintiff Tariq Abney’s Complaint” [Doc. 20] in its entirety; and

B. Grant such further relief as may be fair and just in the premises.

 

Paul Luka

paul@mendozalaw.net

Mendoza Law, P.C.

120 S. State St., Ste. 400

Chicago, IL 60603

(312) 508-6010 (voice and fax)

Michelle M. Truesdale

mich7472@aol.com

Michelle M. Truesdale Attorney at Law

5310 N. Harlem Avenue Suite 210

Chicago, IL 60656

(312) 342-1400

Respectfully submitted,

/s/Paul Luka

Attorney for Plaintiff

CERTIFICATE OF SERVICE

The undersigned attorney certifies that he served the attached document on all parties of 

record via the Court’s CM/ECF system on the date listed above in electronic file stamp.

/s/Paul Luka

Attorney for Plaintiff

Case: 1:20-cv-03621 Document #: 24 Filed: 10/16/20 Page 16 of 16 PageID #:136