Miller v. Empress Casino Joliet Corporation

Filing 22

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 5/27/2009.Mailed notice(sct, )

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A ST E R N DIVISION C A R O L Y N MILLER, P l a i n t i f f, v s. E M PR E SS CASINO JOLIET C O R PO R A T IO N , D e fe n d a n t . ) ) ) ) ) ) ) ) ) )

09 C 760

M E M O R A N D U M OPINION C H A R L E S P. KOCORAS, District Judge: T his matter comes before the court on the motion of Defendant Empress Casino Jo lie t Corporation ("Empress") to dismiss the complaint of Plaintiff Carolyn Miller ("M iller") for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and failure to state a claim under Fed. R. Civ. P. 12(b)(6). The court will consider the entire motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, the motion is granted. BACKGROUND According to the allegations contained in the complaint, which we must accept as true for purposes of this motion, Empress employed Miller between August 23, 1999, a nd March 12, 2008. During the course of her employment, Empress promoted her based on merit. At the time of her termination, she had been elevated to the position of

se cu rity supervisor. Miller claims that her employer treated her less favorably than o th er similarly situated employees; she was often the target of offensive age-related remarks by fellow employees, which were regularly disregarded by Empress. In January 2008, one of Miller's co-workers placed a mock certification with the b ust of a German soldier on her work station. On January 29, Empress's Human R esource Director met with Miller and explained to her that Empress could terminate her for displaying the document at her work station and issued a written warning demanding the identity of the person who created the document. Miller denied having any involvement with the document's existence and contends that she does not know w ho created it. On February 26, Miller removed a disruptive patron from Empress's premises. T h e patron struck Miller's chest and neck and was subsequently arrested and charged w ith criminal battery. During the course of the criminal investigation, Miller offered a witness statement to the police, which was used against the suspect. Empress c on du cte d an internal investigation and concluded that Miller violated employee policy by deliberately omitting or falsifying information. Based on these findings, Empress terminated Miller; she was fifty-six years old. Miller filed a charge with the Equal Employment Opportunity Commission ("E E O C ") on June 10, 2008, alleging retaliation for engaging in a protected activity. O n November 11, the EEOC issued Miller a right to sue letter. Miller filed the present -2-

law suit claiming that Empress retaliated against her for refusing to conduct her own in ve stig atio n as to who was responsible for placing the certification and bust on her w ork station in violation of 42 U.S.C. § 2000e-3. Moreover, she asserts that Empress discriminated against her on the basis of her age in contravention of the Age D iscrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 et seq. Empress filed the instant motion to dismiss on the basis that Miller's complaint fails to state a claim for retaliation pursuant to Fed. R. Civ. P. 12(b)(6) and that the court lacks subject matter jurisdiction on the age discrimination count under Fed. R. C iv. P. 12(b)(1). LEGAL STANDARD A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the pla in tiff, construe allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein, 9 39 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual allegations contained w ith in a complaint must raise a claim for relief "above the speculative level." Bell A tlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). However, a pleading need only convey enough information to allow the defendant to understand -3-

the gravamen of the complaint. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999). With these principles in mind, we turn to Empress's m o tio n . DISCUSSION I. Age Discrimination Claim E mpress moves to dismiss Miller's age discrimination claim on the basis that the court lacks subject matter jurisdiction. However, the Seventh Circuit has held that a failure to exhaust administrative remedies should not be evaluated under Rule 12(b)(1) because it is not a jurisdictional issue. Mosley v. Bd. of Educ. of City of Chicago, 434 F .3 d 527, 532 (7th Cir. 2006). Rather, the failure to exhaust administrative remedies is an affirmative defense and we will assess Miller's alleged failure under Rule 12(b)(6). See Gibson v. West, 201 F.3d 990, 993-94 (7th Cir. 2000). Empress asserts that Miller failed to include an age discrimination allegation in her EEOC charge. To bring an ADEA claim in federal court, a plaintiff must timely raise the issue in her EEOC charge. Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 5 27 (7th Cir. 2003). Miller does not resist Empress's contention and concedes her failure to do so in her response to Empress's motion. Since a plaintiff must file a charge w ith the EEOC before bringing the case in federal court and Miller does not oppose E mpress's motion, we dismiss the age discrimination claim. See Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 727 (7th Cir. 2003). -4-

II. Retaliation Claim N ext, Empress asserts that the retaliation claim in Count I of Miller's complaint fails to state a cause of action under Rule 12(b)(6). To avoid a motion to dismiss, a plaintiff alleging retaliation must plead that she engaged in a protected activity and suffered a materially adverse action, and that the protected activity is causally connected to the adverse action. Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005). A statutorily protected activity includes filing or participating in the filing of a charge or opposition to discrimination. 42 U.S.C. § 2000e-3. Miller claims that the January 2008 investigation by Empress's Human Resources D ire cto r concerning the German soldier implied an intent to discriminate against Miller o n the basis of her German descent. Moreover, Miller perceives that regardless of w hether she opposed or supported such practice, her lack of participation in the underlying investigation is sufficient to constitute a statutorily protected activity. H ow ever, Empress contends that her retaliation claim fails as a matter of law because h er refusal to assist in identifying the person who placed the document and German soldier at her work station does not qualify as a statutorily protected activity. To satisfy the first element in a retaliation claim, a plaintiff must demonstrate that she filed a charge or opposed an unlawful practice under Title VII. Speedy v. Rexnord C orp., 243 F.3d 397, 404 (7th Cir. 2001). For Miller's claim, however, the applicable clause is the participation clause, which prohibits retaliation against an employee for -5-

pa rticipating in any manner in an investigation, proceeding, or hearing under Title VII. 4 2 U.S.C. § 2000e-3(a). Miller asserts that her steadfast refusal to participate in an internal investigation to uncover the individual responsible for placing the d oc um en ta tio n on her desk sufficiently pleads that she engaged in a statutorily protected activity under Title VII. The parties do not cite, nor has the Seventh Circuit addressed, w hether a plaintiff can make out a prima facie retaliation claim by virtue of her lack of participation in an internal investigation. However, the Sixth Circuit has confronted this issu e and decided that a plaintiff's refusal to participate is generally not a protected a c tiv ity. See Merkel v. Scovill, Inc., 787 F.2d 174, 180 (6th Cir. 1986) (holding that T itle VII only protects "actual" participation) . Without any argument to the contrary, M iller's refusal to participate in the investigation is insufficient to create a claim against E mpress for retaliation. Accordingly, the retaliation claim is dismissed for failing to state a cognizable claim. CONCLUSION B ased on the foregoing, Empress's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is granted.

Charles P. Kocoras U nited States District Judge D ated: May 27, 2009 -6-