Sexual Harassment Claim, Based on Photo and Vulgar Comments, Sufficiently Alleged

In a recent case emanating from the Northern District of Illinois, Miller v. Northeast Illinois Regional Commuter Railroad Corp., No. 20 C 414, 2021 WL 3883080 (N.D.Ill. Aug. 31, 2021), the court denied defendants’ motion to dismiss plaintiff’s claim of sexually hostile work environment.

This case is instructive as to how courts evaluate the situation where (as is not uncommon) some events comprising the alleged “hostile work environment” fall within, and some without, the relevant statute-of-limitations period, and the applicability of the “continuing violation” doctrine in federal employment law (specifically, for claims asserted under Title VII of the Civil Rights Act of 1964).

From the decision:

In her third amended complaint, Miller adds allegations that, on September 12, 2018, Drinkwater took an unauthorized photo of Miller in a dress and displayed the photo to numerous employees, including Valdery, who made sexually vulgar comments to Miller with respect to the photo. But these actions again occurred outside of the 300-day window and so do not provide the hook for a timely claim. But Miller additionally alleges that, in October 2018, Valdery and Vaughn approached her and made sexually vulgar comments. These incidents do fall within the 300-day window.

Metra nonetheless argues briefly that these incidents cannot make Miller’s claim timely because they exceed the scope of her EEOC charge. See Sommerfield v. City of Chicago, 863 F.3d 645, 648 (7th Cir. 2017) (“A plaintiff suing under Title VII ‘may pursue a claim not explicitly included in an EEOC complaint only if her allegations fall within the scope of the earlier charges contained in the EEOC complaint.’ ” (emphasis added) (quoting Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005))); see also Brindley v. Target Corp., 761 F. Supp. 2d 801, 806 (N.D. Ill. 2011) (“[T]he scope of the subsequent judicial proceedings is limited by the nature of the charges filed with the EEOC.” (quoting Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7th Cir. 1992))). This argument has no merit, given that, in her EEOC charge, Miller generally claims that other employees subjected her to sexual harassment and that the discrimination continued through January 24, 2019. See Huri v. Off. of the Chief Judge of the Cir. Ct. of Cook Cnty., 804 F.3d 826, 831–32 (7th Cir. 2015) (a plaintiff need not include every fact in her charge, with general reference to harassment sufficient to place an employer on notice of hostile work environment allegations).

Metra also argues that the October 2018 incidents of sexual harassment cannot make Miller’s claim timely because they do not relate to the acts that took place outside the statutory period. “Sexual harassment claims may involve a series of discrete incidents that individually would not qualify as actionable claims but taken together form ‘an actionable pattern of harassing behavior.’ ” Rosa v. Bd. of Trs. of the Univ. of Ill., No. 18-CV-8477, 2020 WL 7319574, at *7 (N.D. Ill. Dec. 11, 2020) (quoting Garner v. Nat’l Ry. Corp., No. 18-cv-3789, 2019 WL 414711, at *3 (N.D. Ill. Feb. 1, 2019)). “The violation at issue does not need to be continuous, only cumulative.” Id. Although large gaps of time between incidents may keep them from forming one continuing violation, “facts such as the harassers’ identities, whether they acted in concert or isolation, and whether they harassed in distinct or similar fashions are irrelevant to whether the allegations form a single unlawful practice.” Milligan-Grimstad v. Stanley, 877 F.3d 705, 712 (7th Cir. 2017). Here, Miller has alleged that both before and after September 24, 2018, she repeatedly experienced sexual harassment, which Metra failed to remedy despite her complaints. Although discovery may reveal that the incidents are not sufficiently connected or that too much time passed between Frencher’s allegedly harassing conduct and that which Miller experienced at the hands of Drinkwater, Valdery, Vaughn, and others, at this stage, drawing all inferences in Miller’s favor, the Court concludes that Miller may proceed on her hostile work environment claim given that she has alleged at least one timely act. See Lepka v. Help At Home Inc., No. 17 C 733, 2018 WL 4281955, at *3 (N.D. Ill. Sept. 7, 2018) (considering allegations of harassment involving different harassers and separated by approximately a year and a half as a single employment practice); Renfroe v. IAC Greencastle, LLC, 385 F. Supp. 3d 692, 701 (S.D. Ind. 2019) (finding continuing violation where the alleged harassing incidents were “all racial in nature, occurred throughout Renfroe’s employment, and were perpetrated each time by Renfroe’s co-workers”).

As to the sufficiency of the allegations, the court explained:

Here, Miller has pleaded that her co-workers at Metra repeatedly made sexually vulgar comments to her. She also alleges that Drinkwater took an unauthorized photo of her and passed it around to employees who then made derogatory comments to her about it. Additionally, Frencher assaulted and threatened Miller and showed her dirty pictures. Although Metra contends that these allegations fail to reach the level of actionable sexual harassment, Miller has pleaded sufficient facts to satisfy the pleading standard and provide Metra with fair notice of her claim. See Huri, 804 F.3d at 834 (“[I]t is premature to conclude just how abusive Huri’s work environment was.”); Swanson, 614 F.3d at 404 (“[T]he statement need only give the defendant fair notice of what the…claim is and the grounds upon which it rests.” (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007))); James v. Lydon, No. 19 C 3366, 2020 WL 3192286, at *5 (N.D. Ill. June 15, 2020) (“[C]ourts in this district have tended to deny motions to dismiss where plaintiffs alleged some ongoing or repeat instances of harassment.”).

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