United States District Court, S.D. Indiana, Indianapolis Division
OPINION AND ORDER
L. MILLER, JR. JUDGE UNITED STATES DISTRICT COURT
Upchurch filed a seven-count complaint against Goodwill
Industries of Central and Southern Indiana, Goodwill
Foundation of Central and Southern Indiana, Michael Trotta,
and Julius Dunbar, alleging violations of discrimination and
retaliation under Title VII of the Civil Rights act, 42
U.S.C. § 2000e-2 et seq.; 42 U.S.C. § 1981; Indiana
Civil Rights Law, Ind. Code ' 22-9-1-1 et seq.; and
Indiana common law by engaging in retaliatory conduct and
discriminatory practices based on her race and gender. Ms.
Upchurch claims that after she agreed to car pool with her
co-worker Julius Dunbar, she was subject to harassment,
discrimination, and slander per se. After Ms. Upchurch made
several internal complaints, she says, Mr. Dunbar further
harassed Ms. Upchurch in retaliation. As a result of the
hostile work environment, Ms. Upchurch says she was
"forced to resign" from her position. Ms. Upchurch
seeks judgment against the defendants; directing the
defendants to pay her actual, compensatory, and punitive
damages, pre-and post-judgment interests, attorney fees, and
Upchurch moved to voluntarily dismiss defendants Goodwill
Foundation and Michael Trotta [Docs. No. 11 and 20]; Goodwill
Industries and Mr. Dunbar are the remaining parties in this
case. Under Federal Rule of Civil Procedure 12(b)(6),
defendants have moved to dismiss five of Ms. Upchurch's
claims for failure to state a claim: sex discrimination under
Title VII and 42 U.S.C. § 1981; race discrimination
under both Title VII and Indiana law; retaliation under Title
VII, and defamation under Indiana common law. Ms. Upchurch
filed her response to the motion, and the defendants filed a
reply. For the reasons that follow, the court grants the
motion in part.
Rule of Civil Procedure 12(b)(6) permits a defendant to seek
dismissal of a complaint that states no claim upon which
relief can be granted. When deciding a Rule 12(b)(6) motion,
the court must accept as true the factual allegations of the
complaint and draw all reasonable inferences in favor of the
plaintiff without engaging in fact-finding. Reger Dev.,
LLC v. National City Bank, 592 F.3d 759, 763 (7th Cir.
2010); Stakowski v. Town of Cicero, 425 F.3d 1075,
1078 (7th Cir. 2005). "To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.' A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Under the pleading
standard of Rule 8(a), a complaint needn't contain
"detailed factual allegations, " but the
complaint's allegations "must be enough to raise a
right to relief above the speculative level" and give
the defendant fair notice of the claims being asserted and
the grounds upon which they rest. Bell Atl. v.
Twombly, 550 U.S. at 555; see also Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009) ("First, a
plaintiff must provide notice to defendants of her claims.
Second, courts must accept a plaintiff's factual
allegations as true, but some factual allegations will be so
sketchy or implausible that they fail to provide sufficient
notice to defendants of the plaintiff's claim. Third, in
considering the plaintiff's factual allegations, courts
should not accept as adequate abstract recitations of the
elements of a cause of action or conclusory legal
Dunbar argues that he can't be individually liable to Ms.
Upchurch under Title VII of the Civil Rights Act, and/or the
Indiana Constitution. As a co-worker, Mr. Dunbar doesn't
fit within the definition of an "employer” under
Title VII or Indiana Law. See 42 U.S.C. 2000e(b); Ind. Code
§ 22-9-1-3(h) ("'Employer' means the state
or any political or civil subdivision thereof and any person
employing six (6) or more persons within the state.").
In addition, the court of appeals has held that Title VII
provides no basis for individual liability. Ms. Upchurch
responds that Title VII allows for individual liability under
specific circumstances. The plain language of the statute
allows for a claim to be made against the employer's
agent. See 42 U.S.C. § 2000e(b) (“The term
'employer' means a person engaged in an industry
affecting commerce who has fifteen or more employees . . .
and any agent of such a person”).
court agrees with Mr. Dunbar's argument. Supervisors and
co-workers can't be held liable in their individual
capacity under Title VII because they don't fit the
definition of "employer." McCullough v. Mister
"P" Express, Inc., 2015 U.S. Dist. LEXIS
11703, at *7 (S.D. Ind. Feb. 2, 2015) (citing Passananti
v. Cook County, 689 F.3d 655, 677 (7th Cir. 2012))
(citations omitted). “[W]hile Title VII's
definition of 'employer' does include the term
'agent, ' Congress intended only for employers to be
liable for their agent's actions under the traditional
respondeat superior doctrine, not for agents to be personally
liable.”McCullough v. Mister "P"
Express, Inc., 2015 U.S. Dist. LEXIS 11703, at *7
(quoting Gastineau v. Fleet Mortg. Corp., 137 F.3d
490, 494 (7th Cir. 1998)). Ms. Upchurch's Title VII
claims against Mr. Dunbar must be dismissed.
the defendants argue that Ms. Upchurch failed to exhaust the
administrative remedies required to bring an action under the
Indiana civil rights laws. Ms. Upchurch didn't file a
charge with the Indiana Civil Rights Commission when she
filed her charge with the Equal Employment Opportunity
Commission. Ms. Upchurch maintains that she exhausted her
administrative remedies because the Equal Employment
Opportunity Commission and the Indiana Civil Rights
Commission have a “worksharing agreement” that
allows for a dual filing between both agencies if the
plaintiff makes a charge with the Equal Employment
Opportunity Commission. The defendants point out that under
the Indiana civil rights laws, Ms. Upchurch must provide
proof that the defendants agreed to litigate in court, in
addition to the Equal Employment Opportunity Commission's
notice of right to sue.
court agrees with the defendants. Ms. Upchurch had the
benefit of a dual-filing under the worksharing agreement but
the worksharing agreement didn't provide Ms. Upchurch
with a unilateral right to pursue her Indiana claims through
litigation Cabsent an appeal of the final Commission
decision, see Ind. Code. ' 22-9-8-1, or through a written
agreement between the parties. See McCullough v.
Mister "P" Express, Inc., 2015 U.S. Dist.
LEXIS 11703, at *11 (citing Nieman v. Nationwide Mut.
Ins. Co., 706 F.Supp.2d 897, 915-16 (C.D. Ill. 2010))
(internal citations and quotation marks omitted); see also
Vanderploeg v. Franklin Fire Dep't, 2000 U.S.
Dist. LEXIS 6403, at *8-9 (S.D. Ind. Apr. 5, 2000)
(“The administrative process of the Indiana Civil
Rights Law can be bypassed, but only in one narrow
circumstance: if both the party making the complaint and the
party responding to it agree in writing to have the matter
decided in a court of law. Otherwise, there is no private
right of action.”).
Upchurch hasn't presented evidence of a written agreement
with the defendants to proceed with her Indiana civil rights
claims in a court of law; nor does she allege that the
Indiana Civil Rights Commission reviewed any of her claims.
The court must dismiss all of Ms. Upchurch's claims under
the Indiana civil rights laws.
the defendants say that Ms. Upchurch failed to state a claim
under 42 U.S.C. § 1981(a), because that statute
doesn't authorize a claim for sex discrimination. Ms.
Upchurch points to Taylor v. National Group of Companies,
Inc., 872 F.Supp. 462 (N.D. Ohio 1994), to establish
that sex discrimination claims are actionable under '
1981. Taylor isn't binding precedent for this court and
runs headlong into the overwhelming weight of authority in
this circuit that addresses this issue. Section 1981
doesn't address claims for sex discrimination; it only
prohibits discrimination based on race or alienage. Lewis
v. Chicago Hous. Auth., 1998 WL 774133, at *3 (N.D. Ill.
Oct. 28, 1998) (quoting Moore v. Allstate Ins. Co.,
928 F.Supp. 744, 752 (N.D. Ill. 1996); citing, inter alia,
Runyon v. McCrary, 427 U.S. 160, 167, (1976);
Movement for Opportunity and Equality v. General Motors
Corp., 622 F.2d 1235, 1278 (7th Cir.1980)) (quotation
marks omitted). Ms. Upchurch's sex discrimination claim
under 42 U.S.C. § 1981 must be dismissed.
defendants next argue that Ms. Upchurch doesn't allege a
valid retaliation claim under either Indiana common law and
Title VII. Ms. Upchurch's complaint didn't provide a
statutory basis for her claim; the defendants assume that Ms.
Upchurch sought to bring her claim under “some theory
of common law wrongful discharge.” Ms. Upchurch clarifies
in her response briefing that she is pursuing a retaliation
claim under Title VII, and says she can "adopt”
her claim into an EEOC complaint. If the pleading is
insufficient, Ms. Upchurch says the defendants should have
sought supplementation instead of an outright dismissal.
plead a Title VII retaliation claim, a plaintiff must allege
(though she needn't use the specific terms) that she
engaged in statutorily protected activity and was subjected
to adverse employment action as a result of that activity.
Huri v. Office of the Chief Judge of the Circuit Court of
Cook Cty., 804 F.3d 826, 833 (7th Cir. 2015) (citing
Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014,
1029 (7th Cir. 2013)). In the retaliation context,
“adverse employment action” simply means an
employer's action that would dissuade a reasonable worker
from participating in protected ...