Tubbs v. Chicago Transit Authority

• Court: District Court, N.D. Illinois
• Decided: March 29, 2021
• Docket: 1:20-cv-00695
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

INDIA TUBBS, ) ) Plaintiff, ) No. 1:20-CV-00695 ) v. ) ) Judge Edmond E. Chang ) CHICAGO TRANSIT AUTHORITY, ) Magistrate Judge Jeffrey Cummings ) Defendant. )

MEMORANDUM OPINION AND ORDER India Tubbs brings this employment discrimination suit against her employer, the Chicago Transit Authority (which is well known by its acronym, CTA). R. 22, Am. Compl. ¶¶ 3–4.1 In the Amended Complaint, Tubbs alleges that she experienced har- assment and discrimination based on her sex. The CTA moves to dismiss all claims. For the reasons set forth in this Opinion, the CTA’s motion to dismiss is granted, though for now without prejudice. Tubbs may propose a second amended complaint. I. Background For purposes of this motion, the Court accepts as true the factual allegations in the Amended Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). On November 13, 2019, Tubbs was on duty working as a Bus Operator for CTA. Am. Compl. ¶ 7. During this work shift, she unexpectedly found herself alone with a male coworker inside of a CTA bus. Am. Compl. ¶ 11. The coworker made sexual comments to Tubbs

1This Court has subject matter jurisdiction over the federal claims in this case under 28 U.S.C. § 1331. and grabbed her below the waist within around two inches of her genitalia. Id. ¶¶ 8– 9. Before this incident, Tubbs had no personal relationship with the male coworker. Id. ¶ 10. His actions were uninvited and unwelcome. Id.

That same day, in compliance with the CTA’s complaint procedures, Tubbs complained in writing to her managers. Am. Compl. ¶ 14. Tubbs’s written complaint “described the incident as a ‘sexual assault,’” and identified the coworker by name. Id. ¶ 15. The complaint also included the time, date, and location of the misconduct. Id. According to Tubbs, her managers “did not take [her complaint] seriously.” Am. Compl. ¶ 16. This disregard happened even though the managers obtained a video

recording of the incident and reviewed it themselves, confirming to them that the incident had occurred. Id. ¶¶ 17–18. The managers did not, however, initiate an in- vestigation or notify the CTA’s Equal Employment Opportunity Unit of the assault. Id. ¶ 18. Upon viewing the recorded incident, at least one of Tubbs’s managers mini- mized the severity of it and joked about Tubbs’s reaction to being grabbed “in an in- timate area of her body by her male coworker.” Id. The managers did not provide a

written response to her complaint. Id. They also lied to Tubbs, assuring her that they would appropriately respond to the situation by following all necessary policies and by disciplining the male coworker. Id. ¶ 20. In reality, the managers did not discipline the coworker, nor did they attempt to isolate him to ensure Tubbs would not encoun- ter him in the workplace again. Id. ¶¶ 19–20. Indeed, after Tubbs submitted her com- plaint to her managers, she often saw the coworker in the workplace. Id. ¶ 19. Tubbs repeatedly followed up with her managers about the status of her com- plaint, and she alleges that “it became clear they were not going to do anything about her complaint.” Am. Compl. ¶ 21. Tubbs feared that she would face retaliation from

the coworker because of her managers’ failure to respond to her complaint. Id. ¶¶ 22– 23. In fact, Tubbs was approached by other coworkers who—although they should not have known about her complaint—criticized her for making the complaint and ques- tioned the veracity of it. Id. ¶ 23. Because of the assault and the lack of response by her managers, Tubbs experienced severe emotional distress, including depression and anxiety attacks. Id. ¶ 24. This emotional distress interfered with Tubbs’s work performance, and she eventually took around two months’ leave from work after an

evaluation by a mental health professional. Id. ¶ 25. The CTA disciplined Tubbs for missing work and refused to compensate her for the wages that she lost as a result of missed work. Am. Compl. ¶ 25. In December 2019, Tubbs filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Am. Compl. ¶ 27. After exhausting administrative remedies, Id. ¶ 3, she filed this lawsuit, R. 1, Compl., and eventually filed the Amended Com-

plaint, which is now the operative pleading targeted by the CTA’s dismissal motion. II. Standard of Review Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the de- fendant fair notice of what the … claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (internal quo- tation marks and citation omitted). The Seventh Circuit has explained that this rule “reflects a liberal notice pleading regime, which is intended to ‘focus litigation on the

merits of a claim’ rather than on technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). “A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). These allegations “must be enough to raise a right to relief above the specu- lative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to the as- sumption of truth are those that are factual, rather than mere legal conclusions. Iq- bal, 556 U.S. at 678–79. III. Analysis

A. Title VII Although the Amended Complaint labels the claims under one “Count I” head- ing, the pleading does set forth two distinct claims—one for sexual harassment and the other for sex discrimination. Am. Compl. ¶ 37. Tubbs alleges that she was sub- jected to harassment by her coworkers and supervisors, and also that she was dis- criminated against on the basis of her sex. Id. ¶¶ 31–37. The CTA moves to dismiss these claims. R. 24, Def.’s Mot. Dismiss at 1. The Court addresses the Defendant’s arguments in turn. 1. Harassment

First, in targeting the harassment claim, the CTA argues that Tubbs has not adequately pled the severity and pervasiveness required for a hostile work environ- ment claim. Def.’s Mot. Dismiss at 6–8. To adequately state a Title VII hostile work environment claim, a plaintiff must allege that (1) she was subjected to unwelcome conduct; (2) the conduct was based on membership in a protected class; (3) the conduct was severe or pervasive so as to alter the conditions of employment and create a hos- tile or abusive working environment; and (4) that there is a basis for employer liabil-

ity. EEOC v. Costco Wholesale Corp., 903 F.3d 618, 625 (7th Cir. 2018). The CTA takes issue with the third element, namely, that Tubbs’s allegations of sexual har- assment are vague and insufficient given that the coworker’s physical assault of Tubbs was an isolated incident. Def.’s Mot. Dismiss at 6–7. But the third element “is in the disjunctive—the conduct must be either severe or pervasive.” Vance v. Ball State Univ., 646 F.3d 461, 469 (7th Cir. 2011) (emphasis in original). As Tubbs cor-

rectly argues, “harassment need not be both severe and pervasive—one extremely serious act of harassment could rise to an actionable level as could a series of less severe acts.” Haugerud v. Amery Sch. Dist., 259 F.3d 678, 693 (7th Cir. 2001). So a one-time instance of harassment indeed may satisfy the severe-or-pervasive require- ment. Here, Tubbs’s allegations of the physical assault by the coworker satisfy, at the pleading stage, the requirement that the harassment be sufficiently severe. But the CTA identifies another problem with the harassment claim: Tubbs has not adequately pled facts that would establish employer liability for the assault by the coworker. To plead an actionable harassment claim against the CTA, Tubbs is

required to allege a basis for employer liability, because the assault was perpetrated by a coworker, not a supervisor. See Vance, 646 F.3d at 469 (explaining that the “ques- tion whether there is a basis for employer liability depends on whether the alleged harassment was perpetrated by supervisors or coworkers.”). Employers are “strictly liable” for harassment inflicted by supervisors, but if the purported harasser was merely a coworker, then the plaintiff must adequately allege that the employer has “been negligent either in discovering or remedying the harassment.” Id. at 469–70.

Here, the Amended Complaint does not do that. It is true that, generally speak- ing, in “Title VII cases, the complaint merely needs to give the defendant sufficient notice to enable him to begin to investigate and prepare a defense.” Luevano v. Wal- Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013); see also Carlson v. CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014) (explaining that “[e]mployers are fa- miliar with discrimination claims and know how to investigate them, so little infor-

mation is required to put the employer on notice of these claims.”). But here the cur- rent allegations do not, as a matter of law, set forth a valid basis to hold the CTA liable for the coworkers’ harassment. That is because the allegations do not address what the CTA did (or failed to do) before the alleged harassment happened. And, going forward in time after the incident, the allegations do not spell out with concrete facts what harassment Tubbs suffered after the managers bungled the response. Given that leave to amend should be granted freely when justice requires, Fed. R. Civ. P. 15(a)(2), the Court will give Tubbs one more chance to amend the complaint. She might be able to fix the harassment claim in a few ways. For one, if the facts

allow, Tubbs might allege, with concrete facts, that her managers were on notice of a potential sexual assault before it happened. More likely is a fix to the allegations about the work environment after the managers received her complaint—and disclosed it to her coworkers (at least that is the plausible inference). If the coworkers’ mistreatment of Tubbs after the making of the complaint was sufficiently severe or pervasive, then their post-complaint miscon- duct could qualify as a hostile work environment, independent of the assault commit-

ted by the male coworker. The current allegations, Am. Compl. ¶¶ 22–23, however, are too thin. In assessing whether misconduct is sufficiently severe or pervasive, courts look to factors like the severity of the conduct, “its frequency, whether it was physically threatening or humiliating or merely offensive, and whether it unreason- ably interfered with the employee’s work performance.” Passananti v. Cook Cty., 689 F.3d 655, 667 (7th Cir. 2012). Tubbs will need to plead facts (not just conclusions)

about what the coworkers did to her after the disclosure of the complaint, as well as (if the facts allow) what happened during the encounters with the original assailant after the managers failed to isolate him from Tubbs. And then, going beyond severity or pervasiveness of the post-complaint misconduct, Tubbs must also allege a basis for employer liability. It might very well be sufficient to allege that the managers caused the post-complaint misconduct by disclosing it to coworkers and disparaging the complaint to them (again, the reaction of the coworkers gives rise to a reasonable inference that the managers denigrated Tubbs’s complaint when disclosing it to her coworkers).

In sum, the Amended Complaint does not adequately state a hostile work en- vironment claim, so the claim is dismissed, but without prejudice for now. 2. Discrimination Next, the CTA argues that the sex discrimination claim should be dismissed because Tubbs has not alleged facts amounting to an adverse employment action. Def.’s Mot. Dismiss at 3–4. The Court agrees that, as currently pled, there is no qual- ifying adverse employment action in the Amended Complaint. To survive a motion to

dismiss in a sex discrimination case, a plaintiff need only allege that “the employer instituted a (specified) adverse employment action against the plaintiff on the basis of her sex.” Carlson, 758 F.3d at 827; see also Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir. 2011); Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). To be actionable, an “adverse employment action must materially alter the terms and conditions of employment.” Stutler v. Illinois Dep’t of Corr., 263 F.3d 698, 703 (7th

Cir. 2001); see also Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir. 2012). An adverse action must be “more than a mere inconvenience or an alteration of job re- sponsibilities.” de la Rama v. Illinois Dep’t of Human Servs., 541 F.3d 681, 685 (7th Cir. 2008) (cleaned up).2

2CTA also argues that Tubbs has waived any argument against dismissing the sex discrimination claim because she fails to address how the CTA’s conduct is connected to her sex. R. 28, Def.’s Reply at 4. Because the two possible adverse employment actions that Tubbs alleges—the managers’ failure to meaningfully respond to the complaint and her two-month Common examples of adverse employment actions are “economic injuries such as dismissal, suspension, failure to promote, or diminution in pay.” Markel v. Bd. of Regents of Univ. of Wisconsin Sys., 276 F.3d 906, 911 (7th Cir. 2002); Burlington In-

dus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998) (“A tangible employment action in most cases inflicts direct economic harm.”). Adverse employment actions may include “cases of harassment—mistreatment of an employee by coworkers or supervisors that is sufficiently severe to worsen substantially his conditions of employment” as per- ceived by a reasonable person. Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 745 (7th Cir. 2002). Also, a constructive discharge constitutes an adverse employment action. Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010) (citing Pa.

State Police v. Suders, 542 U.S. 129, 147 (2004)). As the Seventh Circuit has ex- plained, “constructive discharge occurs when an employer makes an employee’s work- ing conditions so intolerable that an employee is forced into involuntarily resigna- tion.” Roby v. CWI, Inc., 579 F.3d 779, 785 (7th Cir. 2009). Tubbs has pled two related actions that might reasonably be characterized as candidates for the requisite tangible employment action: (1) the managers’ failure to

meaningfully respond to her complaint or investigate it; and (2) her two-month un- paid leave. Am. Compl. ¶¶ 18–21, 25. To buttress her claim of the managers’ ineffec- tual investigation, Tubbs first alleges that they failed to notify the CTA’s Equal Em- ployment Opportunity Unit of the assault, despite having reviewed the video record- ing and assuring her that they would properly respond to her complaint. Id. ¶ 18.

unpaid leave—arise from the sexual assault by her coworker, that is sufficient to link Tubbs’s discrimination claim to her sex at the pleading stage. Second, Tubbs alleges that the managers failed to isolate the coworker who assaulted her and, as a result, she repeatedly saw him in the workplace. Id. ¶ 19. Third, she alleges her managers leaked the complaint to her coworkers, who then criticized her

and questioned the veracity of her complaint. Id. ¶ 23. As a result of the emotional distress that Tubbs experienced from the failure to investigate and the coworkers’ harassment after the managers disclosed the complaint, Tubbs alleges that she was forced to take a two-month leave from work. Id. ¶ 25. Although the alleged failure of managers to meaningfully respond to the com- plaint is troubling, this failure in and of itself does not rise to the level of an adverse employment action. The Seventh Circuit has not addressed whether an employer’s

failure to investigate constitutes, by itself, an adverse action for a Title VII discrimi- nation claim. But two other circuits have (albeit in the context of retaliation claims, for which there is a lower bar), and they held that an employer’s failure to investigate a complaint does not constitute an adverse action. These courts reason that “a fail- ure to investigate a complaint, unless it leads to demonstrable harm, leaves an em- ployee no worse off than before the complaint was filed.” Daniels v. United Parcel

Serv., Inc., 701 F.3d 620, 640 (10th Cir. 2012); Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010). Whether that is a correct legal principle in the abstract need not be decided right now, because Tubbs has not adequately alleged that the CTA’s failure to investigate the complaint materially changed the terms and conditions of her employment. Stutler, 263 F.3d at 703. In a second amended com- plaint (if she files one), Tubbs should plead concrete facts about how the managers’ failure to investigate and the leaking of her complaint led to mistreatment by cowork- ers (and, if applicable, by managers) that was “sufficiently severe to worsen substan- tially [her] conditions of employment.” Herrnreiter, 315 F.3d at 745.

On whether the two-month leave qualifies as an adverse employment action, Tubbs has not alleged sufficient facts to make the leave material. See Stutler, 263 F.3d at 703. In constructive discharge cases, the employee must allege “a more egre- gious situation than a hostile work environment because an employee is normally expected to continue working while seeking redress.” Roby, 579 F.3d at 785; Boume- hdi v. Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir. 2007). In short, the em- ployee must allege that “her working conditions were so objectively intolerable that

they forced a change in employment status.” Costco Wholesale Corp., 903 F.3d at 629. Because Tubbs has not sufficiently pled a hostile work environment (as discussed earlier), she by definition has not met the higher standard for constructive discharge. Again, the dismissal of this claim is without prejudice to filing a second amended complaint. IV. Conclusion

The CTA’s motion to dismiss the claims for hostile work environment and for sex discrimination is granted. But Tubbs may file a second amended complaint by April 16, 2021. If she does not, then the dismissal will automatically convert into a dismissal with prejudice. If she does, then the answer (or Rule 12 motion) is due by May 7, 2021. The tracking status hearing of April 9, 2021, is reset to April 23, 2021, at 8:30 a.m., but to track the case only (no appearance is required). ENTERED:

s/Edmond E. Chang Honorable Edmond E. Chang United States District Judge

DATE: March 29, 2021