United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
matter is before the court on the Motion for Partial
Dismissal of Plaintiff's Complaint [DE 21] filed by the
defendant, City of Gary, on December 30, 2016. For the
following reasons, the motion is DENIED.
plaintiff, Ebony Appleton, filed her Complaint on October 18,
2016, alleging that the defendant, City of Gary, violated
Title VII of the Civil Rights Act of 1964. Based on
Appleton's pro se Complaint, she has alleged sex
discrimination and retaliation in violation of Title VII.
began working for the City of Gary in the Youth Services
Bureau of the City's Parks Department in the beginning of
2014. Appleton filed a Charge of Discrimination with the Gary
Human Relations Commission (GHRC) on May 12, 2016 for sex
discrimination. The GHRC found no probable cause to support
her claims, and on September 13, 2016, the EEOC adopted those
findings and issued a Dismissal and Notice of Rights to
Appleton. On September 23, 2016, Appleton's employment
with the City was terminated. She then filed a second Charge
of Discrimination with the GHRC on September 27, 2016
alleging retaliation. Appleton contends that she was
retaliated against for filing the first charge. Appleton has
not provided a Dismissal and Notice of Rights letter in
connection with her second charge of retaliation.
City's Motion for Partial Dismissal of Plaintiff's
Complaint [DE 22] contends that Appleton has failed to meet
the pleadings standards under Federal Rule of Civil Procedure
12(b)(6) for her retaliation and sexual harassment claims.
Appleton in her Response to the City's motion indicated
that she did not file a sexual harassment claim, rather sex
discrimination and retaliation. The City has indicated that
it is not contesting Appleton's sex discrimination claim
in the Motion for Partial Dismissal of Plaintiff's
City has requested that the court dismiss Appleton's
retaliation claim pursuant to Federal Rule of Civil Procedure
12(b)(6), which allows for a complaint to be dismissed if it
fails to “state a claim upon which relief can be
granted.” Allegations other than those of fraud and
mistake are governed by the pleading standard outlined in
Federal Rule of Civil Procedure 8(a)(2), which requires a
“short and plain statement” to show that a
pleader is entitled to relief. See Cincinnati Life Ins.
Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). The
Supreme Court clarified its interpretation of the Rule
8(a)(2) pleading standard in a decision issued in May 2009.
While Rule 8(a)(2) does not require the pleading of detailed
allegations, it nevertheless demands something more
“than an un-adorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In order
to survive a Rule 12(b)(6) motion, a complaint “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); Cincinnati Life
Ins., 722 F.3d at 946 (“The primary purpose of
[Fed.R.Civ.P. 8 and 10(b)] is to give defendants fair notice
of the claims against them and the grounds supporting the
claims.”) (quoting Stanard v. Nygren, 658 F.3d
792, 797 (7th Cir. 2011)); Peele v. Clifford Burch,
722 F.3d 956, 959 (7th Cir. 2013) (explaining that one
sentence of facts combined with boilerplate language did not
satisfy the requirements of Rule 8); Joren v.
Napolitano, 633 F.3d. 1144, 1146 (7th Cir. 2011). This
pleading standard applies to all civil matters.
Iqbal, 556 U.S. at 684. In addition to the
complaint, the court also may consider documents attached to
or referenced in the complaint. Levenstein v.
Salafsky, 164 F.3d 345, 347 (7th Cir. 1998) (quoting
Wright v. Associated Ins. Cos., Inc., 29 F.3d 1244,
1249 (7th Cir. 1994).
decision in Iqbal discussed two principles that
underscored the Rule 8(a)(2) pleading standard announced by
Twombly. See Twombly, 550 U.S. at 555
(discussing Rule 8(a)(2)'s requirement that factual
allegations in a complaint must “raise a right to
relief above the speculative level”). First, a court
must accept as true only factual allegations pled in
a complaint-“[t]hreadbare recitals of the elements of a
cause of action” that amount to “legal
conclusions” are insufficient. Iqbal, 556 U.S.
at 678. Next, only complaints that state
“plausible” claims for relief will survive a
motion to dismiss. Iqbal, 556 U.S. at 678. If the
pleaded facts do not permit the inference of more than a
“mere possibility of misconduct, ” then the
complaint has not met the pleading standard outlined in Rule
8(a)(2). Iqbal, 556 U.S. at 678-79; see Brown v.
JP Morgan Chase Bank, 2009 WL 1761101, at *1 (7th Cir.
2009) (defining “facially plausible” claim as a
set of facts that allows for a reasonable inference of
liability). The Supreme Court has suggested a two-step
process for a court to follow when considering a motion to
dismiss. First, any “well-pleaded factual
allegations” should be assumed to be true by the court.
Next, these allegations can be reviewed to determine if they
“plausibly” give rise to a claim that would
entitle the complainant to relief. Iqbal, 556 U.S.
at 678-79; Bonte v. U.S. Bank, N.A., 624 F.3d 461,
465 (7th Cir. 2010). Reasonable inferences from well-pled
facts must be construed in favor of the plaintiff. Murphy
v. Walker, 51 F.3d 714, 717 (7th Cir. 1995); Maxie
v. Wal-Mart Store, 2009 WL 1766686, at *2 (N.D. Ind.
2009) (same); Banks v. Montgomery, 2009 WL 1657465,
at *1 (N.D. Ind. 2009) (same).
complaint that lacks organization and coherence so that it is
too confusing to understand the factual basis of the wrongful
conduct also is subject to dismissal. Cincinnati Life
Ins., 722 F.3d at 946. The court assesses this by
considering whether it can make out the essence of the
claims. Cincinnati Life Ins., 722 F.3d at 946. A
complaint is not unintelligible simply because it contains
repetitive and irrelevant matter. Cincinnati Life
Ins., 722 F.3d at 946. “Rather, we have found
complaints wanting when they present a ‘vague,
confusing, and conclusory articulation of the factual and
legal basis for the claim and [take] a general “kitchen
sink” approach to pleading the case.' . . .
[D]ismissal is the appropriate remedy for district courts
presented with ‘a bucket of mud.'”
Cincinnati Life Ins., 722 F.3d at 946-47 (quoting
Stanard, 658 F.3d at 798).
a pro se litigant, a plaintiff is permitted a more lenient
standard with respect to her pleadings than that imposed on a
practicing attorney.” Cintron v. St. Gobain
Abbrassives, Inc., 2004 WL 3142556, * 1 (S.D. Ind.
2004). Although the court recognizes that pro se litigants
face special challenges that litigants represented by counsel
do not, pro se litigants are not excused from following
procedural rules simply because the “rules of procedure
are based on the assumption that litigation is normally
conducted by lawyers.” Lee v. Wal-Mart Stores,
1994 WL 899240, * 1 (N.D. Ind. 1994). As the Lee court
explained, [the court] ha[s] never suggested that procedural
rules in ordinary civil litigation should be interpreted so
as to excuse mistakes by those who proceed without counsel.
Lee v. Wal-Mart Stores, 1994 WL 899240, * 1 (N.D.
filed her Complaint against the City alleging sex
discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964, which “forbids employment
discrimination against 'any individual' based on that
individual's 'race, color, religion, sex, or national
origin.'” Burlington Northern & Santa Fe
Railroad Company v. White, 548 U.S. 53, 56, 126 S.Ct.
2405, 2408, 165 L.E.2d 345 (2006) (citing Pub.L., 88-352,
§704, 78 Stat. 257, as amended, 42 U.S.C. §
2000e-2(a)). The City has argued that Appleton failed to
exhaust her administrative remedies regarding her retaliation
claim. Exhaustion of administrative remedies is a condition
precedent to bringing a claim under Title VII. See
42 U.S.C. § 2000e et seq. There are a number of
prerequisites to the successful maintenance of a claim under
Title VII. See 42 U.S.C. § 2000e-5. First, the
party must file a charge with the EEOC or the applicable
State or local agency within the period of time allotted by
the statute, and then the Commission must issue a right to
sue letter. Rush v. McDonald's Corp., 966 F.2d
1104, 1110 (7th Cir. 1992); Alexander v. Gardner-Denver
Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d
147 (1974); McDonnell Douglas Corp. v. Green, 411
U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973);
Movement for Opportunity and Equality v. General Motors
Corp., 622 F.2d 1235, 1240 (7th Cir. 1980).
has not attached nor provided any evidence that she received
the corresponding Dismissal and Notice of Rights letter from
the EEOC regarding her second charge for retaliation.
Generally, because Appleton has not received a Dismissal and
Notice of Rights letter from the EEOC on her retaliation
claim, she has failed to exhaust her administrative remedies,
and her retaliation claim should be dismissed without
the Seventh Circuit has found that a separate administrative
charge is not a prerequisite to a suit complaining about
retaliation for filing the first charge. McKenzie v. Ill.
Dept. of Transp.,92 F.3d 473, 482 (7th Cir. 1996)
(holding that a plaintiff may bring suit on a retaliation
claim not included in her administrative charge “where
the alleged retaliation arose after the charge of
discrimination had been filed”) (quoting Steffen v.
Meridian Life Ins. Co.,859 F.2d 534, 545 (7th Cir.
1988)); Horton v. Jackson Cnty. Bd. of Cnty.
Comm'rs,343 F.3d 897, 898 (7th Cir. 2003)
(“Retaliation for complaining to the EEOC need not be
charged separately from the discrimination that gave rise to
the complaint, at least if the person discriminated against
and the person retaliated against are the same.”)
(citations omitted); Gawley v. Ind. Univ., 276 F.3d
301, 314 n. 8 (7th Cir. 2001) (“Of ...