Woods v. Wickes Furniture Co., Inc. et al

Filing 125

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 7/28/2011. (aac, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHIRLEY B. WOODS,
Plaintiff,
v.
WICKES FURNITURE CO., INC.,
et al.,
Defendants.

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09 CV 300

Magistrate Judge Young B. Kim

July 28, 2011

MEMORANDUM OPINION and ORDER
Pro se plaintiff Shirley Woods has sued the now-defunct Wickes Furniture Company,
Inc. (“Wickes”), and several of its former corporate officers and managers, including John
Disa (Wickes’s former President), Suzanne Forsythe (Wickes’s former Vice President of
Human Resources), and Ken Bretwisch (Woods’s former manager). Woods alleges that she
was fired from her sales consultant position in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq., and other unidentified federal and Illinois laws. Forsythe
and Disa have moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the claims
against them. This court allowed Bretwisch to join in their motion. For the following
reasons, the motion to dismiss is granted:
Procedural History
In April 2006 Woods filed a charge of discrimination with the Illinois Department of
Human Rights (“IDHR”) and the United States Equal Employment Opportunity Commission
(“EEOC”), checking boxes to indicate that Wickes had discriminated against her based on

race and disability. (R. 1, Compl. at 9.) Eighteen months later, on October 22, 2008, the
EEOC issued to Woods a dismissal and notice of rights stating that it had “ceased
processing” her charge. (R. 1, Compl. at 6.) Woods filed the current lawsuit on January 16,
2009. (Id.) Two weeks later Wickes filed a suggestion of bankruptcy informing the district
court that it was involved in chapter 11 proceedings in the United States Bankruptcy Court
for the District of Delaware. (R. 6.) Accordingly, the district court noted that this case was
subject to an automatic stay, see 11 U.S.C. § 362(a)(1), and placed the case on its suspense
docket. (R. 8.) Wickes emerged from bankruptcy in May 2009 and the district court
reopened this case on July 22, 2009. (R. 19.) According to the defendants, Wickes now
exists in name only. (R. 116, Mem. at 1.)
In May 2010 this case was referred to the undersigned magistrate judge to oversee
discovery, settlement, and nondispositive motions. (R. 60.) Over the summer of 2010 the
parties discussed settlement. After they came close to reaching an agreement, they consented
to the jurisdiction of the undersigned judge for all future proceedings in this matter. See 28
U.S.C. § 636(c); (R. 69). At some point thereafter, the parties reached a verbal agreement
to settle the case. But when it came time to execute the written settlement agreement, Woods
refused to sign. Defendants moved to enforce the settlement agreement, but in April 2011
this court denied the motion, finding that the parties did not intend to be bound by the
agreement until the written version was fully executed. (R. 103.)

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On May 2, 2011, Woods filed what she captioned as a “Second Amended Complaint,”
(R. 110), but because it was her first attempt to amend, this court entered an order stating that
the complaint would be treated simply as an amended complaint, (R. 111). In counts one
through three of her amended complaint Woods alleges that the defendants engaged in
unlawful employment practices, including sexual harassment and retaliation, in violation of
Title VII. (R. 110, Am. Compl. ¶¶ 88-102.) In counts four and five she alleges that the
defendants wrongfully terminated her and conspired to wrongfully terminate her, in violation
of state or federal law. (Id. ¶ ¶ 103-137.) In count six Woods alleges that Bretwisch
fraudulently altered company records. (Id. ¶¶ 138-141.) In count seven, which is titled
“Cause of Action to Establish Liability of Corporate Director or Officer for Corporate
Wrongful Conduct,” Woods asserts that the acts of those who engaged in wrongful conduct
should be imputed to Wickes’s officers, directors, and managers. (Id. ¶¶ 142-146.) Finally,
in count eight she alleges that the defendants deprived her of her 14th Amendment right to
due process by intentionally delaying her employment discrimination case. (Id. ¶¶ 147-51.)
Three weeks after Woods filed the amended complaint, Forsythe and Disa filed the
current motion to dismiss. (R. 114.) On July 5, 2011, this court granted Bretwisch’s onesentence request to join in the motion. (R. 123.) The court entered an order granting Woods
until July 19, 2011, to respond to the motion to dismiss as it pertains to Bretwisch, (id.), but
she did not file a supplemental response.

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Facts
Woods’s amended complaint consists of 151 paragraphs and 115 pages of
accompanying documentation describing the events leading up to and following her March
2007 termination. Despite the length of the amended complaint, the details regarding the
claims at issue are fairly sketchy, making it difficult to identify the specific allegations that
support her eight distinct claims. Nonetheless, for purposes of the current motion this court
must accept the allegations as true, see Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008), and what follows below is the relevant background viewed in the light most favorable
to Woods.
In March 2000 Wickes hired Woods to work as a sales consultant. (R. 110, Am.
Compl. ¶¶ 12-14.) When she reported to work, Woods signed Wickes’s code of ethics. (Id.
¶ 14.) Woods was a strong performer, consistently placing in Wickes’s “Top 5 Sales
Consultants” ranking. (Id. ¶ 19.) In March 2005 Disa sent Woods a letter acknowledging
her five years of hard work. (Id. ¶ 20.) The next month she was asked to sign Wickes’s
employee handbook, which included the code of ethics. (Id. ¶ 21.) Rather than sign the
handbook, Woods initialed it, “thus acknowledging the Code of Ethics.” (Id.)
On June 7, 2005, Woods was involved in a car accident and sustained injuries to her
back and left foot. (R. 110, Am. Compl. ¶ 22.) Woods took a period of leave under the
Family and Medical Leave Act while she recovered from her injuries. (Id.) Her release from
work expired on October 16, 2005, but when Woods did not return to work on that day,

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Wickes fired her. (Id. ¶ 25, Ex. G1.) On October 23, 2005, Woods called Disa and
questioned the termination. (Id. ¶ 26.) Disa then contacted a local manager and had her
reinstated as a sales consultant. (Id.) Wickes allowed Woods to return to work in December
2005, but in the meantime, according to Woods, store managers manipulated records of her
sales figures and did not allow her to “draw pay” to which she was entitled under Wickes’s
payroll policy. (Id. ¶¶ 30-32.)
On March 26, 2006, a fellow employee named Dominick Sharlac “maliciously
threatened” and made “derogatory remarks” to Woods over a sales dispute. (R. 110,
Am. Compl. ¶ 34.) Woods reported the incident to management, and on April 13, 2006, she
filed a charge of discrimination with the IDHR and the EEOC. (Id. ¶¶ 34, 35 & Ex. K.) In
that charge, Woods alleged discrimination based on race and disability and provided the
following explanation in the section for particulars:
Since on or about October 7, 2005 I have been subjected to harassment and
different terms and conditions of employment in that I have been wrongly
discharged; then reinstated, but I had already suffered a financial banking loss
caused by my discharge for which I was not reimbursed; I was denied six
weeks wages which I was entitled to in December, 2005, upon my return from
medical leave; and I have been denied my sales award prize from March, 2005.
On March 26, 2006 I was verbally harassed by a non-Black co-worker and I
was threatened with being sent home for responding to his allegations. That
same day this same co-worker called me a derogatory name that I reported to
the manager and no action was taken. I believe I have been discriminated
against because of my race, Black, in violation of Title VII of the Civil Rights
Act of 1964, as amended, and a disability, in violation of the Americans with
Disabilities Act of 1990, (ADA).

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(Id. Ex. K.) From April 2006 through July 2006, Woods called Disa at least four times to
attempt “to inform him of the situation regarding the harassing behaviors in the store and lack
of response from the managers.” (Id. ¶ 38.) Woods did not speak to Disa directly, but left
messages with his assistant. (Id.) Disa never returned her calls. (Id.)
In May 2006 and July 2006, Woods wrote to the EEOC to complain that Wickes had
laid off its cleaning staff and now required sales consultants to clean the bathrooms and lunch
rooms, and to “windex the glass in the showroom.” (R. 110, Am. Compl. ¶¶ 23, 39, 44.) She
also reported “management’s harassment and questioning and failure to provide sales
reports.” (Id. ¶ 44.) On July 28, 2006, an employee who is not named in this case as a
defendant sexually harassed Woods, “both graphically and verbally.” (Id. ¶ 45.) Woods
reported the incident to Bretwisch—who was her direct manager—and the EEOC. (Id.) The
following month Woods and another sales consultant were involved in a sales dispute which
was brought to Bretwisch’s attention, causing Woods to suffer “an apparent anxiety attack
due to sales anomaly stress.” (Id. ¶ 46.) On August 6, 2006, Bretwisch sent Forsythe an
email “telling of the harassments.” (Id. ¶ 47.) That same day, Woods wrote to the EEOC
“describing management’s harassment and questioning and canceling sales orders, additional
sexual harassment, and grief from various other issues.” (Id. ¶ 48.)
In late 2006 and early 2007 Woods and Bretwisch experienced some conflict.
According to Woods, on September 9, 2006, Bretwisch “inserted false information” into
Woods’s personnel file in an effort to defame her. (R. 110 Am. Compl. ¶ 49.) Bretwisch

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sent Woods home during a Labor Day Sales event, telling her that “the doctors [sic] note
regarding her recent medical procedure had expired.” (Id. ¶ 50.) In November, he told
Woods that if “you can’t clean for Wickes, you can’t work here.” (Id. ¶ 51.) Around noon
on January 9, 2007, Woods fell in the show room. (Id. ¶ 53.) She paged Bretwisch multiple
times to report the fall, but was unable to reach him. (Id. ¶ 54.) Instead, at 2:00 p.m.
Bretwisch approached her along with another manager and confronted her “with a trumpedup story about the events of the afternoon of December 28th.” (Id. ¶ 55.) Specifically,
management charged in writing that Woods “exhibited inappropriate and unproductive
behavior” by making derogatory remarks about Bretwisch to a candidate who was
interviewing for a management position. (Id. Ex. Tb.) Woods refused to sign the document,
but wrote on the reverse side that she did not say the “particular things” she was accused of
saying. (Id. Ex. S2.) Woods alleges that management forged her initials on the front of this
document and faxed it to Wickes’s human resources department. (Id. ¶ 56.)
Two months later, on March 13, 2007, Bretwisch conducted Woods’s monthly review.
(R. 110, Am. Compl. ¶ 57.) Two days after the review, a human resources supervisor
emailed Bretwisch asking him to tell Woods that if she did not sign the code of conduct, she
would be fired. (Id. ¶ 58.) The next day, on March 16, 2007, Wickes fired her, although
according to Woods, she was never given a final chance to sign or initial the code of conduct.
(Id. ¶¶ 59, 107.)

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Analysis
Woods’s claims against Forsythe, Disa, and Bretwisch are dismissed for failure to
state a claim upon which relief may be granted. A motion to dismiss under Rule 12(b)(6)
“challenges the sufficiency of the complaint to state a claim upon which relief may be
granted.” Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). In reviewing a motion to dismiss, this court accepts the well-pleaded allegations
as true and draws all inferences in the plaintiff’s favor. Reger Dev. LLC v. National City
Bank, 592 F.3d 759, 763 (7th Cir. 2010). A complaint will survive a motion to dismiss if it
gives the defendants “fair notice of what . . . the claim is and the grounds upon which it
rests,” and if it includes allegations that are “enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation omitted). In analyzing the current motion, this court bears in mind its “special
responsibility to construe pro se complaints liberally and to allow ample opportunity for
amending the complaint when it appears that by doing so the pro se litigant would be able
to state a meritorious claim.” Kaba v. Stepp, 458 F.3d 678, 687 (7th Cir. 2006) (quoting
Donald v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 555 (7th Cir. 1996)).
I.

The Title VII Claims
Disa, Forsythe, and Bretwisch (together “the defendants” below) argue that Woods’s

Title VII claims should be dismissed as to them because there is no individual liability under
Title VII and because they are not named in Woods’s EEOC charge. They are correct on

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both points. First, Title VII makes it unlawful “for an employer to fail or refuse to hire or
to discharge any individual . . . because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). In Williams v. Banning, 72 F.3d 552, 555 (7th
Cir. 1995), the Seventh Circuit held that “a supervisor does not, in his individual capacity,
fall within Title VII’s definition of employer.” Because Title VII does not provide for
individual liability, it is appropriate to dismiss Title VII claims brought against managers and
supervisors in their individual capacity. Sattar v. Motorola, Inc., 138 F.3d 1164, 1168 (7th
Cir. 1998); see also Jacobeit v. Rich T’ship High Sch. Dist. 227, 673 F.Supp.2d 653, 659
(N.D. Ill. 2009). That is true even where “an employer is bankrupt or otherwise judgmentproof.” Williams, 72 F.3d at 555. Accordingly, this court agrees with the defendants that
Woods’s Title VII claims against them must be dismissed.
Second, in the interest of completeness, this court notes that the defendants correctly
point out that none of them are named in Woods’s EEOC charge. (See R. 110, Am. Compl.
Ex. K.) What is more, the charge accuses Wickes of discrimination on the basis of her race
and disability, whereas here, Woods is suing on the basis of sexual harassment and
retaliation. It has long been recognized that “Title VII employment discrimination suits are
permitted only against the respondent named in the charge before the EEOC.” Le Beau v.
Libbey-Owens-Ford Co., 484 F.2d 798, 799 (7th Cir. 1973). Moreover, the scope of a Title
VII lawsuit “is limited by the nature of the charges filed with the EEOC.” Rush v.
McDonald’s Corp., 966 F.2d 1104, 1110 (7th Cir. 1992). Both rules are designed to give the

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employer “some warning of the conduct about which the employee is aggrieved, and it
affords the agency and the employer an opportunity to attempt conciliation without resort to
the courts.” Id.; Le Beau, 484 F.2d at 799.
In her response to the motion to dismiss, Woods attempts to shift to the EEOC the
blame for the discrepancies between her administrative discrimination charge and the
allegations in her amended complaint. According to Woods, “the EEOC failed to update the
charge, lost the investigatory file, [and] failed to produce it until much later as it was found.”
(R. 121, Resp. at 5.) Woods alleges that she wrote numerous letters to the EEOC informing
them about discrimination at Wickes, and argues now that it was the EEOC’s job to update
the charge to reflect that information. Given these allegations, under other circumstances the
court might allow a plaintiff to file a new EEOC charge listing the omitted defendants. See
Early v. Bankers Life & Cas. Co., 959 F.2d 75, 81 (7th Cir. 1992); see also Wilson v. Kautex,
Inc., No. 1:07-CV-60-TS, 2008 WL 474230, at *6 (N.D. Ind. Feb. 15, 2008). But because,
as explained above, the defendants do not fall within Title VII’s conception of an
“employer,” allowing Woods the opportunity to add these defendants to her EEOC charge
would be futile. Accordingly, dismissal of counts one through three as they pertain to the
defendants is appropriate.
II.

The Unspecified Claims
Defendants argue that this court should dismiss the remainder of the claims because

the amended complaint does not include any specific allegations against them. Forsythe and

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Disa point out that they are mentioned only in the amended complaint’s statement of facts,
where Woods simply alleges that they knew that she was experiencing harassment in the
workplace. The complaint’s allegations with respect to Bretwisch are in some instances
more specific, but he joined in Disa and Forsythe’s motion to dismiss without developing any
argument directed toward the sufficiency of the allegations against him. Bearing in mind this
court’s obligation to construe Woods’s complaint liberally, see Kaba, 458 F.3d at 687, the
sufficiency of the allegations to support the remaining claims with respect to Forsythe, Disa,
and Bretwisch is discussed below.
A.

Counts IV and V: Wrongful Termination and Conspiracy to Commit
Wrongful Termination

Neither Forsythe nor Disa is mentioned in counts four and five, which accuse the
defendants of “wrongful termination” and “conspiracy to commit wrongful termination.” In
count four Woods alleges that a Wickes human resources employee, Rachel Reger,1 emailed
Bretwisch and another defendant, Bob Zirk,2 on March 15, 2007, asking them to have Woods
sign the code of conduct and instructing them to fire her if she refused. (R. 110, Am. Compl.
¶ 105.) According to Woods, Bretwisch and Zirk never presented her with the code of
conduct or asked her to sign it as Reger directed them to do, but fired her anyway on March
16, 2007. (Id. ¶¶ 108-09.) She alleges that on the day she was fired Zirk emailed Reger and
1

Woods named Reger as a defendant in her original complaint, but dismissed her from the
case on July 26, 2010. (R. 70.)

2

In her amended complaint, Woods named Zirk as well as Bob Young as new defendants.
(R. 110.)
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lied to her that Woods refused to sign the code of conduct. (Id. ¶ 110.) It appears that
Woods is alleging that the code of conduct rationale was a pretext meant to cover up
Wickes’s discriminatory intent—she alleges in count four that she “suffered discrimination
and retaliation for reporting violations of other employees to the EEOC, and suffered a
different employment outcome” from others who did not sign the code of conduct. (Id. ¶
111.) In count five Woods alleges that Wickes’s management conspired to fire her in
retaliation for reporting their unlawful activities to the EEOC. (Id. ¶ 119.) Woods alleges
that all of this was done in violation of her “federally protected rights.” (Id. ¶¶ 117, 137.)
As the defendants point out, neither Forsythe nor Disa is mentioned in either of these
counts. There simply is nothing in the complaint to put Forsythe or Disa on sufficient notice
of the nature of Woods’s claims in counts four and five. See Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009) (noting that courts need not accept allegations that “fail to provide
sufficient notice to defendants of the plaintiff’s claim”). That is especially true with respect
to the conspiracy allegations, which are “often held to a higher standard than other
allegations; mere suspicion that persons adverse to the plaintiff had joined a conspiracy
against him or her was not enough.” Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009).
As for Bretwisch, Woods specifically alleges that he was one of the managers who
fired her without carrying out the instruction to fire her only if she refused to sign the code
of conduct. She also alleges that Bretwisch informed her that upper management at Wickes
had told him that her sexual harassment claims “has been handled.” (R. 110, Am. Compl.

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¶ 124.) But to the extent Woods is asserting a violation of federal law against Bretwisch it
is clear that she is simply restating under a separate label the grounds for her Title VII claims.
Her allegations in these counts distill to the same accusations she makes in counts one
through three—that Wickes employees fabricated reasons to fire her because they wanted to
get rid of her after she started complaining about sexual harassment. But Woods cannot
avoid Title VII’s limitations on liability simply by re-asserting her Title VII claims under the
umbrella of some other unspecified federal law. See United States v. Antonelli, 371 F.3d
360, 361 (7th Cir. 2004) (noting that courts should determine the nature of a pro se pleading
by looking to its substance, not its label); see also Gleash v. Yuswak, 308 F.3d 758, 761 (7th
Cir. 2002) (stating that “courts give effect to the substance of a document and not to its
caption”).
In defending her claims, Woods argues that they are based on “relevant Federal and
Illinois state statutes,” but without identifying what laws she means. (R. 121, Resp. at 5.)
Although the federal pleading standards set forth in Federal Rule of Civil Procedure 8(a) do
not require a complaint to identify the applicable law, those standards also do not provide
cover for a plaintiff who fails to identify the applicable legal theory in response to a motion
to dismiss. Kirksey v. RJ Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999). The
court must dismiss any claim for which relief is not possible under any set of facts that could
be established consistent with the allegations. See Zellner v. Herrick, 639 F.3d 371, 378 (7th

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Cir. 2011). Here Title VII is the controlling federal statute, and as discussed above, Woods’s
Title VII claims against the individual defendants must be dismissed.
Consistent with its obligation to construe Woods’s pro se complaint liberally, this
court has considered whether counts four and five state a separate claim under Illinois law.
The Illinois common law of retaliatory discharge has been preempted in the employment
context by the Illinois Human Rights Act, 775 ILCS § 5/1-101, et seq. See Corluka v.
Bridgford Foods of Ill., Inc., 671 N.E.2d 814, 817 (Ill. App. Ct. 1996). The Illinois Human
Rights Act makes it “a civil rights violation for a person, or for two or more persons to
conspire, to: [r]etaliate against a person because he has opposed that which he or she
reasonably and in good faith believes to be unlawful discrimination, [or] sexual harassment
in employment.” 775 ILCS § 5/6-101(A).
But as is the case with Title VII, where an employee alleges that she was retaliated
against for complaining to the IDHR, and where she was fired by a company official in the
name of the employer, the claims under the Illinois Human Rights Act “must be against the
employer and not against the official personally.” See Anderson v. Modern Metal Prods.,
711 N.E.2d 464, 471 (Ill. App. Ct. 1999); see also Misiak v. Farmer, No. 10-133-GPM,
2010 WL 685895, at *2 (S.D. Ill. Feb. 23, 2010). “‘Although it is possible for a company
official to retaliate against someone personally, where the action is undertaken in the name
of the respondent employer, the charge must be against the employer and not the official
personally.’” Misiak, 2010 WL 685895, at *2 (quoting In re Binghay & Clemons, Charge

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No.: 1991CN2356, 1994 WL 880430, at *1 (Ill. Hum. Rts. Comm’n May 27, 1994)). Here
Woods’s complaint makes clear that Bretwisch and the other managers involved were acting
on behalf of Wickes when they terminated her. Thus, even under the applicable Illinois
statute, Woods’s claims against Forsythe, Disa, and Bretwisch as individuals must be
dismissed. See Anderson, 711 N.E.2d at 471.
B.

Count VI: Fraud & Deception in Alteration of Company Records

The only person Woods specifically identifies in count six is Bretwisch. According
to the complaint, Bretwisch forged Woods’s signature on company documents “in order to
attempt to falsely accuse the Plaintiff of wrongdoing” and “for the purpose and the intent of
avoiding the truth and delaying justice for the plaintiff.” (R. 110, Am. Compl. ¶ 139.)
Forsythe and Disa properly argue that this count should be dismissed against them because
there are no allegations that they were involved in the alleged misconduct. The court agrees.
Bretwisch, who is also pro se, joined in Disa and Forsythe’s motion without
developing any separate argument, despite the fact that count six is specifically directed at
him. Thus the only argument before the court with respect to this count is that it should be
dismissed because there are no specific allegations regarding the defendants. But that
argument does not apply to Bretwisch, who is the accused perpetrator of the alleged fraud.
Although the court is reluctant to dismiss the claim against Bretwisch for reasons other than
those raised by the defendants, see Zellner, 639 F.3d at 378, it is not required to overlook the
remaining deficiencies in Woods’s pleading. Specifically, the complaint falls short of the

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particularity requirements for fraud claims set forth in Federal Rule of Civil Procedure 9(b).
Under Rule 9(b), a complaint alleging fraud must set forth the “who, what, when, where and
how” of the fraud. DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). Although
at the motion to dismiss stage the plaintiff is not obliged to prove that the alleged
misstatements were false, she is required to identify the alleged misrepresentations with
sufficient specificity to put the defendant on notice of the alleged misconduct. See Adams
v. Pull’r Holding Co., LLC, No. 09 CV 7170, 2010 WL 1611078, at *3 (N.D. Ill. April 20,
2010).
Here, Woods’s allegations are that Bretwisch “fraudulently forged signatures, and
modified company documents . . . in order to attempt to falsely accuse the Plaintiff of
wrongdoing.” (R. 110, Am. Compl. ¶ 139.) It is difficult to discern from the complaint
which documents she is referencing, or what false accusation she means. Woods submitted
an exhibit along with the complaint that appears to accuse Bretwisch of forging her initials
on the Wickes’s document detailing the December 28, 2008 incident. (Id. Ex. AL.) But her
allegations reference “signatures” and “documents” in the plural, and it is unclear if there are
other misrepresentations being alleged, and if so, what they are. See Windy City Metal
Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 668 (7th Cir. 2008)
(noting that the complaint must allege the content of the alleged misrepresentations).
Moreover, to meet the Rule 9(b) requirements, “a plaintiff must plead actual damages
arising from her reliance on a fraudulent statement.” Swanson v. Citibank, N.A., 614 F.3d

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400, 406 (7th Cir. 2010). According to the amended complaint, it is unclear how Woods was
damaged by the alleged fraud in light of her allegations that she was fired for discriminatory
reasons rather than for misconduct. Given these deficiencies, count six of the amended
complaint must be dismissed.
C.

Count VII: Cause of Action to Establish Liability of Corporate Director
or Officer for Corporate Wrongful Conduct

In count seven Woods alleges that Wickes managers are liable because they “acted
or failed to act in the before listed counts.” (R. 110, Am. Compl. ¶ 143.) This count is an
attempt to establish personal liability under the employment discrimination laws where, as
the defendants point out, none exists. Woods does not present a corporate-veil piercing
theory—there are no allegations that Wickes was a sham company—and in her response to
the current motion she provides no other argument why she should be allowed to do an endrun around the personal liability bar. Accordingly, the motion to dismiss is granted with
respect to count seven in its entirety.
D.

Count VIII: Violation of Fourteenth Amendment Rights

In her eighth and final count, Woods alleges that “Wickes failed to provide justice”
by “delaying this matter” in violation of her Fourteenth Amendment procedural due process
rights. (R. 110, Am. Compl. ¶ 148.) Once again, there are no allegations that Disa, Forsythe,
or Bretwisch had any part in the delay Woods is referencing. The allegations are simply
insufficient to provide the defendants with the kind of notice to which they are entitled under
Rule 8. See Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th
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Cir. 2007). And in any event, the claim is frivolous. Woods has no due-process claim under
42 U.S.C. § 1983, because there are no state actors involved in this suit. See American Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). As the Supreme Court has explained,
the Fourteenth Amendment “erects no shield against merely private conduct, however
discriminatory or wrongful.” Blum v. Yaretsky, 457 U.S. 991, 1002-03 (1982) (quoting
Shelley v. Kramer, 334 U.S. 1, 13 (1948)). Rather, a claim under the Fourteenth Amendment
“requires both an alleged constitutional deprivation caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed by the State or by a person for
whom the States is responsible, and that the party charged with the deprivation must be a
person who may fairly be said to be a state actor.” American Mfrs., 526 U.S. at 50 (emphasis
in original) (internal quotations omitted). Because the defendants, and others named in this
action, are purely private actors, and for the other reasons mentioned above, count eight is
dismissed in its entirety.
Conclusion
For the foregoing reasons, the motion to dismiss is granted. All of the claims against
Forsythe and Disa are dismissed with prejudice. Forsythe and Disa are no longer defendants
in this case. Counts one through five against Bretwisch are dismissed with prejudice. Count
six against Bretwisch is dismissed without prejudice. Woods is granted until August 12,
2011, to amend count six. If Woods fails to timely amend count six, count six against

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Bretwisch will be dismissed with prejudice. Counts seven and eight are dismissed with
prejudice in their entirety as to all named defendants.
ENTER:

_________________________________
Young B. Kim
United States Magistrate Judge

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