McCann v. Semplinski et al

Filing 71

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 9/29/2015. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Dwayne McCann,
Plaintiff,

Case No. 14 C 1803

v.

Judge John Robert Blakey

Ray Semplinski, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
This is a pro se case brought by Plaintiff, a former Will County employee,
against his former employer and several supervisors – Curt Paddock, DebyJo
Ericksen and Ray Semplinski.

Plaintiff’s First Amended Complaint seeks to

address several employment related disputes between the parties, alleging
principally that he was discriminated against on the basis of race. Plaintiff states
the following causes of action: (1) a Section 1981(a) equal protection claim against
Semplinski and Paddock; (2) a Section 1981(a) equal protection claim against
Ericksen; (3) a Section 1983 equal protection claim against Semplinski and
Paddock; (4) a state law negligence claim against Semplinski, Paddock and Will
County; (5) an intentional infliction of emotional distress (“IIED”) claim against all
Defendants; and (6) a Section 1983 Monell claim against Will County. On July 7,
2014, Defendants filed a motion to dismiss several counts of the First Amended
Complaint [23].

That motion seeks the dismissal of Count IV, along with the

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complete dismissal of Ericksen from the action (Counts II and V).

Defendants’

motion is granted in part and denied in part as explained below.
I.

Background 1
From 2004 to 2010, Plaintiff worked for Will County as a plumbing inspector.

[22] First Am. Cmplt. (“FAC”) at ¶¶ 1, 13, 45. His duties consisted of inspecting the
plumbing systems of buildings. Id. at ¶3. On January 10, 2010, Plaintiff’s job was
eliminated due to budget cuts and he was laid off. Id. at ¶45. On April 11, 2013,
Plaintiff was re-hired by the County as a “General Combination Inspector” working
under the supervision of Semplinski. Id. at ¶49. As a condition of being re-hired,
Plaintiff was required to obtain a certification as a general building inspector within
six months of his hire date.

Id.

Following his re-hire, Semplinski allegedly

interfered with Plaintiff’s ability to prepare for the licensing exam by refusing
Plaintiff’s requests for study materials. Id. at ¶¶51-55. In addition, Semplinski
allegedly provided Plaintiff’s white coworkers with hands-on field training to
prepare for the test, but did not offer the same opportunities to Plaintiff. Id. at
¶¶59-62.

On September 14, 2013, Plaintiff and four white coworkers took the

licensing examination, but none of them passed the test. Id. at ¶64.
On September 25, 2013, Plaintiff suffered a rotator cuff injury during an
inspection. Id. at ¶65. He sought medical attention and the doctor recommended
light duty, but notwithstanding that recommendation, Semplinski assigned Plaintiff
to perform an inspection in Wheaton, Illinois. Id. at ¶¶66-69. While driving to the
The Background section is based upon the well-pleaded factual allegations of the FAC and the
related documents properly before this Court. The facts are accepted as true solely for the purpose of
this motion.
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inspection, on September 27, 2013, Plaintiff passed out. Id. at ¶¶71-72. While it is
unclear from the FAC whether Plaintiff was involved in an accident as a result of
losing consciousness, he was at some point taken by ambulance to the emergency
room and hospitalized for two days. Id. at ¶¶70-74.
Subsection 4(c) of Section 2 of the Illinois Workers’ Compensation
Commission’s Handbook on Workers’ Compensation and Occupational Diseases
states:
“4. What should the employer do after receiving notice of accident? The
employer should promptly take the following steps: (c) if the employee cannot
work for more than three days because of the injury, the employer must do
one of the following: (i) Begin payments of TTD; or (ii) Give the employee a
written explanation of the additional [sic] the employer needs before it will
begin payment; or (iii) Give the employee written explanation of why the
benefits are being denied.” Id. at ¶80.
Though Plaintiff timely applied for workers’ compensation benefits in reference to
the September 27 incident, Defendants did not comply with Subsection 4(c). Id. at
¶81.
On October 2, 2013, Plaintiff’s doctor’s office called the County “concerning
the form of payment” for Plaintiff’s follow-up visit with his physician. Id. at ¶77.
Defendant Ericksen informed the doctor’s office that the “payment surely was not
going to be workers’ compensation related.”

Id. at ¶77.

On October 7, 2013,

Ericksen issued a written notice to Plaintiff that he was placed on light duty status,
and that he was expected to return to work. Id. at ¶78.
In October 2013, Plaintiff began physical therapy for his shoulder, but after
one and a half weeks he had pain in his leg and was diagnosed with a blood clotting
disorder. Id. at ¶75. Having failed to obtain the required building inspector
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certification within six months of his hire date, Plaintiff’s employment was
terminated on November 7, 2013. Id. at ¶79.
II.

Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), the Court must construe the

FAC in the light most favorable to Plaintiff, accept as true all well-pleaded facts and
draw all reasonable inferences in his favor. Yeftich v. Navistar, Inc., 722 F.3d 911,
915 (7th Cir. 2013); Long v. Shorebank Dev’t Corp., 182 F.3d 548, 554 (7th Cir.
1999). Statements of law, however, need not be accepted true. Yeftich, 722 F.3d at
915. To survive Defendants’ motion under Rule 12(b)(6), the FAC must “state a
claim to relief that is plausible on its face.” Yeftich, 722 F.3d at 915. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. Rule 12(b)(6) limits this Court’s consideration to “allegations set forth
in the complaint itself, documents that are attached to the complaint, documents
that are central to the complaint and are referred to in it, and information that is
properly subject to judicial notice.” Williamson v. Curran, 714 F.3d 432, 436 (7th
Cir. 2013).
III.

Analysis
A.

Count II against Ericksen

Plaintiff’s claim in Count II is that Ericksen discriminated against the
Plaintiff by failing to afford him with the full benefits and/or procedures available
under Sub-section 4(c) of Section 2 of the Illinois Workers Compensation

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Commission’s Handbook on Workers’ Compensation and Occupational Disease. [22]
at ¶108. Plaintiff bases his claim on the fact that Ericksen gave better treatment to
“various similarly situated Caucasian American employees for their acquired work
related physical injuries.” Id.
Because it appears from the FAC that Plaintiff is proceeding under the
indirect method of proof for his Section 1981 claim, and because Plaintiff offers no
direct evidence of racial animus, the Court will proceed under the indirect method.
To state a cause of action under Section 1981 via the indirect method, Plaintiff must
plead facts showing: “(1) he is a member of a protected class; (2) he was qualified for
the applicable positions; (3) he suffered an adverse employment action; and (4)
similarly-situated persons not in the protected class were treated more favorably.”
McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009). Further, personal
liability under Section 1981 must be based on the defendant’s personal involvement
in the alleged discrimination. Petrovic v. Enterprise Leasing Co. of Chicago, LLC.,
No. 12 C 3779, 2013 WL 1200220 at *2 (7th Cir. 2013).
Defendants do not challenge the four elements of the indirect method, but
instead argue that Count II should be dismissed due to a lack of personal
involvement by Defendant Ericksen.

[23] at 5-6.

This argument fails because,

construing the FAC in the light most favorable to Plaintiff and drawing all
reasonable inferences in his favor, Plaintiff has sufficiently alleged Ericksen’s
personal involvement. Plaintiff alleges the following concerning Ericksen:
“That on or about the 10th day of January, 2010, based upon alleged budget
cuts, defendants Semplinski, Paddock, Ericksen and defendant Land Use
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Department's Rose Valicento informed plaintiff McCann that he was being
laid-off from work.” [22] at ¶45.
“That on or about the 2nd day of October, 2013, in response to an inquiry by
plaintiff McCann's medical physician, Dr. Shah, Billing Department
personnel concerning the form of payment for plaintiff McCann's scheduled
follow-up physical examination. Defendant Ericksen informed the Billing
Department personnel that the form of payment was surely not going to be
workers' compensation related.” Id. at ¶77.
“That on or about the 7th day of October, 2013, defendant Ericksen issued a
written notice to plaintiff McCann confirming his being medically authorized
to be placed on light duty and the availability of defendant County's Land
Use Department having light duty work available, and informing plaintiff
McCann that he had been expected to return to work on September 30, 2013.”
Id. at ¶78.
“Though plaintiff McCann had timely applied for workers' compensation
benefits in reference to the episode occurring on the 27th day of September,
2013. Contrary to the provisions of subsection 4(c) of Section 2 Reporting An
Injury or Exposure. Neither did defendant Ericksen, nor did defendant
County's Land Use Department, within the prescribed three (3) day time
period afford plaintiff McCann with any of the provisions prescribed by
subsection 4(c) of Section 2 of the Illinois Workers' Compensation
Commission's Handbook On Workers' Compensation and Occupational
Disease.” Id. at ¶81.
“That prior to the 19th day of December, 2013, neither did defendant County
of Will, nor did defendant Ericksen afford plaintiff McCann with any of the
provisions prescribed by subsection 4(e) [sic] of Section 2 of the Illinois
Workers' Compensation Commission's Handbook On Workers' Compensation
And Occupational Diseases.” Id. at ¶82.
“At all times relevant hereto, the intentional initial deprivation and the
subsequent intentional delay and intentional disruption of equal rights under
Subsection 4(c) of Section 2 of the Illinois Workers Compensation
Commission's Handbook On Workers Compensation And Occupational
Disease conduct on the part of defendant Ericksen, some of which is set forth
above, raises a plausible inference that defendant Ericksen acted in
accordance with and was motivated by racial animosity toward plaintiff
McCann when she discriminated against affording him with the full and
equal benefit of Subsection 4(c) of Section 2 of the Illinois Workers
Compensation Commission's Handbook On Workers Compensation And
Occupational Disease, in that she intentionally discriminated Section 2 of the
Illinois Workers Compensation Commission's Handbook On Workers
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Compensation And Occupational Disease for his acquired work related
physical injury, on the basis of his racial nationality, African America, as she
enthuastically [sic] accorded to defendant County's various similarly situated
Caucasian American employees for their acquired work related physical
injuries.” Id. at ¶108.
In light of the above, Plaintiff has sufficiently alleged that Defendant Ericksen was
personally involved in discriminating against Plaintiff by withholding certain
workers compensation related benefits and/or procedures. While the evidence may
ultimately show that Ericksen had no responsibility for the provision of those
benefits, the Court must base its determination at this stage on the face of the FAC,
read in the light most favorable to the Plaintiff and with all inferences drawn in his
favor. With that in mind, the Court finds that Plaintiff has sufficiently alleged
Ericksen’s personal involvement in the discriminatory activity.
Defendants also contend that Plaintiff’s claim cannot survive because Section
1981 only applies to the making and enforcement of contracts; and the workers
compensation benefits at issue here are not contractually based, but part of a public
policy mandated by statute.

See 820 ILCS 305/1 et seq.

The Seventh Circuit,

however, has held otherwise. See Palmer v. Bd. of Educ. of Cmty. Unit Sch. Dist.
201-U, Will Cnty., Ill., 46 F.3d 682, 686 (7th Cir. 1995). In Palmer, the district court
dismissed a Section 1981 claim because it found that Section 1981 was concerned
exclusively with contractual relationships.

Id.

The Seventh Circuit disagreed,

saying the “district court understood Patterson to mean that the only function of §
1981 is to protect the creation and enforcement of contracts. But this is not what the
statute says. Section 1981(a) provides: All persons within the jurisdiction of the
United States shall have the same right in every State and Territory to make and
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enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit
of all laws and proceedings for the security of persons and property as is enjoyed by
white citizens, and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.” Id. at 687. This includes
actions for the disparate application of state and local statutes. Lewis v. Schmidt,
No. 10 CV 1819, 2011 WL 43029, at *6 (N.D. Ill. Jan. 4, 2011).
Here, Plaintiff alleges that certain workers compensation benefits and/or
procedures were denied to him, but provided to white employees.

He cites

specifically to Sub-section 4(c) of Section 2 of the Illinois Workers’ Compensation
Commission’s Handbook on Workers’ Compensation and Occupational Disease. [22]
at ¶108. The Handbook is a statutorily mandated creation of the Illinois Workers’
Compensation Commission that contains “all information as to the rights and
obligations of employers and employees under the provisions of [the Workers
Compensation Act].” 820 ILCS 305/15a. Plaintiff has alleged that Defendants did
not comply with the requirements of the Workers’ Compensation Act as set out in
the Handbook.

This action therefore falls within the purview of Section 1981’s

protection of Plaintiff’s right to the “full and equal benefit of all laws and
proceedings.”

42 U.S.C. § 1981; Lewis, 2011 WL 43029, at *6.

The motion to

dismiss Count II is denied.
B.

Count V against Ericksen

“To successfully plead a cause of action for intentional infliction of emotional
distress, the plaintiffs must allege conduct that goes beyond mere insults,

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indignities, threats, annoyances, petty oppressions or trivialities.” Public Finance
Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976). It is not enough that the defendant
acts with a tortious or even criminal intent, that he intended to inflict emotional
distress, or that his conduct can be characterized by malice. Restatement (Second)
of Torts § 46, comment d (1965). Further, the emotional distress must be “so severe
that no reasonable man could be expected to endure it. The intensity and the
duration of the distress are factors to be considered in determining its severity.”
Lundy v. City of Calumet City, 567 N.E.2d 1101, 1103 (Ill. App. Ct. 1991).
“To state a cause of action for intentional infliction of emotional distress, a
plaintiff must allege that: (1) the defendant’s conduct was extreme and outrageous;
(2) the plaintiff suffered severe emotional distress; and (3) the defendant knew
severe emotional distress was certain or substantially certain to result.” Piech v.
Arthur Andersen & Co., S.C., 841 F. Supp. 825, 831 (N.D. Ill. 1994).

“In the

employment setting, the conduct complained of must be particularly outrageous.”
Id. Claims for IIED in the employment setting generally “involve circumstances
beyond what can be considered a typical employment dispute better addressed in a
Title VII or equivalent suit.” Id.
The facts alleged against Ericksen show a typical employment dispute, and
are insufficient to plead a cause of action for IIED. Plaintiff has failed to allege any
of the required elements against Ericksen, as he has not plead facts showing: (1)
extreme and outrageous conduct by Ericksen; (2) that he suffered severe emotional

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distress due to Ericksen’s conduct; or (3) that Ericksen knew such distress would
result from her actions. Count V against Ericksen is dismissed.
C.

Count IV Negligence

Plaintiff’s Count IV claim for negligence is dismissed because: (1) it is an
improper attempt to recover in tort for breach of contract, and (2) it is a claim for
breach of a collective bargaining agreement (“CBA”) which is pre-empted by Section
301 of the Labor Management Relations Act (“LMRA”). Plaintiff cannot recover in
tort for breach of contract. Anderson Electric, Inc. v. Ledbetter Erection Corp., 115
Ill. 2d 146, 153 (Ill. 1986); Sorkin v. Blackman, Kallick & Co., 540 N.E.2d 999 (Ill.
1989) (where an employment contract was at issue, the alleged tort could not
proceed because it really sought economic loss arising out of alleged breach of
employment contract). Courts commonly hold that obligations “arising solely out of
a contract are not cognizable as a tort.” Lorillard Tobacco Co. v. Elston Self Serv.
Wholesale Groceries, Inc., No. 03 C 4753, 2009 WL 1635735, at *6 (N.D. Ill. June 9,
2009). Here, Plaintiff seeks only to recoup monetary losses based on a violation of
duties created by the CBA. [22] at ¶¶115-120. This is in reality an action for
monetary damages based on breach of contract. It cannot be pursued as a tort claim
for negligence, and is therefore dismissed as such.
Further, as a disguised breach of contract claim, Count IV is pre-empted by
Section 301 of the Labor Management Relations Act (“LMRA”). To prevent “clever
litigants from evading § 301’s broad preemptive force by recasting contract claims
as claims brought under state tort law, § 301 preempts tort claims as well,” Allis–

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Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985), so long as the claim is one in
which “state tort law purports to define the meaning of the contract relationship.”
Id. at 213. If the “resolution of a state-law claim depends upon the meaning of a
collective-bargaining agreement, the application of state law . . . is preempted and
federal labor-law principles . . . must be employed to resolve the dispute.” Smith v.
Colgate-Palmolive Co., 943 F.2d 764, 768 (7th Cir. 1991). “Any claim based on
rights created by a CBA, as well as any claim requiring analysis and
interpretation of CBA provisions, must be brought as a Section 301 claim and not as
any state law claim.” Caterpillar Inc. v. Williams, 482 U.S. 386, 394-95 (1987).
Here, because this supposed tort claim is in actuality a breach of contract claim
concerning the CBA, it is pre-empted by the LMRA and is therefore dismissed.
Plaintiff is given leave to re-plead his claim under the LMRA if he can do so
consistent with his obligations under Rule 11.
IV.

Conclusion
Defendants’ motion to dismiss [23] is granted in part and denied in part as

follows: (1) the motion to dismiss Count II is denied; (2) the motion to dismiss Count
IV is granted without prejudice to re-pleading that Count under the LMRA as
explained above; and (3) the motion to dismiss Count V as to Ericksen is granted
with prejudice. The parties are to appear in Courtroom 1725 on October 1, 2015 at
9:45 a.m. for a status hearing as previously ordered [68].

The parties shall be

prepared to discuss a filing date for a potential amended complaint, if necessary, at
that time.

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IT IS SO ORDERED
Dated: September 29, 2015

___________________________________
Judge John Robert Blakey
United States District Court

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