Case No. 06-3436 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff-Appellant, v. CONCENTRA HEALTH SERVICES, INC. Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, No. 05-1109 Hon. Wayne Andersen, Judge __________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT __________________________________________________ RONALD S. COOPER General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LORRAINE C. DAVIS Office of General Counsel Acting Associate General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 CAROLYN L. WHEELER (202) 663-4772 Assistant General Counsel joseph.seiner@eeoc.gov JOSEPH A. SEINER Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . ii Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1 Statement of the Issue . . . . . . . . . . . . . . . . . . . . .2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . .2 Statement of the Facts . . . . . . . . . . . . . . . . . . . . .3 A. Background.. . . . . . . . . . . . . . . . . . . . .3 B. Proceedings Below. . . . . . . . . . . . . . . . . .4 Standard of Review . . . . . . . . . . . . . . . . . . . . . . .8 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . .9 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 THE DISTRICT COURT ERRED IN DISMISSING THE EEOC'S AMENDED COMPLAINT, WHICH PROVIDED SUFFICIENT NOTICE AND PROPERLY SET FORTH A RETALIATION CLAIM UNDER TITLE VII. . . . . . . . . . . . . . . . . . . . . . . . 11 A. The Plain Terms of the Amended Complaint Provide Concentra with Sufficient Notice and Properly Set Forth a Retaliation Claim12 B. The Complaint and Discrimination Charge Sufficiently Allege a Retaliation Claim. . . . . . . . . . . . . . . . 18 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Certificate of Compliance Circuit Rule 30(d) Statement Attached Required Short Appendix and Table of Contents Certificate of Service TABLE OF AUTHORITIES Federal Cases 188 LLC v. Trinity Indus., Inc., 300 F.3d 730 (7th Cir. 2002). . . . . . . . . . . . . 19, 21 Alexander v. Gerhardt Enters., 40 F.3d 187 (7th Cir. 1994) . . . . . . . . . . . . . .28-29 Am. Nurses' Ass'n v. Illinois 783 F.2d 716 (7th Cir. 1986). . . . . . . . . . . . . . . 17 Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998). . . . . . . . . 16, 17, 18, 30 Broderick v. Ruder, 685 F.Supp. 1269 (D.D.C. 1988). . . . . . . . . . . . . . 24 Brown v. Budz, 398 F.3d 904 (7th Cir. 2005). . . . . . . . . . . . . . . 22 Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006). . . . . . . . . . . . . . . . . . 29 Cler v. Illinois Educ. Ass'n, 423 F.3d 726 (7th Cir. 2005). . . . . . . . . . . . . . . 16 Conley v. Gibson, 355 U.S. 41 (1957). . . . . . . . . . . . . . . . 13, 14, 21 Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994). . . . . . . . . . . 21, 28, 30 Doe v. Smith, 429 F.3d 706 (7th Cir. 2005). . . . . . . . . . . . . . . 15 Drinkwater v. Union Carbide Corp., 904 F.2d 853 (3d Cir. 1990) . . . . . . . . . . . . . . . 23 Edwards v. Marin Park, Inc., 356 F.3d 1058 (9th Cir. 2004) . . . . . . . . . . . . . . 26 EEOC v. Caterpillar, 409 F.3d 831 (7th Cir. 2005). . . . . . . . . 20, 26, 27, 28 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) . . . . . . . . . . . . . . . . . . . 20 Eison v. McCoy, 146 F.3d 468 (7th Cir. 1998). . . . . . . . . . . . . . . .8 Fine v. Ryan Int'l Airlines, 305 F.3d 746 (7th Cir. 2002). . . . . . . . . . . . . 22, 30 Firestine v. Parkview Health Sys., 388 F.3d 229 (7th Cir. 2004). . . . . . . . . . . . . . . 29 Graehling v. Village of Lombard, 58 F.3d 295 (7th Cir. 1995) . . . . . . . . . . . . . . . 22 Hoskins v. Poelstra, 320 F.3d 761 (7th Cir. 2003). . . . . . . . . . . . . . . 15 Kolupa v. Roselle Park Dist., 438 F.3d 713 (7th Cir. 2006). . . . . . . . . . . . . . . 12 Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993) . . . . . . . . . . . . . . . . . . . 14 Levenstein v. Salafsky, 164 F.3d 345 (7th Cir. 1998). . . . . . . . . . . . . . . 21 Luckett v. Rent-A-Center, 53 F.3d 871 (7th Cir. 1995) . . . . . . . . . . . . . . . 16 Marshall v. Knight, 445 F.3d 965 (7th Cir. 2006). . . . . . . . . . . . . . . 15 Massey v. Merrill Lynch & Co., Inc., 464 F.3d 642 (7th Cir. 2006). . . . . . . . . . . . . .8, 22 Mattson v. Caterpillar, Inc., 359 F.3d 885 (7th Cir. 2004). . . . . . . . . . . . . . . 29 McCready v. Ebay, Inc., 453 F.3d 882 (7th Cir. 2006). . . . . . . . . . . . . . . .9 McDonald v. Household Int'l, Inc., 425 F.3d 424 (7th Cir. 2005). . . . . . . . . . . . . . . 15 McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996) . . . . . . . . . . . . . 27, 30 Phelan v. City of Chicago, 347 F.3d 679 (7th Cir. 2003). . . . . . . . . . . . . . . 21 Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006). . . . . . . . . . . . . . 17 Scott v. City of Chicago, 195 F.3d 950 (7th Cir. 1999). . . . . . . . . . . . . . . 17 Simpson v. Nickel, 450 F.3d 303 (7th Cir. 2006). . . . . . . . . . . . . . . 15 Slaney v. Int'l Amateur Athletic Fed'n, 244 F.3d 580 (7th Cir. 2001). . . . . . . . . . . . . . . .8 Sparrow, III v. United Air Lines, Inc., 216 F.3d 1111 (D.C. Cir. 2000). . . . . . . . . . . . . . 17 Speedy v. Rexnord Corp., 243 F.3d 397 (7th Cir. 2001). . . . . . . . . . . . . . . 27 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) . . . . . . . . . . . . . 14, 15, 16, 26 Tierney v. Vahle, 304 F.3d 734 (7th Cir. 2002). . . . . . . . . . . . . . . 21 Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429 (7th Cir. 1993). . . . . . . . . . . . . . . 19 Wade v. Hopper, 993 F.2d 1246 (7th Cir. 1993). . . . . . . . . . . . . . . .9 Williams v. New York City Hous. Auth., 458 F.3d 67 (2d Cir. 2006) . . . . . . . . . . . . . . . . 26 Wright v. Associated Ins. Cos., 29 F.3d 1244 (7th Cir. 1994). . . . . . . . . . . . . . . 19 Federal Statutes 28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C § 2000e . . . . . . . . . . . . . . . . . . . .1, 13, 28 42 U.S.C. § 1981a. . . . . . . . . . . . . . . . . . . . . . . .1 Federal Rules and Regulations Federal Rule of Civil Procedure 12 . . . . . . . . . . . . . . 18 Federal Rule of Civil Procedure 8. . . . . . . . . . . . . . . 12 Federal Rule of Civil Procedure 9. . . . . . . . . . . . . . . 12 Federal Rule of Appellate Procedure 4(a) . . . . . . . . .1, 3, 8 29 C.F.R. § 1604.11(g) . . . . . . . . . . . . . . . . . . . . 24 Other Authorities EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism, EEOC Notice No. 915-048 (Jan. 12, 1990), available at http://www.eeoc.gov/policy/docs/sexualfavor.html. . . . . 24 2 James Wm. Moore et al., Moore's Federal Practice § 8.04[1] (3d ed. 2006). . . . . 12 STATEMENT OF JURISDICTION The Equal Employment Opportunity Commission (EEOC or Commission) brought this retaliation suit against Concentra Health Services, Inc. (Concentra), under section 706(f) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f), and section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Complaint, District Court Document Number (Doc. No.) 1 at paragraph 1; First Amended Complaint, Doc. No. 18 at paragraph 1; Short Appendix (SA) at 6-7, 16.<1> Concentra has continuously been and is now doing business in the State of Illinois and the City of Elk Grove. First Amended Complaint at paragraph 4, Doc. No. 18; SA at 17. On information and belief, Concentra is incorporated in the state of Nevada and its principal place of business is located in Addison, Texas. The district court had jurisdiction over the case under 28 U.S.C. §§ 1331, 1337, 1343, 1345, and 451. Id. at paragraph 1; SA at 16. On July 12, 2006, the district court issued a memorandum opinion and order dismissing with prejudice the EEOC's First Amended Complaint. Court Order, Doc. No. 28; SA at 27. On July 17, 2006, the court entered judgment dismissing the case. Judgment, Doc. No. 29; SA at 40. On September 11, 2006, the Commission filed a timely notice of appeal. Notice, Doc. No. 30; SA at 41; Fed. R. App. Proc. 4(a). This Court has jurisdiction to review the judgment under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court erred in dismissing the EEOC's retaliation claim where the Commission's complaint properly stated the claim and provided the defendant with sufficient notice? STATEMENT OF THE CASE Charles Horn filed a retaliation charge with the EEOC on September 11, 2003. See Charge, Exhibit A to Defendant's December 13, 2005, Memorandum in Support of Motion to Dismiss, Doc. No. 22; SA at 21. On February 24, 2005, the Commission filed a complaint in the U.S. District Court for the Northern District of Illinois, alleging that Concentra illegally retaliated against Horn for his complaint to the company's human resources department indicating that his female supervisor gave preferential treatment to a male subordinate with whom she was engaged in a sexual relationship. Complaint, Doc. No. 1, at paragraphs 6-10; SA at 7-8. The district court dismissed the complaint, holding that the special treatment alleged did not violate Title VII. November 3, 2005 Court Order at 3-4, Doc. No. 17; SA at 14-15. The court permitted the Commission to amend the complaint, and the EEOC refiled on November 29, 2005. Id.; EEOC's First Amended Complaint, Doc. No. 18; SA at 16. On July 12, 2006, the district court granted Concentra's motion to dismiss the amended complaint with prejudice. See July 12, 2006 district court order, Doc. No. 28; SA at 27. In granting the motion, the court held that the Commission had failed to provide sufficient notice because the amended complaint failed to offer "any facts to support the claim." Doc. No. 28 at 2-4; SA at 28-30. Additionally, the court concluded that the allegations set forth in the charge (which was attached to the defendant's memorandum in support of its motion to dismiss) could not state a viable claim for retaliation. Doc. No. 28 at 5-12; SA at 31-38. On July 17, 2006, the court entered judgment dismissing the case. Judgment, Doc. No. 29; SA at 40. On September 11, 2006, the Commission filed a timely notice of appeal. Notice, Doc. No. 30; JA at 41; Fed. R. App. Proc. 4(a). STATEMENT OF THE FACTS A. Background In January 2000, Charles Horn was hired as a medical assistant at Concentra, and was promoted to assistant center administrator in November 2000. See Charge, Exhibit A to Defendant's December 13, 2005, Memorandum in Support of Motion to Dismiss; Doc. No. 22; SA at 21-22. On August 4, 2001, Horn encountered Cherie Varzino, his supervisor, and Shannon Johnson, one of the medical assistants that Horn supervised, engaging in sexual relations on company property. Id. Two days later, Varzino admitted to Horn that she was having an affair with Johnson, as well as with other company employees, and advised him not to report her for fear that she would be terminated. Id. In April 2002, Horn received complaints from several staff members that they believed Johnson was receiving preferential treatment because of his sexual relationship with Varzino. Id. On April 25, 2002, Horn reported the affair, "which was adversely affecting the work environment . . . and my ability to perform my job duties," to the human resources manager. Id. Horn was instructed by the area administrator "not to complain to Human Resources again." Id. Between May 14, 2002, and September 10, 2002, Varzino issued Horn nine unwarranted disciplinary warnings. On October 7, 2002, Horn was demoted and transferred. Id. Horn was ultimately terminated on November 18, 2002, allegedly because of a complaint made by a patient. Id. B. Proceedings Below On September 11, 2003, Horn filed a retaliation charge with the EEOC. Id. On February 24, 2005, the Commission filed a complaint alleging that Concentra retaliated against Horn "for making a complaint with Concentra's Director of Human Resources stating that his female supervisor gave a male subordinate, with whom she was having an inappropriate sexual relationship, preferential treatment over similarly situated employees with respect to his employment." Complaint, Doc. No. 1, at 2-3; SA at 7-8. The district court dismissed the complaint, holding that "[w]hether an employee favors one employee over another because of a familial relationship, friendship, or love interest, that special treatment is permissible under Title VII as long as it is not based on an impermissible classification." November 3, 2005 Court Order at 3, Doc. No. 17 (quotation and citation omitted); SA at 14. The court thus concluded that because the EEOC had only alleged employee favoritism, Horn could not have "objectively and reasonably believed in good faith that his female supervisor's favoritism to a paramour was a violation of Title VII." Id. The court gave the Commission leave to amend the complaint. Doc. No. 17 at 4; SA at 15. On November 29, 2005, the EEOC filed an amended complaint, this time alleging that Concentra retaliated against Horn "after he opposed conduct in the workplace that he objectively and reasonably believed in good faith violated Title VII by reporting the conduct . . . ." EEOC's First Amended Complaint at paragraph 7, Doc. No. 18; SA at 17-18. Concentra again moved to dismiss the amended complaint. Motion to Dismiss, Doc. No. 20. On July 12, 2006, the district court granted Concentra's motion to dismiss with prejudice. See July 12, 2006, district court order, Doc. No. 28; SA at 27. The court noted that the amended complaint "is even more vague than the original complaint." Doc. No. 28 at 2; SA at 28. The court maintained that the complaint "provides no description of the ‘conduct' that Horn reported, and does not allege any facts that would even provide a clue as to the nature of this ‘conduct.'" Id. Indeed, the "amended complaint is exactly the same as the original complaint, except that the sentence in the original complaint alleging that Horn opposed preferential treatment based on a sexual relationship was changed in the amended complaint to say that Horn opposed conduct he believed violated Title VII." Doc. No. 28 at 2-3; SA at 28-29. The court determined that the amended complaint failed "to provide adequate notice" to Concentra because "it offers only a conclusory allegation rather than offering any facts to support the claim." Doc. No. 28 at 4; SA at 30. Thus, the amended complaint "does not specify what conduct Horn believed to violate Title VII and form the basis for a retaliation claim. Instead, it alleges only that Horn ‘opposed conduct in the workplace that he objectively and reasonably believed in good faith violated Title VII by reporting the conduct . . . .'" Id. (emphasis in original) (quoting amended complaint). The court also looked beyond the complaint to the EEOC charge that the defendant attached to its motion to dismiss. Doc. No. 28 at 5; SA at 31. The court determined that it was fair to consider the charge — not attached to the complaint by the EEOC — because the Commission referred to it in the complaint and it is central to Horn's claim. Id. The Commission's complaint referred to the charge to establish that the procedural requirements for suit were satisfied. See EEOC's First Amended Complaint at paragraph 6, Doc. No. 18; SA at 17. Nonetheless, the court stated that "[p]laintiff's amended complaint would not exist without the Charge." July 12, 2006 district court order at 5, Doc. No. 28; SA at 31. The court noted that the charge "alleged that Horn reported an affair between a supervisor and a supervisee, and that the supervisor gave the supervisee preferential treatment." Doc. No. 28 at 6; SA at 32. The court concluded that this allegation could not support a reasonable belief that Concentra violated Title VII, because "Title VII does not prohibit an employer from favoring an employee based on a personal relationship, including a paramour relationship." Doc. No. 28 at 7; SA at 33. Additionally, the court concluded that the conduct that Horn alleged "cannot reasonably be construed" to set forth a hostile work environment claim. Doc. No. 28 at 9-10; SA at 35-36. The court acknowledged that the conduct complained of "does not have to rise to the level of being actionable alone," but determined that the conduct at issue in this case cannot "meet the Seventh Circuit's standard for hostile work environment because none of the alleged affairs involved Horn at all." Doc. No. 28 at 10; SA at 36. Because Horn was not the target of the conduct, and because the conduct was not unwelcome, Horn cannot establish that the affairs created a hostile work environment. Doc. No. 28 at 10-11; SA at 36-37. Additionally, the court concluded that the alleged conduct was not severe or pervasive enough to create a hostile work environment. Doc. No. 28 at 11; SA at 37. And, the court noted that in his charge, Horn only contended that he reported a single affair, but did not indicate that he reported the additional alleged affairs that his supervisor engaged in. Doc. No. 28 at 12; SA at 38. In dismissing the amended complaint with prejudice, the court concluded that "Plaintiff has not stated a retaliation claim because: (1) the amended complaint itself provides no notice as to the nature of the allegedly unlawful conduct; and (2) even considering the EEOC Charge, the Plaintiff has failed to show that Horn reported any conduct that violated Title VII, either under a theory of favoritism or under a theory of hostile work environment." Doc. No. 28 at 12- 13; SA at 38-39. On July 17, 2006, the court entered judgment dismissing the case. Judgment, Doc. No. 29; SA at 40. On September 11, 2006, the Commission filed a timely notice of appeal. Notice, Doc. No. 30; SA at 41; Fed. R. App. Proc. 4(a). STANDARD OF REVIEW This Court reviews de novo a district court's dismissal of a complaint. See Massey v. Merrill Lynch & Co., Inc., 464 F.3d 642, 645 (7th Cir. 2006) ("We review the district court's grant of a Rule 12(b)(6) motion to dismiss de novo, examining only the pleadings, taking all the facts pled as true, and construing all inferences in favor of the plaintiffs."); Slaney v. Int'l Amateur Athletic Fed'n, 244 F.3d 580, 597 (7th Cir. 2001) (district court's dismissal of complaint pursuant to Federal Rule 12(b)(6) reviewed de novo); Eison v. McCoy, 146 F.3d 468, 470 (7th Cir. 1998) ("We review de novo a district court's decision to jettison a case [upon a motion to dismiss] at this nascent stage."); Wade v. Hopper, 993 F.2d 1246, 1250 (7th Cir. 1993) ("We review a Fed. R. Civ. P. 12(b)(6) dismissal de novo."). "Dismissal is proper only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." McCready v. Ebay, Inc., 453 F.3d 882, 888 (7th Cir. 2006) (internal quotation and citation omitted). SUMMARY OF ARGUMENT The Federal Rules of Civil Procedure make clear that a complaint need only allege "a short and plain statement of the claim" showing that the EEOC is entitled to relief. The Supreme Court and this Court have further clarified that this notice pleading requirement is a liberal standard and that the complaint need not contain a statement of the legal theories or facts supporting a claim. The district court erred in concluding that the EEOC's amended complaint failed to provide adequate notice to the defendant and that it did not sufficiently state a claim for relief. The Commission's amended complaint in this case clearly satisfied the liberal pleading standard of the federal rules. The EEOC's amended complaint alleged that since at least 2001 Concentra had engaged in unlawful retaliation at its Elk Grove location in violation of Section 704(a) of Title VII. The amended complaint further provided that the company's illegal conduct included retaliation against Horn after he opposed workplace conduct (that he objectively and reasonably believed in good faith to violate Title VII) by reporting this conduct to the company's human resources director. The amended complaint also stated that the retaliation included issuing Horn unwarranted negative evaluations and terminating him. Thus, the amended complaint provided notice to the defendant that the Commission was alleging a retaliation claim pursuant to Title VII, set forth the time period that the violation occurred, indicated that the retaliation was the result of a complaint to the director of human resources, and provided the nature of the company's illegal conduct. No more is required by the federal rules or the case law. In addition to providing adequate notice, the Commission's amended complaint sufficiently stated a retaliation claim. In ruling to the contrary, the district court erroneously considered Horn's administrative charge along with the amended complaint. The Commission's amended complaint did not attach the charge, refer to the substance of the charge, or set forth any of the allegations contained in the charge. The administrative charge is therefore not "central" to the Commission's claim, and the court erred in applying a narrow exception to the well-established rule that no document should be considered outside of the complaint when ruling on a motion to dismiss. However, even assuming the charge was properly considered, the charge actually bolsters, rather than undermines, the Commission's position that the complaint sufficiently stated a retaliation claim. The case law makes clear that to dismiss the case at this early stage of the proceedings, the court must be unable to hypothesize any set of facts that would support a viable retaliation claim. There are several sets of facts consistent with the amended complaint and Horn's charge that could support a retaliation claim for opposing unlawful activity under Title VII. The court erroneously interpreted the charge as only alleging one specific set of facts which it held could not establish conduct that Horn could reasonably have believed to violate Title VII. Based on the limited information available in the charge, however, it is entirely possible to envision scenarios in which Horn's supervisor's multiple sexual relationships with company employees could have resulted in a violation of Title VII. At a minimum, one can easily hypothesize a set of facts involving conduct an employee could objectively and reasonably believe to be in violation of the law. ARGUMENT THE DISTRICT COURT ERRED IN DISMISSING THE EEOC'S AMENDED COMPLAINT, WHICH PROVIDED SUFFICIENT NOTICE AND PROPERLY SET FORTH A RETALIATION CLAIM UNDER TITLE VII The EEOC's amended complaint — considered with or without Horn's charge of discrimination — pleads sufficient facts to state a claim of retaliation under Title VII and to give the defendant notice of the claim. The district court therefore erred in dismissing the Commission's amended complaint. A. The Plain Terms of the Amended Complaint Provide Concentra with Sufficient Notice and Properly Set Forth a Retaliation Claim. The Commission's case is clearly governed by the Federal Rules of Civil Procedure and thus by its simplified scheme of "notice" pleading. "The intent of the liberal notice pleading system is to ensure that claims are determined on their merits rather than through missteps in pleading." 2 James Wm. Moore et al., Moore's Federal Practice § 8.04[1], at 8-23 (3d ed. 2006). Thus, Federal Rule of Civil Procedure 8(a)(2), which sets out the general rules of pleading, "is fashioned in the interest of fair and reasonable notice, not technicality." Id. at 8-24. Federal Rule of Civil Procedure 8(a) requires a complaint to contain "(1) a short and plain statement of the grounds upon which the court's jurisdiction depends, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks." Federal Rule of Civil Procedure 9(b) mandates more specific pleading where instances of fraud, mistake, or condition of the mind are alleged — none of which are implicated in this case. As this Court has explained, "[a]ny decision declaring ‘this complaint is deficient because it does not allege X' is a candidate for summary reversal, unless X is on the list in Fed.R.Civ.P. 9(b)." Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006). The Commission clearly satisfied the requirements of the federal rules in its amended complaint. There is no allegation that the Commission failed to establish jurisdiction (see First Amended Complaint at paragraphs 1-5, Doc. No. 18; SA at 16-17) or that the EEOC has not sufficiently set forth a prayer for relief (see First Amended Complaint at 3-4, Doc. No. 18; SA at 18-19). In satisfying the requirement of providing "a short and plain statement of the claim showing that the [EEOC] is entitled to relief," the Commission stated in detail in the amended complaint that: Since at least 2001, Defendant has engaged in unlawful employment practices at its Elk Grove location, in violation of Section 704(a) of Title VII, 42 U.S.C § 2000e-3(a). Such unlawful employment practices include, but are not limited to, retaliating against Horn after he opposed conduct in the workplace that he objectively and reasonably believed in good faith violated Title VII by reporting the conduct to Concentra's Director of Human Resources. Concentra's retaliation includes, but is not limited to, issuing Horn unwarranted negative evaluations and terminating him. EEOC's First Amended Complaint at paragraph 7, Doc No. 18; SA at 17-18. This statement provides notice to the defendant that the Commission is alleging a Title VII retaliation claim, sets forth the time period that the violation occurred, indicates that the retaliation occurred because of a complaint to the director of human resources, and states that the retaliation took the form of negative evaluations and Horn's ultimate termination. This pleading clearly meets the Rule 8 requirements as construed by the Supreme Court in civil rights cases. In Conley v. Gibson, 355 U.S. 41 (1957), for instance, the Supreme Court considered a complaint brought by certain black workers which alleged, in part, that their union "did nothing to protect them against [] discriminatory discharges and refused to give them protection comparable to that given white employees," and that the union had generally failed to represent black employees "equally and in good faith." Id. at 43. The Court refused to dismiss the complaint for failing to "set forth specific facts to support its general allegations of discrimination" and found that the complaint at issue "adequately set forth a claim and gave the respondents fair notice of its basis." Id. at 47-48; see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (reiterating that the "‘Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim'" (quoting Conley, 355 U.S. at 47)). This liberal pleading standard was recently reaffirmed by the Supreme Court in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). In Swierkiewicz, the Court held that a "heightened pleading standard in employment discrimination cases conflicts with [Rule 8], which provides that a complaint must include only a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'" Id. at 512. The Court further emphasized that "under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case . . . ." Id. at 511. This Court, like the Supreme Court, has held that notice pleading does not require a statement of the legal theories or facts supporting a claim. As this Court recently noted in Simpson v. Nickel, 450 F.3d 303, 305 (7th Cir. 2006), a litigant need only plead "claims" rather than legal theories or facts and "plaintiffs need not allege either the factual or legal ‘elements' of a prima facie case under the employment-discrimination laws." (citing Swierkiewicz). This Court has further advised that "‘[a]ny district judge (for that matter, any defendant) tempted to write "this complaint is deficient because it does not contain . . ." should stop and think: What rule of law requires a complaint to contain that allegation?'" Simpson, 450 F.3d at 305 (emphasis in original) (quoting Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005)); see also McDonald v. Household Int'l, Inc., 425 F.3d 424, 427 (7th Cir. 2005) (setting forth the "notice pleading standard" in the federal rules); Doe, 429 F.3d at 708 ("Plaintiffs need not plead facts; they need not plead law; they plead claims for relief. Usually they need do no more than narrate a grievance simply and directly, so that the defendant knows what he has been accused of."); Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003) (noting that if a complaint sufficiently puts the defendant on notice of the "time, scope, and parties" involved in the claim, it will satisfy the pleading requirements). Moreover, this Court has repeatedly emphasized this liberal standard for the pleading requirements. See, e.g., Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006) ("We have repeatedly stated that Rule 8 does not require plaintiffs to plead facts or legal theories."); Cler v. Illinois Educ. Ass'n, 423 F.3d 726, 730 (7th Cir. 2005) ("The [district] court's decision to construe [the complaint] narrowly is inconsistent with Rule 8 and with the obligation to draw all inferences in favor of the nonmoving party when resolving a motion to dismiss."); Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) ("[t]o the extent the district court required plaintiff to include in the complaint allegations sufficient (if proved) to prevail at trial, the court imposed a requirement of fact-pleading"); Luckett v. Rent-A-Center, 53 F.3d 871, 873 (7th Cir. 1995) ("District judges must heed the message of Rule 8: the pleading stage is not the occasion for technicalities."). This Court has further advised that plaintiffs "are entitled to discovery before being put to their proof," and warned that if the courts were to treat the complaint as a "statement of the party's proof" it would lead only to "windy complaints" that would "defeat[] the function of Rule 8." Bennett, 153 F.3d at 519 (emphasis in original). And, like the Supreme Court in Swierkiewicz, this Court has acknowledged that this liberal standard is applicable in cases involving employment discrimination. For example, in Bennett, this Court emphasized the limited pleading requirements for discrimination claims: Because racial discrimination in employment is "a claim upon which relief can be granted", this complaint could not be dismissed under Rule 12(b)(6). "I was turned down for a job because of my race" is all a complaint has to say. . . . To the extent the district court required plaintiff to include in the complaint allegations sufficient (if proved) to prevail at trial, the court imposed a requirement of fact-pleading. But as we said of another claim of employment discrimination: "a complaint is not required to allege all, or any, of the facts logically entailed by the claim. . . . A plaintiff does not have to plead evidence. . . . [A] complaint does not fail to state a claim merely because it does not set forth a complete and convincing picture of the alleged wrongdoing." 153 F.3d at 518 (first ellipses added) (quoting Am. Nurses' Ass'n v. Illinois, 783 F.2d 716, 727 (7th Cir. 1986) (emphasis added by Court). See Sparrow, III v. United Air Lines, Inc., 216 F.3d 1111, 1115, 1118 (D.C. Cir. 2000) (quoting Bennett decision with approval and reversing dismissal of employment discrimination case); see also Scott v. City of Chicago, 195 F.3d 950, 951-53 (7th Cir. 1999) (reversing district court's dismissal of complaint for lack of notice in employment discrimination case brought in part under Title VII). Similarly, because retaliation against an employee for opposing conduct he objectively and reasonably believed in good faith to violate Title VII is ‘a claim upon which relief can be granted,' the Commission's amended complaint should not have been dismissed here. As a recent D.C. Circuit decision in a retaliation case succinctly stated, "all [the] complaint has to say" to satisfy the liberal pleading requirements is that the defendant "retaliated against me because I engaged in protected activity." Rochon v. Gonzales, 438 F.3d 1211, 1220 (D.C. Cir. 2006) (citation and quotation omitted). The EEOC's amended complaint in this case pleaded a claim — retaliation — and gave the defendant clear notice of the parties to, and the time and scope of, this claim.<2> In the face of overwhelming authority to the contrary, the district court improperly imposed requirements not found in the federal rules and thus erred in dismissing the Commission's amended complaint. B. The Complaint and Discrimination Charge Sufficiently Allege a Retaliation Claim In addition to holding that the complaint was insufficient to allege a claim of retaliation, the district court concluded that the facts contained in the charge, when considered with the complaint, also failed to state a cause of action. July 12, 2006 District Court order at 5, Doc. No. 28; SA at 31. Despite the Commission's argument to the contrary, the court considered the charge — which was attached to the defendant's motion to dismiss but not to the EEOC's complaint — in granting the dismissal. Id. The court erred in doing so. The "general rule" is that when "additional evidence is attached [to] a motion to dismiss, the court must either convert the 12(b)(6) motion into a motion for summary judgment under Rule 56" or "exclude the documents attached to the motion to dismiss and continue under Rule 12." 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002) (citation and quotation omitted). The exception permitting consideration of a document not contained in the complaint, but attached to the motion to dismiss, requires that the document be "referred to in the plaintiff's complaint" and be "central to his claim." Id. Accord Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994); Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). This exception to the rule that no document should be considered outside of the complaint is "narrow" and is intended to be "aimed at cases interpreting, for example, a contract." Trinity Indus., 300 F.3d at 735 (citation omitted). The Commission did refer to the charge once in the amended complaint, but only to point out that all procedural requirements had been met in the case. See EEOC's First Amended Complaint at paragraph 6, Doc. No. 18; SA at 17 ("More than thirty days prior to the institution of this lawsuit, Horn filed a charge with the Commission alleging violations of Title VII . . . .").<3> The Commission did not refer to the substance of the charge, or set forth any of the allegations in it. Nonetheless, the district court concluded that the charge was "central" to the Commission's complaint because "[p]laintiff's amended complaint would not exist without the Charge." July 12, 2006 District Court order at 5, Doc. No. 28; SA at 31. As the charge was only used to demonstrate that all conditions precedent to the lawsuit were satisfied, the Commission believes that the district court erred in considering the substance of the charge. The district court's reliance on the allegations in the charge as central to the case rests on a misunderstanding of the relationship between a charge and a Commission lawsuit. As this Court has recognized, an administrative charge only triggers the Commission's investigation, and does not limit the scope of the EEOC's claim. See EEOC v. Caterpillar, 409 F.3d 831, 833 (7th Cir. 2005) ("Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable. The charge incites the investigation, but if the investigation turns up additional violations the Commission can add them to its suit.") (quotation and citation omitted). See also EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002) (noting that the EEOC is "the master of its own case"). Since this charge is not central to the Commission's case, this case does not fit the parameters of the "narrow" exception permitting a court to consider a document that is not attached to the complaint but is attached to the motion to dismiss, and is certainly far different from those cases interpreting the plain terms of a contract. See Trinity Indus., 300 F.3d at 735; Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998) (narrow exception is "aimed at cases interpreting, for example, a contract.").<4> The court thus erred in considering the charge in its decision. Nonetheless, even assuming that the district court properly considered the charge as part of the amended complaint, the court still improperly granted the defendant's motion to dismiss. A motion to dismiss should only be granted where "‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Phelan v. City of Chicago, 347 F.3d 679, 681 (7th Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). And, in a retaliation case, a plaintiff need not establish that the complained of conduct actually violates Title VII. Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1457-58 (7th Cir. 1994). Rather, "it is sufficient if the plaintiff has a reasonable belief that she is challenging conduct [that violates] Title VII." Id. (internal quotation and citation omitted). This Court has further noted that "[i]t is improper to retaliate against anyone for claiming a violation of Title VII unless that claim is completely groundless." Fine v. Ryan Int'l Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (citation and quotation omitted). In assessing the sufficiency of a complaint, a court is required to consider factual scenarios that have not yet been adduced because discovery has not been completed. Such conjecture about hypothetical facts is precisely what this Court has mandated. See Massey v. Merrill Lynch & Co., 464 F.3d 642, 645 (7th Cir. 2006) ("A complaint should only be dismissed if there is no set of facts, even hypothesized, that could entitle a plaintiff to relief."); Brown v. Budz, 398 F.3d 904, 912 (7th Cir. 2005) ("At this early stage of the proceedings, we take plaintiff's factual allegations as true, draw all reasonable inferences in his favor, and will hypothesize any set of facts consistent with those allegations to avoid dismissal."); Graehling v. Village of Lombard, 58 F.3d 295, 298 (7th Cir. 1995) ("[a]s we keep stressing, the plaintiff is entitled to the benefit of all inferences-- even to the benefit of hypothesized facts--at this early stage"). As set forth in the charge, Horn was an "extraordinary" employee who observed his female supervisor and one of his male subordinates "engaging in sexual relations" on company property. See Charge, attached to Defendant's Memorandum in Support of its Motion to Dismiss, Doc. No. 22 at Exhibit A; SA at 21-22. Horn's supervisor admitted to him that she was having affairs with other employees, and she advised him not to report her "because she feared she would be fired." Id. Sometime later, after receiving several complaints about the situation, Horn complained to the human resources manager that his supervisor and another employee were having an affair, "which was adversely affecting the work environment . . . and [Horn's] ability to perform [his] job duties." Id. Horn was instructed by the area administrator "not to complain to Human Resources again." Id. Horn received numerous unwarranted disciplinary warnings after complaining to human resources, and was ultimately terminated. Id. Horn believed that he had "been retaliated against for participating in Concentra's investigation into potential sexual harassment . . . ." Id. Based on these allegations, there are several sets of facts that could support a viable claim of retaliation for opposing unlawful activity under Title VII. But, instead of drawing all reasonable inferences and hypothesizing various sets of facts, the court erroneously interpreted the charge as only alleging a specific set of facts — paramour preference — which it concluded is not a practice that Horn could reasonably have believed to violate Title VII. July 12, 2006 District Court order at 5, 7-8, Doc. No. 28; SA at 31, 33-34. Without more information as to how this paramour preference was effectuated in the workplace, however, it is impossible to know whether the preference resulted in a hostile environment prohibited by Title VII. See, e.g, Drinkwater v. Union Carbide Corp., 904 F.2d 853, 861 (3d Cir. 1990) ("[I]n hostile environment cases, it is the environment, not the relationship, that is actionable. The relationship may contribute to the environment, but it is the workplace atmosphere that is critical."); 29 C.F.R. § 1604.11(g) ("Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit."); EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism, EEOC Notice No. 915-048 (Jan. 12, 1990), available at http://www.eeoc.gov/policy/docs/sexualfavor.html ("If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them . . . ."). Thus, based on the limited information available in the charge, it is entirely possible to envision scenarios in which Horn's supervisor's multiple sexual relationships with company employees could have resulted in a violation of Title VII. See Broderick v. Ruder, 685 F.Supp. 1269, 1278 (D.D.C. 1988) (conduct of a sexual nature so pervasive in workplace that "it can reasonably be said that such conduct created a hostile or offensive work environment which affected the motivation and work performance of those who found such conduct repugnant and offensive"). At a minimum, the inappropriate sexual behavior placed Horn in the untenable position of overseeing an employee who was receiving favors from his boss, thereby destroying any authority Horn would ordinarily have over his subordinate. As this sexual conduct was directly affecting the terms and conditions of Horn's employment, it would therefore be entirely reasonable for him to believe that such conduct was in violation of both Title VII and company policy. And, to the extent that Horn's male subordinates were complaining to him about the preferential treatment received by Johnson, it would be reasonable for Horn to be concerned that Varzino was either implicitly or explicitly requesting that these males also engage in sexual relations with her if they wanted to receive similar favors. In addition to dismissing Horn's complaint to human resources as predicated on lawful paramour preference, the court also thought this internal complaint was deficient in other respects. July 12, 2006 District Court order at 5, 8-12, Doc. No. 28; SA at 31, 34-38. Parsing the elements of a hostile work environment claim, the court concluded that Horn was unable to show that he was subjected to unwelcome verbal or physical conduct of a sexual nature because the conduct of which he complained was not targeted at him and was not unwelcome. Id. at 10; SA at 36. As an initial matter, the court's conclusion that the prima facie elements of a hostile work environment are not satisfied is contrary to the Supreme Court's warning in Swierkiewicz that "under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case . . . ." 534 U.S. at 511. More to the point, since this is a retaliation claim, it was particularly inappropriate to dismiss the amended complaint because of questions about the sufficiency of Horn's underlying complaint of sexual harassment. See Williams v. New York City Hous. Auth., 458 F.3d 67, 72 (2d Cir. 2006) ("The Swierkiewicz holding applies with equal force to any claim, including retaliation claims like [the plaintiff's], that the McDonnell Douglas framework covers."); Edwards v. Marin Park, Inc., 356 F.3d 1058, 1062 (9th Cir. 2004) ("Swierkiewicz's liberal reading of Rule 8(a) applies with equal force to discrimination and retaliation claims . . . ."). Beyond this, however, at this early stage of the proceedings, it cannot be determined whether there was any unwelcome conduct targeted at Horn. Horn may have been telling his employer he felt that he was the target of an implicit demand for sexual favors — traditional quid pro quo harassment. It cannot be determined from the complaint or charge whether there is any evidence that Horn was improperly propositioned by his supervisor to engage in a sexual relationship either implicitly or explicitly. Though such conduct was not set forth in the charge, the Commission's case is not limited by the four corners of this document. See Caterpillar, 409 F.3d at 833. As this Court has recently stated, the EEOC is not confined to claims typified by those of the charging party, and [the defendant] is mistaken to think that the EEOC's complaint must be closely related to the charge that kicked off the Commission's investigation. . . . If courts may not limit a suit by the EEOC to claims made in the administrative charge, they likewise have no business limiting the suit to claims that the court finds to be supported by the evidence obtained in the Commission's investigation. The existence of probable cause to sue is generally and in this instance not judicially reviewable. Id. (citations and quotation omitted). As this case was dismissed before discovery began, it is not known whether additional evidence will arise that would establish that Horn was subjected to unwelcome harassment. Further, it cannot be determined from the charge or complaint whether Johnson, or other employees Varzino admitted having affairs with, welcomed Varzino's attentions; if not, Horn's complaint would have been in opposition to unlawful harassment of other employee(s). Even though such a complaint would be in opposition to illegal conduct to which someone other than Horn was subjected, it would still be protected by Title VII. See Speedy v. Rexnord Corp., 243 F.3d 397, 404 (7th Cir. 2001) (plaintiff "is correct that our cases have held that assisting another employee with her discrimination claim is protected opposition conduct"); McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) ("Several courts, including our own, hold that assisting another employee with his (in this case her) discrimination claim, as well as other endeavors to obtain the employer's compliance with Title VII, is protected ‘opposition conduct.'"). Again, until the facts are more fully developed during discovery, the court was in no position to assess the true intent behind Horn's complaint to human resources. The district court's additional conclusion that the complained of conduct is not severe or pervasive enough also misses the mark. July 12, 2006 District Court order at 11, Doc. No. 28; SA at 37. As with the court's conclusion that the conduct at issue cannot be deemed "unwelcome," the charge alone does not provide sufficient information to determine the severity or pervasiveness of the conduct. As the Commission is not limited in its suit to the allegations contained in the charge, see Caterpillar, supra, numerous facts may exist that support a claim as to the potential severity or pervasiveness of a hostile work environment. Additionally, the conduct complained of need not actually rise to the level of a hostile work environment to support a viable retaliation claim. See Dey, 28 F.3d at 1458 (plaintiff "need not succeed on her sexual harassment claim to make out a prima facie case of retaliatory discharge"). Section 704(a) of Title VII prohibits discrimination against an individual "because he has opposed any practice made an unlawful employment practice" by Title VII. 42 U.S.C. § 2000e- 3(a)-A; see also Firestine v. Parkview Health Sys., 388 F.3d 229, 234 (7th Cir. 2004) ("even if the perceived act of discrimination does not reach a level where it affects the terms and conditions of employment, the employee may have a valid retaliation claim if the employer fires her for complaining about that act") (quotation omitted). See generally Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2414 (2006) ("The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm."). Here, it would have been reasonable for Horn to believe that his employer's repeated sexual exploits — at least one of which he observed taking place on company property — either violated Title VII or would eventually create a hostile work environment if the conduct continued. At a minimum, such a belief is not "utterly baseless" and would therefore satisfy this Court's standard for protected activity in retaliation cases. See Mattson v. Caterpillar, Inc., 359 F.3d 885, 891 (7th Cir. 2004) ("We believe that the same threshold standard should apply to both opposition and participation clause cases [in retaliation cases]. That is, the claims must not be utterly baseless."); Cisneros, 84 F.3d at 259 (7th Cir. 1996) ("It is improper to retaliate for the filing of a claim of violation of Title VII even if the claim does not have merit--provided it is not completely groundless."); Dey, 28 F.3d at 1458 (retaliation case can proceed if plaintiff's "allegations of misconduct" are not "utterly baseless").<5> The district court therefore erred in determining that there is no set of facts that could support the Commission's retaliation claim. See, e.g., Bennett, 153 F.3d at 518 ("‘I was turned down for a job because of my race' is all a complaint has to say."). The court improperly failed to hypothesize facts not included in the amended complaint or the charge in determining whether a viable theory of retaliation exists, and disregarded the notice pleading requirements as interpreted by the Supreme Court and this Court. CONCLUSION The amended complaint in this case provided the defendant with proper notice of the retaliation claim against it, as it clearly set forth the time, scope and parties to the alleged retaliation. The amended complaint also sufficiently stated a claim for which relief could be granted — retaliation. The district court erred in considering the contents of the administrative charge. However, even when considering the charge along with the complaint, the Commission adequately satisfied the liberal pleading requirements of the federal rules. The Commission therefore respectfully requests that the district court's decision be reversed, and that the Commission's case against Concentra be reinstated. Respectfully submitted, RONALD S. COOPER General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LORRAINE C. DAVIS Office of General Counsel Acting Associate General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 CAROLYN L. WHEELER (202) 663-4772 Assistant General Counsel joseph.seiner@eeoc.gov ____________________________ JOSEPH A. SEINER Attorney CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 7,696 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Joseph A. Seiner Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov CIRCUIT RULE 30(d) STATEMENT Pursuant to Circuit Rule 30(d), I certify that all materials required by Circuit Rule 30(a) and (b) are included in the attached required short appendix (appendix). I certify that the appendix is not available electronically. See Circuit Rule 31(e). ______________________________ Joseph A. Seiner Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov ATTACHED REQUIRED SHORT APPENDIX ATTACHED REQUIRED SHORT APPENDIX TABLE OF CONTENTS 1. The District Court docket sheet. . . . . . . . . . . . . 1 2. District Court docket entry No. 1; 2/24/2005 EEOC complaint . . . . . . . . . . . . 6 3. District Court docket entry No. 16; 11/3/2005 Minute Entry . . . . . . . . . . . . . . 11 4. District Court docket entry No. 17; 11/3/2005 Court Memorandum Opinion and Order . . . 12 5. District Court docket entry No. 18; 11/29/2005 EEOC First Amended Complaint . . . . . . 16 6. District Court docket entry No. 22 (Exhibit A only); Charge of Discrimination . . . . . . . . . . . . 21 7. District Court docket entry No. 24 (Exhibit C only); EEOC Letter of Determination . . . . . . . . . . . . 23 8. District Court docket entry No. 27; 7/12/2006 Minute Entry . . . . . . . . . . . . . . . 26 9. District Court docket entry No. 28; 7/12/2006 Memorandum Opinion and Order . . . . . . 27 10. District Court docket entry No. 29; 7/12/2006 Entered Judgment . . . . . . . . . . . . 40 11. District Court docket entry No. 30; Notice of Appeal . . . . . . . . . . . . . . . . . . 41 CERTIFICATE OF SERVICE I, Joseph Seiner, hereby certify that I filed one original and 14 copies of the foregoing brief and Attached Required Short Appendix (appendix) and one copy of the digital version of the brief on diskette with this Court this 5th day of February, 2007, by causing them to be sent via Federal Express next business day service. I also certify that I served two copies of the foregoing brief and appendix and one copy of the digital version of the brief on diskette this 5th day of February, 2007, by causing them to be sent via Federal Express next business day service to the following counsel of record: James J. Oh LITTLER MENDELSON 200 N. LaSalle Street Chicago, IL 60601-1014 I certify that the appendix is not available electronically. See Circuit Rule 31(e). ________________________________ Joseph A. Seiner Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov February 5, 2007 *********************************************************************** <> <1> All citations are to the document number of the filing in the district court, and to the short appendix (where applicable) attached to this brief. <2> The Commission further notes that the defendant was free to move for clarification of the amended complaint under Federal Rule of Civil Procedure 12(e), but did not do so. This Court has stated that “[t]he Rules of Civil Procedure make a complaint just the starting point. Instead of lavishing attention on the complaint until the plaintiff gets it just right, a district court should keep the case moving--if the claim is unclear, by requiring a more definite statement under Rule 12(e), and if the claim is clear but implausible, by inviting a motion for summary judgment.” Bennett, 153 F.3d at 518. <3> The Commission further notes that the defendant did not challenge in its motion to dismiss the amended complaint whether all conditions precedent to filing the lawsuit were met, thereby underscoring that the charge is not central to the dispute in the case. <4> This Court has even noted that “the scope of the exception . . . is uncertain” and speculated that “perhaps it is or should be limited to cases in which the suit is on a contract or the plaintiff, if he has not attached, has at least quoted from, the document later submitted by the defendant.” Tierney v. Vahle, 304 F.3d 734, 739 (7th Cir. 2002). <5> This Court has defined a “groundless claim” as “one resting on facts that no reasonable person possibly could have construed as a case of discrimination.” Fine, 305 F.3d at 752.