In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-1527 & 09-1537
R AYMOND M OORE,
Plaintiff-Appellant,
Cross-Appellee,
v.
V ITAL P RODUCTS, INCORPORATED ,
Defendant-Appellee,
Cross-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 0906—Sidney I. Schenkier, Magistrate Judge.
A RGUED O CTOBER 27, 2010—D ECIDED M AY 25, 2011
Before E ASTERBROOK, Chief Judge, and K ANNE and
W OOD , Circuit Judges.
K ANNE, Circuit Judge. Raymond Moore sued Vital
Products, Incorporated (“Vital”) in federal district court.
He alleged racial and sexual discrimination, a hostile
work environment, and retaliation, all in violation of
Title VII, and retaliatory discharge in violation of the
2 Nos. 09-1527 & 09-1537
Illinois Workers’ Compensation Act (“IWCA”). Vital
moved for summary judgment on all counts, which the
district court granted. Vital also moved for sanctions,
which the district court denied. Moore appeals the grant
of summary judgment on all counts, and Vital cross-
appeals the denial of sanctions. Vital also requests sanc-
tions for a frivolous appeal. We affirm the district
court’s grant of summary judgment as to Moore’s
Title VII claims, but reverse as to his IWCA retaliation
claim. We also affirm the district court’s denial of sanc-
tions and reject Vital’s latest motion for sanctions.
I. B ACKGROUND
The parties dispute many of the events leading up to
this case. The narrative we present is based on Moore’s
(the non-moving party’s) account, as found in the record.
Vital hired Moore effective August 16, 2004. Moore
worked as a driver technician, delivering and installing
durable medical equipment. Each day, Moore submitted
a copy of the route he planned to use. Vital had only
one functioning copy machine, which was located in
the office of Richard Cocking, Vital’s accounts manager.
Moore did not look forward to making copies in
Cocking’s office. Cocking sometimes brushed his body
up against Moore’s and blocked Moore from leaving or
moving around in the office. In Cocking’s office, Moore
observed a calendar with pictures of men kissing
and embracing other men, a picture of an apparently
naked man sitting on a toilet, several items of sexual
Nos. 09-1527 & 09-1537 3
paraphernalia, and other sexually suggestive items.
Cocking called Moore “boo,” “queen,” “Mr. Man,”
“sweetie,” “sexy,” “big boy,” and “trade.” He also made an
unwelcome reference to the size of Moore’s penis.
Moore complained to his supervisor, Ricardo Matta,
about Cocking’s behavior and office décor. Matta dis-
missed the complaint, jokingly suggesting that Cocking
was sexually interested in Moore. Matta also behaved
inappropriately on other occasions. Shortly after Moore
began working for Vital, Matta gave Moore unwelcome
compliments about his appearance. At times, Matta called
Moore “nigger,” “bitch ass,” “bitch ass nigger,” “dumb
ass,” and “punk ass.” Finally, Matta publicly questioned
Moore’s ability to attract women and implied that
Moore possessed below-average intelligence. Matta made
similar racial comments to Vital employee Glenn Davis,
who is also black.
Another Vital employee, Jarilez Suarez, also made
racial comments toward Moore. Once, Suarez and Matta
showed some male employees pornographic videotapes.
In August and September 2004, Moore wrote several
letters complaining of racial and sexual harassment. He
left these letters under the door of Vital’s president,
William Buzogany, who claims never to have received
such a letter. Moore then requested a grievance form
from Matta, who did not give him one.
On January 3, 2005, Moore was suspended for poor
job performance. After returning to work, Moore
injured his back on February 16, 2005. Since that date,
Moore has not been present to work at Vital. On Feb-
ruary 28, 2005, Vital filled out Moore’s injury report.
4 Nos. 09-1527 & 09-1537
Moore lost his health insurance coverage sometime
before September 2, 2005. On that date, Moore’s attorney
sent a letter to Vital asking about the status of Moore’s
insurance coverage. Moore had not exercised his right
to maintain coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985 (“COBRA”). Buzogany’s
response explained that Moore had failed to pay his
COBRA premiums and that he had therefore lost his
insurance coverage. Buzogany enclosed a copy of a
previously-mailed COBRA notice, which Moore never
received. The COBRA notice, dated February 21, 2005,
includes language suggesting that Moore was no longer
a Vital employee.
On December 7, 2005, Moore filed a Charge of Dis-
crimination with the Equal Employment Opportunity
Commission. In the EEOC charge, Moore alleged retalia-
tion and a continuing and ongoing hostile work environ-
ment based on race and gender. The charge did not
allege discriminatory or retaliatory discharge. Rather,
Moore represented that he was still employed, though on
injury leave.
On June 4, 2006, Buzogany drafted a letter informing
Moore of an available position within the restrictions
imposed by Moore’s injury. The letter was never mailed
to Moore, and Moore has asserted that he never saw the
letter before filing suit.
On February 16, 2007, Moore filed suit in federal district
court. He alleged a hostile work environment based on
race and gender, discriminatory discharge, and retalia-
tory discharge, all in violation of Title VII. He also
Nos. 09-1527 & 09-1537 5
alleged retaliatory discharge in violation of the IWCA. The
district court granted summary judgment for Vital on all
counts, but denied Vital’s motion for sanctions. Moore
appealed the grant of summary judgment, while Vital
appealed the denial of sanctions. Vital also requested
sanctions from this court.
II. A NALYSIS
A. Summary Judgment
We review a grant of summary judgment de novo.
Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th Cir.
2010). We construe all facts and draw all reasonable
inferences in favor of the nonmoving party. Id. Summary
judgment is appropriate if the record shows that there is
“no genuine issue as to any material fact and [that] the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Moore appeals the grant of summary judg-
ment as to his hostile work environment, Title VII dis-
criminatory discharge, Title VII retaliatory discharge,
and IWCA retaliatory discharge claims. We address
each in turn.
1. Hostile Work Environment
To bring a Title VII claim, a plaintiff must file an EEOC
charge within 300 days of the conduct underlying the
claim. 42 U.S.C. § 2000e-5(e)(1); see also Chaudhry v. Nucor
Steel-Indiana, 546 F.3d 832, 836 (7th Cir. 2008). Any com-
plaint of conduct that occurred more than 300 days
6 Nos. 09-1527 & 09-1537
before the relevant EEOC charge is time-barred.
Chaudhry, 546 F.3d at 836-37. Moore filed an EEOC
charge on December 7, 2005, so he can only complain
of a hostile work environment if it existed after
February 10, 2005. See Fed. R. Civ. P. 6(a)(1). Moore did
not show up to work at Vital on any day after
February 16, 2005, and he does not claim to have been
subject to a hostile work environment after that date.
Therefore, he must show that a hostile work environ-
ment existed between February 10 and 16, 2005.
An employee need only file an EEOC charge within 300
days of the last hostile act in a continuous and ongoing
hostile work environment. Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 117-18 (2002); Pruitt v. City of
Chicago, 472 F.3d 925, 927 (7th Cir. 2006). To avoid sum-
mary judgment, therefore, Moore needed only to bring
forth evidence that would allow a jury to conclude that
some action contributing to the alleged hostile work
environment took place after February 10. But Moore
did not do so. He can identify no incident occurring
between February 10 and 16 that even suggests the exis-
tence of a hostile work environment. Moore’s strongest
evidence is the EEOC charge itself, which alleges “con-
tinuous and on-going” harassment, and his deposition
testimony that Cocking’s inappropriate behavior oc-
curred on “different occasions.” This evidence would not
allow a jury to find that any action after February 10
contributed to a hostile work environment. The grant
of summary judgment on this claim was appropriate.
Nos. 09-1527 & 09-1537 7
2. Title VII Discriminatory Discharge Claims
Moore claims he was discharged in violation of Title
VII because Vital was motivated by racial and sexual
discrimination in discharging him. The district court
correctly held that Moore could not bring these claims
because he had not included them in his EEOC charge.
“Generally, a plaintiff may not bring claims under
Title VII that were not originally included in the charges
made to the EEOC.” Sitar v. Ind. Dep’t of Transp., 344 F.3d
720, 726 (7th Cir. 2003). But if certain claims are not in-
cluded in an EEOC charge, a plaintiff can still bring
them if they are “like or reasonably related to the allega-
tions of the [EEOC] charge and growing out of such
allegations.” Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538
F.2d 164, 167 (7th Cir. 1976) (en banc). To be “like or rea-
sonably related,” the relevant claim and the EEOC charge
“must, at minimum, describe the same conduct and
implicate the same individuals.” Cheek v. W. & S. Life Ins.
Co., 31 F.3d 497, 501 (7th Cir. 1994) (emphasis removed).
Whether Moore’s discharge claims are within the scope
of his EEOC charge is a question of law. Conner v. Ill.
Dep’t of Natural Res., 413 F.3d 675, 680 (7th Cir. 2005).
Moore’s discriminatory discharge claims were not like
or reasonably related to the allegations in his EEOC
charge. To be sure, Moore’s EEOC charge shows (by
checked boxes) that he was alleging sex discrimination,
race discrimination, and retaliation claims. But merely
checking the “Race” and “Sex” discrimination boxes in
the EEOC charge is not enough to make the EEOC charge
like or reasonably related to Moore’s discriminatory
8 Nos. 09-1527 & 09-1537
discharge claims. See Cheek, 31 F.3d at 500-01 (refusing
to consider sex discrimination claim when plaintiff
had not described conduct giving rise to the claim in
an EEOC charge, even though plaintiff had checked
the “sex discrimination” box).
In discussing the particulars of his allegations, Moore
focused almost entirely on evidence of a sexually and
racially hostile work environment. He mentioned inap-
propriate racial and sexual language, racial and sexual
insults, and inappropriate sexual behavior. He con-
tended that management ignored his complaints of
sexual and racial harassment and that Matta and Cocking
thwarted his attempts to file a grievance. The EEOC
charge does include two complaints unrelated to the
alleged hostile work environment: that Vital “retaliated
against me by overloading my workload and by
giving me assignments in unfamiliar and challenging
neighborhoods.” Notably, Moore did not assert in this
narrative that he was discharged because of racial or
sexual discrimination. Rather, Moore explained that he
was “currently on medical leave.” At best, the EEOC
charge can be read to allege a hostile work environment
and retaliation (though not retaliatory discharge). These
harassment and retaliation allegations are not like or
reasonably related to Moore’s discriminatory discharge
claims because they are not based on the same conduct.
See id. at 500-02 (“[A] claim of sex discrimination in
an EEOC charge and a claim of sex discrimination in
a complaint are not alike or reasonably related just
because they both assert forms of sex discrimination.”);
Conner, 413 F.3d at 678, 680 (EEOC allegation of racial
Nos. 09-1527 & 09-1537 9
discrimination based on 2001 non-promotion not like or
reasonably related to claim based on 2002 non-promo-
tion); Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7th
Cir. 1992) (“An aggrieved employee may not complain
to the EEOC of only certain instances of discrimination,
and then seek judicial relief for different instances of
discrimination.”).
Moore does not seriously argue that his discriminatory
discharge claims are like or related to the allegations in
his EEOC charge. Rather, he complains that he could
not have included discharge allegations because he
did not know he had been discharged. Moore points to
no case suggesting an exception from the EEOC charge
requirement when the plaintiff is confused about the
underlying facts, and we decline to create one. Such an
exception would run counter to a primary purpose of
the requirement, which is to give the EEOC an oppor-
tunity to investigate the complaints and help the
parties settle the dispute without litigation. Cheek, 31
F.3d at 500; Conner, 413 F.3d at 680 (finding EEOC
charge prerequisite unmet because the conduct under-
lying plaintiff’s complaint had not occurred when she
filed her EEOC charge, and, as a result, “[t]here was no
way for the EEOC to undertake preliminary investiga-
tion as contemplated by Title VII’s statutory design”). In
short, the district court correctly held that Moore
cannot complain of discriminatory discharge because
he has not alleged such conduct in an EEOC charge.
Summary judgment was proper for these claims.
10 Nos. 09-1527 & 09-1537
3. Title VII Retaliation
Moore’s Title VII retaliation argument hardly warrants
discussion. He claims Vital terminated him in Feb-
ruary 2005 because he filed an EEOC charge in Decem-
ber 2004. But Moore actually filed his EEOC charge in
December 2005—several months after Moore claims he
was discharged. No rational jury could conclude that
Moore’s filing of this EEOC charge caused him to be
discharged several months prior.
4. IWCA Retaliation
Though it had dismissed all of Moore’s federal claims,
the district court exercised supplemental jurisdiction
over his IWCA termination claim. See 28 U.S.C. § 1367(c).
The district court then granted summary judgment as
to that claim. The court relied on its conclusions that
Moore had not presented evidence of his discharge
and that any purported discharge occurred before Vital
knew of Moore’s intent to file a workers’ compensation
claim.
The parties spent much time and energy disputing
whether Moore thought he had been discharged, but the
only relevant question is whether Moore actually was
discharged. Vital seems to have taken inconsistent posi-
tions toward Moore’s employment status. The district
court concluded that Moore was—and perhaps is—an
employee of Vital on inactive status. On appeal, Vital
argues that Moore abandoned his job by not showing up
for work. These positions may or may not be consistent;
Nos. 09-1527 & 09-1537 11
regardless, Moore has put forth evidence that creates a
genuine dispute about whether he was discharged: his
September 2, 2005, letter to Vital; Buzogany’s response
and the attached COBRA notice; and Buzogany’s 2006
letter offering Moore a job.
Vital purports to have sent Moore a COBRA notice
on February 21, 2005. The language of the notice
suggests that Moore’s employment relationship with
Vital ended on or before that date. The notice reports
that Moore’s “medical coverage provided through Vital
Products, Ltd. Terminated on 02/15/05.” It also reports
that, “to continue health benefits,” Moore was obligated
to pay COBRA premiums “for each month after [his]
termination of employment.” The words “termination
of employment” contradict Vital’s apparent contention
that Moore was on inactive status. The purported
mailing date of the COBRA notice is evidence that
Moore did not abandon his job. Vital offers no standard
by which we can determine whether Moore abandoned
his job, but certainly a jury could conclude that Moore—
who injured his back working at Vital on February 16—
had not abandoned his job before February 21.1 Because
the COBRA notice suggests that Moore’s employment at
1
Perhaps Vital means to argue that it discharged Moore
because he had not shown up to work for three consecutive
business days. (February 21, 2005, was a Monday.) This argu-
ment would provide an alternative explanation for Moore’s
discharge, but causation is a question for the decisionmaker
at trial.
12 Nos. 09-1527 & 09-1537
Vital ended and that he did not end the relationship by
abandoning his position, a jury could reasonably
conclude that Vital discharged Moore.
The letters exchanged between Buzogany and Moore
further muddy the issue of Moore’s employment status.
On September 2, 2005, Moore wrote to Vital inquiring
about the status of his company health insurance. In
the letter, Moore represented that he was a current Vital
employee. Buzogany’s response explained that Moore
was no longer automatically covered by the company’s
plan, but that Moore was eligible for COBRA coverage.
What Buzogany did not address is the reason Moore
had lost his previous coverage. Vital may have thought
Moore had abandoned his position, but Buzogany did
not point this out to Moore. The next communication
between Vital and Moore was a June 2006 letter Buzogany
wrote, offering Moore a position within his health re-
strictions. Like Buzogany’s September 2005 letter, this
one shed no light on Moore’s employment status.
This evidence taken together—particularly the language
and purported mailing date of the COBRA notice—would
allow a jury to conclude Vital had discharged Moore.
But the timing and circumstances of any discharge are
uncertain. Thus, supposing Vital did discharge Moore,
there are genuine questions of fact regarding when it
did so and whether Vital’s actions were motivated by
Moore’s intention to file an IWCA claim. Accordingly,
summary judgment was inappropriate for this claim.
Nos. 09-1527 & 09-1537 13
B. Sanctions
Vital has come, shotgun in tow, seeking sanctions. See
United States v. Levy, 741 F.2d 915, 924 (7th Cir. 1984)
(noting that “the shotgun inclusion of issues . . . runs the
risk of obscuring the significant issues by dilution”). In
the district court, Vital moved for sanctions under 28
U.S.C. § 1927 and the first three subparts of Federal Rule
of Civil Procedure 11. The district court denied Vital’s
motion. Undeterred, Vital seeks sanctions from this
court under § 1927, 28 U.S.C. § 1912, and Federal Rule
of Appellate Procedure 38. Moreover, Vital appeals the
district court’s decision, claiming it abused its discretion
by not issuing sanctions. At no point does Vital bother
to articulate the respective standards for issuing sanc-
tions on these various bases.
Because Moore’s appeal was partially successful, we
need not thoroughly analyze most of Vital’s sanction
arguments. We do point out that Vital seeks sanctions
from Moore and his counsel for causing unnecessary
delay and for unreasonably multiplying the proceedings.
See 28 U.S.C. §§ 1912, 1927. These requests seem to be
based on Vital’s claim that Moore and his counsel mis-
represented the factual record. After reading the parties’
briefs and scouring the record, we find that each side
took liberties with the record throughout its brief. Simi-
larly, each side has incorrectly stated, interpreted, or
applied the relevant law at some point in its brief. Put
simply, neither side can claim the high ground. Neither
side, however, has misconstrued the record or misstated
the law to a degree that compels us to issue sanctions.
14 Nos. 09-1527 & 09-1537
III. C ONCLUSION
We A FFIRM the district court’s grant of summary judg-
ment as to Moore’s hostile work environment, Title VII
discrimination, and Title VII retaliation claims. We
R EVERSE the grant of summary judgment as to Moore’s
IWCA retaliation claim and R EMAND for further pro-
ceedings. Finally, we A FFIRM the district court’s denial of
sanctions and decline to impose sanctions in the first
instance.
5-25-11