Seventh Circuit’s Opinion in Cervantes v. Ardagh Is Cautionary Tale for Hasty Complainants
Plaintiff Juan Cervantes began his employment with the Ardagh Group in 1991 and, throughout the years, worked in various positions including forklift driver, electro-mechanic, and pallet loader. Cervantes v. Ardagh Group, No. 17-3536, 2019 WL 347269 (7th Cir. Jan. 29, 2019). Cervantes filed a charge of discrimination, and ultimately a federal court complaint, following an incident that took place in 2015, in which he was disciplined for insubordination.
Cervantes’ charge of discrimination, which was filed with the Illinois Department of Human Rights (IDHR), was bare-bones. In the section of the charge form titled “Discrimination Based On,” Cervantes checked the box for retaliation — he did not check the boxes for race, national origin, or any other basis of discrimination. In the “Particulars” section of the form, he stated as follows:
I began my employment with Respondent [Ardagh] in or around May 1991. My current position is Forklift driver. A family member filed EEOC Charge No. 210-1998-00397 against respondent. During my employment, I have been subjected to discipline, harassment, and I have been demoted.
I believe I have been discriminated against in retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended. 2019 WL 347269 at *3.
During the IDHR’s investigation of Cervantes’ charge, Cervantes’ attorney sent a letter in response to IDHR’s questions. Cervantes’ attorney did not send a copy of this letter to Ardagh. The IDHR dismissed Cervantes’ charge for lack of substantial evidence to support retaliation.
Cervantes subsequently filed a suit in federal court that expanded his claims against Ardagh to include failure to promote, issuance of performance warnings, and demotion due to race and national origin discrimination. Cervantes also alleged that Ardagh retaliated against him for his own internal complaints of harassment and discrimination. Ardagh moved for summary judgment in part based on Cervantes’ failure to exhaust his administrative remedies before filing suit. The district court agreed and entered judgment in Ardagh’s favor.
Cervantes appealed the district court’s decision arguing, in part, that the district court erred in determining that he failed to exhaust his claims of discrimination with the IDHR/EEOC. The Seventh Circuit rejected Cervantes’ arguments and upheld the district court’s decision.
Seventh Circuit’s Decision
The Seventh Circuit reiterated the general rule that plaintiffs may only file claims under Title VII of the Civil Rights Act of 1964 (Title VII), Pub.L. No. 88-352, Title VII, 78 Stat. 253, or the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101, et seq., that were included in their original charges filed with the investigative agencies (EEOC or IDHR). This rule serves two purposes: (1) it affords the employer notice of the conduct underlying the complainant’s allegation; and (2) it allows the agency and employer an opportunity to attempt to resolve the matter without resorting to courts.
Turning to the facts, the Seventh Circuit found that Cervantes’ complaint, in contrast to his IDHR charge, asserted the following additional allegations, which were outside the scope of his charge:
demotion based on race and national origin;
failure to promote due to race and national origin;
of performance warnings due to race and national origin; and
complaints to supervisors of discrimination and harassment based on his Hispanic background.
Cervantes argued that the above claims satisfied a recognized exception for “claims that are ‘like or reasonably related’ to the EEOC charge, and can be reasonably expected to grow out of an EEOC investigation.” 2019 WL 347269 at 3. However, as a general matter, the Seventh Circuit does not consider retaliation charges to be reasonably related to discrimination claims. In addition, while Cervantes believed the claims were reasonably related because they involved the same entity, same conduct, and same time frame, the Seventh Circuit determined that these similarities occurred at “far too high a level of generality” to fall within the exception. Id. Cervantes’ federal complaint described different hostilities that involved different individuals that were never mentioned in the charge. Accordingly, Cervantes’ IDHR charge did not provide Ardagh or the IDHR reasonable notice of his discrimination claims.
Cervantes further argued that his attorney’s letter to the IDHR expanded the scope of his charge to include the claims he thereafter brought to federal court. The Seventh Circuit rejected Cervantes’ argument because Cervantes’ attorney did not send that letter to Ardagh — he only sent it to the IDHR. As a result, the letter did not provide Ardagh notice of Cervantes’ potential discrimination claims. In addition, the Seventh Circuit determined that the letter only referenced the theory of unlawful retaliation, not discrimination. When a plaintiff is assisted by counsel, courts require some additional specificity or detail as a condition precedent for permitting the plaintiff to assert claims not originally included in the IDHR/EEOC charge.
The Seventh Circuit’s opinion is a reminder to both plaintiff and defense counsel of the importance of administrative charges of discrimination and their ensuing investigations and the role they play in litigation.
Plaintiffs’ attorneys would be wise to review a complainant’s initial charge documents to ensure they include the basis for any and all claims they wish to bring under the statutes enforced by the IDHR and/or EEOC. In addition, plaintiffs’ attorneys should remember to place the employer on notice of any “late additions” to the charge. On the flip side, defense counsel should carefully review administrative charges and the agencies’ investigative files to determine whether plaintiffs have in fact exhausted their administrative remedies.
For more information about employment and labor law, see EMPLOYMENT DISCRIMINATION: PRACTICE AND PROCEDURE — 2018 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.