Stieglitz V Chicago
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID STIEGLITZ,
Plaintiff,
v. No. 23-cv-2696
Judge Franklin U. Valderrama
CITY OF CHICAGO, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff David Stieglitz (Stieglitz) is a Firefighter/EMT with the Chicago Fire
Department (CFD), who was subjected to a workplace where sexually inappropriate
language as well as racist and homophobic comments were made by his coworkers.1
Stieglitz complained to his superiors, Battalion Chief Daniel J. McDermott
(McDermott) and Lieutenant Matthew Andersen2 (Andersen), to no avail. Not only
were his complaints ignored, but Stieglitz became the target of retaliatory conduct.
Stieglitz sued Defendants City of Chicago (the City), McDermott, and Andersen
asserting violations of Title VII of the Civil Rights Act for sexual harassment/hostile
work environment, among other claims. See generally R.3 12, First Amended
1The Court accepts as true all the well-pleaded facts in the Complaint and draws all
reasonable inferences in favor of Stieglitz. Platt v. Brown, 872 F.3d 848, 851 (7th Cir. 2017).
2Andersen states in his Motion to Dismiss, R. 15 at 1 n.1, that his last name is spelled
incorrectly in Plaintiff’s First Amended Complaint as “Anderson.” The correct spelling of
“Andersen” is used herein.
3Citations to the docket are indicated by “R.” followed by the docket number or filing name,
and, where necessary, a page or paragraph citation.
Complaint (FAC).4 The City and McDermott filed a joint motion to dismiss, and
Andersen filed a separate motion to dismiss, both pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). R. 15, Andersen Mot. Dismiss; R. 17, City Mot.
Dismiss. For the following reasons, the motions are granted in part and denied in
part.
Background
Stieglitz has been employed by the City as a Firefighter/EMT since November
2005. SAC ¶ 5. In July 2020, he was added to a text message group chat with
coworkers from his firehouse so that work related information could be exchanged.
Id. ¶ 19. The other members of the group chat were not Stieglitz’s friends and he did
not socialize with them outside work. Id. ¶ 20. The chat excluded women and
members regularly sent sexually explicit images, including pictures of their genitalia;
homophobic and racist texts; and inappropriate gifs. Id. ¶¶ 22–23. Stieglitz
complained to Andersen, his Lieutenant and supervisor, and told him that he did not
want to receive these messages, but Andersen did not take any course of action to
stop them. Id. ¶¶ 9, 24.
Stieglitz alleges that the workplace culture included frequent discussions of
sex, jokes targeting others based on perceived sexual orientation, and commentary
4On July 1, 2025, the Court granted Stieglitz’s motion for leave to amend his complaint, which
added two additional claims for malicious prosecution and abuse of process, as well as added
additional individual defendants related to those claims. R. 43. The Court found that the
proposed Second Amended Complaint did not substantively amend Counts I–IV, which are
the subject of the instant motions to dismiss, and therefore found that the pending motions
to dismiss are applicable to the Second Amended Complaint, and considered them as
Defendants’ responsive pleadings to those counts of the Second Amended Complaint. The
Court there cites to the Second Amended Complaint in this Order. R. 44, SAC.
about female patients and paramedics. SAC ¶¶ 25–30. Stieglitz also alleges that
inappropriate conduct was directed at his minor son during a visit to the firehouse,
during which he was asked about his sexual orientation. Id. ¶ 25. Stieglitz complained
to McDermott, the Battalion Chief, about the sexually offensive culture, but
McDermott did not take any action to address his complaints. Id. ¶¶ 8, 32.
After filing formal complaints with the City’s Department of Human Resources
Diversity and Equal Employment Opportunity Division (EEO Office) and the Office
of Inspector General (OIG) in 2021 and 2022, Stieglitz maintains that he experienced
retaliation, including ostracism, disciplinary threats, false allegations, involuntary
transfers, and ultimately a retaliatory arrest. SAC ¶¶ 34–41, 47–51, 58–59.
Stieglitz sued the City, McDermott, and Andersen alleging violations of Title
VII of the Civil Rights Act for sexual harassment/hostile work environment against
the City (Count I); violations of Title VII of the Civil Rights Act for retaliation against
the City, (Count II); violations of the Equal Protection Clause of the United States
Constitution pursuant to 42 U.S.C § 1983 against all Defendants, (Count III); and
violations of the Illinois Whistleblower Act (IWA), 740 ILCS 174/15 against all
Defendants (Count IV).5 The City and McDermott filed a motion to dismiss the
complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). City
Mot. Dismiss. Andersen separately filed a motion to dismiss Counts III and IV under
5As stated above, the Second Amended Complaint also alleges claims for malicious
prosecution (Count V) and abuse of process (Count VI), but the Court stayed any responsive
pleading on those Counts pending the Court’s resolution of the pending motions to dismiss
Counts I–IV. R. 43.
Rules 12(b)(1) and 12(b)(6).6 Andersen Mot. Dismiss. The fully briefed motions are
before the Court.
Legal Standard
A Rule 12(b)(1) motion tests whether the court has subject matter
jurisdiction. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811,
820 (7th Cir. 2009). In order to survive a Rule 12(b)(1) motion, the plaintiff bears the
burden of establishing that subject matter jurisdiction exists. Ctr. for Dermatology &
Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588–89 (7th Cir. 2014). When deciding a
facial challenge to subject matter jurisdiction—that is, when the defendant argues
that the plaintiff’s allegations as to jurisdiction are inadequate—“the district court
must accept as true all well-pleaded factual allegations and draw reasonable
inferences in favor of the plaintiff.” Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995).
But district courts may also “‘look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on the issue to determine
whether in fact subject matter jurisdiction exists.’” Taylor v. McCament, 875 F.3d
849, 853 (7th Cir. 2017) (quoting Apex Digit., Inc. v. Sears, Roebuck & Co., 572 F.3d
440, 444 (7th Cir. 2009)). In that case, “no presumptive truthfulness attaches to
plaintiff's allegations,” and the court is “free to weigh the evidence and satisfy itself
6Because the two motions to dismiss raise the same or similar bases for dismissal of each
Count, the Court cites only to the City and McDermott’s motion to dismiss (hereinafter
referenced as the “City’s motion”) unless Andersen’s motion raises a distinct basis for
dismissal.
as to the existence of its power to hear the case.” Apex Digit., 572 F.3 at 444 (cleaned
up).7
A Rule 12(b)(6) motion to dismiss challenges the sufficiency of the complaint.
Hallinan, 570 F.3d at 820. Under Rule 8(a)(2), a complaint must include only “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain
factual allegations, accepted as true, sufficient to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. The allegations “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at
555. The allegations that are entitled to the assumption of truth are those that are
factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79.
“When a motion to dismiss is based on a lack of subject-matter jurisdiction
pursuant to Rule 12(b)(1), as well as other Rule 12(b)(6) defenses, the court should
consider the Rule 12(b)(1) challenge first.” Rizzi v. Calumet City, 11 F. Supp. 2d 994,
995 (N.D. Ill. 1998) (cleaned up). If the court dismisses the plaintiff’s complaint for
lack of subject matter jurisdiction, the accompanying Rule 12(b)(6) motion becomes
moot and need not be addressed. Id.
7This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations, and
citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations, 18
Journal of Appellate Practice and Process 143 (2017).
Analysis
Defendants move to dismiss the Counts I through IV on several bases. Because
Defendants frame one of their arguments to dismiss Stieglitz’s IWA claim as an
argument raised under Rule 12(b)(1), the Court starts with Count IV.
I. Count IV - Violations of the Illinois Whistleblower Act
In Count IV, Stieglitz asserts a claim under the IWA, alleging he was retaliated
against for disclosing sexual harassment and workplace retaliation to various
government entities, including the CFD’s EEO Office, the City’s OIG, and the EEOC.
SAC ¶¶ 105, 109.
Defendants move to dismiss the IWA claim on two bases: (1) that it is
preempted by the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101 et seq. because
the IHRA has sole jurisdiction over alleged workplace civil rights violations, under
Rule 12(b)(1) and, in the alternative, (2) that it fails to state a claim under Rule
12(b)(6). R. 18, City. Memo. Dismiss at 8. The Court begins with Defendants’
preemption argument.
A. Preemption
Defendants argue that Count IV must be dismissed because the Court “lacks
subject matter jurisdiction as the Illinois Department of Human Rights has exclusive
jurisdiction of alleged civil rights violations under Illinois law.” City Memo. Dismiss
at 8. The way Defendants see it, the claim is preempted because it is entirely
premised on reports of sexual harassment and retaliation, matters exclusively
governed by the IHRA. Id. at 9 (citing Alexander v. Ne. Ill. Univ., 586 F. Supp. 2d 905
(N.D. Ill. 2008)).
In response, Stieglitz contends, as a preliminary matter, that the motions to
dismiss must be denied because they are procedurally improper. R. 28, Resp. City at
2. Preemption, notes Stieglitz, is an affirmative defense upon which the defendant
bears the burden of proof. Id. (citing Vaughan v. Biomat USA, Inc., 2022 WL 4329094,
at *4 (N.D. Ill. 2022); Williams v. City of Chi., 2022 WL 3716214, at *6 (N.D. Ill. 2022)
(considering preemption under Rule 12(b)(6)). The proper mechanism for the
resolution of an affirmative defense, asserts Stieglitz, is a motion for judgment on the
pleadings under Rule 12(c), filed after the defendant files an answer. Id. Because
Defendants did not follow proper procedure, Stieglitz reasons, the Court should deny
the motions out-of-hand. Id. More substantively, he maintains that his claim is not
preempted because the IHRA does not encompass his claim and his disclosures were
made to external government agencies, extending beyond purely internal
employment grievances. Id. at 2–3.
Defendants in reply do not directly respond to Stieglitz’s argument that the
proper vehicle to argue preemption is a Rule 12(c), not Rule 12(b)(1) motion. R. 35,
Reply at 3–4. Instead, they cite to two district court cases that are twenty years old
or more, and find the defendants’ IHRA preemption arguments to be jurisdictional.
Id. at 4 (citing Bell v. LaSalle Bank N.A./ABN AMRO N.A., Inc., 2005 WL 43178, at
*2 (N.D. Ill. Jan. 10, 2005) (dismissing IWA claim for lack of subject matter
jurisdiction based on IHRA preemption); Guy v. State of Ill., 958 F. Supp. 1300, 1312
(N.D. Ill. 1997) (dismissing intentional infliction of emotional distress claim as
preempted by the IHRA, but only citing the Rule 12(b)(6) standard)). Defendants
attempt to brush aside the cases cited by Stieglitz as “irrelevant” as they analyze Rule
12(b)(6) motions. Id.
The Court disagrees with Defendants that the cases cited by Stieglitz are
“irrelevant.” True, neither addresses preemption under the IHRA; but Vaughan,
citing more recent Seventh Circuit precedent, states that “‘[p]reemption . . . is an
affirmative defense upon which the defendants bear the burden of proof,’” 2022 WL
4329094, at *4 (quoting Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639,
645 (7th Cir. 2019)), and Williams, also citing recent Seventh Circuit law, states that,
“[a] party seeking to dismiss a claim at the outset of a case based on an affirmative
defense should first raise the defense in its answer and then move for judgment on
the pleadings under Rule 12(c).” 2022 WL 3716214, at *6 (citing Luna Vanegas v.
Signet Builders, Inc., 46 F.4th 636, 640 (7th Cir. 2022)); see also Mims v. Boeing Co.,
2022 WL 2316199, at *3 (N.D. Ill. June 28, 2022) (IHRA preemption is an affirmative
defense).
When district courts have considered preemption under Rule 12(b)(6), the
Seventh Circuit has emphasized that dismissal at the pleading stage is appropriate
only where the defense is apparent from the face of the complaint and leaves no room
for factual development, in other words, where the plaintiff has “pleaded [themselves]
out of court” such that “the difference between Rules 12(b)(6) and 12(c) [can] be
disregarded.” Benson, 944 F.3d at 645; see also Doe v. GTE Corp., 347 F.3d 655, 657
(7th Cir. 2003) (same); Doe v. La Magdalena II Inc., 585 F. Supp. 2d 984, 986 (N.D.
Ill. 2008) (preemption “cannot be the basis to dismiss unless plaintiff has pled herself
out of court.”). Here, Defendants do not contend that this is the rare situation where
the Court has “no doubt” that there is a valid preemption defense. See Luna Vanegas,
46 F.4th at 640. In short, Defendants’ 12(b)(1) motions are the improper vehicle to
assert the preemption affirmative defense.
Accordingly, the Court denies Defendants’ motions to dismiss Stieglitz’s IWA
claim based on IHRA preemption under Rule 12(b)(1). The Court now turns to
Defendants’ arguments for dismissal of the IWA claim under Rule 12(b)(6).
B. Sufficiency of Allegations
Alternatively, Defendants posit that Count IV should be dismissed because
Stieglitz fails to plead the essential elements of an IWA claim. City. Memo. Dismiss
at 10. The IWA bars employers from retaliating against employees who, among other
things, alert government investigators to employer wrongdoing. See generally 740
ILCS 174/15. To adequately plead a violation of the IWA, a plaintiff must allege “(1)
an adverse employment action by his . . . employer, (2) which was in retaliation (3)
for [his] disclosure to a government or law enforcement agency (4) of a suspected
violation of an Illinois or federal law, rule, or regulation.” Sweeney v. City of Decatur,
2017 WL 1101773, at *3 (Ill. App. Ct. 2017). The Court addresses Defendants’
arguments as to each element in turn.
1. Adverse Employment Action
Defendants first contend that Stieglitz fails to plead any injury which rises to
the level of a materially adverse action, that is, “one that significantly alters the terms
and conditions of the employee’s job.” City Memo. Dismiss at 10 (quoting Elue v. City
of Chicago, 2017 WL 2653082, at *5 (N.D. Ill. June 20, 2017)). From Defendants’
perspective, Stieglitz’s assertions of being ostracized, accused of dereliction of duty,
and being subjected to rude comments are not actionable, as they constitute petty
slights or minor annoyances. Id. at 11. Nor does his reassignment to a work location
further from his residence rise to the level of a materially adverse employment action,
submit Defendants. Id. Stieglitz disagrees, asserting that all that he is required to
allege are adverse acts that would dissuade a reasonable employee from engaging in
protected activity. Resp. City at 6 (citing, inter alia, Harris v. City of Chicago, 479 F.
Supp. 3d 743, 751 (N.D. Ill. 2020)). And he has done so. The Court agrees with
Stieglitz.
Under Seventh Circuit precedent, “[a]dverse employment actions . . . generally
fall into three categories: (1) termination or reduction in compensation, fringe
benefits, or other financial terms of employment; (2) transfers or changes in job duties
that cause an employee's skills to atrophy and reduce future career prospects; and (3)
unbearable changes in job conditions, such as a hostile work environment or
conditions amounting to constructive discharge.” Barton v. Zimmer, Inc., 662 F.3d
448, 453–54 (7th Cir. 2011). The Supreme Court recently clarified that to establish
an adverse employment action under Title VII,8 a plaintiff need only show “some
harm” respecting an identifiable term or condition of employment, rather than a
“significant” disadvantage. Muldrow v. City of St. Louis, Mo., 601 U.S. 346, 355
(2024). The Court explained that plaintiffs are not required to show that the harm
incurred was “significant[, o]r serious or substantial.” Id. (citations omitted). In short,
Muldrow established a more lenient “materially adverse” standard. Arnold v. United
Airlines, Inc., --- F.4th ----, 2025 WL 1778643, at *4 (7th Cir. June 27, 2025).
Here, applying the more generous standard of Muldrow and viewing the facts
in the light most favorable to Stieglitz, the Court finds that Stieglitz has adequately
alleged an adverse employment action under the IWA. Stieglitz’s allegations fall into
the third category of adverse employment actions, “unbearable changes in job
conditions.” Stieglitz alleges that after he disclosed the alleged misconduct, he was
subjected to false accusations of wrongdoing, placed under an internal investigation,
transferred from his assigned fire house, and ultimately arrested in retaliation. See
SAC ¶¶ 34–41, 47–51, 58–59. So too as to Stieglitz’s allegations relating to Andersen,
as Stieglitz alleges that he was arrested in part based on statements from Andersen,
after Andersen confronted him about not believing his version of events. Id. ¶¶ 57–
8As Stieglitz points out, courts interpreting IWA claims often look to Title VII’s standard for
an adverse employment action. Resp. City at 5 (citing Williams v. City of Chicago, 2022 WL
3716214, at *7 (N.D. Ill. Aug. 29, 2022) (to construe the IWA, the court found “it appropriate
to rely upon federal case law interpreting Title VII’s anti-retaliation provision, which
requires a materially adverse action.”)). So too does the City rely on cases analyzing Title VII
claims. See City Memo. Dismiss at 11 (citing Martinez v. Nw. Univ., 173 F. Supp. 3d 777, 788
(N.D. Ill. Mar. 29, 2016)).
58. These allegations plausibly constitute adverse employment actions. See Barton,
662 F.3d at 453–54; Muldrow, 601 U.S. at 355.
2. Internal Complaints
Next, Defendants contend that Stieglitz fails to plead an IWA retaliation claim
because his complaints of workplace harassment and retaliation are not the type of
violations the IWA was intended to protect. City. Memo. Dismiss at 12. The IWA,
from Defendants’ perspective, is designed to protect workers who report violations of
state or federal laws, rules, or regulations because the reported wrongful conduct or
unsafe conditions affect the health, safety and welfare of Illinois residents. Id. (citing
Larsen v. Provena Hosps., 27 N.E.3d 1033, 1043 (Ill. App. Ct. 2015)). Stieglitz’s
complaints, according to Defendants, fall short.
The IWA prohibits an employer from retaliating “against an employee for
disclosing or threatening to disclose information to a government or law enforcement
agency information related to an activity, policy, or practice of the employer, where
the employee has a good faith belief that the activity, policy, or practice of the
employer (i) violates a State or federal law, rule, or regulation or (ii) poses a
substantial and specific danger to employees, public health, or safety.” 740 ILCS
174/15(b). Therefore, argues Stieglitz, a plaintiff need not allege that he complained
about conditions involving conditions related to health, safety, or welfare of Illinois
residents, but rather, he need only allege that he complained about what he
reasonably believed to be violation of law, rule, or regulation. Resp. City at 8–9 (citing
Willms v. OSF Healthcare Sys., 984 N.E.2d 1194, 1196 (Ill. App. Ct. 2013)).
Stieglitz maintains that his complaints are the type of violations the IWA is
intended to protect. Resp. City at 8–9. The Court agrees. Stieglitz alleges that he
reasonably believed that Defendants’ actions relating to sexual harassment that he
reported were violations of City of Chicago policies, Title VII, the United States
Constitution, as well as the criminal code. At this juncture, this is enough.
3. External Disclosures
Defendants also argue that Stieglitz has failed to allege a disclosure to an
outside government agency as required by the IWA. City Memo. Dismiss at 12. There
is no cause of action under the IWA, assert Defendants, where an employee reveals
information only to his employer. Id. (citing, inter alia, Huang v. Fluidmesh
Networks, LLC, 2017 WL 3034672, at *3 (N.D. Ill. July 18, 2017)). Stieglitz’s
complaints to the City’s EEO Office and the OIG are merely internal complaints, posit
Defendants, because Stieglitz “is employed by the City and the City consists of
multiple departments which include but are not limited to CFD and the City’s EEO
Office and the OIG.” Id.
Stieglitz retorts that the IWA requires only that a plaintiff report his
complaints to a governmental agency, which he did by reporting to both the EEO and
OIG. Resp. City at 10–11 (citing, inter alia, Brame v. City of N. Chicago, 955 N.E.2d
1269, 1271 (Ill. App. Ct. 2011); Milsap v. City of Chicago, 2018 WL 488270, at *9 (N.D.
Ill. Jan. 19, 2018)). The Court agrees with the analyses in Brame and Milsap that the
plain language of the IWA requires only that a plaintiff make a complaint to a
government or law enforcement agency, and it matters not that such agency may also
be his employer. Brame, 955 N.E.2d at 1271–73; Milsap, 2018 WL 488270, at *7–9.
In reply, Defendants contend that such authority is inapposite because Brame
and Milsap involved complaints of suspected criminal activity, unlike Stieglitz’s
complaints of sexual harassment and retaliation. R. 35, City Reply at 9. Defendants,
however, do not explain how the analyses in Brame and Milsap regarding the plain
language of the statute apply only to reports of criminal activity, rather than any
complaint sufficient under the IWA, and therefore have waived the argument. See,
e.g., White v. United States, 8 F.4th 547, 552 (7th Cir. 2021) (“perfunctory and
undeveloped arguments, as well as arguments that are unsupported by pertinent
authority, are waived.”). And, for the reasons discussed above, the Court finds that,
at this stage, Stieglitz’s complaints of sexual harassment and retaliation are
sufficient under the IWA. See supra Section I.B.2–3. In short, the Court finds Stieglitz
sufficiently pled that he reported his complaints to a governmental agency as
required under the IWA.
4. Causal Connection
Andersen (but not the City and McDermott) argues that Stieglitz fails to
plausibly allege a causal connection between his protected activities and retaliation
by Andersen. R. 16, Andersen Memo. Dismiss at 6–8. According to Andersen, Stieglitz
fails to allege that Andersen knew that Stieglitz complained about sexual harassment
to the City’s EEO or OIG, and therefore fails to adequately plead a causal link
between his complaints and Andersen’s alleged adverse actions. Id. at 7 (citing
Jackson v. United Parcel Serv., Inc., 337 Fed. App’x 569, 571 (7th Cir. 2009)). And,
argues Andersen, Stieglitz cannot plausibly allege causation based on timing alone,
because the temporal gap between Stieglitz’s complaint to EEO in July 2021 and
Andersen’s alleged initiation of an investigation into Stieglitz in February 2022, let
alone later alleged retaliatory conduct, is too long. Id. at 7–8 (citing, inter alia,
Wheeler v. Piazza, 2018 WL 835353, at *4 (N.D. Ill. Feb. 13, 2018)).
Predictably, Stieglitz disagrees, arguing that he has done enough at the
pleading stage to allege that he suffered adverse acts because of the complaint he
filed. Resp. Anderson at 4 (citing, inter alia, Renken v. Illinois State Toll Highway
Auth., 2023 WL 4625520, at *4 (N.D. Ill. July 19, 2023)). From Stieglitz’s perspective,
because he alleges an ongoing pattern of harassment, there is not too much of a
temporal gap between his complaints and retaliation by Andersen. Id. (citing Carlson
v. CSX Transp., Inc., 758 F.3d 819, 829 (7th Cir. 2014)). The Court agrees with
Stieglitz.
In addition to alleging that Andersen brought false allegations about Stieglitz
in February 2022 and made statements to the Chicago Police Department that led to
Stieglitz’s arrest in June 2023, Stieglitz also alleges that, after he complained about
sexual harassment, “he was ostracized by his coworkers, threatened with discipline
for reporting illegal behavior, brought up on false internal review charges, the station
cook spit on his plate at dinner, he had doors slammed in his face, and he was
transferred from his assigned house.” SAC ¶¶ 35, 39, 58. True, apart from the
February 2022 and June 2023 examples, Stieglitz does not specify what actions
Andersen took part in as part of this campaign of retaliatory harassment, but at this
stage, the Court finds it to be sufficient, if barely. See, e.g., Logan v. City of Chicago,
2018 WL 5279304, at *6 (N.D. Ill. Oct. 24, 2018) (rejecting defendants’ causation
argument for dismissal of plaintiff’s IWA claim, as plaintiff was “not required to prove
causation at this point, but to allege it plausibly. If [plaintiff] is unable to show that
Defendants had knowledge of his internal complaints, then perhaps he will lose on
summary judgment. ‘But the Court is not entitled to assume that other evidence of
causation is lacking simply because it is not detailed in [plaintiff]’s complaint.’”)
(quoting Bello v. Vill. of Skokie, 2014 WL 4344391, at *8 (N.D. Ill. Sept. 2, 2014)).
Andersen argues in reply that Stieglitz “cannot cure his pleading deficiencies
as to Andersen by improperly combining his allegations against Andersen with
unrelated allegations against other CFD employees, however.” R. 34, Andersen Reply
at 7–8 (citing Harris, 479 F. Supp. 3d at 749). True, at times, group pleading may be
improper, but here, Stieglitz, if barely, does enough to put Andersen on notice of his
involvement in a pattern of harassment following Stieglitz’s complaints. See Sloan v.
Anker Innovations Ltd., 711 F. Supp. 3d 946, 955 (N.D. Ill. 2024). If Stieglitz cannot
show that Andersen was personally involved in any harassment until February 2022,
then it is possible he will lose at summary judgment.
C. Tort Immunity Act
Defendants next argue that the Court should dismiss Count IV because
Defendants are entitled to absolute immunity under the Illinois Tort Immunity Act
(the TIA), 745 ILCS 10/2-201; id. 10/2-109.
The TIA provides that “a public employee serving in a position involving the
determination of policy or the exercise of discretion is not liable for an injury resulting
from his act or omission in determining policy when acting in the exercise of such
discretion even though abused.” 745 ILCS 10/2-201. “Section 2-201 of the TIA has two
prongs. First, a public employee must hold either a position involving the
determination of policy or a position involving the exercise of discretion. Second, the
public employee’s act or omission giving rise to litigation must be both a
determination of policy and an exercise of discretion.” Consolino v. Dart, 2019 WL
4450498, at *9 (N.D. Ill. Sept. 17, 2019) (cleaned up). “[D]iscretionary acts are those
which are unique to a particular public office, while ministerial acts are those which
a person performs on a given state of facts in a prescribed manner, in obedience to
the mandate of legal authority, and without reference to the official’s discretion as to
the propriety of the act.” Snyder v. Curran Twp., 657 N.E.2d 988, 993 (Ill. 1995). The
TIA is an affirmative defense. Wilson v. City of Chicago, 758 F.3d 875, 879 (7th Cir.
2014).
Defendants contend that the TIA confers immunity on McDermott and
Andersen, and thus the City, because the alleged retaliatory conduct involved
discretionary acts undertaken in the scope of their official duties. City Memo. Dismiss
at 13 (citing 745 ILCS 10/2-201, 2-109); Andersen Memo. Dismiss at 10–12.
Defendants maintain that under Section 2-201, public employees are not liable for
injuries resulting from discretionary or policy determinations, even if those
determinations are abused, and that Section 2-109 correspondingly immunizes the
City if its employees are not liable. City Memo. Dismiss at 13–14; Andersen Memo.
Dismiss at 12.
Stieglitz counters that the motions should be denied for two reasons. First,
similar to his argument regarding preemption, Stieglitz contends that invocation of
the TIA is procedurally improper under Rule 12(b)(6) because immunity under the
TIA is an affirmative defense that should be asserted in an answer and addressed via
a Rule 12(c) motion. Resp. City at 11 (citing Williams, 2022 WL 3716214, at *6).
Neither the City, McDermott, nor Andersen substantively address this procedural
objection but instead reiterate that the allegations on their face establish
discretionary conduct for which they are immune under Sections 2-201 and 2-109.
City Reply at 9–10; Andersen Reply at 12. Defendants, therefore, waive any response.
See In re GT Automation Grp., Inc., 828 F.3d 602, 605 (7th Cir. 2016) (“An argument
not responded to is ordinarily deemed waived.”).
True, Andersen cites two cases in which a district court dismissed IWA claims
based on the TIA. R. 34, Andersen Reply at 9–10 (citing Thompson v. Bd. of Educ. of
City of Chicago, 2014 WL 1322958, at *7 (N.D. Ill. Apr. 2, 2014); Consolino, 2019 WL
4450498, at *9). Neither of those cases, however, address the fact that the TIA is an
affirmative defense. The Court cannot ignore the fact that Stieglitz has raised that
argument here.
Similar to the affirmative defense of preemption, because the TIA is an
affirmative defense, plaintiffs generally need not anticipate and overcome affirmative
defenses in their complaint. Sterling v. Bd. of Educ. of Evanston Twp. High Sch. Dist.
202, 2021 WL 809763, at *7 (N.D. Ill. Mar. 3, 2021); see also Tyson v. Cook Cnty., 539
F. Supp. 3d 924, 928 (N.D. Ill. 2021). It is premature for the Court to determine
whether Defendants have met their burden on this affirmative defense. Putting that
aside, Defendants’ argument that their alleged conduct was discretionary invites the
Court to construe the allegations in a light more favorable to Defendants than to
Stieglitz, which is improper at this stage. Defendants may ultimately be able to show
that they are immune from liability because their conduct was discretionary rather
than ministerial. Today, however, is not that day.
D. Individual Liability under the IWA
Defendants next contend that the claims in Count IV should be dismissed
against McDermott and Andersen because the IWA does not impose individual
liability. City Memo. Dismiss at 149; Andersen Memo. Dismiss at 4–5. Stieglitz
retorts that the plain text of the IWA authorizes suits against individuals. R. 27,
Resp. Andersen at 2.
As Andersen acknowledges in reply, courts within this District are split as to
“whether a plaintiff may state a claim against individuals [under the IWA].”
Andersen Reply at 3 (quoting Wheeler v. Piazza, 364 F. Supp. 3d 870, 884 (N.D. Ill.
2019) (collecting cases)). Upon review of the conflicting authority cited by Andersen
and Stieglitz, the Court agrees with the reasoning of the courts finding that the IWA
does provide for liability against individuals. As Stieglitz points out, and as other
courts in this District have recognized, the plain language of the IWA specifically
9The City and McDermott incorporate Andersen’s arguments relating to individual liability
under the IWA. City Memo. Dismiss at 14.
includes an “individual” within the definition of “employer.” Resp. Andersen at 2
(quoting 740 ILCS 174/5); Bello, 2014 WL 4344391, at *9; see also Principe v. Vill. of
Melrose Park, 2020 WL 4815908, at *6 (N.D. Ill. Aug. 18, 2020) (same). And,
importantly, the statute includes in the definition of employer “any person acting . . .
on behalf of [an entity] in dealing with its employees.’” 740 ILCS 174/5. As the court
in Bello states, “the statute makes it clear that individuals acting on behalf of an
entity that one might colloquially understand to be a person’s ‘employer’ may likewise
be considered ‘employers’ potentially liable for violating the statute.” 2014 WL
4344391, at *9.
For the first time in reply, Andersen argues that Stieglitz fails to allege that
Andersen interacted with Stieglitz on behalf of the CFD, his employer. Andersen
Reply at 3–4. “[A]rguments raised for the first time in [a] reply brief are waived
because they leave no chance to respond.” White v. United States, 8 F.4th 547, 552
(7th Cir. 2021). McDermott makes no substantive argument about lack of individual
liability under the IWA, and thus has also waived the argument. United States v.
Cisneros, 846 F.3d 972, 978 (7th Cir. 2017) (“We have repeatedly and consistently
held that perfunctory and undeveloped arguments, and arguments that are
unsupported by pertinent authority, are waived.”) (cleaned up).
The Court therefore declines to dismiss Stieglitz’s IWA claim against
McDermott and Andersen on this basis.
E. Statute of Limitations
With the last arrow in their quiver as to Count IV, Defendants argue that
because Stieglitz filed his lawsuit on April 28, 2023, any and all allegations occurring
before April 28, 2022 are time-barred under Section 2-201 of the TIA’s one-year
statute of limitations. City Memo. Dismiss at 1410; Andersen Memo. Dismiss at 6.
Stieglitz responds that “he has been enduring a series of retaliatory actions and
continuous harassment” and therefore the continuing violation theory applies. Resp.
Andersen at 3 (citing Taylor v. Bd. of Educ. of City of Chicago, 10 N.E.3d 383, 395
(Ill. App. Ct. 2014)). The continuing violation doctrine applies when “a tort involves
a continued repeated injury” and “the limitation period does not begin until the date
of the last injury or when the tortious act ceased.” Rodrigue v. Olin Emps. Credit
Union, 406 F.3d 434, 442 (7th Cir. 2005) (cleaned up). Andersen retorts in reply that
the continuing violation doctrine does not apply where, as here, the plaintiff alleges
merely “a series of discrete acts, each of which is independently actionable, even if
those acts form an overall pattern of wrongdoing.” Andersen Reply at 5 (quoting
Rodrigue, 406 F.3d at 443).
“A statute of limitations provides an affirmative defense, and a plaintiff is not
required to plead facts in the complaint to anticipate and defeat affirmative defenses.”
Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012)). As
stated above, because affirmative defenses frequently turn on facts not before the
court at the pleading stage, dismissal is appropriate only when the factual allegations
10The City and McDermott again incorporate Andersen’s arguments in support of dismissal.
of the complaint unambiguously establish all the elements of the defense. Hyson
USA, Inc., v. Hyson 2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016).
The Court finds that the allegations of retaliation, including Stieglitz’s
allegations that, after he “complained about sexual harassment, he was ostracized by
his coworkers, threatened with discipline for reporting illegal behavior, brought up
on false internal review charges, the station cook spit on his plate at dinner, he had
doors slammed in his face, and he was transferred from his assigned house,” SAC
¶ 35, are similar to those alleged in Taylor, and which the Illinois appellate court
found to constitute a continuing violation, Taylor, 10 N.E.3d at 395 (continuing
violation in IWA case where plaintiff was “subjected to a continuous pattern of petty
harassment by the Board in direct retaliation for that report” of suspected abuse,
including that “his performance rating was lowered, he was demoted, and his
integrity questioned in the context of his report of retaliation; he was made to undergo
humiliation in front of his peers and subjected to repeated, questionable disciplinary
censure and suspension with little or no opportunity to respond, culminating in the
nonrenewal of his contract.”). At this stage, the Court cannot say that Stieglitz has
pleaded himself out of court, so the motions to dismiss based on the statute of
limitations are denied.
For the foregoing reasons, Stieglitz’s IWA claim survives the motions to
dismiss.
II. Violations of the Equal Protection Clause (Count III)
Stieglitz brings Count III under 42 U.S.C. § 1983, alleging that the individual
Defendants intentionally subjected him to unequal and discriminatory treatment
that altered the terms and conditions of his employment in violation of the
Fourteenth Amendment. SAC ¶¶ 98–99. As for the City, Stieglitz alleges that it is
liable because, in violation of the Fourteenth Amendment, it adopted and
promulgated an official policy that violated his equal protection right to be free from
sexual harassment and/or created a widespread practice or custom of violating
employee’s rights to be free from sexual harassment, and/or the decisions to violate
employee’s equal protection rights to be free from sexual harassment was made by an
official with final policy making authority. Id. ¶ 100.
“The Equal Protection Clause of the Fourteenth Amendment prohibits state
action that discriminates on the basis of membership in a protected class or
irrationally targets an individual for discriminatory treatment as a so-called ‘class of
one.’” Reget v. City of LaCross, 595 F.3d 691, 695 (7th Cir. 2010).
Defendants move to dismiss this claim on the basis that: (a) allegations before
April 28, 2021 are time-barred under the statute of limitations, (b) the conduct alleged
does not rise to the level of a constitutional deprivation, (c) the Equal Protection
Clause does not support a retaliation claim, and (d) Stieglitz fails to allege personal
involvement by the individual Defendants. City Memo. Dismiss at 15–17; Andersen
Memo. Dismiss at 13–14. The Court addresses each argument in turn.
A. Statute of Limitations
Because Section 1983 does not include its own statute of limitations, it borrows
the forum state’s statute of limitations for personal injury actions, which in Illinois is
two years. See Wallace v Kato, 549 U.S. 384, 387 (2007). Therefore, Stieglitz’s Equal
Protection claim under Section 1983 is subject to a two-year statute of limitations.
Hollingsworth v. Mennella, 2024 WL 3495011, at *7 (N.D. Ill. July 19, 2024).
Defendants contend that because Stieglitz filed suit on April 28, 2023, any discrete
acts occurring before April 28, 2021 are presumptively time-barred. City Memo.
Dismiss at 15. Stieglitz counters that Defendants’ statute of limitations argument is
improper because a Rule 12(b)(6) motion is not the appropriate vehicle to raise an
affirmative defense. Resp. City at 14. Additionally, he contends that, because he
“alleges hostile work environment sexual harassment, which is one unlawful
employment practice composed of a series of separate acts,” he pleads a continuing
violation, which allows him to “reach back to the beginning of the series of events
even if that beginning lies outside the statutory limitations period.” Id. at 15 (citing
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002); Heard v. Sheahan,
253 F.3d 316, 319–320 (7th Cir. 2001)); see also Barrett v. Illinois Dep’t of Corr., 803
F.3d 893, 898 (7th Cir. 2015) (the “very nature [of hostile work environment claims]
involves repeated conduct. . . . As such, a . . . claim for hostile work environment is
timely as long as any act falls within the statutory time period, even if the [claim]
encompasses events occurring prior to the statutory time period.”) (cleaned up).
Defendants contend that Stieglitz fails to plead a continuing violation, as he pleads
only isolated incidents. City Reply at 12.
As already discussed, the statute of limitations is an affirmative defense, and
“plaintiffs need not anticipate and attempt to plead around all potential defenses,”
including untimeliness. Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901
(7th Cir. 2004). For the same reasons stated above, see supra Section II.E, the Court
finds that, at this stage, Stieglitz has sufficiently pled a continuing violation.
Defendants are free to argue at summary judgment that any alleged harassment
before April 28, 2021 is an isolated incident that the Court cannot consider.
B. Sufficiency of Allegations
Defendants next argue, based on their contention that any allegations before
April 28, 2021 are barred by the statute of limitations, that the remaining allegations
fail to rise to the level of severe or pervasive conduct such that a reasonable person
would find it abusive. City Memo. Dismiss at 16. The way Defendants see it, the
allegations merely consist of “isolated incidents where he claims to have seen a nude
photo of an unidentified male firefighter on a shower curtain of another firehouse in
October of 2022 and playboy magazines.” Id. The other allegation, from Defendants’
perspective, that he found a sex toy in the shape of a penis on top of his locker when
he arrived as work,” fares no better. Id.
Stieglitz counters that he experienced more than isolated sexual banter or
trivial incidents. Resp. City at 14. The Court agrees. He alleges that CFD personnel
repeatedly circulated graphic sexual content via a group chat, made derogatory
comments about others’ perceived sexual orientation, subjected him to lewd
workplace commentary, threatened him, and orchestrated retaliatory discipline and
arrest. SAC ¶¶ 19–39, 50–52, 55–59. Courts have long recognized that sex-based
harassment in the workplace, when sufficiently severe or pervasive, can constitute
an Equal Protection violation. Resp. City at 15–16 (citing Doe v. Bd. Of Educ. of City
of Chi., 2020 WL 1445638, at *6–7 (N.D. Ill Mar. 24, 2020); Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 67 (1986)).
Viewed in the light most favorable to Stieglitz, these allegations plausibly
establish a work environment that was “sufficiently severe or pervasive to alter the
conditions of [his] employment.” Huri v. Office of the Chief Judge of the Cir. Ct. of
Cook Cty., 804 F.3d 826, 834 (7th Cir. 2015).
C. Retaliation Claims Under the Equal Protection Clause
In Count III, Stieglitz repeats and realleges the prior paragraphs of his
complaint. SAC ¶ 97. From Defendants’ point of view, this includes his count for Title
VII Retaliation. City Memo. Dismiss at 17. Defendants argue that Stieglitz cannot
assert a retaliation claim under the Equal Protection Clause because it is not
independently cognizable and instead must be brought under Title VII or the First
Amendment. Id. (citing Schloss v. City of Chi., 2019 WL 6716613, at *10–11 (N.D. Ill.
Dec. 10, 2019) (quoting Boyd v. Ill. State Police, 384 F.3d 888, 898 (7th Cir. 2004)).
Stieglitz retorts that “[r]etaliation against a person because that person has
complained of sex discrimination is another form of intentional sex discrimination,”
and therefore his equal protection claim may encompass acts that may be considered
retaliation. Resp. City at 15 (citing Jackson v. Birmingham Bd. of Educ., 544 U.S.
167, 174 (2005) (“Retaliation against a person because that person has complained of
sex discrimination is another form of intentional sex discrimination encompassed by
Title IX’s private cause of action.”)).
In order to assert an equal protection, claim, Stieglitz must show that
Defendants intentionally discriminated against him because of his membership in a
particular class. Gray v. Locke, 885 F.2d 399, 414 (7th Cir. 1989). True, Stieglitz
alleges that he was harassed and retaliated against because he complained about
sexual harassment, but these allegations do not show that Stieglitz retaliated against
because he is a member of a particular class. Id. The Seventh Circuit explained in
Boyd that “retaliating against a person for filing charges of sex discrimination is not
the same as discriminating against a person on the grounds of sex . . . [and] Congress
would not have wanted a Title VII plaintiff to bypass the elaborate administrative
procedures created by the statute (procedures as applicable to retaliation claims as
to any other claims under Title VII), and go directly to court, through the illogical
expedient of equating discrimination against a person for filing charges of sex
discrimination to sex discrimination itself.” Boyd, 384 F.3d at 898 (cleaned up).
Therefore, Stieglitz’s right to be free for protesting sexual harassment “is a right
created by Title VII, not the equal protection clause.” Gray, 885 F.2d at 414.
Therefore, to the extent Stieglitz claims retaliation for reporting or
complaining of sexual harassment under the Equal Protection Clause, that claim is
dismissed with prejudice. To the extent that Stieglitz claims that Defendants took
actions against him based on his sex, such claims are properly brought under the
Equal Protection Clause.
D. Individual Liability
Lastly, Defendants contend that Stieglitz fails to allege sufficient personal
involvement by McDermott and Andersen. City Memo. Dismiss at 17; Andersen
Memo. Dismiss at 13–14. Individual liability, assert Defendants, requires a
defendant’s personal involvement in the alleged constitutional violation. City Memo.
Dismiss at 17 (citing Stevens v. Shelton, 2019 WL 1239784, at *9 (N.D. Ill. Mar. 18,
2019)). To state a claim for a constitutional violation under Section 1983, a plaintiff
must “show that the defendants were personally responsible for the deprivation of
their rights. A defendant is personally responsible if the conduct causing the
constitutional deprivation occurs at his direction or with his knowledge and consent.”
Wilson v. Warren Cnty., Illinois, 830 F.3d 464, 469 (7th Cir. 2016) (emphasis added).
Here, viewing the allegations of the Second Amended Complaint in the light
most favorable to Stieglitz, as the Court must at this juncture, the Court finds that
Stieglitz has pled just enough to plausibly allege individual liability. Stieglitz alleges
that McDermott allegedly ignored multiple complaints, made sexual jokes,
threatened to leave Stieglitz in the line of duty, and personally contacted law
enforcement to initiate a false investigation. SAC ¶¶ 32–33, 37–38, 49, 51, 58. As for
Andersen, Stieglitz alleges that he actively participated in the group chat distributing
explicit content, ignored Stieglitz’s requests, laughed when another firefighter
threatened Stieglitz; and contributed to a false narrative culminating in Stieglitz’s
arrest. SAC ¶¶ 21–30, 39, 50, 57–58. This is consistent with cases recognizing that a
supervisor’s deliberate failure to stop known harassment can itself constitute
personal involvement. Resp. City at 16 (citing Flaherty v. Marchand, 2001 WL
1242884, at *3–4 (N.D. Ill. Oct. 17, 2001); Bohen v. City of E. Chicago, Ind., 799 F.2d
1180, 1189 (7th Cir. 1986)); see also Bohen, 799 F.2d at 1190 (J. Posner, concurring)
(“a deliberate refusal to respond to complaints of harassment” is actionable under the
Equal Protection Clause).
Further, Defendants attempt to downplay the significance of their conduct as
trivial or non-harassing. However, this mischaracterizes the totality of the
allegations, which involve repeated exposure to sexually explicit material, verbal
abuse, and workplace ostracization. As stated before, courts have held that personal
participation includes not only direct involvement in harassment but also deliberate
indifference to its occurrence. See, e.g., J.H. v. Sch. Town of Munster, 160 F. Supp. 3d
1079, 1086 (N.D. Ind. 2016) (citing Bohen, 799 F.2d at 1190).
Therefore, as discussed above, the Court finds that Stieglitz has adequately
alleged personal involvement by McDermott and Andersen. Except as addressed
above, the motions to dismiss Count III are denied as to both individual Defendants
and the City.
III. Title VII Retaliation (Count II)
In Count II, Stieglitz asserts a retaliation claim under Title VII against the
City. According to Stieglitz, the City has “engaged in a policy, pattern, and practice
of retaliating against employees who complain of sexual harassment.” SAC ¶ 94.
To state a Title VII retaliation claim, “a plaintiff must allege that [he] engaged
in statutorily protected activity and was subjected to adverse employment action as
a result of that activity.” Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1029 (7th
Cir. 2013). Protected activity includes “some step in opposition to a form of
discrimination that [Title VII] prohibits.” Ferrill v. Oak Creek–Franklin Joint Sch.
Dist., 860 F.3d 494, 501 (7th Cir. 2017) (cleaned up).
Defendants move to dismiss Count II on three grounds: (1) Stieglitz failed to
allege an adverse employment action, (2) certain allegations are untimely, and (3)
various allegations exceed the scope of his EEOC charges.
A. Adverse Employment Action
Defendants first contend that Stieglitz has not adequately pleaded an adverse
employment action for purposes of a Title VII retaliation claim. City Memo. Dismiss
at 17–18. Defendants maintain that Stieglitz’s allegations do not rise to the level of
materially adverse conduct that would dissuade a reasonable employee from
engaging in a protected activity. Id. As previously discussed, see supra Section I.B.1,
the Court finds that Stieglitz has sufficiently alleged a materially adverse action by
alleging that he was ostracized by coworkers, threatened for reporting misconduct,
subjected to internal investigations, and transferred from his assigned firehouse.
Drawing all reasonable inferences in Stieglitz’s favor, these allegations plausibly
describe that he engaged in statutorily protected activity and was subjected to an
adverse employment action as a result. See Carlson, 758 F.3d at 828.
B. Timeliness and Scope of EEOC Charges
Next, Defendants argue that Stieglitz’s retaliation claims occurring before
November 3, 2021 are time-barred because his Amended EEOC Charge alleging
retaliation was filed on August 30, 2022 (August 30, 2022 Charge). Memo. Dismiss at
18. Before filing a Title VII claim, a plaintiff must first file an administrative charge
with the EEOC within 300 days of the allegedly unlawful employment practice. 42
U.S.C. § 2000e-5(e)(1). A plaintiff “must first exhaust his administrative remedies by
filing charges with the EEOC and receiving a right to sue letter.” See Chaidez v. Ford
Motor Co., 937 F.3d 998, 1004 (7th Cir. 2019). “The primary purpose of the EEOC
charge requirement is twofold: it gives the EEOC and the employer a chance to settle
the dispute, and it gives the employer notice of the employee’s grievances.” Huri, 804
F.3d at 831. While exhaustion of administrative remedies is neither a jurisdictional
prerequisite nor an element of a Title VII claim, it is a condition precedent to bringing
suit. See Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009). After doing so, a plaintiff
generally may not pursue a Title VII claim in court that was not included in his or
her EEOC charge.
However, “if certain claims are not included in an EEOC charge, a plaintiff can
still bring them 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 (7th Cir. 2011) (cleaned up). At a minimum, the claim and the administrative
charge must “describe the same conduct and implicate the same individuals.” Huri,
804 F.3d at 831–32. “Courts review the scope of an EEOC charge liberally.” Id. at 831
(cleaned up).
Defendants first assert that any alleged retaliatory acts occurring more than
300 days prior to November 3, 2021–including the allegations that Stieglitz was
ostracized by his co-workers, threatened with discipline for reporting illegal behavior,
and brought up on false internal review charges, see SAC ¶ 35—are untimely and
must be dismissed. Stieglitz retorts that Defendants “misstate” his allegation. Resp.
City at 18. According to Stieglitz, the allegations in this paragraph were of causation,
not timing, and therefore the retaliation that he experienced was not limited to “right
after” July 29, 2021 and therefore are timely. Id. Given that the Court must liberally
view an EEOC claim, for now, the Court finds these allegations, which are not limited
to a specific timeframe, to be within the scope of Stieglitz’s EEOC charge.
Defendants also point out that Stieglitz’s August 30, 2022 Charge listed the
latest instance of retaliation as June 29, 2022, and therefore argue that any instance
of retaliation which occurred after that date is beyond the scope of his August 30,
2022 Charge and must be dismissed for failure to exhaust administrative remedies.
City Memo. Dismiss at 19 (citing Cervantes v. Ardagh Group, 914 F.3d 560, 564 (7th
Cir. 2019)). As stated above, since the parties fully briefed the City’s motion to
dismiss, the Court granted Stieglitz leave to file his Second Amended Complaint. R.
43. The Second Amended Complaint alleges that Stieglitz filed another EEOC charge
on March 16, 2024, alleging retaliation. SAC ¶ 16. Although the Second Amended
Complaint did not attach the March 16, 2024 EEOC Charge, for purposes of
addressing the motion, the Court finds it reasonable to infer that it encompasses the
instances of retaliation alleged in the SAC; as stated above, any retaliatory acts
occurring 300 days before—meaning May 21, 2023—are timely under that Charge.
Therefore, the Court limits its analysis as to whether allegations of retaliation
between June 29, 2022 (the listed end date on Stieglitz’s August 30, 2022 Charge)
and May 21, 2023 (300 days before his March 16, 2024 Charge) are properly
exhausted.
In response, Stieglitz states that in the Seventh Circuit, a plaintiff is not
required to file a new EEOC charge to pursue retaliation claims arising from the
filing of a prior EEOC charge. Resp. City at 17–18 (citing Luevano v. Wal-Mart Stores,
Inc., 722 F.3d 1014, 1030 (7th Cir. 2013)). Defendants correctly posit in reply,
however, that this rule applies to claims of retaliation based on the filing of the initial
EEOC Charge, not for retaliation based on later internal complaints, like those
Stieglitz alleges. City Reply at 14–15 (citing Rufus v. City of Chicago, 2018 WL
1911799, at *4 (N.D. Ill. Apr. 23, 2018)). Additionally, Stieglitz maintains that the
retaliatory conduct was continuing and occurred up to the filing of his First Amended
Complaint. Resp. City at 18.
Although a close call, the Court finds that the allegations of retaliation that
occurred between June 29, 2022 and May 21, 2023, at least as currently alleged in
the Second Amended Complaint, fall within a pattern of harassment and unjustified
discipline related to the retaliation complained of in Stieglitz’s August 30, 2022
Charge. See Little v. Illinois Dep’t of Pub. Health, 2017 WL 5903835, at *4 (N.D. Ill.
Nov. 30, 2017) (finding undated actions, such as a two-day suspension and the
plaintiff’s supervisor giving away her duties to younger, less experienced interns,
“arose out of the pattern of harassment and unjustified discipline she complained of
in her EEOC charge and in the rest of her Complaint”) (citing Huri, 804 F.3d at 831–
32; Hopkins v. Bd. of Educ. of City of Chicago, 73 F. Supp. 3d 974, 983 (N.D. Ill. 2014)
(allegations of retaliation that post-date the plaintiff’s EEOC charge were exhausted
because they are part of the same “campaign” of retaliatory harassment)). To the
extent that discovery uncovers that different individuals perpetuated the harassment
or retaliation, the Court may find those allegations not to be exhausted at a later
stage of the proceedings.
Accordingly, the Court finds that Stieglitz has exhausted his retaliation claims,
and adequately states a claim for retaliation under Title VII.
IV. Title VII Hostile Work Environment (Sexual Harassment) (Count I)
Stieglitz brings Count I against the City, alleging that he was subjected to a
hostile work environment in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a). To state a hostile work environment claim, a plaintiff must
allege that: (1) he was subject to unwelcome harassment, (2) the harassment was
based on his membership in a protected class, (3) the harassment was severe or
pervasive as to alter the conditions of employment and create a hostile or abusive
working environment, and (4) a basis exists for employer liability. Huri, 804 F.3d at
834.
Defendants move to dismiss Count I on three bases: (1) Stieglitz’s allegations
predating April 18, 2021, are untimely and not a continuing violation (2) Stieglitz
exceeded the scope of his February 11, 2022 Charge and August 30, 2022 Charge, and
(3) Stieglitz’s allegations are neither severe nor pervasive to impute liability against
the City. City Memo. Dismiss at 20–21.
A. Scope of the EEOC Charge
Defendants assert that Stieglitz’s allegations exceed the scope of both his
February 11, 2022 Charge and August 30, 2022 Charge and are, in part, untimely.
City Memo. Dismiss at 20–21. Defendants point out that the EEOC Charge filed on
February 11, 2022 (February 11, 2022 Charge), identified April 18, 2021 as both the
earliest and latest date of discrimination. The August 30, 2022 Charge likewise
specified April 18, 2021, as the earliest date and June 29, 2022 as the latest.
Defendants rely on Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994), to
contend that any alleged conduct occurring before April 18, 2021, or after June 29,
2022–including allegations concerning a shower curtain and sex toy–fall outside the
scope of the EEOC charges and must be dismissed. Memo. Dismiss at 20–21.
Stieglitz responds that a hostile work environment may encompass conduct
occurring outside the formal filing period if at least one act contributing to the hostile
environment occurred within the 300-day window; thus, the entire period of the
hostile work environment may be considered. Resp. City at 20 (citing Garrick v.
Moody Bible Inst., 494 F. Supp. 3d 570, 575–76 (N.D. Ill. 2020)). Stieglitz further
points out that EEOC charges are not expected to include every factual detail and
should be construed liberally. Id. at 19 (citing McKenzie, 92 F.3d at 482). He also cites
Cheek, 31 F.3d at 502, to emphasize that “allegations outside the body of the charge
may be considered when it is clear that the charging party intended the agency to
investigate the allegations.” Id. Similarly, LaPorta v. City of Chi., 1999 WL 965970
at *5 (N.D. Ill. Sept. 29, 1999) and Macchia v Loy. Univ. Med. Ctr., 2004 WL 2392201,
at *5 (N.D. Ill. Oct. 25, 2004) support the view that ambiguities in the charge do not
justify dismissal where the allegations are reasonably related to the charge.
The Court agrees that Stieglitz’s allegations fall within the scope of the EEOC
Charge. The Second Amended Complaint describes a series of related acts, many of
which occurred within the applicable time period listed on the Charges, that
collectively contributed to the allegedly hostile work environment. At the pleading
stage, these allegations are sufficient to support an inference that the earlier and
later incidents form part of the same unlawful workplace conduct. Moreover,
construing the EEOC charges liberally, the Court concludes that the allegations in
the Second Amended Complaint are reasonably related to the administrative charges
and would have been expected to fall within the scope of the EEOC’s investigation.
As with the retaliation charge, if discovery uncovers that certain acts of
discrimination were taken by different individuals and are not part of the same
pattern, the Court may decline to consider them at a later stage. Therefore, the Court
finds that, at this stage, Stieglitz has properly exhausted the allegations supporting
his hostile work environment claim.11 Finally, as discussed above, see supra Section
II.B, he has sufficiently pled severe and pervasive harassment to support the claim.
Conclusion
For the foregoing reasons, Defendants’ Motions to Dismiss [15], [17] are
granted in part and denied in part. They are denied in all respects except that the
11Because the Court finds that Stieglitz has properly exhausted his administrative remedies
as to Counts I and II, the Court need not determine whether it can consider Exhibit 1 to
Stieglitz’s response.
Court dismisses with prejudice any claim for retaliation based on complaints of
harassment brought under the Equal Protection Clause. The Court directs
Defendants to answer the Second Amended Complaint (including Counts V and VI)
on or before August 14, 2025.
Date: July 23, 2025
United States District Judge
Franklin U. Valderrama
37