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Kimberly v. Horizon Financial Management

United States District Court, N.D. Indiana, Hammond Division

November 28, 2017

KIM KIMBERLY, Plaintiff,



         This matter is before the Court on Defendant's Motion to Dismiss Count II of Plaintiff's Complaint, filed by the defendant, Horizon Financial Management, on January 31, 2017. (DE #12.) For the reasons set forth below, the motion is GRANTED. Count II of the complaint is hereby DISMISSED. All other counts REMAIN PENDING.


         The plaintiff, Kim Kimberly (“Kimberly”), filed her complaint against the defendant, Horizon Financial Management (“Horizon”), on November 29, 2016. (DE #1.) In it, she brings claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended (“Title VII”) and 42 U.S.C. § 1981 of the Civil Rights Act of 1866, et seq. (“Section 1981”). The complaint alleges religious discrimination under Title VII (Count I), retaliation based on religious discrimination under Title VII (Count II), racial discrimination and retaliation under Section 1981 (Count III), retaliation under Section 1981 (Count IV), and intentional infliction of mental and emotional distress (Count V). On January 31, 2017, Horizon filed the instant partial motion to dismiss, arguing that the retaliation claim in Count II falls outside of the scope of her underlying administrative charge and should be dismissed. (DE #13.) Kimberly filed her response on March 1, 2017. (DE #19.) Horizon filed a reply on March 17, 2017. (DE #22.) The motion is ripe for adjudication.



         In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), [1] a court must accept all facts alleged in the complaint as true and draw all reasonable inferences in the light most favorable to the plaintiff. See Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010) (citation omitted). While a complaint is not required to contain detailed factual allegations, the plaintiff must allege facts that state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true . . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

         Extraneous Materials

         The parties have submitted several documents for the Court to consider when ruling on the motion to dismiss. Horizon has submitted Kimberly's Charge of Discrimination filed with the Indiana Civil Rights Commission (“ICRC”) and the Equal Employment Opportunity Commission (“EEOC”)[2] (the “Charge” or the “Charge of Discrimination”). (DE #13-1.) Kimberly has submitted her own affidavit (“Kimberly Affidavit”), a letter she sent to the EEOC dated September 24, 2016 (“Letter”), and the affidavit of her co-worker, Tykeyia Harmon (“Harmon Affidavit”). (DE #19-1 & DE #19-2.) Only the Charge of Discrimination is directly referenced, albeit not by name, in the complaint. (See DE #1, p. 2.)

         When reviewing a motion to dismiss, a court normally considers only the factual allegations of the complaint and any reasonable inferences that can be drawn from those allegations. See Gessert v. United States, 703 F.3d 1028, 1033 (7th Cir. 2013). A court may also examine “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice.” Geinosky v. City of Chicago, 675 F.3d 743, 745, n. 1 (7th Cir. 2012) (collecting cases); see also Adams v. City of Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014) (court may examine information from documents attached to a motion to dismiss “if they are referred to in the plaintiff's complaint and are central to his claim”). Such documents may be considered by the court without converting the motion to dismiss into a motion for summary judgment; however, if a moving party relies on materials other than the narrow exceptions noted above, the motion must be converted. Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013); Geinosky, 675 F.3d at 745, n. 1.

         Horizon devotes a section of its brief to arguing why the Court should consider the Charge of Discrimination. (DE #13, pp. 3-4.) Kimberly does not respond to Horizon's argument, and, indeed, it is without question that the Charge of Discrimination may be properly considered for purposes of the instant motion without converting it to one for summary judgment. See Adams, 742 F.3d at 729. Kimberly, on the other hand, simply submits her additional documents without analysis as to why they should similarly be considered. Horizon replies that, even if considered, Kimberly's extraneous documents do not show that the retaliation claim was within the scope of the Charge.

         While it is true that the Kimberly Affidavit, the Letter, and the Harmon Affidavit are not referenced in the complaint, the Seventh Circuit Court of Appeals has recognized that a plaintiff responding to a motion to dismiss is granted more flexibility than a movant in terms of relying on extraneous materials to support her position. See Geinosky, 675 F.3d at 745, n. 1 (to ward off dismissal, a plaintiff “may submit materials outside the pleadings to illustrate the facts the party expects to be able to prove”). Furthermore, because consideration of these documents would not change the result, the Court will consider them but declines to convert the motion to dismiss into a motion for summary judgment. See Hecker v. Deere & Co., 556 F.3d 575, 583 (7th Cir. 2009) (affirming district court's refusal to convert a motion to dismiss into a motion for summary judgment based on district court's discretion).


         Kimberly, an African American female who practices the faith of Jehovah's Witness, was hired by Horizon in August of 2012 and was promoted to Floor Supervisor approximately two years later by Graciela Biancardi (“Biancardi”). (DE #1, pp. 1-2.) At the time of the promotion, Biancardi was aware that Kimberly was a Jehovah's Witness. (Id. at 2.) In November of 2014, Biancardi allegedly began to harass Kimberly on the basis of her religion in that Biancardi asked her to decorate the company Christmas tree and participate in the “ugly sweater” contest. (Id. at 2-3.) Kimberly refused to participate and subsequently provided Biancardi with information regarding the Jehovah's Witness faith “in an effort to educate her and to avoid future conflicts.” (Id. at 3.) In September of 2015, while Kimberly was present, Biancardi asked several employees if they were going to dress up for Halloween. (Id.) When Kimberly's non-Jehovah's Witness co-worker, Tykeyia Harmon ...

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