In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2029
N EREIDA M ENDEZ,
Plaintiff-Appellee,
v.
P ERLA D ENTAL and D ENTAL P ROFILE,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:04-cv-04159—Samuel Der-Yeghiayan, Judge.
A RGUED O CTOBER 28, 2010—D ECIDED M AY 24, 2011
Before M ANION, R OVNER, and SYKES, Circuit Judges.
R OVNER, Circuit Judge. Plaintiff-Appellee Nereida
Mendez brought a complaint against her former em-
ployer Perla Dental and Dental Profile (collectively
“Perla”) alleging gender discrimination and a hostile
work environment in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.,
retaliation in violation of Title VII, assault and battery,
intentional infliction of emotional distress, retaliatory
2 No. 08-2029
discharge in violation of Illinois law, and claims under
the Fair Labor Standards Acts, 29 U.S.C. §§ 201 et seq., and
the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq.
A jury found for Mendez on all claims and awarded
Mendez compensatory and punitive damages, overtime
damages, and lost wages.
On appeal, the defendants argue that the court lacked
subject matter jurisdiction over the retaliatory discharge
claim, and that both the decision on that claim and the
punitive damages award based on it must be vacated.
The defendants acknowledge that this appeal is the first
time they have raised the jurisdictional issue, but they
point out that issues of subject matter jurisdiction are
never waived and can be raised at any point in the pro-
ceeding. See Dexia Credit Local v. Rogan, 602 F.3d 879, 883
(7th Cir. 2010).
Because the appeal involves a narrow claim, we will set
forth only the general facts relevant to that issue. The
evidence at trial demonstrated that the defendants main-
tained an environment of ongoing verbal and physical
sexual harassment of female employees, refused re-
peatedly to change that environment, and ultimately
terminated Mendez for her complaints of mistreatment.
Mendez’s complaints took a variety of forms. She com-
plained of sexual harassment to the office manager, the
assistant office manager, and the general manager, but
those complaints resulted in no changes in the environ-
ment, and in fact caused her to be criticized and ridiculed
in front of the other employees. In addition, she com-
plained to the police when one incident resulted in physi-
No. 08-2029 3
cal injury to her. In that incident, Dr. Dajani pushed her
to the floor after she refused his suggestion that she
date Dr. Ahmed. She injured her back in that fall and
received treatment in the emergency room. She then
filed a police report concerning that incident. That action
caused an escalation in the harassment. Mendez intro-
duced testimony that when she gave the defendants
the bill from her hospital visit, the owner stated “[w]ho do
you think you are bringing the police into our office,”
and then told her she was fired and had her escorted
from the building.
The essence of the subject matter jurisdiction conten-
tion is that the claim presented to the jury was one of
unlawful discrimination over which the Illinois Human
Rights Commission (“the “Commission”) had exclusive
jurisdiction. The Illinois Human Rights Act (the “Act”)
establishes a comprehensive administrative procedure
to address civil rights violations. See Blount v. Stroud, 904
N.E.2d 1, 7 (Ill. 2009). That Act is violated if an employer
retaliates against any individual for complaining about
sexual harassment. Pursuant to that Act, the Commission
has exclusive jurisdiction over claims of civil rights vio-
lations. Id.; 775 ILCS 5/8-111(C). Therefore, if Mendez’s
retaliatory discharge claim was inextricably intertwined
with her complaints of sexual harassment, that claim
should have been brought before the Commission. A
claim is inextricably linked with the Act if the Act fur-
nishes the legal duty that the employer is alleged
to have violated, such as the duty to refrain from dis-
criminating against or sexually harassing an employee.
Blount, 904 N.E.2d at 8-10. Where the complaint alleges
4 No. 08-2029
a tort recognized at common law, such that the elements
of the tort can be established without reference to the
legal duties created by the Act, the state law claim is not
preempted by the Act. Id. at 8-9; Bannon v. University of
Chicago, 503 F.3d 623, 630 (7th Cir. 2007); Naeem v.
McKesson Drug Co., 444 F.3d 593, 604 (7th Cir. 2006);
Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (Ill. 1997).
The parties agree, however, that at the time the com-
plaint was filed, the district court had subject matter
jurisdiction over the Illinois retaliatory discharge claim
because the claim had an independent basis. In addition
to the claims based on sexual harassment, the complaint
also alleged that she was fired for filing a police report
concerning the assault. The defendants concede that a
discharge for filing a police report is an Illinois common
law tort without reference to the duties created by the
Act, and therefore not within the exclusive jurisdiction
of the Commission. See Blount, 904 N.E.2d at 9. That
ends our inquiry. Subject matter jurisdiction is deter-
mined as of the filing of a complaint, and with a few
exceptions not relevant here, is not lost as a result
of subsequent developments in a case. Greenberger v.
GEICO General Ins. Co., 631 F.3d 392, 396 (7th Cir. 2011);
Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805,
807 (7th Cir. 2010). In Cunningham Charter, we identified
some of those exceptions, such as where a class be-
comes moot in the course of litigation, or where a plain-
tiff amends away jurisdiction in a subsequent pleading.
The defendants do not point to any such circumstances
here, but argue that Mendez essentially abandoned her
No. 08-2029 5
claim of retaliatory discharge based on the filing of
the police report, leaving only the sexual harassment
underpinnings for the claim and depriving the district
court of subject matter jurisdiction. This argument and
conclusion are legally flawed. In fact, the Illinois
Supreme Court rejected a nearly-identical argument in
Blount. The plaintiff in Blount was fired because she
refused to commit perjury in a co-worker’s discrimina-
tion suit against Blount’s employer. 904 N.E.2d at 9-10.
The Illinois Supreme Court recognized that a retaliatory
discharge premised upon that refusal to commit perjury
was a tort that was independent of the Illinois Human
Rights Act, and therefore could be maintained in the
Illinois circuit court. Id. The Illinois Supreme Court there-
fore reversed the appellate court, which had held that
her claim was preempted because the evidence at trial
had not supported her allegation that she refused to
commit perjury. Blount v. Stroud, 877 N.E.2d 49, 57-8
(Ill.App. 1 Dist. 2007). The appellate court reasoned that
the evidence indicated only that Blount was terminated
because she opposed discrimination by testifying in
support of the discrimination claim of her co-worker, and
that claim was tied to the legal duties created by the Act.
Id. In reversing that decision, the Illinois Supreme Court
noted that subject matter jurisdiction does not depend
on the ultimate success of the claim or the proofs at trial,
but rather “is dependent upon whether the plaintiff’s
case, as framed by the complaint or petition, presents a
justiciable matter.” Blount, 904 N.E.2d at 10, citing
Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 770
N.E.2d 177, 184 (Ill. 2002). The Illinois Supreme Court
6 No. 08-2029
noted that the complaint adequately invoked the court’s
jurisdiction, and the failure to prove that claim did not
relinquish it. Id. Moreover, the court rejected the claim
that jurisdiction was impacted by the jury instruction
that “ ‘went far beyond a claim solely involving her
alleged refusal to commit perjury’ ” to include retalia-
tion for opposing unlawful discrimination under the
Act. The court recognized that “any error in instructing
the jury is simply that—a trial error. The jury instruc-
tions—like the proofs at trial—do not somehow divest
the circuit court of the subject matter jurisdiction it
earlier acquired.” Id. at 11. The defendants here similarly
challenge the scope of the jury instruction, although as
will be discussed, there is no debate that sufficient evi-
dence was presented at trial to support the common law
tort in the present case unlike Blount. Therefore, the de-
fendants’ argument is even weaker here than in Blount,
but in any case it rests on the flawed premise that the
faulty jury instruction could deprive the court of subject
matter jurisdiction. There is no support in caselaw for
such a proposition, which would result in a remarkably
inefficient use of judicial resources.
We need not even consider that issue, however, because
an even more fundamental problem with the defen-
dants’ argument is that there is no factual basis for
the conclusion that Mendez abandoned the claim. That
argument is based entirely on the jury instruction given
to the jury on the retaliation claim, which was so
general that it would allow the jury to find retaliatory
discharge based on the complaints of sexual harassment
rather than the filing of the police report. Even if, as the
No. 08-2029 7
defendants argue, the jury instruction failed to include
an element of the claim, that raises only a challenge to
the jury instruction, not a challenge to subject matter
jurisdiction. It is undisputed that the evidence at trial
included evidence relating to the police report, and in
fact the defendants proposed a jury instruction for the
retaliatory discharge claim that included reference to
the police report. There is simply no factual basis to
hold that Mendez abandoned her common law retali-
atory discharge claim at trial. Thus, we need not even
address the flawed argument that the abandonment
somehow operated to deprive the court, at that late date,
of subject matter jurisdiction.
The error in the jury instruction is simply a trial
error that the defendants could have challenged on the
merits, but they failed to do so at any appropriate point
in time. At trial, the defendants agreed to the instruc-
tion, and on appeal to this court they failed to present
any challenge to the jury instruction, relying entirely on
a challenge to the subject matter jurisdiction of the
district court. They attempt to belatedly raise a plain
error challenge to the jury instruction in their reply
brief, but it is well-established that arguments raised
for the first time in the reply brief are waived. United
States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007);
United States v. Blaylock, 413 F.3d 616, 619 (7th Cir. 2005).
Although the defendants argue that Mendez raised the
plain error issue in the appellee brief and that the issue
is preserved for our review, that is a mischaracteriza-
tion. The appellee’s brief argues that any challenge to
the jury instruction is waived, addressing the validity of
8 No. 08-2029
the instructions only in the alternative. The defendants
have waived any challenge to the jury instructions by
failing to raise it in their opening brief, and they have
failed to establish that the district court lacked subject
matter jurisdiction over the retaliatory discharge claim.
The decision of the district court is A FFIRMED.
5-24-11