United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. SIMON, JUDGE
Harmon has brought an employment discrimination case against
her former employer, Horizon Financial Management. Her
complaint contains five counts but the only one presently at
issue is Count IV which is captioned “Retaliation Based
on Religious Discrimination” under Title VII.
[Id. at 9-10.] Horizon seeks the dismissal of Count
IV because Harmon did not exhaust her administrative remedies
before the EEOC as it relates to that count. [DE 12.]
VII requires that, before a lawsuit is filed, charges of
discrimination be timely filed with the EEOC. 42 U.S.C.
§2000e-5(e)(1). “The requirement that a plaintiff
timely file an administrative charge with the EEOC serves two
purposes: it promotes the prompt and less costly resolution
of the dispute by settlement or conciliation and ensures
timely notice to the employer of the grievance.”
Porter v. New Age Services Corp., 463 Fed.Appx. 582,
584 (7th Cir. 2012), citing Teal v.
Potter, 559 F.3d 687, 691 (7thCir. 2009). The
exhaustion requirement is not jurisdictional; it's a
condition precedent to bringing an employment discrimination
action to court. Volovsek v. Wisconsin Dep't of
Agr., Trade & Consumer Prot., 344 F.3d 680, 687
(7th Cir. 2003). Determining whether Harmon's retaliation
claim is within the scope of her EEOC charge is a question of
law. Moore v. Vital Products, Inc., 641 F.3d 253,
257 (7th Cir. 2011).
gist of Harman's claim in Count IV is that she was
retaliated against for opposing a supervisor's
religion-based harassment of a co-worker, Kim Kimberly.
Kimberly is a Jehovah's Witness. Count IV alleges that
Harmon was terminated by her supervisor, Graciela Biancardi,
who associated Harmon with Kimberly's religious beliefs,
and retaliated against Harmon for her complaints about
Biancardi's treatment of Kimberly:
The defendant engaged in illegal employment practices...by
terminating Ms. Harmon one day after Kimberly complained
about Biancardi's religious based harassment of her and
her harassment of Harmon to defendant's Director of
Operations and for previously defending Kimberly's right
to adhere to her religious beliefs, thereby retaliating
against her for engaging in protected activity.
[DE 1 at 10.]
Charge of Discrimination, Harmon checked only the box for
discrimination based on race, and did not check the boxes for
retaliation or discrimination on the basis of religion. [DE
18.] In its entirety, the facts provided in the charge read:
I am Black. I was hired on 11/26/2012 as a Recovery
Specialist. My last position was Team-Lead. My manager, Grace
Biancardi is Hispanic. My performance and attendance was
On 9/29/15 Mgr. Grace called me into the office and said that
employees had accused me of telling them that they were going
to get a whopping for asking stupid questions. I told her
that I was joking.
On 10/7/2015 Mgr. Grace terminated me for violating company
policy. I am aware that Team-Lead, Suzanna Piskoluska
(Non-black) received employee complaints for being rude and
having a bad attitude. She was not disciplined or terminated.
I am aware that Matthew Plummer (White) received employee
complaints for not being approachable and having a bad
attitude. He was not disciplined or terminated.
I believe that I have been discriminated against because of
my Race, in violation of Title VII of the Civil Rights Act of
1964 as amended[.]
plaintiff 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.'” Ezell v. Potter, 400 F.3d
1041, 1046 (7th Cir. 2005), quoting Cheek v.
Peabody Coal Co., 97 F.3d 200, 202 (7th Cir. 1996). To
determine whether the claim in Harmon's Count IV falls
within the scope of her EEOC charge, “we look to
whether the allegations are like or reasonably related to
those contained in the EEOC complaint.” Ezell,
400 F.3d at 1046. “Claims are reasonably related if
there is a factual relationship between them, ” which
at a minimum means “that the EEOC charge and complaint
must describe the same conduct and implicate the same
individuals.” Id. (citations omitted); see
also Reynolds v. Tangherlini, 737 F.3d 1093, 1100
(7th Cir. 2013).
charge contains no references to her co-worker, Ms. Kimberly,
nor do they reference anyone's religious practices or
beliefs. There isn't so much as a whiff of a reference to
the supervisor's harassment of Ms. Kimberly for being a
Jehovah's Witness and Harmon's complaint about the
harassment. This is a problem because claims of retaliation,
discrimination and harassment, even if all based on the same
protected classification, “are not ‘like or
reasonably related' to one another to permit an EEOC
charge of one type of wrong to support a subsequent civil
suit for another.” Sitar v. Indiana Dept. of
Transp., 344 F.3d 720, 726 (7th Cir. 2003),
citing Cheek v. Western & Southern Life Ins.
Co., 31 F.3d ...