Lavalais v. Vill. of Melrose Park

• Decision Date: 24 October 2013
• Docket Number: No. 13–1200.,13–1200.
• Citation: 734 F.3d 629
• Parties: Kyll LAVALAIS, Plaintiff–Appellant, v. VILLAGE OF MELROSE PARK, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

734 F.3d 629

Kyll LAVALAIS, Plaintiff–Appellant,

v.VILLAGE OF MELROSE PARK, et al., Defendants–Appellees.

No. 13–1200.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 2013.

Decided Oct. 24, 2013.

Christopher C. Cooper, Ph. D., Attorney, Law Office of Christopher Cooper, Inc., Chicago, IL, for Plaintiff–Appellant.

Michael D. Bersani, Attorney, Hervas, Condon & Bersani, Itasca, IL, for Defendants–Appellees.

Before POSNER, TINDER, and HAMILTON, Circuit Judges.

TINDER, Circuit Judge.

Kyll Lavalais, a sergeant with the Village of Melrose Park Police Department, sued his employer, the Village of Melrose Park, and the Chief of Police, Sam Pitassi, under Title VII and 42 U.S.C. § 1983, alleging race discrimination and retaliation. The district court granted the' motion to dismiss for failure to state a claim and Lavalais appealed. For the reasons that follow, we vacate the dismissal of the race discrimination claims, affirm the dismissal of the retaliation claims, and remand.

I. Background

Plaintiff Lavalais is employed by the Village of Melrose Park as a police officer. He is the only black officer in the police department, which has approximately seventy-fiveofficers. He has been employed as a police officer with the Village for more than twenty years. In 2010, Lavalais filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging race discrimination. He filed a second charge in January 2011, alleging that he was disciplined for filing his first EEOC charge and discriminated against because of his race.

In early February 2011, Lavalais was promoted to sergeant and placed on the midnight shift. Over a year later, on April 2, 2012, he requested a change of assignment from the midnight shift, expressing an interest in any supervisory assignment other than the midnight shift. Chief Pitassi denied his request. In July 2012, Lavalais filed a charge of discrimination with the EEOC, alleging that the Village “(and its Police Department leaders)” treated similarly situated officers not in the protected class more favorably “as to policies and re-assignment” and that he had “been placed on the midnight tour indefinitely” because of his race. A month later, the EEOC issued a right-to-sue letter.

Lavalais sued the Village and Chief Pitassi in federal district court alleging employment discrimination based on his race and in retaliation for filing an EEOC charge. The defendants moved to dismiss under Rule 12(b)(6) for failure to state a claim, and Lavalais filed an amended complaint under Title VII and § 1983, alleging race discrimination, retaliation, and violations of the Equal Protection Clause. Count I alleges that Lavalais was passed over for assignment to the day or evening tour, was denied the opportunity to work a tour of duty other than the midnight tour, and was subjected to what is in effect a demotion in violation of Title VII. Lavalais alleges that the defendants overlooked his qualifications and seniority because of his race and in retaliation for his complaints to the EEOC. Count II alleges that in 2010 Lavalais complained to the EEOC that the defendants were discriminating against him because of his race and that in retaliation for his protected speech, the defendants assigned him to midnight duty and constructively stripped him of his authority as a sergeant. Count III alleges a violation of the Equal Protection Clause under § 1983, specifically that Chief Pitassi singled Lavalais out for less favorable treatment because of his race, granting him limited authority as a sergeant, passing over him in favor of a less qualified person for another tour, diminishing his job responsibilities, and retaliating against him. Count IV alleges a municipal liability race discrimination claim against the Village. The defendants moved under Rule 12(b)(6) to dismiss all claims, and the district court granted their motion. Lavalais appealed.

II. Discussion

Lavalais contends that the district court erred in dismissing his complaint. We review de novo a Rule 12(b)(6) dismissal for failure to state a claim. Alam v. Miller Brewing Co., 709 F.3d 662, 665 (7th Cir.2013). A “complaint must contain allegations that ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). We accept all well-pleaded factual allegations as true and view them in the light most favorable to the plaintiff. Luevano v. Wal–Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir.2013). A plaintiff “must plead some facts that suggest a right to relief that is beyond the ‘speculative level.’ ” Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir.2011). This means that “the complaint must contain ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.” Alam, 709 F.3d at 666 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

To the extent Lavalais pursues Title VII claims based on his initial placement on the midnight shift, such claims are time-barred. As applicable here, an EEOC charge “shall be filed ... within three hundred days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e–5(e)(1). If a plaintiff fails to file a timely charge concerning a discrete act of discriminatory conduct, his claim is time-barred. Roney v. Ill. Dep't of Transp., 474 F.3d 455, 460 (7th Cir.2007). Lavalais was placed on the midnight shift on February 5, 2011. He did not file his EEOC charge complaining about that placement until July 18, 2012—more than 300 days later. Thus, his initial placement on the midnight shift cannot be the basis of his Title VII claims.

As for the Title VII retaliation claim, the district court dismissed it on procedural grounds, finding it barred because it varied from the 2012 EEOC charge. Lavalais has not challenged this ground for dismissal and thus has waived any argument that the court erred. See Logan v. Wilkins, 644 F.3d 577, 583 (7th Cir.2011).

Turning to the Title VII race discrimination claim, the defendants first argue that in amending his complaint, Lavalais dropped his denial of transfer claim and proceeded only on the claim regarding his initial placement on the midnight shift. A complaint must allege “ ‘some specific facts' to support the legal claims asserted.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.2011) (citation omitted). “The degree of specificity required ... rises with the complexity of the claim.” Id. at 616–17;see also Swanson v. Citibank, N.A., 614 F.3d 400, 405 (7th Cir.2010) (“A more complex case ... will require more detail....”). “[A] complaint alleging [race] discrimination need only aver that the employer instituted a (specified) adverse employment action against the plaintiff on the basis of [his race].” Luevano, 722 F.3d at 1028 (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir.2008)).

The original complaint specifically alleged that Lavalais requested Chief Pitassi to allow him to work a shift other than the midnight shift and that Pitassi denied his request. Compl. ¶ 18. These allegations are omitted from the amended complaint. However, the amended complaint does allege that Lavalais was being forced “to work midnights indefinitely,” which “causes him to be virtually powerless,” First Am. Compl. ¶ 21; that assignment to the midnight shift comes with significantly diminished job responsibilities, id. ¶ 19(c), and “severely restricted” duties—“it is as if he is not a sergeant,” id. ¶ 22; that the defendants have compromised his “right [as a sergeant] to make major sergeant level and law enforcement decisions in his role as a sergeant” and that “this conduct ... is continuing,” id. ¶ 30 (alteration in original). These allegations sufficiently suggest a denial of transfer claim. And such a claim is not inconsistent with any other allegations of the amended complaint. “A party who appeals from a Rule 12(b)(6) dismissal may elaborate on her allegations so long as the elaborations are consistent with the pleading.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 555 (7th Cir.2012).

Furthermore, in responding to the motion to dismiss the amended complaint, Lavalais clearly maintained a denial of transfer claim. For example, in arguing that his claims were not untimely, he asserted that “[t]he date of his promotion to sergeant is not significant. What is significantis that ... [his] written request to Chief Pitassi, for a transfer, was denied.” Pl.'s Resp. Opp'n Defs' Mot. Dismiss 1–2. Although Lavalais's appellate brief seems to emphasize his initial assignment to the midnight shift, he advances arguments about being “disallow[ed] a transfer from the midnight tour,” Appellant's Br. 14, which are sufficient to maintain the denial of transfer claim.

The defendants also argue that the district court erred in finding that the denial of transfer claim was within the scope of the 2012 EEOC charge. Generally, “a Title VII plaintiff cannot bring claims in a lawsuit that were not included in her EEOC charge.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994). However, “a plaintiff can still bring [claims not included in the EEOC charge] if they are ‘like or reasonably related to the allegations of the [EEOC] charge and growing out of such allegations.’ ” Moore v. Vital Prods., Inc., 641 F.3d 253, 256–57 (7th Cir.2011) (quoting Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.1976) (en banc)). “To be ‘like or reasonably related,’ the relevant claim and the EEOC charge ‘must, at minimum, describe the same conduct and implicate the same individuals.’ ” Id. at 257 (quoting Cheek, 31 F.3d at 501).

The 2012 EEOC charge asserts that the Village and the leaders of the police department treated similarly situated officers not in the protected class more favorably “as to policies and re-assignment” and that Lavalais had “been placed on the midnight...