Bazewick v. Chao

174 F. Supp. 2d 778, 2001 U.S. Dist. LEXIS 5392, 2001 WL 467930
CourtDistrict Court, N.D. Illinois
DecidedApril 30, 2001
Docket00 C 5726
StatusPublished

This text of 174 F. Supp. 2d 778 (Bazewick v. Chao) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bazewick v. Chao, 174 F. Supp. 2d 778, 2001 U.S. Dist. LEXIS 5392, 2001 WL 467930 (N.D. Ill. 2001).

Opinion

MEMORANDUM OPINION AND ORDER

NORDBERG, Senior District Judge.

Before the court is a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the motion is denied.

BACKGROUND

Plaintiff John C. Bazewick has filed a nine-page, five-count complaint alleging sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and disability discrimination under the Rehabilitation Act. He states that he has worked since 1987 as a Safety and Health Clerk in the Des Plaines, Illinois office of the Occupational Safety and Health Administration (“OSHA”). He alleges that he was the victim of sex discrimination when his two female supervisors treated him differently from a similarly situated female co-worker. See Counts I-III. Plaintiff also alleges that the defendant did not accommodate his disability, which was hypertension. See Count IV. Finally, plaintiff alleges that, after he filed an EEOC discrimination claim, the defendant retaliated against him by placing a unjustified reprimand memorandum in his personnel file. See Count V.

DISCUSSION

In considering a motion to dismiss pursuant to Rule 12(b)(6), we must take as true all factual allegations in the complaint and must draw all reasonable inferences in favor of the plaintiff. Slaney v. The Int’l Amateur Athletic Fed., 244 F.3d 580, 596-97 (7th Cir.2001). We will only dismiss a complaint if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Id.

In considering a motion to dismiss, it is helpful to keep in mind the points made by the Seventh Circuit in Bennett v. Schmidt, 153 F.3d 516 (7th Cir.1998). In Bennett, the Seventh Circuit rejected the district court’s dismissal of an employment discrimination claim based on Rule 12(b)(6). In doing so, the court emphasized that a complaint should be viewed as just a “starting point” point and that, under the notice pleading rules of federal courts, a complaint need not include all the evidence that would be needed to prevail at trial. Id. at 518. Nor must a complaint “plead law or match facts to every element of a legal theory.” Id. In fact, the Seventh Circuit noted that the single sentence “I was turned down for a job because of my race” is enough to defeat a motion to dismiss under Rule 12(b)(6). Id. “Instead of lavishing attention on the complaint until the plaintiff gets it just right, a district court should keep the case moving.” Id. Moreover, “[ljitigants are entitled to discovery before being put to their proof’ Id. at 519. At the same time, even though a plaintiff is not required to plead all of the underlying facts supporting his claim, he may plead himself “out of court by alleging facts that establish defendants’ entitlement to prevail.” Id.

We begin by considering Count III, which is clearly sufficient to withstand a motion to dismiss under Rule 12(b)(6). Plaintiff alleges that, even though he was qualified for a job vacancy in his department, his two female supervisors refused to promote him to that position and instead promoted a similarly situated but *780 less qualified female co-worker. See Cmplt. ¶¶ 21-26. 2 Defendant’s only argument for dismissal is the assertion that the female co-worker did not have the same supervisor and therefore was not similarly situated. We find nothing in the complaint that supports this contention. In fact, plaintiff has clearly alleged that the coworker “held the same position as” he did. (¶15.)

We now turn to the remaining four counts. They are less adequately plead, and it is a close question as to whether they should be dismissed. Despite some doubt as to the ultimate viability of some of these claims, we will not dismiss them at this stage in the litigation. As noted above, in Bennett, the Seventh Circuit suggested that it is better to “keep the case moving” rather than to try to fine-tune the various counts through dismissal and re-pleading. This is especially true given that we have already concluded that the case will go forward with regard to Count III. The government will get another chance to raise these arguments on a motion for summary judgment where a complete record will flesh out any ambiguities or weaknesses that may exist in plaintiffs case. We note that almost all of the cases cited by the government in support of its current motion to dismiss are summary judgment cases.

With these comments in mind, we will briefly discuss the criticisms directed at each of the four counts. In Count I, plaintiff alleges that his two female supervisors required him to answer the telephone and to seek permission before leaving the work area, but they did not impose such requirements on the similarly situated female co-worker. The government argues that these two actions are no more than “an alteration of job responsibilities,” which are not enough to constitute a materially adverse change in employment. See Crady v. Liberty Nat’l Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir.1993) (“a materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities”); Rabinovitz v. Pena, 89 F.3d 482, 488-89 (7th Cir.1996). To the extent that Count I rests solely on these two job requirements placed on plaintiff, as they are currently described in the complaint, we would conclude that Count I fails to state a claim for relief. However, as noted above, in light. of Bennett, we will not dismiss this count at this time based on the possibility that plaintiff could develop other facts to bolster his claim. 3

In Count II, plaintiff incorporates the specific allegations of Count I but also makes the general allegation that he was subjected to a hostile environment based on conduct that took place “daily for more than seven months.” (Cmplt^ 18.) The government construes Count II as a claim resting solely on the two job requirements described in Count I and then argues those requirements are not pervasive enough to constitute a hostile environment. *781 Even if true, we would not dismiss this count because plaintiff has made a general allegation that he was subjected to a hostile environment. See, e.g., Mata v. Illinois State Police, 2001 WL 292804, *4 (N.D.Ill. March 22, 2001) (“The fact that some of [plaintiffs] allegations may be irrelevant does not mean he fails to state a claim.”).

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174 F. Supp. 2d 778, 2001 U.S. Dist. LEXIS 5392, 2001 WL 467930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bazewick-v-chao-ilnd-2001.