United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON DEFENDANT'S MOTION TO DISMISS
WALTON PRATT, JUDGE United States District Court
matter is before the Court on a partial Motion to Dismiss
filed pursuant to Federal Rule of Civil Procedure 12(b)(6) by
Defendant, the Trustees of Purdue University (“the
Trustees”) (Filing No. 14). Plaintiff Phyllis
Harris (“Ms. Harris”) filed this action against
her former employer to remedy violations of Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.
§ 2000e et seq., as amended, specifically by
discriminating against her due to her race. The Trustees move
to dismiss Count Three of the Complaint on the basis that the
Eleventh Amendment immunizes them from state law tort claims
filed in federal court. For the reasons that follow, the
Court GRANTS the partial Motion to Dismiss.
following facts are not necessarily objectively true, but as
required when reviewing a motion to dismiss, the Court
accepts as true all factual allegations in the Amended
Complaint and draws all inferences in favor of the
Plaintiffs. See Bielanski v. County of Kane, 550
F.3d 632, 633 (7th Cir. 2008).
Harris, an African-American woman, was an employee of Purdue
University at the Central District Extension. (Filing No.
1 at 1-3.) She alleges that her supervisor, Steve Wagner
(“Mr. Wagner”) harassed and discriminated against
her on the basis of her race. (Filing No. 1 at 1-4.)
Specifically, Mr. Wagner told her that she “might be
stupid” (Filing No. 1 at 4), and Mr. Wagner
conducted regular meetings with Caucasian staff members, but
never met with her. (Filing No. 1 at 5.) In
addition, Mr. Wagner began disciplining her based on
fabricated reasons. (Filing No. 1 at 5.) After
continuing discipline and performance warnings, Ms.
Harris' employment was terminated on October 19, 2015.
(Filing No. 1 at 5.)
Harris' Complaint alleges three counts, two pursuant to
federal statute and one state law claim: (1) discrimination
on the basis of race under Title VII; (2) retaliation under
Title VII; and (3) intentional infliction of emotional
distress under Indiana state law (Filing No. 1). The
Trustees move to dismiss Count Three, the state law claim for
intentional infliction of emotional distress, under Federal
Rule of Civil Procedure 12(b)(6). (Filing No. 15.)
Ms. Harris did not file a response to the Trustees'
Rule of Civil Procedure 12(b)(6) allows a defendant to move
to dismiss a complaint that has failed to “state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). When deciding a motion to dismiss under Rule
12(b)(6), the court accepts as true all factual allegations
in the complaint and draws all inferences in favor of the
plaintiff. Bielanski at 633. However, courts
“are not obliged to accept as true legal conclusions or
unsupported conclusions of fact.” Hickey v.
O'Bannon, 287 F.3d 656, 658 (7th Cir. 2002).
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). In Bell Atlantic
Corp. v. Twombly, the Supreme Court explained that the
complaint must allege facts that are “enough to raise a
right to relief above the speculative level.” 550 U.S.
544, 555 (2007). Although “detailed factual
allegations” are not required, mere “labels,
” “conclusions, ” or “formulaic
recitation[s] of the elements of a cause of action” are
insufficient. Id.; see also Bissessur v. Ind.
Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009)
(“it is not enough to give a threadbare recitation of
the elements of a claim without factual support”). The
allegations must “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Twombly, 550 U.S. at 555. Stated
differently, the complaint must include “enough facts
to state a claim to relief that is plausible on its
face.” Hecker v. Deere & Co., 556 F.3d
575, 580 (7th Cir. 2009) (citation and quotation marks
omitted). To be facially plausible, the complaint must allow
“the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
[T]he record under 12(b)(6) is limited to the language of the
complaint and to those matters of which the court may take
judicial notice. The complaint cannot be amended by the
briefs filed by the plaintiff in opposition to a motion to
dismiss. By the same token, the defendant cannot, in
presenting its 12(b)(6) challenge, attempt to refute the
complaint or to present a different set of allegations. The
attack is on the sufficiency of the complaint, and the
defendant cannot set or alter the terms of the dispute, but
must demonstrate that the plaintiff's claim, as set forth
by the complaint, is without legal consequence.
Gomez v. Illinois State Bd. of Education, 811 F.2d
1030, 1039 (7th Cir. 1987) (citation omitted).
Trustees move to dismiss Count Three of Ms. Harris'
Complaint on the basis that the Eleventh Amendment immunizes
them from state law tort claims filed in federal court.
Court begins by noting that Ms. Harris has failed to respond
to the Trustees' Motion to Dismiss. If a plaintiff fails
to respond to a motion to dismiss, the court may conclude
that the plaintiff has waived her argument. See Bonte v.
U.S. Bank, N.A.,624 F.3d 461, 466 (7th Cir. 2010). As
the Seventh Circuit has stated repeatedly, “[o]ur
system of justice is adversarial, and our judges are busy
people. If they are given plausible reasons for dismissing a
complaint, they are not going to do the plaintiff's
research and try to discover whether there might be ...