Browning et al v. GCA Services Group - Document 55
Opinion entered by Judge Michael P. McCuskey on 8/23/2013. The Report and Recommendation 43 is accepted by this court in part and not accepted in part. Defendant's Motion to Dismiss 13 is GRANTED. Defendant's Motion 22 is GRANTED. Defendant's Motion 25 is DENIED. This case is referred to Judge Bernthal for further proceedings. See written opinion. (JMW, ilcd)
Friday, 23 August, 2013 04:04:16 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JENNIFER R. BROWNING and
RONELLA S. LALOG,
GCA SERVICE GROUP,
Case No. 12-CV-2258
On May 29, 2013, Magistrate Judge David G. Bernthal filed a Report and
Recommendation (#43) in the above cause. Judge Bernthal recommended DENYING
Defendant’s Motion to Dismiss (#13) as to Plaintiffs’ Claims of Constructive Discharge in
Counts I & II and GRANTING Defendant’s Motion to Dismiss (#13) as to Counts III and
IV. Judge Bernthal also recommended GRANTING Defendant’s Motion for Leave to File
Reply Brief (#22) and DENYING Defendant’s Motion for Leave to File Supplement to
Motion to Dismiss (#25). On June 6, 2013, Defendant filed its Objections to Report and
Recommendation (#44). Defendant objected to Judge Bernthal’s recommendation that the
Motion to Dismiss Plaintiffs’ Claims of Constructive Discharge in Counts I & II be denied.
Following this court’s careful de novo review, this court agrees with Defendant that Plaintiffs
did not include their claims of constructive discharge in an EEOC charge so that these claims
must be dismissed.
There was no objection to any of Judge Bernthal’s other
recommendations and those recommendations are accepted by this court.
On December 28, 2011, Plaintiff Jennifer R. Browning filed a charge of
discrimination with the Equal Employment Opportunity Commission (EEOC) and the Illinois
Department of Human Rights (IDHR). The charge of discrimination named Defendant, GCA
Service Group, as Respondent and stated:
I was hired by Respondent on or about January 11, 2011.
My most recent position is Housekeeper.
employment I have been subjected to different terms and
conditions of employment, including, but not limited to, being
told to speak English only and threatened with discipline, where
as similarly situated non-Filipinos have not.
I believe I have been discriminated against because of my
national origin, Filipino, in violation of Title VII of the Civil
Rights Act of 1964, as amended.
The charge listed the latest date of discrimination as December 8, 2011, and the box for
“continuing action” was not checked.
On January 9, 2012, Plaintiff Ronella S. Lalog filed a charge of discrimination with
the EEOC and the IDHR. The charge of discrimination stated:
I began my employment with Respondent on or around
April 14, 2010. I am employed as a Housekeeper. During my
employment, I was informed by Respondent that I could not
speak my native language.
I believe I have been discriminated against because of my
national origin, Filipino, in violation of Title VII of the Civil
Rights Act of 1964, as amended.
The charge listed the latest date of discrimination as November 28, 2011, and the box for
“continuing action” was not checked. On June 8, 2012, Lalog filed a second charge of
discrimination with the IDHR. Lalog stated that she was discriminated against on the basis
of her national origin and stated that, on November 28, 2011, “Respondent imposed a
restriction on the use of my native language.” Lalog stated that this was a violation of the
Illinois Human Rights Act. The documentation provided by Plaintiffs shows that Lalog’s
June 8, 2012, charge of discrimination was cross-filed with the EEOC.1
On September 21, 2012, the EEOC issued a Notice of Right to Sue to both Browning
and Lalog. The charge referenced in Lalog’s Notice of Right to Sue was her initial charge
filed on January 9, 2012.
On October 2, 2012, Plaintiffs filed their Complaint (#1) in this court. Plaintiffs
alleged that, on November 28, 2011, Browning’s supervisor, Tracy Mashburn, instructed
Browning to refrain from speaking her native language at all times while at work, including
break periods and when speaking with other Filipino employees. Plaintiffs alleged that, on
As pointed out by Defendant, this is consistent with case law which has recognized
that, due to the work sharing agreement between the EEOC and the IDHR, “a Charge filed with
the IDHR is considered filed with the EEOC.” Crawford v. Bank of Am., 986 F. Supp. 506, 508
n. 3 (N.D. Ill. 1997), citing 29 C.F.R. § 1601.74(a); see also Sofferin v. Am. Airlines, Inc., 923
F.2d 552, 554 (7th Cir. 1991).
December 1, 2011, Defendant’s manager Deborah Pate informed Browning she must refrain
from speaking her native language and must speak only English at all times while at work.
On December 2, 2011, Pate instructed Browning and all other housekeeping workers to speak
English at all times. On December 8, 2011, Mashburn warned Browning that she would be
fired if she continued to speak her native language while on the premises at work. Regarding
Lalog, Plaintiffs alleged that, on November 28, 2011, Pate informed Lalog and other
housekeeping workers that they had to speak only English at all times while at work,
including break periods and when speaking to other Filipino employees. Plaintiffs alleged
that they felt like second-class employees and lived under fear of disciplinary action, “to
include discharge, for speaking in [their] native language, and experienced a hostile work
environment due to the prohibition on speaking in [their] native language and the
requirement to speak only English while at work.”
Plaintiffs alleged that, on March 2, 2012, Lalog “suffered a constructive discharge”
and, on March 9, 2012, Browning “suffered a constructive discharge.” Each Plaintiff alleged
that she resigned from her employment with Defendant “due to the increasing pressure from
her employer to refrain from speaking in her native language and only speak in English while
In Count I of the Complaint, Browning brought Title VII claims of disparate
treatment, hostile work environment and constructive discharge on the basis of national
origin. In Count II, Lalog brought Title VII claims of disparate treatment, hostile work
environment and constructive discharge on the basis of national origin. Plaintiffs sought
injunctive relief, compensatory relief, including lost earnings, and punitive damages. In
Counts III and IV, Plaintiffs brought state law claims of intentional infliction of emotional
On January 22, 2013, Defendant filed a Motion to Dismiss (#13) and Brief in Support
(#14). Defendant argued that Plaintiffs’ constructive discharge claims must be dismissed or
stricken because Plaintiffs failed to include them in their EEOC charges. Defendant also
argued that Plaintiffs’ demand for lost wages should also be dismissed or stricken. On
February 8, 2013, Plaintiffs filed their Response to Motion to Dismiss (#21), with attached
exhibits. Plaintiffs conceded that their IIED claims must be dismissed. Plaintiffs argued,
however, that their constructive discharge claims should not be dismissed because the
information they provided to the EEOC and the IDHR was “reasonably related” to their
claims of constructive discharge. Plaintiff argued that the allegations of constructive
discharge were sufficiently related to the charges listed in the EEOC charges “and grew out
of the discriminatory English-only rule.” Plaintiffs also argued that the fact that they did not
check “continuing action” on the charge forms should not be held against them because they
are laypersons and no explanation of the meaning of “continuing action” was provided to
On February 11, 2013, Defendant filed a Motion for Leave to File Brief Reply (#22).
In its attached proposed Reply Brief, Defendant argued that Plaintiffs’ argument that their
constructive discharge claims were related to their charge alleging disparate treatment was
“flawed and ignores the controlling law and circumstances in this case.” On February 28,
2013, Plaintiffs filed a Response to Defendant’s Motion for Leave to File Brief Reply (#26)
and included a Sur-Reply Memorandum. Plaintiffs argued that the crux of the issue is
“whether the claim of constructive discharge is reasonably related to and growing out of
[their] claim of discrimination based on National Origin due to the English-only rule.”
Plaintiffs argued that “the English-only rule is conduct which caused the discrimination, the
hostile work environment, and the eventual resignation of [Plaintiffs]; and Pate and
Mashburn are the same individuals stating the policy, causing the discrimination, causing the
hostile work environment, and thus, causing [Plaintiffs] to resign.”2
On May 29, 2013, Judge Bernthal entered his Report and Recommendation (#43).
Judge Bernthal recommended denying Defendant’s Motion to Dismiss as to Plaintiffs’ claims
of constructive discharge.
Judge Bernthal concluded that “[t]he same allegedly
discriminatory conduct—Defendant’s prohibition on speaking languages other than
English—is the basis for Plaintiffs’ EEOC charges and their constructive discharge claims,
in which they assert that the stress and pressure associated with complying with Defendant’s
English-only rule led them to resign.” Judge Bernthal also concluded that Lalog’s June 2012
discrimination charge, filed after she resigned from her employment with Defendant, was not
relevant to the inquiry because, in the charge, Lalog alleged a violation of the Illinois Human
Judge Bernthal recommended granting Defendant’s Motion for Leave to File Brief
Reply (#22) and considered Defendant’s Reply and Plaintiffs’ Sur-Reply. No one has objected
to this recommendation, and this court has also considered the Reply and Sur-Reply. Judge
Bernthal also recommended denying Defendant’s Motion for Leave to File Supplement to
Motion to Dismiss (#25). No one has objected to this recommendation, and this court has not
considered the argument Defendant included in this Motion.
Rights Act, a claim she did not raise in her Complaint in this court. Judge Bernthal
concluded that Plaintiffs’ earlier charges were the operative charges for their Title VII
On June 6, 2013, Defendant filed its Objections to Report and Recommendation (#44).
Defendant pointed out that Plaintiffs’ discrimination charges with the EEOC did not mention
“constructive discharge” and did not state that their working conditions were intolerable.
Defendant also argued that Lalog’s June 2012 discrimination charge filed with the IDHR
“did not mention that she had ended her employment, much less that she ended her
employment because of any alleged intolerable working conditions.” Defendant argued that,
because this charge was cross-filed with the EEOC, it is proper to consider the charge for
purposes of determining whether Lalog exhausted her administrative remedies.
A federal employment discrimination plaintiff generally is limited to pursuing the
claims she made before the EEOC. Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009), citing
Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994); see also Wallace v.
Heartland Cmty. Coll., 2012 WL 1066884, at *3 (C.D. Ill. 2012). “The purpose of this
requirement is two-fold: to promote resolution of the dispute by settlement or conciliation
and to ensure that the sued employers receive adequate notice of the charges against them.”
Teal, 559 F.3d at 691. However, in addition to those claims which were included in a
discrimination charge with the EEOC, Title VII plaintiffs may also litigate claims which are
“like or reasonably related to the allegations of the [administrative] charge and growing out
of such allegations.” Teal, 559 F.3d at 691-92, quoting Jenkins v. Blue Cross Mut. Hosp.
Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976). In order for claims to be deemed related, “the
EEOC charge and the complaint must, at a minimum, describe the same conduct and
implicate the same individuals.” Cheek, 31 F.3d at 501 (emphasis in original); see also
Moore v. Vital Prods., Inc., 641 F.3d 253, 257 (7th Cir. 2011). This standard is a liberal one
and “is satisfied if there is a reasonable relationship between the allegations in the charge and
those in the complaint, and the claim in the complaint could reasonably be expected to be
discovered in the course of the EEOC’s investigation.” Teal, 559 F.3d at 692.
Constructive discharge occurs when a plaintiff shows that she was forced to resign
because her working conditions, from the standpoint of the reasonable employee, had
become unbearable. See Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010).
The Seventh Circuit recognizes two forms of constructive discharge, both of which require
a showing that the work environment had become intolerable. Chapin, 621 F.3d at 679. The
first form is based on harassment and requires a plaintiff “to show working conditions even
more egregious than that required for a hostile work environment claim.” Chapin, 621 F.3d
at 679. The second form occurs “[w]hen an employer acts in a manner so as to have
communicated to a reasonable employee that she will be terminated.” Chapin, 621 F.3d at
679, quoting EEOC v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th Cir. 2002). This form
of constructive discharge requires a showing that a firing was “an imminent and inevitable
event.” Chapin, 621 F.3d at 680, citing Univ. of Chicago Hosps., 267 F.3d at 332. A
constructive discharge cannot be shown because “a prospect of discharge lurks in the
background.” Chapin, 267 F.3d at 679, quoting Cigan v. Chippewa Falls Sch. Dist., 388
F.3d 331, 333 (7th Cir. 2004).
In this case, it is undisputed that Plaintiffs’ initial charges with the EEOC did not
include claims of constructive discharge. In fact, constructive discharge could not possibly
have been included in the EEOC charges filed in December 2011 and January 2012 because
Plaintiffs did not resign until March 2012. See Jacober v. United States Dep’t of Agriculture
Agency, 2012 WL 4088781, at *18 (S.D. Ill. 2012). This court concludes that Plaintiffs’
constructive discharge claims cannot be considered reasonably related to the claims included
in their EEOC charges which complained of Defendant’s “English only” policy. This court
agrees with the reasoning of Senior United States District Judge Joe Billy McDade in
deciding a case which raised a similar issue. In Wallace, Judge McDade stated that “[t]hough
it may be arguable that because Plaintiff alleges the same problems cited in the charge to
have caused the later constructive discharge they are ‘reasonably related,’ it would not be
reasonable to expect the agency to discover the May 2008 constructive discharge claim in
the course of investigating the alleged discrimination.” Wallace, 2012 WL 1066884, at *3.
This court concludes, as well, that Plaintiffs’ claims that they were subjected to
discrimination by Defendant’s “English only” policy could not reasonably be expected to
lead to an investigation of Plaintiffs’ constructive discharge claims. As noted previously,
constructive discharge requires a showing of an egregious hostile work environment or
imminent termination of employment. See Chapin, 621 F.3d at 679-80. This court therefore
agrees with Defendant that a claim of discrimination or harassment does not involve the same
conduct as a claim of constructive discharge and does not put an employer on notice that the
employee is making a claim of constructive discharge.3
In fact, numerous courts have concluded that plaintiffs could not proceed with
constructive discharge claims under Title VII where the claim was not included in an EEOC
charge. See Herron v. DaimlerChrysler Corp., 388 F.3d 293, 303 n.2 (7th Cir. 2004)
(“Herron’s EEOC charges in February and April 2000 described racial discrimination,
retaliation, and harassment, not constructive discharge[,]” so he could not “proceed under
Title VII on a constructive discharge claim.”); Smith v. Rosebud Farmstand, 909 F. Supp.
2d 1001, 1007 (N.D. Ill. 2012) (constructive discharge claim not “like or reasonably related
to those contained in the [EEOC] charge”); Jacober, 2012 WL 4088781, at *17-18 (S.D. Ill.
2012) (the plaintiff could not proceed on constructive discharge claim which was not
reasonably related to EEOC claims and occurred after the EEOC charges were filed);
Wallace, 2012 WL 1066884, at *4 (allowing the plaintiff to proceed with a constructive
discharge claim would “undermine the notice and conciliation purposes of the exhaustion
requirement”); Powell v. Safer Found., 2010 WL 4481780, at *3 (N.D. Ill. 2010) (EEOC
charges were not broad enough to encompass a constructive discharge claim where the
charges preceded the plaintiff’s resignation); Dixon v. Americall Group, Inc., 390 F. Supp.
2d 788, 791-92 (C.D. Ill. 2005) (finding that claims relating to constructive discharge were
This court notes that it agrees with Plaintiffs and Judge Bernthal that the fact that
Plaintiffs did not check “continuing action” in their charges of discrimination has no real bearing
on the issue before this court. The factual information provided in a charge is “[m]ore
significant” than “technical defect[s].” Smith v. Rosebud Farmstand, 909 F. Supp. 2d 1001,
1004 (N.D. Ill. 2012), quoting Cable v. Ivy Tech State Coll., 200 F.3d 467, 477 (7th Cir. 1999),
overruled on other grounds in Hill v. Tangherlini, ___ F. 3d ___, 2013 WL 3942935 (7th Cir.
2013). Therefore, this court does not rest its decision “on an omitted check mark.” See Ajayi v.
Aramark Bus. Servs., Inc., 336 F.3d 520, 527-28 (7th Cir. 2003); Smith, 909 F. Supp. 2d at 1004.
beyond the scope of the EEOC charge, noting that the Seventh Circuit held in Herron that
“when a plaintiff’s EEOC charge alleges discrimination, but does not state that his decision
to stop working is based on that discrimination, the charge does not support a constructive
discharge claim”); Winters v. Prudential-Bache Sec., Inc., 608 F. Supp. 751, 754 (N.D. Ill.
1984) (constructive discharge allegations exceeded the scope of the plaintiff’s filings with
the EEOC); see also Casella v. MBNA Marketing Sys. Inc., 2009 WL 1621411, at * (D. Me.
2009) (“the majority of the courts that have squarely addressed a similar dispute soundly
support the defendants’ argument that Casella did not exhaust her constructive discharge
claim,” relying on lengthy list of cases including Herron and Dixon).
This court does not agree with the Report and Recommendation that the Seventh
Circuit’s decision in Herron is distinguishable from this case. This court concludes that the
fact that the plaintiff in Herron claimed that the constructive discharge occurred four months
after the filing of the original EEOC charge and Plaintiffs here claim that their constructive
discharge occurred around two months after the initial EEOC charges makes little practical
difference. This court further concludes that the reliance in the Report and Recommendation
on Howard v. Burlington Air Express Inc., 1994 WL 722061 (N.D. Ill. 1994) is not
persuasive. The district court in Howard concluded that the plaintiff’s EEOC claim of
retaliation “sufficiently encompasse[d]” his constructive discharge claim. Howard, 1994 WL
722061, at *3. However, the district court provided little reasoning in support of this
conclusion and, more importantly, Howard was decided before the Seventh Circuit’s decision
in Herron and is contradicted by the decision in Herron. See Wallace, 2012 WL 1066884,
at *5 (noting that the “Howard court did not engage in an extensive analysis of the
This court’s conclusion is bolstered in Lalog’s case because Lalog did not include a
constructive discharge claim in her charge of discrimination filed in June 2012, even though
she now claims she was constructively discharged in March 2012. This court concludes that
there is no support for a finding that Lalog’s second charge, which was cross-filed with the
EEOC, is not relevant to the issue before this court. In the charge, Lalog claimed that she
was discriminated against on the basis of her national origin because Defendant “imposed
a restriction on the use of my native language.” Lalog did not mention the March 2012
termination of her employment in the charge. This court therefore concludes that Lalog “did
not put the EEOC or [her] employer on notice concerning [her] purported constructive
discharge because [s]he did not mention it in even the vaguest terms in [her] charge.” Dixon,
390 F. Supp. 2d at 792; cf. Flower v. City of Chicago, 850 F. Supp. 2d 941, 946 (N.D. Ill.
2012) (the plaintiff provided sufficient notice of her constructive discharge claim where she
filed her EEOC charge after she resigned and included the fact that she had resigned after
being told that she had to work with the person she alleged had sexually harassed her).
For all of the reasons stated, this court agrees with Defendant that Plaintiffs’
constructive discharge claims must be dismissed.
IT IS THEREFORE ORDERED THAT:
(1) The Report and Recommendation (#43) is accepted by this court, in part, and not
accepted, in part.
(2) Defendant’s Motion to Dismiss Plaintiffs’ Claims of Constructive Discharge in
Counts I & II and Plaintiffs’ Claims of Intentional Infliction of Emotional Distress in Counts
III & IV (#13) is GRANTED. Plaintiffs’ claims of constructive discharge in Counts I and
II of Plaintiffs’ Complaint (#1) are dismissed because they were not included in Plaintiffs’
charges filed with the EEOC. Accordingly, Plaintiffs’ requests for relief for lost earnings are
also dismissed. Counts III and IV of Plaintiffs’ Complaint (#1) are dismissed as well.
(3) Defendant’s Motion for Leave to File Brief Reply (#22) is GRANTED.
(4) Defendant’s Motion for Leave to File Supplement to Motion to Dismiss (#25) is
(5) This case is referred to Judge Bernthal for further proceedings.
ENTERED this 23rd day of August, 2013.
s/MICHAEL P. McCUSKEY
U.S. DISTRICT JUDGE