Schneckenburger v. Securitas Security Services USA Inc et al

Filing 14

ORDER entered by Chief Judge James E. Shadid on 5/9/2016. For the reasons set forth above, Defendants' Partial Motion to Dismiss 7 is GRANTED.Daniel Loveless is DISMISSED as a party defendant. Plaintiff's claims based on hearsay, the IWA, failure to accommodate, retaliation under the ADA and/or ADEA, and discrimination under the ADEA are also DISMISSED. His claims for disability discrimination and retaliation for having opposed racial discrimination will proceed. This matter is referred to the Magistrate Judge for further proceedings, including a scheduling conference. Daniel Loveless Terminated. See full written Order.(VH, ilcd)

E-FILED

Monday, 09 May, 2016 02:17:11 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS

JAMES R. SCHNECKENBURGER,
Plaintiff,
v.
SECURITAS SECURITY SERVICES
USA, INC. and DANIEL LOVELESS,
Defendants.

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Case No. 16-1018

ORDER
This matter is now before the Court on Defendants Rule 12(b)(6) Partial Motion to Dismiss.
For the reasons set forth below, the Motion [7] is GRANTED.
BACKGROUND1
Plaintiff, James Schneckenburger (“Schneckenburger”), was hired by Defendant Securitas
Security Services (“Securitas”) as a security officer in approximately October 2011. Securitas is
a nation-wide company that contracts with companies to provide them with security services. At
the time of his termination, he was employed by Securitas as the Chief Security Supervisor
assigned to the Peoria Public Library and had never received any disciplinary actions. Defendant
Daniel Loveless (“Loveless”) is an Employee Relations Representative for Securitas.
Schneckenburger alleges that he is disabled based on having worn hearing aids since the
age of six and is a senior citizen. At some point during his employment, he was asked by a
Library Board Member, Barbara VanAucken, which staff members were not performing their job
responsibilities. He gave her the name of an employee he thought was performing poorly and
indicated that he didn’t think that the Library Director was doing a very good job. He also states
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Unless specifically noted, the following factual allegations are taken from the Complaint.

that he opposed what he believed to be a civil rights violation by providing information to the
IDHR regarding racial discrimination by the Library Director against Monica McClain, an
African American. As a result, he claims that the library administration retaliated against him.
On June 18, 2014, Schneckenburger received a written warning and was told that he
could no longer work at the Library because an unidentified female staff member reported that he
had made a disparaging remark. Although he was offered several options for a new work
assignment, he viewed them as unfavorable and declined them because they were not at his level
of experience and payed less, resulting in his discharge. He repeatedly asked for the identity of
the staff member and the content of the disparaging remark but received no answers until January
9, 2015. At that time, he was told: “A female staff member (no name given) heard me say that if
I had a gun I would blow the brains out of a staff member.”
On November 5, 2014, Schneckenburger filed a Charge of Discrimination with the
Illinois Department of Human Rights, alleging that he had been terminated on the basis of his
disability and retaliation for having opposed racial discrimination. His Charge was cross-filed
with the Equal Employment Opportunity Commission. After investigation, the IDHR found a
lack of substantial evidence in support of the charges made and issued a Right to Sue notice. In
April 2015, Schneckenburger filed a Charge of Discrimination alleging age discrimination.
Schneckenburger brought this suit alleging employment discrimination on the basis of his
age and disability, as well as retaliation for whistleblowing or engaging in protected activity.
Defendant has moved to dismiss the Complaint. This Order follows.
LEGAL STANDARD
A complaint must provide a “short and plain statement of the claim showing that the
pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). That statement must be sufficient to provide
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the defendant with “fair notice” of the claim and its basis. Tamayo v. Blagojevich, 526 F.3d
1074, 1081 (7th Cir. 2008); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). This
means that (1) the complaint must describe the claim in sufficient detail to give the defendant
“fair notice of what the . . . claim is and the grounds upon which it rests” and (2) its allegations
must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a
“speculative level.” EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007);
Twombly, 550 U.S. at 555. Conclusory allegations are “not entitled to be assumed true.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951-53 (2009) (citing Twombly, 550 U.S. 544 (2007)).
For purposes of a motion to dismiss, the complaint is construed in the light most
favorable to the plaintiff; its well-pleaded factual allegations are taken as true, and all reasonablydrawn inferences are drawn in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268
(1994); Hishon v. King & Spalding, 467 U.S. 69 (1984); Lanigan v. Village of East Hazel Crest,
110 F.3d 467 (7th Cir. 1997); M.C.M. Partners, Inc. V. Andrews-Bartlett & Assoc., Inc., 62 F.3d
967, 969 (7th Cir. 1995); Early v. Bankers Life & Cas. Co., 959 F.2d 75 (7th Cir. 1992).
ANALYSIS
Defendants first argue that Loveless must be dismissed as a party Defendant because the
Complaint fails to include any factual allegations demonstrating unlawful conduct by him and,
alternatively, because individual employees are not liable under either the ADA or ADEA. Silk
v. City of Chicago, 194 F.3d 788, 797 (7th Cir. 1999). Schneckenburger’s response is that
because of his position as the Relations Representative and Senior EEO/AA Compliance
Administrator at Securitas, Loveless “possesses valuable knowledge about Securitas Security
Services USA, Inc. and its Corporate Responsibilities. He is also cognizant of Title VII, The
Civil Rights Acts of 1964, The American [sic] with Disabilities Act and Age Discrimination in
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Employment Act.” While Loveless may be a valuable and proper witness in this case as a result
of his corporate knowledge, that is not equivalent to being liable as a party defendant. Given the
clearly established case law in this Circuit holding that individuals cannot be held individually
liable under the circumstances alleged in this case, this portion of the Motion to Dismiss is
granted, and Loveless is dismissed from the case.
Securitas next argues that to the extent Plaintiff alleges a cause of action based on
“hearsay, ” no such cause of action exists. The Court agrees. Although the assertion that there
was no investigation of the alleged misconduct and that his discipline/termination was based
solely on hearsay is a valid and potentially powerful argument to be made in his claims that he
was discriminated against on the basis of his age or disability, it cannot stand alone as a separate
cause of action.
The third ground for dismissal asserted by Securitas is that to the extent Schneckenburger
is attempting to state a claim for retaliation under the Illinois Whistleblower Act (“IWA”), it
should be dismissed because: (1) statements to a Library Board member do not implicate the
IWA, and (2) any statements made to the IDHR would be preempted from stating a claim by the
Illinois Human Rights Act (“IHRA”). Plaintiff responds only with the bald assertion that he was
retaliated against because he participated in activity protected by Title VII and was also a
whistleblower.
The IWA applies to disclosures made in a court, administrative hearing, before a
legislative committee, or in any other proceeding “where the employee has reasonable cause to
believe that the information discloses a violation of a State or federal law, rule, or regulation.”
740 ILCS 174/15(b) (West 2008). As Schneckenburger’s statements to the Library Board
Member do not qualify as statements to a governmental agency, they cannot support his
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whistleblower claim. Willms v. OSF Healthcare System, 984 N.E.2d 1194, 1196, 2013
Ill.App.3d 120450 (3rd Dist. 2013).
This leaves the information that he provided to the IDHR concerning “an African
American lady, Monica McClain (“McClain”), whom the Library Director, LeAnn Johnson, had
discriminated against. . . .” When construed in the light most favorable to Plaintiff, this suggests
that he participated in or supported an IDHR investigation of the Library based on a charge of
discrimination filed by McClain. Given that this allegation is inextricably intertwined with legal
duties created by the IHRA with respect to racial discrimination, the exclusive remedy provisions
of the IHRA preempt a separate IWA claim. Naeem v. McKesson Drug Co., 444 F.3d 593, 604
(7th Cir. 2006). Accordingly, the request to dismiss any separate claim for retaliation based on
the IWA is granted.
In his Complaint, Plaintiff references a failure to accommodate his disability, namely his
use of hearing aids. The ADA provides that an employer discriminates by “not making
reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability." 42 U.S .C. § 12112(b)(5)(A). The Seventh Circuit has
defined the prima facie showing required of an ADA plaintiff for failure to accommodate as
follows: (1) he was disabled; (2) the [employer] was aware of his disability; and (3) he was a
qualified individual who, with or without reasonable accommodation, could perform the
essential functions of the employment position. McPhaul v. Board of Commissioners of
Madison County, 226 F.3d 558, 566 (7th Cir. 2000), citing Feldman v. American Memorial Life
Ins. Co., 196 F.3d 783, 789 (7th Cir 1999). Schneckenburger does not respond to this basis for
dismissal, and a review of the Complaint reveals no allegations indicating a request for or nature

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of any reasonable accommodation of his hearing problems. The Motion to Dismiss is therefore
granted in this respect.
Securitas challenges Plaintiff's ability to bring retaliation claims under the ADA and
ADEA based on his failure to exhaust administrative remedies at the IDHR or EEOC. Securitas
cites Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 658 (7th Cir. 2012) for the proposition
that the charge of discrimination must specifically allege retaliation under the same statute as the
claim being advanced in the Complaint. Given that the Charge of Discrimination only references
retaliation for having opposed racial discrimination, Securitas contends that Schneckenburger's
attempt to plead retaliation under the ADA and ADEA must be dismissed. Plaintiff has failed to
respond to this portion of the Motion to Dismiss, resulting in a concession that the Motion to
Dismiss will be granted with respect to his retaliation claims under the ADA and ADEA.
Finally, Defendants seek dismissal of Schneckenburger's ADEA claim, as the ADEA
and/or age discrimination were not set forth in EEOC Charge No. 21B-2015-00193/2015SF1085,
the November 5, 2014, Charge of Discrimination on which he received a right to sue. The Right
to Sue letter of record in this case refers only to Plaintiff's claims for discrimination under the
ADA and retaliation for opposing racial discrimination as set forth in EEOC Charge No. 21B2015-00193/2015SF1085. Although it appears that Plaintiff did file a separate Charge of
Discriminationin April 2015, EEOC Charge No. 21BA51350/2015SA2927, alleging age
discrimiation, there is no Notice of Right to Sue letter of record for that charge. As the filing of a
charge and receipt of a right to sue letter are prerequisites to bringing suit in federal court, the
ADEA claim brought by Schneckenburger is unexhausted and must be dismissed. Jackson v.
Mark Twain Hotel, 2015 WL 7303507 (C.D.Ill. Nov. 19, 2015). If Schneckenburger has

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obtained a right to sue letter on this charge, he may seek leave to file an amended complaint
including it and have his ADEA discrimination claim reinstated.
CONCLUSION
For the reasons set forth above, Defendants' Partial Motion to Dismiss [7] is GRANTED.
Daniel Loveless is DISMISSED as a party defendant. Plaintiff's claims based on hearsay, the
IWA, failure to accommodate, retaliation under the ADA and/or ADEA, and discrimination
under the ADEA are also DISMISSED. His claims for disability discrimination and retaliation
for having opposed racial discrimination will proceed. This matter is referred to the Magistrate
Judge for further proceedings, including a scheduling conference.
ENTERED this 9th day of May, 2016.

s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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