United States District Court, S.D. Indiana, New Albany Division
TATIANA Y. KOVALEVSKA, Plaintiff,
BURLINGTON COAT FACTORY OF INDIANA, LLC doing business as BURLINGTON COAT FACTORY, and BURLINGTON COAT FACTORY DIRECT CORPORATION, Defendants.
ORDER ON PARTIAL MOTION TO DISMISS
WALTON PRATT, JUDGE
the Court is a Partial Motion to Dismiss filed by Defendants
Burlington Coat Factory of Indiana, LLC and Burlington Coat
Factory Direct Corporation (collectively,
“Burlington”), pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Filing No. 13.) On November 14,
2016, Plaintiff Tatiana Y. Kovalevska
(“Kovalevska”) filed a Complaint alleging that
her former employer, Burlington, violated Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e. Specifically, Kovalevska alleges: 1) Burlington
caused her to suffer a hostile work environment because of
her national origin; 2) retaliated against her for
complaining about their alleged discriminatory practices; and
3) subjected her to discrimination because of her national
origin. (Filing No. 1.) Burlington moves to
partially dismiss the Complaint, asserting Kovalevska's
retaliation allegation fails to state a claim upon which
relief can be granted. For the following reasons, 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 well-pleaded facts alleged in the
Complaint, and draws all possible inferences in
Kovalevska's favor. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (“[W]hen ruling on a defendant's
motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.”).
is a resident of Jeffersonville, Indiana. In October 2014,
she began working as a Receiving Clerk at a Burlington retail
store in Clarksville, Indiana. While working at Burlington,
Kovalevska's supervisors and co-workers engaged in
unwelcomed and highly offensive conduct. They ridiculed
Kovalevska's accent and referred to her as a
“stupid Russian” and a “dirty
Russian”. Kovalevska complained to management about the
discriminatory comments, intimidation, and ridicule on at
least two occasions. Despite her complaints, Kovalevska's
supervisors and co-workers continued engaging in
days after filing a complaint, Kovalevska's store manager
screamed at her for improperly stacking boxes in a display,
despite Burlington's failure to instruct Kovalevska on
how to properly complete the task. Kovalevska's
supervisors also forbade her from taking rest breaks,
shortened her lunch breaks and, at times, did not allow her
to take a lunch break at all. When Kovalevska's family
visited her at Burlington, a supervisor approached Kovalevska
and her family in an intimidating fashion and threatened to
physically harm Kovalevska.
the treatment Kovalevska received from Burlington, Kovalevska
resigned on February 28, 2015. Several months later, on
October, 19, 2015, Kovalevska submitted an Intake
Questionnaire to the Equal Employment Opportunity Commission
(“EEOC”), asserting employment discrimination and
hostile work environment based on race and national origin.
(Filing No. 15-2 at 3.) Kovalevska indicated that
she sought help from attorney Tony Gubbel, regarding the
discrimination she faced at Burlington. The Questionnaire
included an attached statement detailing Kovalevska's
work history, health issues, as well as an instance where
Burlington employees reduced Kovalevska's breaks and
called her “stupid or an idiot”. Id. at
months later, on January 18, 2016, Kovalevska filed a Charge
of Discrimination with the EEOC. (Filing No. 19-1).
Her Charge also asserted employment discrimination and
hostile work environment based on race and national origin.
The Charge specifically alleged:
In October 2014, [Kovalevska] was hired as a Receiving Clerk
by Burlington Coat Factory in Clarksville, Indiana. Almost
immediately, [Kovalevska] began to be harassed and spoken to
harshly by management. [Kovalevska's] work would be
criticized unnecessarily and [she] would not be allowed to
take…break[s] and lunch periods. In February 2015,
[Kovalevska] resigned due to the harassment and harsh
treatment. [Kovalevska] believe that [she] was harassed and
constructively discharged because of [her] national origin,
Ukrainian, in violation of Title VII of the Civil Rights Act
of 1964, as amended.
(Filing No. 19-1).
on August 15, 2016, the EEOC sent Kovalevska a Notice of
Right to Sue. Approximately three months later, on November
14, 2016, Kovalevska sought relief in this Court, alleging
she suffered a hostile work environment, retaliation, and
discrimination based upon her race and national origin.
(Filing No. 1.) Burlington filed a Partial Motion to
Dismiss the Complaint, asserting Kovalevska failed to exhaust
all administrative remedies regarding her retaliation claim.
(Filing No. 13.)
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 Federal
Rule of Civil Procedure 12(b)(6), the Court accepts as true
all factual allegations in the complaint and draws all
inferences in favor of the plaintiff. Bielanski v. County
of Kane, 550 F.3d 632, 633 (7th Cir.2008). 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.
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,
” and the “[f]actual allegations must be enough
to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citations and quotation marks
omitted). Stated differently, the complaint must include
“enough facts to state a claim to relief that is
plausible on its face.” Hecker v. Deere &