In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1200
KYLL LAVALAIS,
Plaintiff‐Appellant,
v.
VILLAGE OF MELROSE PARK, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12‐cv‐06921 — Robert W. Gettleman, Judge.
____________________
ARGUED SEPTEMBER 24, 2013 — DECIDED OCTOBER 24, 2013
____________________
Before POSNER, TINDER, and HAMILTON, Circuit Judges.
TINDER, Circuit Judge. Kyll Lavalais, a sergeant with the
Village of Melrose Park Police Department, sued his em‐
ployer, the Village of Melrose Park, and the Chief of Police,
Sam Pitassi, under Title VII and 42 U.S.C. § 1983, alleging
race discrimination and retaliation. The district court grant‐
ed the defendants’ motion to dismiss for failure to state a
claim and Lavalais appealed. For the reasons that follow, we
2 No. 13‐1200
vacate the dismissal of the race discrimination claims, affirm
the dismissal of the retaliation claims, and remand.
I. Background
Plaintiff Lavalais is employed by the Village of Melrose
Park as a police officer. He is the only black officer in the po‐
lice department, which has approximately seventy‐five offic‐
ers. He has been employed as a police officer with the Vil‐
lage for more than twenty years. In 2010, Lavalais filed a
charge with the Equal Employment Opportunity Commis‐
sion (EEOC), alleging race discrimination. He filed a second
charge in January 2011, alleging that he was disciplined for
filing his first EEOC charge and discriminated against be‐
cause of his race.
In early February 2011, Lavalais was promoted to ser‐
geant and placed on the midnight shift. Over a year later, on
April 2, 2012, he requested a change of assignment from the
midnight shift, expressing an interest in any supervisory as‐
signment other than the midnight shift. Chief Pitassi denied
his request. In July 2012, Lavalais filed a charge of discrimi‐
nation with the EEOC, alleging that the Village “(and its Po‐
lice Department leaders)” treated similarly situated officers
not in the protected class more favorably “as to policies and
re‐assignment” and that he had “been placed on the mid‐
night tour indefinitely” because of his race. A month later,
the EEOC issued a right‐to‐sue letter.
Lavalais sued the Village and Chief Pitassi in federal dis‐
trict court alleging employment discrimination based on his
race and in retaliation for filing an EEOC charge. The de‐
fendants moved to dismiss under Rule 12(b)(6) for failure to
state a claim, and Lavalais filed an amended complaint un‐
No. 13‐1200 3
der Title VII and § 1983, alleging race discrimination, retalia‐
tion, and violations of the Equal Protection Clause. Count I
alleges that Lavalais was passed over for assignment to the
day or evening tour, was denied the opportunity to work a
tour of duty other than the midnight tour, and was subjected
to what is in effect a demotion in violation of Title VII. La‐
valais alleges that the defendants overlooked his qualifica‐
tions and seniority because of his race and in retaliation for
his complaints to the EEOC. Count II alleges that in 2010 La‐
valais complained to the EEOC that the defendants were
discriminating against him because of his race and that in
retaliation for his protected speech, the defendants assigned
him to midnight duty and constructively stripped him of his
authority as a sergeant. Count III alleges a violation of the
Equal Protection Clause under § 1983, specifically that Chief
Pitassi singled Lavalais out for less favorable treatment be‐
cause of his race, granting him limited authority as a ser‐
geant, passing over him in favor of a less qualified person
for another tour, diminishing his job responsibilities, and re‐
taliating against him. Count IV alleges a municipal liability
race discrimination claim against the Village. The defendants
moved under Rule 12(b)(6) to dismiss all claims, and the dis‐
trict court granted their motion. Lavalais appealed.
II. Discussion
Lavalais contends that the district court erred in dismiss‐
ing his complaint. We review de novo a Rule 12(b)(6) dismis‐
sal for failure to state a claim. Alam v. Miller Brewing Co., 709
F.3d 662, 665 (7th Cir. 2013). A “complaint must contain al‐
legations that ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)). We
accept all well‐pleaded factual allegations as true and view
4 No. 13‐1200
them in the light most favorable to the plaintiff. Luevano v.
Wal‐Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). A
plaintiff “must plead some facts that suggest a right to relief
that is beyond the ‘speculative level.’” Atkins v. City of Chica‐
go, 631 F.3d 823, 832 (7th Cir. 2011). This means that “the
complaint must contain ‘allegations plausibly suggesting
(not merely consistent with)’ an entitlement to relief.” Alam,
709 F.3d at 666 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557 (2007)).
To the extent Lavalais pursues Title VII claims based on
his initial placement on the midnight shift, such claims are
time‐barred. As applicable here, an EEOC charge “shall be
filed … within three hundred days after the alleged unlaw‐
ful employment practice occurred.” 42 U.S.C. § 2000e‐5(e)(1).
If a plaintiff fails to file a timely charge concerning a discrete
act of discriminatory conduct, his claim is time‐barred. Roney
v. Ill. Dep’t of Transp., 474 F.3d 455, 460 (7th Cir. 2007). La‐
valais was placed on the midnight shift on February 5, 2011.
He did not file his EEOC charge complaining about that
placement until July 18, 2012—more than 300 days later.
Thus, his initial placement on the midnight shift cannot be
the basis of his Title VII claims.
As for the Title VII retaliation claim, the district court
dismissed it on procedural grounds, finding it barred be‐
cause it varied from the 2012 EEOC charge. Lavalais has not
challenged this ground for dismissal and thus has waived
any argument that the court erred. See Logan v. Wilkins, 644
F.3d 577, 583 (7th Cir. 2011).
Turning to the Title VII race discrimination claim, the de‐
fendants first argue that in amending his complaint, Lavalais
dropped his denial of transfer claim and proceeded only on
No. 13‐1200 5
the claim regarding his initial placement on the midnight
shift. A complaint must allege “’some specific facts’ to sup‐
port the legal claims asserted.” McCauley v. City of Chicago,
671 F.3d 611, 616 (7th Cir. 2011) (citation omitted). “The de‐
gree of specificity required … rises with the complexity of
the claim.” Id. at 616–17; see also Swanson v. Citibank, N.A.,
614 F.3d 400, 405 (7th Cir. 2010) (“A more complex case …
will require more detail … .”). “[A] complaint alleging [race]
discrimination need only aver that the employer instituted a
(specified) adverse employment action against the plaintiff
on the basis of [his race].” Luevano, 722 F.3d at 1028 (quoting
Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)).
The original complaint specifically alleged that Lavalais
requested Chief Pitassi to allow him to work a shift other
than the midnight shift and that Pitassi denied his request.
Compl. ¶ 18. These allegations are omitted from the amend‐
ed complaint. However, the amended complaint does allege
that Lavalais was being forced “to work midnights indefi‐
nitely,” which “causes him to be virtually powerless,” First
Am. Compl. ¶ 21; that assignment to the midnight shift
comes with significantly diminished job responsibilities, id. ¶
19(c), and “severely restricted” duties—“it is as if he is not a
sergeant,” id. ¶ 22; that the defendants have compromised
his “right [as a sergeant] to make major sergeant level and
law enforcement decisions in his role as a sergeant” and that
“this conduct … is continuing,” id. ¶ 30 (alteration in origi‐
nal). These allegations sufficiently suggest a denial of trans‐
fer claim. And such a claim is not inconsistent with any oth‐
er allegations of the amended complaint. “A party who ap‐
peals from a Rule 12(b)(6) dismissal may elaborate on her
allegations so long as the elaborations are consistent with the
6 No. 13‐1200
pleading.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 555
(7th Cir. 2012).
Furthermore, in responding to the motion to dismiss the
amended complaint, Lavalais clearly maintained a denial of
transfer claim. For example, in arguing that his claims were
not untimely, he asserted that “[t]he date of his promotion to
sergeant is not significant. What is significant is that … [his]
written request to Chief Pitassi, for a transfer, was denied.”
Pl.’s Resp. Opp’n Defs’ Mot. Dismiss 1‐2. Although La‐
valais’s appellate brief seems to emphasize his initial as‐
signment to the midnight shift, he advances arguments
about being “disallow[ed] a transfer from the midnight
tour,” Appellant’s Br. 14, which are sufficient to maintain the
denial of transfer claim.
The defendants also argue that the district court erred in
finding that the denial of transfer claim was within the scope
of the 2012 EEOC charge. Generally, “a Title VII plaintiff
cannot bring claims in a lawsuit that were not included in
her EEOC charge.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497,
500 (7th Cir. 1994). However, “a plaintiff can still bring
[claims not included in the EEOC charge] if they are ‘like or
reasonably related to the allegations of the [EEOC] charge
and growing out of such allegations.’” Moore v. Vital Prods.,
Inc. 641 F.3d 253, 256–57 (7th Cir. 2011) (quotingJenkins v.
Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.
1976) (en banc)). “To be ‘like or reasonably related,’ the rele‐
vant claim and the EEOC charge ‘must, at minimum, de‐
scribe the same conduct and implicate the same individu‐
als.’” Id. at 257 (quoting Cheek, 31 F.3d at 501).
The 2012 EEOC charge asserts that the Village and the
leaders of the police department treated similarly situated
No. 13‐1200 7
officers not in the protected class more favorably “as to poli‐
cies and re‐assignment” and that Lavalais had “been placed
on the midnight tour indefinitely” because of his race. The
amended complaint alleges that the Village and Chief have
treated Lavalais less favorably than other officers because of
his race and that he was denied the opportunity to work on
a tour other than the midnight tour. The EEOC charge and
amended complaint describe the same conduct and impli‐
cate the same individuals: Lavalais’s indefinite assignment
to the midnight tour, which in this case is another way of
saying a denial of a transfer, by the Village and police de‐
partment leaders, which surely includes the Chief of Police.
And the alleged denial of a transfer could grow or reasona‐
bly be expected to grow out of the allegations in the EEOC
charge. Thus, Lavalais can pursue his denial of transfer
claim.
That brings us to the issue of whether the denial of trans‐
fer rises to a materially adverse employment action. “[A]
purely lateral transfer, that is, a transfer that does not involve
a demotion in form or substance, cannot rise to the level of a
materially adverse employment action.” Williams v. Bristol‐
Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). However, a
“materially adverse change might be indicated by a termina‐
tion of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or
other indices that might be unique to a particular situation.”
Oest v. Ill. Dep’t of Corrs., 240 F.3d 605, 612–13 (7th Cir. 2001)
(quotation and citation omitted) (emphasis added); see also
Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir. 2012) (ex‐
plaining that a “materially adverse change might be indicat‐
8 No. 13‐1200
ed by a … demotion evidenced by … significantly dimin‐
ished material responsibilities”).
The amended complaint alleges that Lavalais’s assign‐
ment to the midnight shift for an indefinite period of time
stripped him of his authority as a sergeant, significantly di‐
minished his job responsibilities, and caused him to be “vir‐
tually powerless” as a sergeant. It also alleges that Lavalais
is “seldom permitted to perform sergeant duties,” including
“instructing officers on what actions they should take [or]
not take,” First Am. Compl. ¶ 19(c), and that his employer
“does not want a black person giving orders to lower rank‐
ing officers,” id. ¶ 21. And it is alleged that Lavalais’s “duties
are so severely restricted, it is as if he is not a sergeant.” Alt‐
hough the complaint does not provide a lot of factual detail,
given the uncomplicated nature of Lavalais’s race discrimi‐
nation claim, the allegations are sufficient to plead that the
denial of a transfer from the midnight shift as well as La‐
valais’s treatment on that shift are materially adverse em‐
ployment actions.
The complaint also alleges that the assignment to the
midnight shift was a demotion, which only adds confusion.
A “constructive demotion” is when an employer has made
conditions so unbearable that a reasonable person would
have felt compelled to accept a demotion rather than remain
in his current position. That is not Lavalais’s claim. Instead,
he alleges that despite his promotion to sergeant, the denial
of a transfer to another shift prohibits him from realizing the
supervisory responsibilities and duties of that position.
Lavalais argues that he may assert a hostile work envi‐
ronment claim even though he did not assert such a claim in
his complaint. He cites Rabe v. United Air Lines, Inc., 636 F.3d
No. 13‐1200 9
866, 872 (7th Cir. 2011), for the proposition that a complaint
need not identify legal theories. While true, a complaint
nonetheless must allege some facts that support whatever
theory the plaintiff asserts. E.g., McCauley, 671 F.3d at 616.
Nothing in Lavalais’s amended complaint or his EEOC
charge fairly suggests a hostile work environment, so such a
claim fails. See Hottenroth v. Vill. of Slinger, 388 F.3d 1015,
1035–36 (7th Cir. 2004) (affirming dismissal of hostile work
environment claim where EEOC complaints failed to allege
anything that could reasonably be considered a hostile envi‐
ronment).
Turning to the § 1983 claims, the district court erred in
concluding that a plaintiff need not allege a materially ad‐
verse employment action to state a claim under § 1983. The
court relied on Power v. Summers, 226 F.3d 815 (7th Cir.
2000), but the § 1983 claim in that case alleged retaliation in
violation of the First Amendment, a claim for which an ad‐
verse employment action is not required. Here, the § 1983
claim is based on race discrimination in violation of the
Equal Protection Clause, a claim for which a materially ad‐
verse employment action is required. See Rodgers v. White,
657 F.3d 511, 517 (7th Cir. 2011) (Title VII and § 1983 race
discrimination employment claims are analyzed under the
same standards). Lavalais has alleged a sufficiently material‐
ly adverse employment action, so his § 1983 race discrimina‐
tion claim (like his Title VII claim) survives the motion to
dismiss.
The district court also erred in analyzing the equal protec‐
tion claim under the class‐of‐one doctrine and dismissing it
under Engquist v. Oregon Department of Agriculture, 553 U.S.
591, 607–08 (2008), which held that “the class‐of‐one theory
10 No. 13‐1200
of equal protection has no application in the public employ‐
ment context.” The equal protection claim is not a class‐of‐
one discrimination claim, but a race discrimination claim.
Finally, we affirm the dismissal of the municipal liability
claim because Lavalais has failed to challenge the dismissal
of that claim on appeal and thus has waived that claim. See
Logan, 644 F.3d at 583.
III. Conclusion
The district court’s judgment is AFFIRMED in part and
VACATED in part, and the case is remanded for further pro‐
ceedings consistent with this opinion.