Volling et al v. Antioch Rescue Squad et al
Filing
72
MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 12/4/2012:Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHANNON VOLLING, JULIE BANSER, and
APRIL SOULAK
Plaintiffs,
v.
ANTIOCH RESCUE SQUAD, individually and
jointly as a joint employer with Metro Paramedic
Services, Inc., and METRO PARAMEDIC
SERVICES, INC., individually as an agent of
Antioch Rescue Squad and joint employer with
Antioch Rescue Squad,
Defendants.
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No. 11 C 04920
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
The defendants, Antioch Rescue Squad (“ARS”) and Metro Paramedic Services, Inc.,
move to dismiss the 22-count Second Amended Complaint against them. ARS alternately seeks
summary judgment, insofar as its arguments rely on material outside the complaint. For the
reasons that follow, the motions are granted in part and denied in part.
Sharon Volling, Julie Banser, and April Soulak are current and former members of the
Antioch Rescue Squad, a private, non-profit provider of emergency medical and ambulance
services in the Village of Antioch, Illinois. The squad is jointly operated and staffed by the two
defendants. The plaintiffs’ complaint alleges, in disturbing factual detail, that they were
subjected to sexual harassment (including offensive, even potentially criminal, physical contact),
a hostile work environment, sex discrimination, and retaliation at the hands of co-workers and
supervisors. The federal claims are brought pursuant to 42 U.S.C. § 1983 (Counts I, II, VII, VIII,
XIII, IV), and Title VII of the Civil Rights Act (Counts III, IV, IX, X, XV, VI). The plaintiffs
also bring similar claims under the Illinois Human Rights Act (Counts V, VI, XI, XII, XVII,
XVIII). Finally, the plaintiffs allege tort liability under Illinois common law for negligent
retention (Counts XIX, XX) and negligent supervision (Counts XXI, XXII).
The defendants have moved to dismiss the Second Amended Complaint in its entirety.
Their primary arguments are that they are not subject to claims under § 1983 because they are
not state actors and that Title VII and the IHRA do not apply to them because they are not
employers within the meaning of those statutes. With respect to the state-law tort claims, the
defendants primarily argue preemption, and they also urge the Court to decline supplemental
jurisdiction. The plaintiffs oppose the motions, arguing that their detailed complaint more than
adequately sets forth sufficient facts to support their claims for relief, and that the defendants are
raising substantive arguments not appropriate for resolution on the pleadings.
In addition to seeking dismissal, ARS also moved for summary judgment because it
submitted evidence outside the pleadings: the affidavit of ARS Deputy Chief Brian DeKind. The
affidavit attests to facts relevant to whether ARS is a state actor and whether it is an employer of
the plaintiffs. Metro also supported its motion with an affidavit, but did not ask for the Court to
treat its motion as one for summary judgment. During the briefing of the motions, the plaintiffs
moved to strike both affidavits. The predecessor judge granted that motion (Dkt. # 48), and the
defendants have not asked this Court to reconsider. Therefore, the affidavits will not be
considered in support of either motion, and there is no need to treat ARS’s motion as anything
but a motion to dismiss. The scope of ARS’s motion was further narrowed on October 23, 2012,
when this Court entered judgment for plaintiffs Volling and Soulak against ARS pursuant to an
offer of judgment. To the extent that ARS’s pending motion targets these two plaintiffs, it is
denied as moot. ARS’s motion will be addressed only as it relates to plaintiff Banser.
2
A motion under Rule 12(b)(6) challenges a complaint’s sufficiency to state a claim upon
which relief may be granted. Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570
F.3d 811, 820 (7th Cir. 2009). In considering the defendants’ Rule 12(b)(6) motions, the Court
accepts as true all of the factual allegations in the complaint and draws all reasonable inferences
in favor of the plaintiffs. Erickson v. Pardus, 551 U.S. 89 (2007); McGowan v. Hulick, 612 F.3d
636, 637 (7th Cir.2010). However, the Court does not accept as true allegations that are mere
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 679-80 (2009).
A federal complaint should be “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). But however short and plain, it must contain
sufficient detail to “give the defendant fair notice of what the claim is and the grounds upon
which it rests.” Bell Atl. v. Twombly, 550 U.S. 544, 545 (2007). And it must have “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). The “required level of factual specificity rises
with the complexity of the claim.” McCauley v. City of Chicago, 671 F.3d 611, 616–17 (7th Cir.
2011) All told, the factual allegations “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
A.
Defendants as state actors
Metro and ARS each argue that all federal constitutional claims against them must be
dismissed because they are not state actors and could not have taken any action “under color of
state law.” See 42 U.S.C. § 1983.
The same standard applies for determining whether a private party is a “state actor” for
purposes of the Fourteenth Amendment, and whether that party acted “under color of state law”
for purposes of §1983. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 929 (1982) (explaining
3
that “it is clear that in a § 1983 action brought against a state official, the statutory requirement
of action ‘under color of state law’ and the ‘state action’ requirement of the Fourteenth
Amendment are identical”). That standard, however, is not a bright line that is easily applied and,
as the plaintiffs observe, it often requires a fact-intensive inquiry. But not always. There have
been many cases in which courts appropriately concluded, on motions, that there was no state
action as a matter of law. See, e.g., London v. RBS Citizens, N.A., 600 F.3d 742 (7th Cir. 2010);
Hallinan, 570 F.3d at 821; Gayman v. Principal Fin. Servs., Inc., 311 F.3d 851, 853 (7th Cir.
2002); Fries v. Helsper, 146 F.3d 452 (7th Cir. 1998). The plaintiffs are wrong, therefore, to
argue that it is necessarily “inappropriate” to dismiss a complaint on this basis. The question is
not whether the inquiry is fact intensive; it is whether the plaintiffs allege sufficient facts to make
state action plausible.
It bears noting at the outset that this is not a case in which it is alleged that the state has
effectively directed, controlled, or encouraged the actions of a private party. See Pl.
Memorandum, Dkt. # 41 at 12-13 n.8 (acknowledging absence of allegations “that the state was
involved in, coerced, or encouraged the constitutional tort”). In those cases, “a State normally
can be held responsible for a private decision only when it has exercised coercive power or has
provided such significant encouragement, either overt or covert, that the choice must in law be
deemed to be that of the State.” Wade v. Byles, 83 F.3d 902, 905 (7th Cir. 1996). Rather, here the
defendants, though not officially denominated as such, are alleged to be de facto state actors. The
question presented by the complaint, then, is “whether the allegedly unconstitutional conduct is
fairly attributable to the State.” Am. Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). In
such a case, “state action may be found if, though only if, there is such a ‘close nexus between
the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that
4
of the State itself.’” Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288,
295 (2001) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). “[N]o one fact
can function as a necessary condition across the board for finding state action; nor is any set of
circumstances absolutely sufficient, for there may be some countervailing reason against
attributing activity to the government.” Id. In short, “the criteria lack rigid simplicity.” Id.
There are several ways that plaintiffs may prove that challenged conduct by putatively
private defendants should be deemed to be conduct by the state, including theories that the
plaintiffs refer to as the “public function test,” the “joint action” or “government nexus” test, the
“symbiotic relationship test,” and the “totality of the circumstances/entwinement/delegation”
tests. Memorandum, Dkt # 41 at 9-14; see generally Brentwood Academy, 531 U.S. at 291-92;
Rodriguez v. Plymouth Ambulance Serv. 577 F.3d 816, 823-24 & nn.8-11 (7th Cir. 2009); Air
Line Pilots Ass'n, Int’l. v. Dep’t of Aviation of City of Chicago, 45 F.3d 1144, 1149 (7th Cir.
1995). The plaintiffs argue that their factual allegations set the table for them to establish (at the
appropriate time) that ambulance and paramedic services are a traditional public function that
has been delegated to the defendants; that the contract between ARS and the Village evinces
their joint action to provide services; and that the mutuality of support and benefits under the
arrangement shows a symbiotic relationship, or one of “pervasive entwinement” between the
defendants. The complaint, however, fails to plausibly allege any facts suggesting the plaintiffs
could satisfy the requirements of any of these tests.
1. The Public Function Test
“That a private entity performs a function which serves the public does not make its acts
[governmental] action.” Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982). Under the “public
function” theory, the private entity is deemed to be a state actor when it performs a role or
5
function that has been “traditionally the exclusive prerogative” of the government. Id.; Jackson v.
Metro. Edison Co., 419 U.S. 345, 353 (1974) (emphasis added). This is a very narrow category
of functions. See Vickery v. Jones, 100 F.3d 1334, 1345 (7th Cir. 1996) (collecting cases). And
here, the plaintiffs do not plausibly allege facts that could support a conclusion the provision of
emergency medical and ambulance services has been traditionally an exclusively public function.
There is no allegation that any unit of government ever provided ambulance services in Antioch;
and even if one had, the government’s later decision to delegate services to private entities does
not in itself make the private entities state actors. See Spencer v. Lee, 864 F.2d 1376, 1379 (7th
Cir. 1989) (“The scope of government is not fixed; deregulation does not create a host of state
actors in the private sector, like the moraine that marks the farthest advance of a glacier.”).
Moreover, the Village of Antioch does not have a constitutional obligation to provide ambulance
services. See Wade v. Byles, 83 F.3d 902, 906-907 (7th Cir. 1996) (explaining that private actor
acts as arm of state when performing function that state is constitutionally obligated to provide).
And state statutes plainly allow for the operation of private ambulance and medical services in
Illinois. For example, the Municipal Code empowers local governments to operate ambulances
or to contract for those services. See 65 ILCS 5/11-5-7. 1 Also telling is that Illinois law
distinguishes between private and public ambulance services in the application of its statutory
1
The plaintiffs contend, citing 55 ILCS 5/5-1053(a)(1), that “the Illinois legislature has
mandated that ‘adequate and continuing emergency ambulance service should be available to
citizens of Illinois,’” Dkt. # 41 at 11, but that statute says nothing of whether that function is
traditionally the exclusive province of government. That provision of the County Code
announces the sound public policy that emergency ambulance services “should be available” to
all citizens, but it specifically contemplates that the services may be furnished by private
companies, see id. at § 5-1053(a)(2), and, rather than “mandating” anything, provides that
counties “should” be authorized to provide or cause to be provided ambulances as a public
service, see id. at § 5-1053(a)(3). By contrast, a prior version of the same law mandated that
counties “shall” provide or cause to be provided the ambulance services. See 1979 Ill. Atty. Gen.
Op. 18, 1979 WL 21176.
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tort immunity. See Buell v. Oakland Fire Protection Dist. Bd., 605 N.E.2d 618, 622 (Ill. App. Ct.
1992). Although all ambulance services, public and private, are regulated by the state, even
“extensive and detailed” regulation of an industry does not make that industry public. Sullivan,
526 U.S. at 52 and 57 (quoting Jackson, 419 U.S. at 350); Gayman, 311 F.3d 851, 853 (7th Cir.
2002). Nor does setting standards, Sullivan, 526 U.S. at 54—and Illinois’ Emergency Medical
Systems Act by its terms was simply “intended to provide minimum standards for the statewide
delivery of EMS services.” 210 ILCS 50/2. It cannot be said that ambulance services are
traditionally the exclusive province of the government; if anything, the plaintiff’s allegations
suggest that, in Antioch, ambulance services are and always have been exclusively private. 2
2. Joint Action/Government Nexus Test
The plaintiffs also argue that the existence of a contract between ARS and the Village of
Antioch “will serve to establish state action under the joint action test or government nexus
tests.” Pl. Memorandum, Dkt. #41, at 11-12. As stated, that proposition is plainly too broad; if it
were true, all government contractors would be state actors and all of their conduct state action—
and that is not the case. “Acts of . . . private contractors do not become acts of the government by
reason of their significant or even total engagement in performing public contracts.” RendellBaker, 457 U.S. at 841; see, e.g., Wade, 83 F.3d at 906 (contract CHA security guards not state
actors); Bowman v. Franklin, 980 F.2d 1104, 1108 (7th Cir. 1992) (consulting engineer on public
works project not a state actor).
2
The plaintiffs’ reliance on West v. Adkins, 487 U.S. 42 (1988) and Rodriguez, 577 F.3d at 830,
is misplaced. Both of those cases assessed whether ambulance companies were performing a
public function in the context of providing emergency medical services for prison inmates. That
the government is responsible for providing such services to persons involuntarily incarcerated in
state facilities says nothing about whether it has traditionally and exclusively been required to
provide such services to the general public.
7
Lopez v. Department of Health Services., 939 F.2d 881 (9th Cir. 1991), the sole case on
which the plaintiffs rely for this startlingly broad proposition, highlights the principal flaw in the
plaintiffs’ application of this test—namely, that the allegedly unconstitutional conduct has
nothing to do with the government contract. In Lopez, the Ninth Circuit reversed a district court’s
sua sponte dismissal of an indigent plaintiff’s complaint that the defendant hospital and
ambulance service, under contract with the state to provide medical services to indigents, refused
to do so. Whatever the merits of that holding (and the court did not offer any explanation of why
the contract sufficed to establish a relationship by which where the defendants should be deemed
to be state actors and did not cite Rendell-Baker), it has no relevance here, where the allegedly
unconstitutional conduct was not a failure to provide the services covered by the public contract,
but private conduct as far removed from the contractual services as can be imagined.
The Supreme Court has been clear that the test of “state action” is not to occur in the
abstract, but with reference to “‘the specific conduct of which the plaintiff complains.’” Sullivan,
526 U.S. at 51 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). Contractual relationship
with the government or no, a complaint of “merely private conduct,” London v. RBS Citizens,
N.A., 600 F.3d 742, 746 (7th Cir. 2010), does not suffice to state a claim under § 1983. The
deprivation itself must have occurred “under color of state law,” meaning that the “alleged
constitutional deprivation [was] ‘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 State is
responsible.’” Sullivan, 526 U.S. at 50 (quoting Lugar, 457 U.S. at 937). Here, there are no
allegations in the complaint that make it plausible that the alleged constitutional deprivation—the
sexual harassment—has anything at all to do with the defendants’ contract with the Village, and
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there is accordingly no basis on which to say that the conduct “is fairly attributable to the state”
by virtue of that contract.
3. Symbiotic Relationship Test
The same fundamental flaw afflicts the plaintiffs’ attempts to invoke a laundry list of
other labels courts have used in evaluating whether allegedly unconstitutional conduct is fairly
attributable to the state. Whether there is a “symbiotic” or other close relationship between the
defendants and the relevant governmental unit is not, standing alone, a sufficient basis to support
a finding of state action; there must be “such a close nexus between the state and the challenged
action that seemingly private behavior reasonably may be treated as that of the state itself.”
Hallinan, 570 F.3d at 815-816 (emphasis added). But here, the detailed factual allegations of the
complaint describe private conduct—despicable and reprehensible, to be sure—that bears no
relationship to the nature of the “nexus” between the defendants and the Village of Antioch.
The plaintiffs claim a “symbiotic relationship” exists between the defendants and the
Village based on the defendants’ provision of ambulance and rescue services in exchange for an
essentially cost-free lease, fuel supplies and dispatch services. This argument is essentially no
different than the plaintiffs’ “joint action” theory premised on a contract between the defendants
and the Village, and does nothing to narrow the absence of any logical connection between the
exchange of these services and responsibility for the lewd and offensive behavior alleged in the
complaint. The “symbiotic relationship” test derives from Burton v. Wilmington Parking
Authority, 365 U.S. 715 (1961), 3 where a public agency leased space in a parking garage to a
private restaurant that refused to serve African-Americans. Detailing the mutually beneficial
3
The term was not used in the Burton opinion, but first surfaced (in the Court’s opinions,
anyway) in Polk County v. Dodson, 454 U.S. 312, 322 n.12 (1981), where the Court
characterized it as a species of “joint participation” theory and rejected its application in the
context of evaluating a claim that public defenders act under color of state law.
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relationship between the parking garage and the restaurant—easy parking for the restaurant’s
patrons and greater demand for the garage’s spaces—the Supreme Court held that the
restaurant’s discrimination constituted state action. But nothing in the opinion stands for the
proposition that the existence of a mutually beneficial relationship, standing alone, warrants the
characterization of all private conduct by a state contractor as state action; indeed, the Supreme
Court has since taken numerous opportunities to clarify that “privately owned enterprises
providing services that the State would not necessarily provide, even though they are extensively
regulated, do not fall with the ambit of Burton.” Sullivan, 526 U.S. at 57 (quoting Blum, 457 U.S.
at 1011). The defendants—private enterprises providing regulated services that the State is not
required to provide—do not fall within Burton’s ambit.
4. Totality of Circumstances/Entwinement/Delegation Tests
And finally, the plaintiffs rely on two additional cases to argue that delegation of
governmental functions to a private entity cannot shield that entity from constitutional torts. This
sounds little different than the “public function” test, discussed above; the argument goes wrong,
as noted above, because the state has not “delegated government functions” to the defendants.
The plaintiffs’ reliance on Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 345
(4th Cir. 2000) is therefore unavailing; in that case the Fourth Circuit expressly held that
firefighting “has traditionally been the exclusive function of the state [Maryland]”—in other
words, that the defendant was performing a public function.
The Supreme Court’s opinion in Brentwood Academy provides no more support to the
plaintiffs. There, while observing that “no one fact can function as a necessary condition across
the board for finding state action,” 531 U.S. at 295, the Court held that the high degree of
“entwinement” between public school officials and a not-for-profit interscholastic association—
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84 percent of the association’s members were public schools—rendered the association largely
indistinguishable from the public schools and therefore the association’s enforcement of an
allegedly unconstitutional rule constituted state action under § 1983. Brentwood Academy
represents an extreme version of joint participation between state and private actors, where
unlike here the allegations could support a finding that the state effectively directed and
controlled the actions of a private party. As noted at the outset of this discussion, there are no
allegations of joint conduct between public and private actors in this case and, accordingly, the
analysis of state action in Brentwood Academy has no application here.
Because, as a matter of law, the plaintiffs have not and cannot plausibly allege that the
sexual harassment occurred under color of state law, the Court grants the defendants’ motion to
dismiss all of the § 1983 claims with prejudice. If the defendants are to bear responsibility for
the alleged misconduct, they must do so not because they are state actors but because they are
otherwise responsible for this private conduct. 4
B.
Plaintiffs as the defendants’ “employees”
Both defendants seek dismissal of the Title VII and Illinois Human Rights Act claims on
the basis that they were not the employers of the plaintiffs. Metro, conceding that it employed
Volling, advances this argument only as to plaintiffs Banser and Soulak, and ARS’s entire
motion now applies only to plaintiff Banser. Any discussion of the “plaintiffs” in this section
4
Having concluded that the complaint does not allege any state action, the Court need not
address the defendants’ claim that Title VII preempts the § 1983 claims or Metro’s contention
that it cannot be held vicariously liable under § 1983 for the actions of its employees under the
doctrine of respondeat superior, other than to note that neither argument appears to be wellfounded. The Seventh Circuit has said that is “well established” that “Title VII does not preempt
§ 1983 for public employers.” Wudtke v. Davel, 128 F.3d 1057, 1063-64 (7th Cir. 1997) (citing
cases). And the complaint includes plausible allegations that Metro has a policy, custom or
pattern of official conduct that caused the alleged misconduct. Such allegations would suffice to
state a claim under § 1983 if Metro could be deemed a state actor.
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should be read in that light. Additionally, the Court has no way to separately analyze the two
putative employers. Plaintiffs assert in their complaint and emphasize in their response to the
motions to dismiss that ARS and Metro are “joint operators and joint employers.” According to
Plaintiffs, “Metro and ARS have a singular identity as well as an interrelation of operations,
including shared premises, shared equipment and ambulances . . . and other resources” as well as
“centralized control of labor and shared personnel.” Metro concedes for purposes of its motion
that it jointly operates the squad with ARS, and ARS does not address the issue at all. Therefore,
the Court is given no basis on which to distinguish between ARS and Metro, and for purposes of
the motions to dismiss, it accepts as true the Plaintiff’s allegations of joint employment.
Title VII imposes liability only upon the complaining employee’s “employer.” 42 U.S.C.
§ 2000e–2(a). The statute’s definitions of “employer” and “employee” are circular—an
employee is someone employed by an employer—and refer neither to volunteers nor to payment
or receipt of remuneration. See id. § 2000e(b) & (f). Absent statutory guidance, the Supreme
Court has instructed courts to use the common law principles of agency in lieu of a substantive
definition of “employee.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (same
definition under ERISA); NLRB v. United Ins. Co. of Am., 390 U.S. 254, 260 (1968) (National
Labor Relations Act); see also Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 44445 (2003) (reaffirming Darden’s approach in context of Americans with Disabilities Act).
Relevant factors in assessing whether a complainant is an “employee” of a respondent
“employer” include “the skill required; the source of the instrumentalities and tools; the location
of the work; the duration of the relationship between the parties; whether the hiring party has the
right to assign additional projects to the hired party; the extent of the hired party’s discretion over
when and how long to work; the method of payment; the hired party’s role in hiring and paying
12
assistants; whether the work is part of the regular business of the hiring party; whether the hiring
party is in business; the provision of employee benefits; and the tax treatment of the hired party.”
Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989). “No one of these
factors is determinative.” Id. at 752. The EEOC’s Compliance Manual also sets forth a similar
list of non-exhaustive factors to be considered in evaluating an employer-employee relationship.
EEOC Compliance Manual, Section 2-III-A-1 (“Who is an ‘employee’?”).
Although no single factor is dispositive of one’s status as an employee, the defendants
would require an “employee” to be paid for her work. They insist that the plaintiffs, who are
unpaid volunteers, cannot be deemed to be covered “employees.” 5 That view is expressly
contradicted by the Restatement, which recognizes that one may act as an agent gratuitously. See
Restatement (Third) of Agency § 1.01, cmt.d (2006) (“Many agents act or promise to act
gratuitously.); id. § 1.04(3) (defining “gratuitous agent” as one who “acts without a right to
compensation”); id. § 7.07(3)(b) (noting that the fact that agent acts gratuitously does not relieve
principal of responsibility for agent’s acts). The Seventh Circuit has not weighed in on whether
unpaid “volunteers” can be “employees” under Title VII, but it has squarely rejected the
“tyranny of labels” advocated by the defendants in brandishing the term “volunteer” as a shield
to ward off liability under Title VII. In EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696,
705 (7th Cir. 2002), the Seventh Circuit followed and endorsed Darden’s instruction to look to
5
The “fact” that the plaintiffs are volunteers is not expressly included in the complaint, but the
Plaintiffs do not dispute that, apart from Volling, who is a paid Metro employee, they are
volunteers. See Resp. at 18-19 (arguing that receipt of benefits other than compensation supports
finding that they are employees). Moreover, the Court may take judicial notice that the squad is
primarily staffed by volunteers who are not paid. See Antioch Rescue Squad,
http://www.antiochrescuesquad.com (last visited December 4, 2012); Trust v. Crowley, 2010 WL
748201, *3 n.1 (court may take judicial notice of publicly available information, including
information on a party’s web site). In any event, because the Court concludes that the plaintiffs
are “employees” within the meaning of Title VII, reference to the ARS web site works no
prejudice to the plaintiffs.
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the myriad common law factors that are relevant to the question of whether one is an “employee”
in determining whether individuals were covered “employees” under Title VII, rather than to the
labels applied to them by the organization or even by state law. See also Bryson v. Middlefield
Volunteer Fire Dep’t, Inc. 656 F.3d 348, 354 (6th Cir. 2011) (reversing district court’s holding
that receipt of remuneration is a necessary antecedent to the inquiry into employment status
under Title VII).
Rather than address the relevant common law factors as the Supreme Court and Seventh
Circuit have directed, the defendants rely primarily on two district court cases, Vickery v.
Minooka Volunteer Fire Dep’t., 990 F. Supp. 995 (N.D. Ill. 1997) and Jones-Walsh v. Cicero,
2005 WL 2293671 (N.D. Ill. 2005), holding that volunteers cannot be employees under Title
VII. 6 Vickery was decided well before Darden, and in any event neither case discusses Darden
or follows its direction to apply the common law of agency when assessing the existence of
employment status under a federal law lacking a substantive definition of the term “employee.” 7
6
ARS also relies on Board of Education v. Industrial Commission, 53 Ill. 2d 167, 290 N.E.2d
247 (1972), but state law does not govern whether one is an employee under Title VII. Sidley
Austin, 315 F.3d at 704 (“The two classes, partners under state law and employers under federal
antidiscrimination law, may not coincide.”). In any event, the Illinois Supreme Court’s decision
in Board of Education involved the question of whether volunteers were eligible for worker’s
compensation benefits, which are substantially designed to compensate workers for lost wages—
a remedy that plainly would not be available to unpaid volunteers whether or not they are
considered to be “employees” for other purposes. In more general contexts, Illinois law
recognizes that “there is no single fact that controls the existence or nonexistence of an
employment relationship.” Village of Creve Coeur v. Indus. Comm’n, 32 Ill. 2d 430, 432, 206
N.E.2d 706, 708 (1965).
7
The defendants could have cited (but did not) several circuit court cases supporting their
position. The Second Circuit and Fourth Circuits, in particular, have imposed a “significant
remuneration” requirement for coverage under Title VII; although the employee’s
“remuneration” can comprise benefits other than salary, the benefits must be both “significant”
and “economic.” See O'Connor v. Davis, 126 F.3d 112, 116 (2d Cir. 1997) (requiring “direct or
indirect economic remuneration); Haavistola v. Community Fire Co., 6 F.3d 211, 222 (4th Cir.
1993). Under this view, the “inconsequential incidents of an otherwise gratuitous relationship”
do not amount to the “significant remuneration” that signifies an employer-employee
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ARS (but not Metro) also argues that the Supreme Court’s endorsement, in Walters v.
Metropolitan Educational Enterprises, Inc., 519 U.S. 202 (1997), of “the payroll method” of
counting employees to meet Title VII’s threshold jurisdictional requirement that an employer
have at least 15 employees requires that an employee be compensated (i.e., on the payroll) in
order to have coverage under Title VII. That reads Walters far too broadly; the Court’s opinion
states expressly that “the ultimate touchstone” for the determination of the number of employees
for jurisdictional purposes is “whether an employer had employment relationships” with the
required number of workers, not whether they appear on the payroll. Id. at 211-12 (agreeing with
petitioner’s view that an individual who is on the payroll would not count if “not an ‘employee’
under traditional principles of agency law,” and citing Darden). Indeed, the Court’s holding
rejected the view that the absence of compensation on any given day would require exclusion of
a worker from the ranks of the organization’s employees for purposes of Title VII, a position that
is, if anything, inconsistent with the defendants’ contention in this case that compensation is the
sine qua non of Title VII coverage.
As the Sixth Circuit noted in Bryson, treating remuneration only as one of many factors
bearing on the issue of status as an “employee” “comports with Darden’s instruction that, when
evaluating a particular relationship, ‘all of the incidents of the relationship must be assessed and
weighed with no one factor being decisive.’” Id. (quoting Darden, 503 U.S. at 324). Based on the
Supreme Court’s instructions, the Court agrees with the Sixth Circuit’s view. The question and
degree of remuneration are simply factors to be considered, along with many others, in assessing
whether a worker is an “employee” for purposes of Title VII.
relationship for purposes of Title VII. Haavistola, 6 F.3d at 222. These cases, in the Court’s
view, cannot be reconciled with the Supreme Court’s direction to look to the common law of
agency and its teaching that no single factor is dispositive in the assessment of employment
status.
15
The plaintiffs argue that they received some remuneration; the “complaint discusses
training and uniforms being provided to Plaintiffs and it is reasonable to infer that, as EMT
personnel of the squad, they received additional benefits as well.” Memorandum, Dkt. # 41 at 19.
These allegations are thin; the provision of uniforms and unspecified “training” are not the kinds
of substantial pecuniary benefits that other courts or the EEOC have discussed when evaluating
remuneration. And, an inference from plaintiffs’ receipt of these perks that they also earned
other, more concrete benefits is not necessarily a reasonable one; presumably if they received
other forms of remuneration, they would have identified them in their complaint.
In the context of assessing the relationship of a worker to a not-for-profit organization,
however, the question, nature, and degree of remuneration may be less relevant than they would
be in assessing a similar relationship for a commercial enterprise. Non-paid “volunteers” may,
for example, comprise a significant portion of the work force of a not-for-profit organization,
motivated not by the prospect of pecuniary rewards but by a desire for public service, or by other
altruistic, spiritual, or eleemosynary considerations. The conditions under which they perform
their services, however, may differ in no other material way from the conditions under which
compensated “employees” toil, and there seems little basis—and certainly none in the text of the
statute—to conclude that Title VII’s protections do not extend to them simply because there is a
single factor—degree of pecuniary compensation—that distinguishes them from those the
defendants would deem to be “employees.” Cf. Lomando v. United States, 667 F.3d 363, 374 &
n.9 (3d Cir. 2011) (volunteer physicians at non-profit health centers deemed to be government
employees, citing 42 U.S.C. § 233(o)).
In all respects other than degree of pecuniary compensation, the members of the
ambulance squad appear to be subject to the strictures of a typical workplace, and—
16
importantly—to the control exercised by an employer over paid employees. These plaintiffs have
alleged that: “Plaintiffs are assigned to work specific shifts and Defendants control who works
those shifts with them [Comp., ¶¶30, 63-67, 69]; that Plaintiffs performed their work in the
station and ambulances operated and used by ARS and Metro [Comp., ¶¶12, 16, 19, 21, 36-37,
42]; that Plaintiffs are/were required to wear uniforms [Comp., ¶¶24-25]; that Plaintiffs received
training through their work [Comp., ¶15]; that Plaintiffs were hired workers who had to go
through probationary periods [Comp., ¶¶36(z), 37(k), 68]; and that Plaintiffs had supervisorysubordinate relationships with team leaders and Board members of ARS and with Metro
supervisory personnel. [Comp., ¶¶31, 33, 51, 55, 58, 57, 62-68, 71].” Memorandum, Dkt # 41 at
17-18. These allegations describe individuals, subject to a well-defined chain of command and
close supervision, performing services on behalf of a professional organization providing vital
emergency services to the community. Based on the allegations of the complaint, the plaintiffs
were not free to establish the terms of their relationship with the organization and were not
simply volunteering their time gratuitously. The high degree of control the defendants exercise is
indicative of an employment relationship. Indeed, both the Seventh Circuit and the Supreme
Court have identified the question of control to be central to the existence of an employment
relationship. See, e.g., Glackamas, 538 U.S. at 448 (“At common law the relevant factors
defining the master-servant relationship focus on the master’s control over the servant.”); Sidley
Austin, 315 F.3d at 705 (“the employer’s right to control the worker’s work” can be “the most
important factor” in assessing status an employee); Restatement (Third) of Agency § 7.07(3)(a)
(2006) (defining “employee” for purposes of respondeat superior as “an agent whose principal
controls or has the right to control the manner and means of the agent’s performance of work”).
17
District courts are required to construe Title VII broadly to prevent and remediate
discrimination in the workplace. Smith v. Castaways Family Diner, 453 F.3d 971, 985-856 (7th
Cir. 2006); Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 889 (7th Cir. 1996). The Seventh
Circuit has been explicit both that the definition of “employee” in Title VII be construed
consistent with the statute’s purpose, Sidley Austin, 315 F.3d at 704, and that “employee” should
be given a “generous construction.” Veprinksky, 87 F.3d at 889 (citing Unger v. Consolidated
Foods Corp., 657 F.2d 909, 915, n.9 (7th Cir.1981), vacated on other grounds, 456 U.S. 1002
(1982)); see also Am. Tobacco Co. v. Patterson, 456 U.S. 63, 80-81 (1982) (“Through Title VII
Congress sought in the broadest terms to prohibit and remedy discrimination.”). A workplace is
not necessarily any different for a non-compensated volunteer than it is for a compensated
“employee,” and while both are generally free to quit if they don’t like the conditions (at-will
employment being the norm), neither should have to quit to avoid sexual, racial, or other
unlawful discrimination and harassment.
It is clear that remuneration is an important factor in defining an employment
relationship. But the Supreme Court’s instruction to evaluate the question using the common-law
principles of agency, and its inclusion of considerations that do not pertain to remuneration on its
non-exhaustive list of relevant factors, confirms that it is not the exclusive consideration.
Consistent with that instruction, this Court does not draw any bright line requiring an
“employee” to be salaried or that she receive substantial pecuniary remuneration. The question is
whether the plaintiffs have alleged facts sufficient to make a plausible claim that they meet the
requirements for Title VII protection, and in light of the totality of the plaintiffs’ allegations, the
Court concludes that they have. Accordingly, the Court denies the motion to dismiss the Title
VII claims.
18
For the same reasons, the Court also denies the motion to dismiss the claims under the
IHRA. The state statute, like Title VII, provides remedies for only employees against their
“employers.” Under the state statute, the defendants plainly are employers; the statute defines
“employer” to include “any party to a public contract.” 775 ILCS 5/2-101(B)(1)(d). The
defendants point out, however, that unlike Title VII, the IHRA defines “employee” to require the
performance of services “for remuneration,” see 775 ILCS 5/2-101(A)(1), but the plaintiffs have
alleged that they received some remuneration, in the form of training and uniforms, for their
services. As discussed above, these benefits hardly rise to the level of “substantial”
remuneration, but the Illinois statute does not require either “pecuniary” or “substantial”
remuneration. Nor is the Court aware of (and defendants have not identified) any precedent from
the Illinois courts interpreting the statute to include such qualifications. The Illinois courts
consider “common law factors” in determining who is an “employee.” Mitchell v. Dep’t of
Corrs., 856 N.E.2d 593, 598 (Ill. App. Ct. 2006) (“We look both to the element of remuneration,
as referred to in the Act, and to the common-law factors for determining whether a worker is an
employee.”). The most important of these factors is “control of the manner in which work is
done.” Id. And Illinois courts have stated that in deciding claims under the IHRA, specifically in
the context of who is an “employee,” they “look to the standards applicable to analogous federal
claims.” Id.; Wanless v. Illinois Human Rights Com’n, 695 N.E.2d 501, 503 (Ill. App. Ct. 1998).
Anyway, the parties have not argued or cited authority to the effect that a person can be an
“employee” for purposes of Title VII but not the IHRA. Therefore, the Court denies the motion
to dismiss the IHRA discrimination, harassment, and retaliation claims against the defendants.
19
C. Timeliness and exhaustion
Metro argues that the Title VII and IHRA claims also must be dismissed because
“plaintiffs fail to establish that the claims are timely.” Of course, plaintiffs need not “establish”
anything in a complaint; “[c]omplaints need not do more than narrate a plausible claim for
relief.” Morrison v. YTB Int’l., Inc., 649 F.3d 533, 539 (7th Cir. 2011) (citing Twombly, 550 U.S.
544, and Iqbal, 556 U.S. 662). Moreover, a plaintiff is not required to plead compliance with a
statute of limitations; untimeliness is an affirmative defense that can be resolved on a motion to
dismiss only where it is clear from the face of the pleadings that the claim is “indisputably time
barred.” See Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005). Metro cites no allegations in the
complaint that definitively show untimeliness, so its argument fails.
Similarly, the Court rejects Metro’s argument that the IHRA claims must be dismissed
because the plaintiffs “failed to exhaust their administrative remedies.” Nothing in the complaint
itself clearly shows that the plaintiffs failed to exhaust, and as with timeliness, the plaintiffs are
not required to plead exhaustion in their complaint. Mosely v. Bd. of Educ. of City of Chicago,
434 F.3d 527, 532-33 (7th Cir. 2006). A plaintiff need not anticipate, and plead facts to negate,
an affirmative defense. Id.
D. Preemption of State-Law Tort Claims
The plaintiffs allege that the Defendants negligently retained and supervised individuals
who they knew or should have known were “forcing Plaintiffs to endure extremely offensive and
harmful conduct of a sexual nature and . . . were mistreating patients and otherwise endangering
the public safety.” These claims thus incorporated both the allegations of sexual discrimination
and harassment on which the plaintiffs Title VII claims are premised, but also the complaint’s
allegations that a number of the defendants’ supervisors were unfit to serve as emergency
20
medical personnel because, among other things, they physically abused and disparaged patients,
delivered substandard care, worked and drove the ambulance while intoxicated, and falsified
reports. Both defendants argue that these tort claims are preempted by the IHRA, and Metro adds
that the Illinois Workers’ Compensation Act (“IWCA”) also preempts those claims. 8
As to the IHRA, the defendants contend that it is the exclusive state remedy for sexual
harassment, discrimination, and retaliation, which, they say, are all that the complaint alleges.
The plaintiffs argue, on the other hand, that their complaint presents independent allegations to
support the negligence claims. That much is required by Illinois law; IHRA preempts tort claims
to the extent that the tort does not require proof of more than what is proscribed by the Act. See
775 ILCS 5/8-111; Geise v. Phoenix Co. of Chicago, Inc., 639 N.E.2d 1273, 1278 (Ill. 1994).
Said otherwise, the Act preempts torts that are “inextricably linked” to civil rights violations.
Maksimovic v. Tsogalis, 687 N.E.2d 21, 22 (Ill. 1997). Preemption “depends upon whether the
tort claim is inextricably linked to a civil rights violation such that there is no independent basis
for the action apart from the Act itself.” Id. at 23.
To the extent that the negligent retention and supervision counts are premised on the
conduct that underlies the Title VII claims, plainly they are preempted. But, as the plaintiffs
argue, these counts also target conduct “mistreating patients and otherwise endangering the
8
The defendants also argue that these claims are duplicative because Illinois does not recognize
distinct tort claims for negligent retention and negligent supervision. See Metro Memorandum,
Dkt. # 37 at 15 (citing Swift v. BPI Energy, Inc., 2011 WL 4001359 (C.D. Ill. Sep. 7, 2011);
Lawrence v. East Cent. Illinois Area Agency on Aging, 2011 WL 1100506 (C.D. Ill. Feb. 22,
2011); ARS Memorandum, Dkt. # 39 at 14 (citing Helfers-Beitz v. Degelman, 939 N.E.2d 1087,
1091 (Ill. App. Ct. 2010); Zahl v. Krupa, 927 N.E.2d 262, 283 (Ill. App. Act. 2010). Plaintiffs
cite Soranno v. New York Life Ins. Co., 1999 WL 104403, *14 (N.D. Ill. Feb. 24, 1999), which
relies on Van Horne v. Muller, 691 N.E.2d 74, 79 (Ill. App. Ct. 1998), for the proposition that
“negligent and/or reckless hiring, supervision, and retention are distinct causes of action.” The
Court need not address the contradictory pronouncements on this issue, as the Court is
dismissing these claims. However, even assuming the claims are duplicative, that would require
dismissal of only one, not both.
21
public safety.” Plaintiffs supply all manner of allegations about negligent, unsafe, and even lifethreatening conduct of defendants’ employees. The Complaint describes appalling acts such as
fellow EMTs, supervisors, and ARS board members, treating patients while intoxicated, driving
an ambulance while text messaging or while intoxicated, physically and verbally abusing
patients, and “purposefully farting on the face of an unconscious patient.” See Am. Cmplt., Dkt.
34 ¶ 42. There is no question that these actions are distinct from the allegations of offensive
sexual remarks and conduct that support the sexual harassment and discrimination claims. So the
defendants are largely off the mark in arguing preemption due to any similarity between the tort
claims and the civil rights claims. For that reason, cases such as Coleman v. Joliet Junior Coll.,
2006 WL 3524417 (N.D. Ill. 2006), are not as “strikingly similar” to this one as Metro argues.
Memorandum, Dkt. # 37 at 12.
Metro recognizes the more fundamental problem with this aspect of the plaintiffs’ tort
claims, however. To the extent the plaintiffs allege facts apart from those that support their
discrimination and harassment claims, these plaintiffs lack Article III standing to bring
negligence claims based on those facts. Although these allegations undoubtedly describe
“misconduct in its own right,” as required to avoid preemption, there is no allegation that these
plaintiffs were injured apart from the public at large. This raises questions about both the
existence of an injury-in-fact and its traceability to the acts that are alleged.
Moreover, the problem is not just one of standing. To even state a negligence claim,
plaintiffs must allege some injury, to someone, caused by the breach of a duty. Curtis v. Cook
Cnty, 456 N.E.2d 116, 118 (Ill. 1983) (“In order to adequately state a cause of action for
negligence, the allegations must establish the existence of a duty of care owed by the defendant
to the plaintiffs, a breach of that duty, and an injury proximately resulting from that breach.”).
22
Damages are an essential element of any tort claim, and here the plaintiffs do not describe any
injury or damages suffered by anyone—either themselves, or the patients, or members of the
public—as a result of the non-harassing negligent conduct. No matter how egregious the
conduct, there is no claim unless someone was harmed by it, and even if the conduct caused
harm, the plaintiffs have no tort claim unless it harmed them.
The complaint alleges no harm to the plaintiffs flowing from the alleged mistreatment of
patients and other conduct endangering public safety, and the plaintiffs did not respond to
Metro’s argument that standing is lacking for the state-law torts. This is, perhaps,
understandable, as the plaintiffs had to respond to a slew of arguments raised in the 46 combined
pages of the two defendants’ opening briefs, and Metro’s argument, which cites no legal
authority, is a conclusory three sentences buried in its preemption argument. Memorandum, Dkt.
# 37 at 14. But the problems are evident on the face of the Complaint, and the Court can
examine constitutional standing sua sponte, and even dismiss claims on that basis.
Metallgesellschaft AG v. Sumitomo Corp. of Am., 325 F.3d 836, 842 (7th Cir. 2003) (noting that
“a district court may dismiss a case sua sponte for lack of Article III standing if it finds that the
plaintiff has not suffered injury-in-fact”). Therefore, the state-law negligence claims are
dismissed without prejudice. If the plaintiffs can allege sufficient facts to plausibly suggest that
they were injured by the non-harassing conduct, they may amend their complaint to do so. 9
9
Metro’s additional, cursory, argument that the IWCA also preempts the tort claims fails. The
IWCA makes workers’ compensation the exclusive remedy for “for accidental injuries sustained
by any employee arising out of and in the course of the employment according to the provisions
of this Act.” 820 ILCS 305/11 (emphasis added). As an initial matter, the Court notes that
Metro’s preemption argument is not presented in the alternative, raising the question of whether
it concedes the issue of the plaintiffs’ status as employees, but in light of Metro’s brief on that
specific question, the Court does not construe its IWCA argument to concede that status. And
since the Court has held that the plaintiffs have plausibly alleged that they are employees under
IHRA, the IWCA preemption argument does not fail for that reason. Rather, as the foregoing
23
E. Supplemental Jurisdiction
Having concluded that the plaintiffs have stated federal claims for relief, the Court need
not address both defendants’ arguments that it should employ its discretion to decline
supplemental jurisdiction over the state-law claims.
***
For the reasons set forth above, the Court GRANTS the motions to dismiss as to Counts
I, II, VII, VIII, XIII, and IV (the § 1983 claims) and XIX, XX, XXI, and XXII (the negligence
claims) and DENIES them as to all other claims in the Second Amended Complaint. The
dismissal is without prejudice as to the state-law tort claims and with prejudice as to the § 1983
claims.
Entered: December 4, 2012
John J. Tharp, Jr.
United States District Judge
discussion notes, it fails because the complaint alleges no injuries to the plaintiffs arising from
accidental conduct. Injuries arising from the sexual discrimination and harassment were not
accidental and the complaint alleges no injuries from the distinct allegations of patient
mistreatment and public safety endangerment. Moreover, Metro fails to consider at all whether
such injuries were accidental, whether they were compensable under the IWCA, or any other
basis for avoiding preemption. See Meerbrey v .Marshall Field & Co., 564 N.E.2d 1222, 1225
(Ill. 1990); Thomas v. Habitat Co., 213 F. Supp. 2d 887, 892 (N.D. Ill. 2002).
24
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