                                 UNPUBLISHED ORDER
                            Not to be cited per Circuit Rule 53




            United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                  Argued March 1, 2005
                                  Decided April 5, 2005

                                          Before

                      Hon. MICHAEL S. KANNE, Circuit Judge

                      Hon. TERENCE T. EVANS, Circuit Judge

                      Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 04-2727

GARY T. PIERCE,                                  Appeal from the United States District
   Plaintiff-Appellant,                          Court for the Central District of
                                                 Illinois
                       v.
                                                 No. 03-3222
ILLINOIS DEPARTMENT OF
HUMAN SERVICES,                                  Jeanne E. Scott,
    Defendant-Appellee.                          Judge.

                                         ORDER

      Gary Pierce, who is black, sued his employer under Title VII. Essentially
reasoning that Pierce pleaded himself out of court given the specific allegations in
his complaint, the district court dismissed. Now, Pierce argues that dismissal was
premature because the court disregarded additional allegations included in his
response to the defendant’s motion to dismiss or, alternatively, because the court
should have permitted him to amend. Whatever his ultimate chance of success
might be, we hold that the district court dismissed Pierce’s complaint prematurely.

        Pierce is a residential care worker at the Illinois School for the Deaf, a unit of
the Illinois Department of Human Services (DHS). In October 2003 he sued DHS
pro se under Title VII, see 42 U.S.C. § 2000e et seq., claiming that he was subjected
to “unequal terms and conditions of employment.” Pierce explained that he was
suspended for 15 days for sleeping on the job after coworker Fred Hoagland
reported him. He added that Hoagland later followed him on a fishing trip “to
No. 04-2727                                                                       Page 2

harass” him and during the trip called him a “nigger.” Pierce allegedly reported
Hoagland to management, but Hoagland was not punished. To show exhaustion of
his administrative remedies, Pierce attached a right-to-sue letter from the Equal
Employment Opportunity Commission. He demanded $500,000 and a specially
created job at DHS “to monitor discriminatory acts of this nature.”

       DHS moved for dismissal under Rule 12(b)(2), (5), and (6) of the Federal
Rules of Civil Procedure. DHS first argued that Pierce had waived any claim of
race discrimination arising from his 15-day suspension by entering a settlement at
the administrative level. DHS attached a copy of the settlement reached with
Pierce during proceedings before the Illinois Department of Human Rights
releasing DHS from “any and all claims” arising from his suspension for sleeping.
DHS next maintained that a coworker’s one-time use of a racial slur could not
support a claim of a hostile work environment, which DHS understood Pierce’s
complaint to allege. Finally, DHS contended that Pierce had failed to effect service
within 120 days.

        Pierce, still pro se, filed a response asserting that he does not seek to recover
for the suspension but merely referenced the incident in his complaint as a
“comparison” to show disparate treatment. Pierce also asserted in his response that
he could present additional evidence at trial in order to show harassment.
Specifically, he maintained that he would “show that he could present evidence at
trail [sic] that he was subjected to egregious racially motivated conduct in the
workplace or to a pattern of racially motivated incidents to [sic] numerous to submit
at this time.” Additionally, Pierce explained that he could present evidence that he
endured six kinds of racial harassment: (1) conduct based on race that makes an
employee uncomfortable; (2) jokes referring to race; (3) posting of racist cartoons or
the like; (4) offensive language including slurs; (5) practical jokes; and
(6) retaliation for making complaints. Notably, Pierce attached numerous
documents from the administrative process. Pierce filed a separate response
arguing that his reliance on the clerk of the district court and the lack of prejudice
to DHS constituted “good cause” to serve DHS late.

       In deciding the motion to dismiss, the district court concluded that
documents submitted by the parties from the administrative process could be
considered because they are public records. With these documents, the court pieced
together the story of Pierce’s three administrative charges against DHS for
employment discrimination. First, Pierce filed an administrative charge in 1998.
Although the charge itself was not provided by the parties, the 1998 charge was
based on the episode Pierce describes in his complaint in which he was suspended
for sleeping. The parties settled that charge during the administrative process, and
as part of the settlement Pierce released DHS from “any and all claims” arising
from his suspension for sleeping. The second administrative charge, filed in
No. 04-2727                                                                        Page 3

February 2000, alleged unequal treatment in that Pierce was suspended for
sleeping on the job after Hoagland reported him whereas Hoagland received no
punishment at all for calling Pierce a “nigger.” A state administrative law judge
recommended dismissal of the 2000 charge with prejudice on the ground that Pierce
was barred by the earlier settlement from bringing any claim revolving around his
suspension for sleeping. Although not mentioned by the district court, the 2000
charge also alleged that Pierce was denied a transfer because of his race and in
retaliation for reporting discrimination, but the state agency “administratively
closed” those allegations at Pierce’s request, so they were never before the ALJ. The
EEOC, administering the 2000 claim concurrently, issued a right-to-sue letter.
This is the letter attached to Pierce’s complaint, as mentioned above. Finally, the
third administrative charge—filed in December 2003 (two months after he filed this
suit)—alleged that Pierce was put on administrative leave for threatening another
employee even though the other employee was never disciplined when Pierce had
complained about him (for reasons that are not explained). The third charge also
alleged generally that DHS retaliated against Pierce for filing his February 2000
administrative charge.

       With this history in mind, the district court determined that Pierce had
pleaded himself out of court and thus under Rule 12(b)(6) failed to state a claim.
First, the district court reasoned that Pierce could not maintain a claim for
disparate treatment, which requires an adverse employment action, since the only
adverse employment action he alleged was the suspension for sleeping and any suit
arising from that incident was barred by the administrative settlement. Second,
the court explained that one coworker’s use of a racial slur on a single occasion,
while deplorable, was not the kind of pervasive or severe harassment necessary to
prove a claim for hostile work environment. The district court declined to consider
any of the allegations in the third administrative complaint because Pierce did not
seek relief from the court on those allegations. In dismissing, the court made no
mention of the allegations in Pierce’s response to DHS’s motion to dismiss.

       Pierce retained counsel and appealed. In this court he concedes that the
district court properly considered documents from the administrative proceedings1


       1
        The district court relied on Henson v. CSC Credit Servs., 29 F.3d 280, 284
(7th Cir. 1994), for the proposition that it could take judicial notice of public court
documents while considering a motion to dismiss under Rule 12(b)(6). Had the
materials not properly been subject to judicial notice, the district court would have
had to convert to a motion for summary judgment, see id., and provide Pierce with
notice and the opportunity to be heard under the summary judgment rule, see
Alioto v. Marshall Field’s & Co., 77 F.3d 934, 936 (7th Cir. 1996). Anyway, Pierce
                                                                             (continued...)
No. 04-2727                                                                      Page 4

and does not argue that the allegations in his complaint, if read in isolation, would
have saved his complaint from dismissal. In fact he now apparently agrees with
the district court that his claim for disparate treatment based on his 1998
suspension for sleeping was properly dismissed. Pierce, however, contests the
dismissal of his hostile-work-environment claim. He maintains that dismissal of
that claim was erroneous because his response to DHS’s motion to dismiss alleges
additional acts of harassment sufficient to alert the district court that the claim
wasn’t grounded on a single incident or, alternatively, because the district court
should have allowed him to amend his complaint before dismissing the case.

        The burden on a plaintiff in stating a claim under the Federal Rules of Civil
Procedure is light. A plaintiff need not plead legal theories nor allege all the facts
necessary to establish the essential elements of a legal theory. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512–14 (2002); Higgs v. Carver, 286 F.3d 437, 439 (7th
Cir. 2002); Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997). Instead,
the plaintiff needs to provide only a short, plain statement of his or her grievance,
Fed. R. Civ. P. 8(a)(2); Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993), and the complaint is sufficient so long
as it puts defendants on notice of the of the claims and the grounds they rest upon,
along with “some indication . . . of time and place.” Thomson v. Washington, 362
F.3d 969, 970–71 (7th Cir. 2004). Thus, dismissal is seldom appropriate for lack of
specificity. Instead, we will affirm a dismissal for failure to state a claim only if no
relief could be granted under any set of facts consistent with the plaintiff’s
allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). Even so, from time to time plaintiffs will plead
facts with more specificity than necessary and inadvertently admit all the elements
of a defense to preclude relief—that is, they plead themselves out of court. See
Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004);
Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir. 2002);
Jefferson v. Ambroz, 90 F.3d 1291, 1296 (7th Cir. 1996).

      Although in his complaint Pierce never mentions any particular theory of
employment discrimination, DHS and the district court understood his complaint to
include two claims: disparate treatment on account of the suspension (a claim that
Pierce concedes was properly dismissed) and hostile work environment. A hostile-
work-environment claim would ultimately require him to show: (1) he suffered
“unwelcome harassment”; (2) the harassment was based on race; (3) the harassment
was so “severe or pervasive” as to create “a hostile or abusive situation”; and


      1
       (...continued)
not only declines to contest the court’s reliance, he relied on administrative
documents himself in his response.
No. 04-2727                                                                   Page 5

(4) there was some basis for “employer liability.” Smith v. Northeastern Ill. Univ.,
388 F.3d 559, 566 (7th Cir. 2004) (quoting Williams v. Waste Mgmt. of Ill., 361 F.3d
1021, 1029 (7th Cir. 2004)). Here, pointing to the third prong, and ignoring the
allegations of additional incidents of harassment that Pierce asserted in his
response to DHS’s motion to dismiss, the district court held that Pierce pleaded
himself out of court because a single racial slur could never constitute severe or
pervasive harassment.

      Pierce agrees that a single racial slur would not establish a hostile work
environment, but he maintains that he never admitted that just one such instance
of workplace harassment is the extent of his evidence. Instead, he maintains that
he actually suffered pervasive harassment in addition to that one slur and that he
saved his complaint by saying as much in his response to DHS’s motion to dismiss.

       Precisely because a plaintiff need not plead all the facts necessary to show
recovery for a particular legal theory, it is perfectly appropriate to supplement a
complaint with additional factual assertions in an affidavit or brief in order to
forestall dismissal, Albiero, 122 F.3d at 419, so long as those assertions are
consistent with the allegations in the complaint, see Walker v. Thompson, 288 F.3d
1005, 1008 (7th Cir. 2002); Gutierrez v. Peters, 111 F.3d 1364, 1367 n.2 (7th Cir.
1997). If the additional assertions show that he has a claim, then dismissal of the
complaint is error. Albiero, 122 F.3d at 419. Nonetheless, if the additional factual
assertions are inconsistent with the allegations in the complaint then they are
irrelevant and must not be considered. See Guise v. BWM Mortgage, LLC, 377 F.3d
795, 799 (7th Cir. 2004); Holman v. Indiana, 211 F.3d 399, 405–07 (7th Cir. 2000).
“Inconsistent” in this context typically means contradictory. See, e.g., Guise, 377
F.3d at 799; Holman, 211 F.3d at 405–07. Additionally, a plaintiff may not amend
his or her complaint to state a new claim on appeal or in a memorandum opposing
dismissal; instead, he may only assert new allegations to show the existing
language states a claim. Am. Inter-Fid. Exch. v. Am. Re-Ins. Co., 17 F.3d 1018,
1021–22 (7th Cir. 1994); Harrell v. United States, 13 F.3d 232, 236 (7th Cir. 1993).
In this case Pierce’s supplemental allegations are neither contradictory to the
allegations in his complaint, nor do they seek to state a new claim—after all, DHS’s
motion to dismiss evidences that from the very start it was on notice that Pierce
was pressing a hostile-work-environment claim. Therefore, the district court should
have considered his supplemental allegations when deciding DHS’s motion to
dismiss.

      DHS argues, though, that Pierce’s supplemental allegations are too general
to meet even the liberal notice requirements of the Federal Rules of Civil Procedure.
But DHS misses the point of Pierce’s response; his complaint, not his response to
the motion to dismiss, needed to survive scrutiny under the “short and plain”
statement requirement of Rule 8(a). When DHS moved to dismiss on the premise
No. 04-2727                                                                     Page 6

that the claim for hostile work environment in Pierce’s complaint would fail as a
matter of law because it was built on a single harassing incident, Pierce responded
by explaining that in fact he intended to prove a series of harassing incidents, not
just one. Among other things, Pierce asserted in his response that he suffered six
kinds of racial harassment, including jokes referring to race, posting of racist
cartoons, offensive language including slurs (plural), and retaliation for making
complaints—adding up to “egregious racially motivated conduct in the workplace”
or a “‘hellish’ nightmare” that his employer had a “duty” to prevent. The filing also
included some indication of time and place, see Thomson, 362 F.3d at 971, by
implying that the incidents took place at work and constantly. DHS cites no
authority for the proposition that the further allegations in Pierce’s response to the
motion to dismiss were required to be more detailed than would have been
necessary had they been included in the complaint in the first place. Instead,
having stated enough to put DHS on notice of his claim, Pierce needs to show only
that it cannot be said “beyond doubt” that no relief could be granted under any set
of facts consistent with the his allegations, see Swierkiewicz, 534 U.S. at 512–14;
Conley, 355 U.S. at 45-46; see also Hishon, 467 U.S. at 73.

       For these reasons, Pierce satisfied the standard to survive a motion to
dismiss for failure to state a claim by adding allegations—consistent with his
complaint—that answered the perceived defect in his pleading. Therefore, we
VACATE and REMAND in part so Pierce can press his hostile-work-environment
claim. But because he abandons all other claims on appeal, we AFFIRM the
dismissal of the disparate treatment claim. The parties shall bear their own costs
in this court.
