Conner, Kimberly v. IL Dept Natural ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2933
KIMBERLY CONNER,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF
NATURAL RESOURCES,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03 C 2027—Michael P. McCuskey, Chief Judge.
____________
ARGUED MAY 3, 2005—DECIDED JULY 1, 2005
____________
Before FLAUM, Chief Judge, and KANNE and SYKES,
Circuit Judges.
KANNE, Circuit Judge. Kimberly Conner brought this
Title VII suit alleging racial discrimination and retaliation
by her employer, the Illinois Department of Natural
Resources (“the Department”). The district court granted
the Department’s motion to strike a claim first raised by
Conner in her response to the Department’s motion for
summary judgment. The court also granted summary
judgment for the Department on Conner’s remaining claim.
We affirm both decisions.
2 No. 04-2933
I. History
We summarize the facts as alleged by Conner, an African
American who was employed by the Department from 1996
to 2003. At all times relevant to this suit, Conner worked as
an Office Associate under James Capel, a Caucasian who
held the title of Regional Land Manager. In May 2001,
Conner applied for a promotion to the position of Office
Coordinator, but Capel awarded the position to a Caucasian
woman with more experience.
From December 2001 to February 2002, and
September 2002 to September 2003, Conner filled in for a
retired Office Administrator III, performing the duties of
that job in addition to her own work. Conner submitted a
written pay variance form to Capel, but she was not given
temporary assignment pay for the extra work. Capel did,
however, grant a Caucasian employee temporary assign-
ment pay for covering the duties of another retiree.
Conner had a confrontation with Capel in January 2002
after he denied her application for tuition reimbursement.
Conner told Capel that his denial of her application was
racist and that the way he treated minorities was blatant
racism. Capel initiated disciplinary proceedings against
Conner for what he believed to be insubordination, but,
apparently because of her seven-month leave of absence, no
disciplinary action was taken against Conner.
In October 2002, Conner applied for another promotion,
this time to the position of Office Administrator III. The
position was ultimately filled by a Caucasian applicant who,
according to certified interviewer Sabrina Janssen, had
scored the highest of the three applicants (including
Conner) on a Rutan interview.1 On November 1, 2002,
1
See Rutan v. Republican Party of Ill., 497 U.S. 62 (1990) (hold-
ing that promotions based on political affiliation or support violate
(continued...)
No. 04-2933 3
Janssen gave her recommendation as to which candidate
should be hired. The candidate was notified in
December 2002 that she received the position.
Conner filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on Novem-
ber 1, 2002. That complaint alleged racism within the
Department, specifically stating that Conner had been
unfairly passed over for a promotion in 2001 and denied
temporary assignment pay for taking over a retiree’s duties
from December 2001 through January 2002. On November
6, 2002, the EEOC issued a Dismissal and Notice of Rights
to Conner, giving her 90 days to file a lawsuit against the
Department.
Conner filed a two-count complaint in the district court on
February 7, 2003, alleging violations of Title VII of the Civil
Rights Act. Count I set forth a claim for “race discrimina-
tion,” alleging that Conner was denied promotions because
of her race and that Capel created a racially hostile,
abusive, and offensive work environment. Count II stated
a claim for “retaliation,” alleging that the Department had
retaliated against Conner for complaining to Capel about
racial discrimination. Conner attached her November 1,
2002, EEOC charge as an exhibit to her complaint.
1
(...continued)
public employees’ First Amendment rights). The Department
interviewed candidates for the Office Administrator III position
with standardized questions on knowledge and experience, educa-
tion, communication, and affability. Janssen, a Human Resources
Specialist, then scored the answers of each candidate. There is
some dispute as to how exactly Janssen scored the interviews;
Conner claims that no “desired” answers with which to compare
the candidates’ answers existed prior to the interviews, and that
the Rutan scores were simply a pretext for racial discrimination.
This issue is not relevant to our analysis.
4 No. 04-2933
The Department moved for summary judgment in
February 2004, arguing that Conner’s claim regarding the
2001 non-promotion was time-barred because it had been
brought more than 300 days after the alleged discrimina-
tion, and that the claim regarding the 2002 non-promotion
was beyond the scope of Connor’s right-to-sue letter. It also
argued that Conner could not show that she had been the
victim of a hostile work environment. In her response to the
motion for summary judgment, Conner conceded that the
2001 non-promotion was based upon seniority and the
terms of the Department’s collective bargaining agreement
with its employees, and she did not address her claim of a
hostile work environment. She did, however, allege that she
was treated differently from similarly situated white
employees with respect to temporary assignment pay and
that her claim regarding the 2002 non-promotion was
proper.
The court granted the Department’s motion to strike the
portions of Conner’s response dealing with temporary as-
signment pay, finding that this allegation was improperly
raised for the first time in her response. The court also
agreed with the Department that the 2002 non-promotion
issue was outside the scope of the EEOC right-to-sue letter.
Finally, the court granted the Department’s motion for
summary judgment on Count II, the retaliation claim,
finding no evidence that Conner had suffered any adverse
employment actions because of the complaints she made to
Capel.
II. Analysis
Conner’s first argument on appeal is that the district
court improperly struck the portions of her response to the
Department’s motion for summary judgment related to
temporary assignment pay. Conner argues that, under the
federal system of notice pleading, she was not required to
No. 04-2933 5
set forth the specific bases of her claims in her complaint.
She further argues that the Department should have been
aware that temporary assignment pay would be an issue in
this case from the time it was served with her complaint,
because the EEOC charge indicating that she had been un-
fairly denied the extra pay was attached to the complaint as
an exhibit.
Conner is correct in stating that she was not required to
set forth specific facts and legal theories of her case in her
complaint. See Fed. R. Civ. P. 8; Nance v. Vieregge, 147 F.3d
589, 590 (7th Cir. 1998). “Pleading is no longer a procedural
game of skill at which counsel must be adept in order to
insure the decision of his case on its merits.” Sundstrand
Corp. v. Standard Kollsman Indus., Inc., 488 F.2d 807, 811
(7th Cir. 1973). But pleading is still vitally important to
inform the opposing party of the grounds upon which a
claim rests; a complaint is adequate only if it “fairly notifies
a defendant of matters sought to be litigated[.]” See id.;
accord Wislocki-Goin v. Mears, 831 F.2d 1374, 1381 (7th
Cir. 1987) (“It must be remembered that the principal
function of the complaint is to give the court and the
opposing party sufficient notice of the allegation to which a
response must be made.”)
Conner says that the Department was notified of the
temporary assignment pay issue by way of the EEOC
charge attached to her complaint. We considered and
rejected this argument in Wislocki-Goin v. Mears. The
plaintiff in that case appended her EEOC charges—which
alleged discrimination based on discharge of one job and
failure to receive another—to a complaint of sexual dis-
crimination, but her complaint itself stated a claim based
only on the discharge. Wislocki-Goin, 831 F.2d at 1377. We
held that “appending the EEOC charges to the complaint
hardly serves as notification that the plaintiff is adding an
entirely new count.” Id. at 1381. Conner’s raising of the
temporary assignment pay issue for the first time in her
6 No. 04-2933
response to a motion for summary judgment thus amounted
to adding a new count of discrimination to the lawsuit, or
amending her original complaint. We review the district
court’s denial of leave to amend a complaint only for abuse
of discretion. Shanahan v. City of Chicago, 82 F.3d 776, 781
(7th Cir. 1996).
Conner points out that the Department should have be-
come aware during discovery that the temporary assign-
ment pay issue would be litigated: Conner mentioned
temporary assignment pay (along with many other issues)
in her interrogatory dated August 28, 2004, and Capel was
asked about his authority to grant or deny temporary
assignment pay in his March 19, 2004, deposition. Both of
these dates are after the district court’s July 21, 2003,
deadline for amending the pleadings. In addition, Conner
never filed a motion for leave to amend her complaint by
adding the temporary assignment pay claim, so the form of
her “request” was wrong. See Shanahan, 82 F.3d at 781(“[T]he form of the request [to amend the complaint]—a
passing reference in . . . [plaintiff’s] response to defendants’
motion for summary judgment—was improper.”). It was
well within the district court’s discretion to deny Conner
leave to amend her complaint by refusing to consider her
temporary assignment pay claim. Cf. Evans v. McDonald’s
Corp., 936 F.2d 1087, 1091 (10th Cir. 1991) (discussing
negative consequences that occur if the liberal federal
pleading rules are employed to allow plaintiffs to ascertain
bases of their claims at the last minute, including wasted
resources and prejudicial delay).
We are left with Conner’s second argument: that the
district court improperly rejected her claims of discrimina-
tion based on her non-promotion in 2002. There are several
prerequisites for bringing a Title VII claim. A plaintiff must
file a charge with the EEOC detailing the alleged discrimi-
natory conduct within the time allowed by statute, and the
EEOC must issue a right-to-sue letter. Hentosh v. Herman
No. 04-2933 7
M. Finch Univ. of Health Scis./The Chi. Med. Sch., 167 F.3d
1170, 1173 (7th Cir. 1999); Rush v. McDonald’s Corp., 966
F.2d 1104, 1110 (7th Cir. 1992). In addition, claims brought
in judicial proceedings must be within the scope of the
charges filed with the EEOC; “[a]n aggrieved employee may
not complain to the EEOC of only certain instances of
discrimination, and then seek judicial relief for different
instances of discrimination.” Rush, 966 F.2d at 1110.
Whether the issue of Conner’s 2002 non-promotion was
within the scope of her EEOC charge is a question of law,
which we review de novo. See Babrocky v. Jewel Food Co.,
773 F.2d 857, 864-66 (7th Cir. 1985); accord Nichols v. Am.
Nat’l Ins. Co., 154 F.3d 875, 886 (8th Cir. 1998).
The complaint filed in the district court and the charge
filed with the EEOC must, at a minimum, describe the
same circumstances and participants. Cheek v. Peabody
Coal Co., 97 F.3d 200, 202-03 (7th Cir. 1996). This gives the
EEOC a chance to investigate the allegedly discriminatory
conduct and to seek voluntary compliance or conciliation
without a lawsuit. Babrocky, 773 F.2d at 863. In Conner’s
case, it would have been impossible to describe the conduct
related to her December 2002 non-promotion in her EEOC
charges dated November 1, 2002. There was no way for the
EEOC to undertake preliminary investigation as contem-
plated by Title VII’s statutory design. The non-promotion
was necessarily outside the scope of the EEOC charges, and
the district court was correct in rejecting Conner’s claims
based upon it.
III. Conclusion
The district court properly refused to consider both the
temporary assignment pay and 2002 non-promotion issues.
Conner offered no other arguments in response to the
Department’s motion for summary judgment. Thus, she
cannot show that she was subjected to an adverse employ-
ment action as required to establish a prima facie discrimi-
8 No. 04-2933
nation case. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Summary judgment for the Department is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-1-05