Fitter v. Navisis Financial Group, LLC

Filing 17

MEMORANDUM Opinion and Order. Signed by the Honorable James F. Holderman on 2/25/13. Notice mailed by judge's staff (ntf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAWAD FITTER,

)
)
Plaintiff,
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v.
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NAVISIS FINANCIAL GROUP, LLC, an Illinois )
limited liability company,
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Defendant.
)

No. 12 C 7353

MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, Chief Judge:
Plaintiff Jawad Fitter, a former employee of defendant Navisis Financial Group, LLC
(“Navisis”), alleges that Navisis unlawfully discriminated against him by subjecting him to a
hostile work environment and forcing him to resign. (Dkt. No. 1 (“Compl.”) ¶¶ 6-9.) Fitter brings
three counts against Navisis under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
to 2000e–17. The first count alleges that Fitter’s religion was a motivating factor in the
discrimination, the second alleges that Fitter’s national origin was a motivating factor, and the
third alleges that Fitter’s race was a motivating factor.
Currently pending before the court is Navisis’s “Motion to Dismiss, or Alternatively, to
Stay Pursuant to the Colorado River Abstention Rule.” (Dkt. No. 7.) For the reasons explained
below, that motion is denied.
BACKGROUND
According to the complaint, Jawad Fitter is a Muslim born in Pakistan of the “Asian
race.” (Compl. ¶ 4.) Fitter was an employee of defendant Navisis from July 8, 2009, through
June 20, 2011. (Id.)

Fitter alleges that during his employment at Navisis, his supervisor, Kevin D. Keane, and
the CEO of Navisis, Jack Bruscianelli, subjected him to a hostile work environment because of
his religion, national origin, and race. (Id. ¶¶ 6-7.) Specifically, Fitter alleges that Keane and
Bruscianelli spoke negatively about Muslims and used e-mail to send Fitter news stories and
jokes that characterized Muslims negatively. (Id. ¶ 7.) In office conversation and emails, Keane
and Bruscianelli regularly referred to Fitter and Muslims in general with slurs such as “nigger,”
“sandnigger,” “faggot,” Jihad,” and “terrorist.” (Id.)
In addition, Keane and Bruscianelli sent Fitter pictures of naked women and asked him to
look for “hookers” for them on Craigslist because they knew that this behavior would offend
Fitter’s religious beliefs. Keane and Bruscianelli also told Fitter that Pakistan was a country of
cabdrivers, and regularly assigned Fitter to chauffeur customers and fellow employees because
Fitter was Pakistani. (Id.) On other occasions, Keane and Bruscianelli required Fitter to use a
nickname, “Jay,” with customers because “Jawad” was “too ethnic.” (Id.) Finally, Keane and
Bruscianelli pressured Fitter to buy lunch on “Pizza Days” for the entire office, something they
did not require of other employees. (Id.)
As a result of that conduct, other employees also felt emboldened to act in a hostile
manner because of Fitter’s religion, national origin, and race. (Id.) Fitter felt those conditions
made it unbearable to continue his employment and resigned on June 20, 2011. (Id.)
On September 23, 2011, Navisis filed a complaint against Fitter in the Circuit Court of
the Eighteenth Judicial Circuit of the State of Illinois in DuPage County. (Dkt. No. 7, Ex. A.)
The complaint alleged that Fitter failed to pay Navisis approximately $29,000 that he owed
Navisis under his employment contract because he resigned from his job, and that Fitter was
violating the non-solicitation and confidentiality provisions of his employment agreement. (Id.)

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Fitter responded by filing a counterclaim in state court under 42 U.S.C. § 1981 alleging that
Navisis violated the Fourteenth Amendment of the Constitution by subjecting him to a hostile
work environment based on his “religion, ethnicity and color.” (Dkt. No. 7, Ex. B ¶ 3.) The
factual allegations underlying the § 1981 claim are identical to those underlying Fitter’s Title VII
claim. (See Dkt. No. 7, Ex. B.) Fitter also filed a second counterclaim for intentional infliction of
emotional distress under Illinois law. (Id.)
ANALYSIS
Navisis’s motion contends that Fitter’s Title VII allegations should be dismissed, or at
least stayed, to avoid conflicting with his § 1981 allegations based on similar subject matter in
state court. In most cases, “the pendency of an action in the state court is no bar to proceedings
concerning the same matter in the Federal court.” Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 817 (1976). The Supreme Court, however, has created an exception
to that rule “allowing federal courts in some exceptional cases to defer to a concurrent state-court
case as a matter of ‘wise judicial administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation.’” Huon v. Johnson & Bell, Ltd., 657 F.3d
641, 645 (7th Cir. 2011) (quoting Colorado River, 424 U.S. at 817). There is a presumption
against abstention, as federal courts have a “‘virtually unflagging obligation’ to exercise the
jurisdiction Congress has given them.” Id. (quoting Colorado River, 424 U.S. at 817). A district
court should grant a stay only in “exceptional circumstances” based on “the clearest of
justifications.” Id. (citation and quotation marks omitted).
To determine whether to grant a stay under the Colorado River abstention rule, the court
must conduct a two-part inquiry. First, the court must determine “‘whether the concurrent state
and federal actions are actually parallel.’” Clark v. Lacy, 376 F.3d 682, 685 (7th Cir. 2004)

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(citation omitted). Only if the actions are parallel will the court “consider a number of nonexclusive factors that might demonstrate the existence of ‘exceptional circumstances.’” Id.
(citation omitted). Two actions are “parallel” if they involve “substantially the same
parties . . . contemporaneously litigating substantially the same issues.” Huon, 657 F.3d at 646
(citation and quotation marks omitted). To determine if two suits are parallel, the court must ask
if there is “a substantial likelihood that the state litigation will dispose of all claims presented in
the federal case.” Id. (citation and quotation marks omitted).
Here, the factual allegations underlying Fitter’s § 1981 counterclaim in the state court
action and his Title VII claim in the federal action are identical. That two suits arise from the
same “core of operative facts” is not enough, however, to make two suits parallel. Id. Instead,
“Colorado River abstention . . . focuses on the more practical question whether the state case is
likely to dispose of the . . . claims . . . brought in federal court.” Id. That requirement is not met
here, Fitter contends, because the two suits bring different claims. Specifically, Fitter asserts that
the state court claim alleges discrimination based on “color,” while the claim in federal court
alleges discrimination based on “religion, national origin, and race.”
Fitter’s argument runs into two problems. First, although Fitter asserts that his state court
§ 1981 claim is based only on “color,” his state court complaint shows otherwise, as it refers
repeatedly to discrimination based on “ethnicity, religion and color.” (Dkt. No. 7, Ex. B ¶¶ 3, 5.)
Second, the court rejects any possible distinction between “ethnicity and color” on the one hand
and “race and national origin” on the other in this context. Indeed, it is nonsensical to say that a
§ 1981 claim is based only on color or ethnicity, and not race, for § 1981 prohibits only racial
discrimination. See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609 (1987). The concept of
racial discrimination under § 1981 is broad, of course, encompassing discrimination against all

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“identifiable classes of persons who are subjected to intentional discrimination solely because of
their ancestry or ethnic characteristics.” Id. at 613. But that broad definition only underscores the
main point: that discrimination on the basis of color and ethnicity is functionally identical to
racial discrimination for purposes of a § 1981 claim. The court therefore rejects Fitter’s proposed
distinction between “color and ethnicity” and “race and national origin.”
But that does not mean that the two suits are parallel. The Supreme Court has also
established that § 1981 does not cover discrimination on the basis of religion. Id. at 613 (“If
respondent on remand can prove that he was subjected to intentional discrimination based on the
fact that he was born an Arab, rather than solely on the place or nation of his origin, or his
religion, he will have made out a case under § 1981.” (emphasis added).) Title VII, by contrast,
explicitly forbids discrimination on the basis of religion. 42 U.S.C. § 2000e-2(a). Because the
allegations regarding religious discrimination are peripheral to the § 1981 claim for racial
discrimination, they might not be adjudicated in the state court suit. The religious discrimination
claim will then need to be resolved in the federal Title VII suit. There is thus not a “substantial
likelihood that the state litigation will dispose of all claims presented in the federal case.” Huon,
657 F.3d at 645.
One could argue that Fitter’s claim for emotional distress will lead to at least partial
adjudication of the allegations of religious discrimination. The religious discrimination
allegations are certainly relevant, for teasing and harassment directed at a person’s religion may
well lead to emotional distress. The Seventh Circuit has already rejected that argument, however,
explaining in Huon that “[a]lthough all of Huon’s claims relate to alleged mistreatment he
suffered at work, the evidence necessary to establish defamation or emotional distress would be
different from that required to prove discrimination.” Id. at 647. The Seventh Circuit then held

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that a Title VII discrimination claim in federal court is not parallel to a state court emotional
distress claim addressing the same conduct. Id.
The Seventh Circuit has instructed district courts that “[i]f there is any doubt that cases
are parallel, a district court should not abstain.” Id. at 646. There is significant doubt that Fitter’s
counterclaims in state court are parallel to his federal claims. Accordingly, Navisis’s motion for
abstention is denied.
CONCLUSION
For the reasons explained above, Navisis’s “Motion to Dismiss, or Alternatively, to Stay
Pursuant to the Colorado River Abstention Rule” (Dkt. No. 7) is denied. Navisis’s answer is due
3/11/13. Counsel are to confer pursuant to Rule 26(f) and jointly file a Form 52 on or before
3/25/13. The case is set for status and entry of a scheduling order at 9:00 AM on 3/28/13. The
parties are encouraged to discuss settlement.

ENTER:

_____________________________
JAMES F. HOLDERMAN
Chief Judge, United States District Court
Date: February 25, 2013

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