Johnson v. Great West Casualty Company et al
Filing
188
MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 9/30/2016:Mailed notice(rth, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID M. JOHNSON,
Plaintiff,
v.
MELTON TRUCK LINES, INC.,
ROBERT A. PETERSON, MICHAEL
DARGEL, RAMONA WILLIAMS,
MELTON TRUCK LINES, INC.
OCCUPATIONAL INJURY BENEFIT
PLAN, ROBERT ROGAN, GREAT
WEST CASUALTY COMPANY,
TANYA JENSEN, BLANE J.
BRUMMOND, and UNKNOWN
DEFENDANTS,
Defendants.
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No. 14 C 07858
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
The plaintiff, David M. Johnson, has filed suit against his former employer, Melton
Truck Lines, Inc. (“Melton”), a number of individuals associated with Melton—Robert Peterson,
Michael Dargel, Ramona Williams, and Robert Ragan, 1 Melton Truck Lines, Inc. Occupational
Injury Benefit Plan (“the Plan”) (collectively with Melton and the individual defendants, the
“Melton defendants”), Melton’s insurer Great West Casualty Company (“Great West”), and
individuals associated with Great West—Tanya Jensen and Blane Brummond (collectively, the
“Great West defendants”). Johnson asserts a variety of federal and state claims, including
violations of the Fair Labor Standards Act (“FLSA”), the Lanham Act, the Employee Retirement
Income Security Act (“ERISA”), the Americans with Disabilities Act (“ADA”), invasion of
privacy, breach of contract, wrongful termination, and retaliation, among others. See Sec. Am.
1
Melton notes that the complaint misspells Robert Ragan as “Rogan.” Melton Mem. in
Supp. 1, ECF No. 157.
Compl. (“SAC”), ECF No. 103. Pending before the Court are the Great West defendants’ motion
to dismiss, ECF No. 117, and motion for sanctions against Johnson, ECF No. 132, the Melton
defendants’ motion to dismiss, ECF No. 156, and Johnson’s motion for sanctions against Great
West, ECF No. 137. For the following reasons, the motions to dismiss are granted in part and
denied in part and the sanctions motions are denied.
BACKGROUND 2
Johnson’s Second Amended Complaint is no less prolix than his original complaint; in
fact, Johnson has expanded his allegations in the SAC, which runs to 48 pages and 265
paragraphs. As in his original complaint, the SAC is replete with misused legal jargon and omits
many facts necessary to the formation of a coherent narrative. The Opinion granting Great
West’s motion to dismiss the original Complaint explains some of the background between the
parties. See Johnson v. Great W. Cas. Co., No. 14 C 7858, 2015 WL 4751128, at *1-2 (N.D. Ill.
Aug. 11, 2015). 3 To briefly summarize, Johnson claims that he injured his hand on May 3, 2013
while driving for his employer, Melton Truck Lines, in Alabama. Melton subsequently
2
On a motion to dismiss, all well-pleaded facts in the complaint are taken as true, with all
reasonable inferences made in favor of the plaintiff. Fortres Grand Corp. v. Warner Bros. Entm’t
Inc., 763 F.3d 696, 700 (7th Cir. 2014). Those factual allegations are supplemented here by two
documents that Johnson included with his pleadings: (1) Melton’s driver policies, ECF No. 1031; and (2) a print-out of an online job posting for a Driver Manager position with Melton, ECF
No. 103-4.
3
This case is actually the second of four cases filed in this District arising from this
dispute. The first was a putative class action filed against both Great West and Melton, which
this Court dismissed because pro se litigants may not bring claims on behalf of a class. See
Johnson v. Melton Truck Lines, Inc., No. 14 C 4294, ECF No. 6 (N.D. Ill. July 23, 2014) (Tharp,
J.). Johnson then voluntarily dismissed the first case and re-filed similar, but individual, claims in
this case against Great West and in another case against Melton. The Melton case was dismissed
based on Johnson’s failure to complete a financial affidavit. See Johnson v. Melton Truck Lines,
Inc., No. 14 C 8817, ECF No. 6 (N.D. Ill. Nov. 10, 2014) (Dow, J.). Johnson filed an additional
case against Melton and various government departments and officials (e.g., the Department of
Transportation, the Department of Health and Human Services, the Secretary of Labor, etc.),
which he voluntarily dismissed. See Johnson v. United States of America, et al., No. 16 C 1934,
ECF No. 8 (N.D. Ill. Feb. 18, 2016) (Shah, J.).
2
terminated Johnson’s employment on or about June 12, 2013. Thereafter, Johnson filed a
workers’ compensation claim in Ohio with Great West, Melton’s workers’ compensation insurer,
which was disallowed for lack of jurisdiction. See Pet. Conf. Arb. Award Ex. A, ECF No. 62
(disallowance affirmed on appeal to Ohio Industrial Commission). Johnson also filed a workers’
compensation claim in Illinois, which was eventually dismissed for failure to appear. 4 See GW
Mot. Dismiss 4, ECF No. 117; see also Pet. Conf. Arb. Award Ex. B.
The Opinion dismissing the original Complaint advised Johnson that claims premised
upon the defendants’ opposition to his workers’ compensation claim “are the province of the
[Illinois Workers Compensation Commission], not a federal court.” Johnson, 2015 WL 4751128,
at *2 (“the exclusive remedy for ‘unreasonable or vexatious’ efforts to avoid and delay payment
of workers’ compensation benefits is an award of additional compensation under the [Illinois
Workers’ Compensation Act].”). Nonetheless, a number of Johnson’s new allegations continue
to assert liability based on the defendants’ opposition to his workers compensation claims. See
SAC (Counts V-VI, IX-XI, XIV). To these claims against the Great Western defendants,
Johnson now asserts claims against the Melton defendants based on his recruitment to,
employment with, and termination from, Melton. The defendants have filed motions to dismiss,
4
See http://neonwebk.cmcf.state.il.us/iic/icdw, Case No. 13WC021814 (last visited June
28, 2016). The Court takes judicial notice of this public proceeding. Olson v. Champaign Cnty.,
Ill., 784 F.3d 1093, 1097 n.1 (7th Cir. 2015) (“As a general rule, we may take judicial notice of
public records not attached to the complaint in ruling on a motion to dismiss under Rule
12(b)(6).”). It is not entirely clear from the SAC, but it appears that Johnson may have also filed
workers’ compensation claims in Alabama and Oklahoma. See SAC ¶¶ 64-65 (stating that
Melton denied Johnson’s “disability claim” in Alabama and Oklahoma); see also SAC ¶ 73
(Johnson refers to his workers’ compensation claim in Ohio as a “disability claim”).
3
arguing that Johnson has not stated a claim entitling him to any relief from this Court. 5 Both
Johnson and the Great West defendants have filed motions for sanctions pursuant to Rule 11.
DISCUSSION
I.
Personal Jurisdiction over Individual Melton Defendants
The individual Melton defendants move to dismiss the SAC under Rule 12(b)(2), arguing
that Johnson has failed to establish that this Court has personal jurisdiction over them. Melton
Mem. in Supp. 2; Melton Reply 2-5, ECF No. 179. A federal court in Illinois may exercise
personal jurisdiction over a defendant if the Illinois long-arm statute would allow it. See Fed. R.
Civ. P. 4(k)(1)(A); uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 425 (7th Cir. 2010).
Because Illinois’ statute contains a catch-all provision that permits personal jurisdiction if it
would be authorized by either the Illinois Constitution or the United States Constitution, the state
statutory and federal constitutional requirements merge. Id.; see 735 Ill. Comp. Stat. 5/2-209(c).
Personal jurisdiction may be “general” or “specific.” Daimler AG v. Bauman, 134 S. Ct.
746, 754 (2014); Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement,
326 U.S. 310, 318 (1945). General personal jurisdiction exists where the defendant’s continuous
operations within the forum state are “so substantial and of such a nature as to justify suit against
it on causes of action arising from dealings entirely distinct from those activities.” Daimler AG,
134 S. Ct. at 754 (quoting Int’l Shoe Co., 326 U.S. at 318). “For an individual, the paradigm
forum for the exercise of general jurisdiction is the individual’s domicile.” Goodyear Dunlop
Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853 (2011).
5
Johnson adequately pleads the existence of diversity jurisdiction (see SAC ¶¶ 2-3, 717); the state law claims are therefore properly considered as they are not based only on
supplemental jurisdiction.
4
Specific personal jurisdiction exists when the plaintiff’s claims against the defendant
arise out of the defendant’s constitutionally sufficient contacts with the forum state. uBID, Inc.,
623 F.3d at 425; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8
(1984). “The key question is therefore whether the defendant [has] sufficient ‘minimum
contacts’ with Illinois such that the maintenance of the suit ‘does not offend traditional notions
of fair play and substantial justice.’” Tamburo v. Dworkin, 601 F.3d 693, 700-701 (7th Cir.
2010), citing Int’l Shoe Co., 326 U.S. at 316. Specific jurisdiction requires that (1) the defendant
has purposely directed his activities at the forum state or purposefully availed himself of the
privilege of conducting business in the state, and (2) the alleged injury arises out of the
defendant’s forum-related activities. Id. at 702, citing Burger King Corp. v. Rudzewicz, 471 U.S.
462, 472 (1985).
Given that the defendants have moved to dismiss the SAC for a lack of personal
jurisdiction, the burden shifts to Johnson to show that such jurisdiction exists. Purdue Research
Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). Johnson alleges that
because defendants Peterson, Williams, and Dargel interacted with him by both phone and email
on matters related to Johnson’s employment with Melton, both specific and general personal
jurisdiction exists. See, e.g., SAC ¶¶ 27, 33, 55, 112-13, 248, 250, 256, 262. As to defendant
Ragan, Johnson alleges no facts indicating that Ragan had any contacts with Illinois; instead, the
complaint merely describes Ragan as the administrator of Melton’s Injury Benefit Plan. See SAC
¶¶ 141, 152, 156.
Here, it is apparent that Johnson’s allegations have failed to demonstrate that this Court
has personal jurisdiction over any of the individual Melton defendants. In order for a court to
exercise general jurisdiction over an individual defendant, that defendant must be a citizen of the
5
forum state or have contacts that are so “continuous and systematic” with the forum state that,
for all intents and purposes, they are at home in that state. See, e.g., Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984). For the purposes of general jurisdiction,
individual defendants are considered citizens of the state in which they reside with the intent to
remain indefinitely. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923
(2011) (noting that “[f]or an individual, the paradigm forum for the exercise of general
jurisdiction is the individual’s domicile.”). The complaint makes plain that none of the individual
Melton defendants are domiciled in Illinois; all three of these defendants reside in Tulsa,
Oklahoma and, although residence does not necessarily equate to domicile, no facts are alleged
to suggest that with respect to these defendants their residence and domicile are not one and the
same. See SAC ¶¶ 8-10, 12. Nor does the complaint does not allege any facts indicating that the
defendants have “systematic and continuous” contacts with Illinois to the extent required for the
exercise of general jurisdiction over a non-citizen defendant. See Goodyear, 564 U.S. at 930.
Here, the individual Melton defendants’ alleged contacts with Illinois are limited to a few phone
calls and emails. See SAC ¶¶ 18, 33, 112-13. Such limited, infrequent conduct does not warrant a
finding of general personal jurisdiction over any of the individual Melton defendants.
Nor do the few phone calls or business solicitation emails establish specific jurisdiction.
To establish specific jurisdiction, a plaintiff must show that (1) the defendant purposefully
availed himself of the privilege of conducting business in the forum state; (2) the alleged injury
must have arisen from the defendant's activities within the forum; and (3) the exercise of
jurisdiction comports with traditional notions of fair play and substantial justice. Felland v.
Clifton, 682 F.3d 665, 673 (7th Cir. 2012). Here, it is apparent the individual defendants did not
purposely avail themselves to the benefits of Illinois; their alleged contacts with Illinois are
6
limited to Peterson’s emails to Johnson advertising Melton, Williams’ phone calls to Johnson
regarding his scheduling, and Dargel’s email regarding Johnson’s termination. SAC ¶¶ 18, 33,
112-13. These allegations only connect Peterson, Williams, and Dargel to Johnson, who happens
to live in Illinois. 6 And they provide no connection at all between Illinois and Ragan, who
merely administered Melton’s Personal Benefit Plan. The Seventh Circuit has made clear that
“‘the plaintiff cannot be the only link between the defendant and the forum.’” Advanced Tactical
Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 802 (7th Cir. 2014) (quoting
Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014)). Thus, the connection between the individual
Melton defendants and Johnson is not sufficient to connect those defendants to Illinois for the
purposes of specific jurisdiction.
Even if the few interactions Peterson, Williams, and Dargel had were sufficient to
establish personal jurisdiction in Illinois, the individual defendants argue that because their
alleged interactions with Johnson were on behalf of their employer, they are protected by the
fiduciary shield doctrine. Illinois recognizes the fiduciary shield doctrine, which “denies personal
jurisdiction over an individual whose presence and activity in the state in which the suit is
brought were solely on behalf of his employer or other principal.” Fletcher v. Doig, 125 F. Supp.
3d 697, 716 (N.D. Ill. 2014) (quoting Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir.
1994)); see also ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 550 (7th Cir. 2001)
(“Illinois employs the fiduciary-shield doctrine . . . under which a person who enters the state
6
Nor do Peterson’s alleged emails advertising Melton’s position subject him to the
jurisdiction of this Court: there is no evidence that Peterson targeted Illinois with the emails. See
Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 803 (7th
Cir. 2014) (“The fact that [defendant] maintains an email list to allow it to shower past customers
and other subscribers with company-related emails does not show a relation between the
company and Indiana. Such a relation would be entirely fortuitous, depending wholly on
activities out of the defendant’s control.”).
7
solely as fiduciary for another may not be sued in Illinois.” (citing Rollins v. Ellwood, 565
N.E.2d 1302, 1314 (Ill. 1990)). Here, the individual defendants contacted Johnson on behalf of
Melton—thus, because the individual defendants’ contacts with an Illinois resident were solely
in the interests of their employer and not to serve their personal interests, the defendants are
protected by the fiduciary shield doctrine.
Accordingly, the individual Melton defendants’ Rule 12(b)(2) motion to dismiss is
granted. 7
II.
Claim I: Violations of the FLSA, Lanham Act, and Sherman Act
Johnson alleges that Melton did not compensate him for the hours he spent doing tasks
other than driving for Melton—such as responding to emails and checking and cleaning his
truck—which he asserts is a violation of the FLSA, 29 U.S.C. § 206. He alleges that he worked
70 hours per week, including driving and non-drive time, but was only compensated for the
hours he spent driving (although Johnson acknowledges that Melton paid drivers for a number of
non-driving activities, including layovers, stop-offs, tarping, and crossing into Canada). See SAC
¶¶ 31, 116; Ex. A. Melton argues that the non-drive time portion of Johnson’s claim is a request
for gap-time payment, which is not recognized under the FLSA. Melton Mem. in Supp. 4 (citing
Brown v. Lululemon Athletica, Inc., No. 10 C 05672, 2011 WL 741254, at *4 (N.D. Ill. Feb. 24,
2011) (collecting cases which hold that “the FLSA does not provide a remedy for workers who
have received at least the minimum wage for a pay period in which they have not worked
7
Johnson argues that the individual Melton defendants have waived their objection to
personal jurisdiction under Federal Rule of Civil Procedure 12(h)(1) because they have appeared
and filed responsive pleadings. Resp. to Melton 44-5, ECF No. 174. The defendants were
permitted to do so, however, without waiving their objection to personal jurisdiction: “The law
has long been clear that a party may appear and litigate both a personal jurisdiction defense and
the merits of a case without waiving the personal jurisdiction defense.” H-D Michigan, LLC v.
Hellenic Duty Free Shops S.A., 694 F.3d 827, 848 (7th Cir. 2012).
8
overtime”). 8 To determine whether non-compensated time violates the FLSA, the courts that
have addressed this question have included gap-time in total hours worked and divided by the
employee’s weekly compensation to reach an average hourly wage; so long as the average hourly
wage exceeds the federal minimum wage, courts have held that the compensation scheme does
not violate the FLSA. See, e.g., Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106,
116 (2d Cir. 2013) (“[T]he text of FLSA requires only payment of minimum wages and overtime
wages. [citation omitted] It simply does not consider or afford a recovery for gap-time hours.”);
Franks v. MKM Oil, Inc., No. 10 C 00013, 2012 WL 3903782, at *10 n.9 (N.D. Ill. Sept. 7,
2012) (“‘[G]ap time’—‘time that is not covered by the overtime provisions because it does not
exceed the overtime limit, and . . . time that is not covered by the minimum wage provisions
because, even though the work is uncompensated, the employees are still being paid a minimum
wage when their salaries are averaged across their actual time worked,’ Adair v. City of Kirkland,
185 F.3d 1055, 1062 n. 6 (9th Cir. 1999), is not covered by the FLSA.”). Thus, this Court
follows the weight of authority and agrees that Johnson cannot state a pure gap-time claim under
the FLSA. 9
As to his minimum wage claim, Johnson specifies four weeks where his total
compensation divided by the 70 hours he claims to have worked in those weeks fell below the
federal minimum wage of $7.25 per hour, in violation of the FLSA. SAC ¶ 118. Johnson lists his
compensation for six specific weeks in the SAC; in two of those six examples, however, his total
compensation divided by the 70 hours he claims to have worked is above the federal minimum
8
Johnson does not make a claim for overtime wages under the FLSA, nor could he as
motor carriers are exempt from the FLSA overtime provisions. 29 U.S.C. § 213(b)(1).
9
Johnson’s contentions that failure to pay for non-drive time violates the Sherman
Antitrust Act and the Clayton Act are frivolous. See SAC ¶¶ 125, 127. That Melton did not pay
drivers for non-drive time in no way alleges that Melton contracted or conspired “in restraint of
trade or commerce” or in any other way violated federal antitrust laws. 15 U.S.C. § 1.
9
wage: “the net earnings of $569.87 for the payroll ending January 21, 2013 equaling $8 per hour
[and] . . . the net earnings of $512.73 for the payroll ending March 27, 2013 equaling $[7.32] per
hour.” 10 SAC ¶ 118. Melton acknowledges that Johnson has stated a FLSA claim for the four
weeks Johnson has identified in which his average hourly wage was less $7.25 per hour. Melton
Resp. at 4, ECF 157. Accordingly, Melton’s motion to dismiss the FLSA claim as to these four
weeks is denied. 11
Johnson also invokes the Lanham Act to attack Melton’s compensation; Johnson asserts
that Melton’s email advertisements that it offered “high pay” to its drivers were false in violation
of the Lanham Act, 15 U.S.C. § 1125(a)(1). SAC ¶ 123; see also Obj. Melton Mot. Dismiss Ex.
ECF No. 163. To invoke the Lanham Act’s protections, however, a “plaintiff must allege an
injury to a commercial interest in reputation or sales.” Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1390 (2014). “A consumer who is hoodwinked into
purchasing a disappointing product may well have an injury-in-fact cognizable under Article III,
but he cannot invoke the protection of the Lanham Act.” Id. Because Johnson has not alleged an
injury to his commercial interest, his Lanham Act claim must be dismissed.
III.
Counts II-IV: ERISA claims
Johnson has alleged that Melton and Great West committed a number of violations of the
ERISA, including failure to provide benefits and breaches of fiduciary duty by plan
administrators. It is clear from the SAC, however, that Johnson has mistakenly equated Melton’s
workers’ compensation plan with an ERISA plan, but ERISA does not apply to any employee
10
Johnson rounds down his hourly wage for the week ending March 27, 2013 to $7 per
hour; however, dividing his total compensation of $512.73 by 70 hours results in an hourly wage
of $7.32, which exceeds the federal minimum wage.
11
The SAC does not allege that these weeks are only illustrative; they are the only weeks
as to which a claim of payment of less than the federal minimum wage has been made.
10
benefit plan “maintained solely for the purpose of complying with applicable workmen’s
compensation laws or unemployment compensation or disability insurance laws.” 29 U.S.C.
§ 1003. Johnson quotes at length from Melton’s Injury Benefit Plan (none of the parties have
attached any benefit plan documents), which provides various accident compensation rates for
injured employees. See SAC ¶ 131. Johnson identifies the plan as policy number WC21114I,
which is an insurance policy under the Illinois Workers’ Compensation Act. 12 SAC ¶ 48.
Johnson’s confusion is further evidenced by his explanation that he exhausted the alleged
“ERISA” plan’s administrative appeals process via the workers’ compensation proceedings in
Ohio. SAC ¶ 135; see also SAC ¶ 150 (“the Plan defined Employee by reference to the IWCA,
which purportedly excluded Plaintiff because the contract for hire allegedly occurred in Ohio.”
(emphasis added)). Johnson has not identified an employee benefit plan apart from the workers’
compensation plan, under which he is entitled to benefits. Accordingly, his claims alleging
violations of ERISA are dismissed. 13
IV.
Counts V-VIII: ADA Claims and Illinois Human Rights Act Claim
Johnson’s ADA claims can be grouped into two theories: discrimination in benefits and
failure to accommodate. To bring an ADA claim, a plaintiff must timely file a charge with the
EEOC, receive a right-to-sue letter, and assert claims within the scope of the charge filed with
the EEOC. See 42 U.S.C. § 2000e-5; see also Stepney v. Naperville Sch. Dist. 203, 392 F.3d 236,
239 (7th Cir. 2004) (“the ADA’s enforcement provision expressly incorporates § 2000e–5 of
Title VII”). Johnson asserts that he filed a charge with the EEOC against Melton and received a
12
See http://www.iwcc.il.gov/insurance.htm, Policy No. WC21114I (last visited June 30,
2016). The Court takes judicial notice of this public record. Olson, 784 F.3d at 1097 n.1.
13
To the extent that the ERISA claims are premised upon the defendants’ opposition to
Johnson’s workers’ compensation claims, see, e.g., SAC ¶¶ 136-37, 153-54, they must be
dismissed for the same reasons explained in the Opinion dismissing his original Complaint. See
Johnson, 2015 WL 4751128, at *2-4.
11
notice of right-to-sue on October 28, 2015. SAC ¶ 6. The Melton defendants argue that, because
Johnson has not attached the notice of right-to-sue, he cannot establish that he has exhausted his
administrative remedies and, therefore, his ADA claims must be dismissed. Not necessarily;
failure to attach the notice of right-to-sue is not fatal to an ADA claim. See, e.g., Krause v.
Turnberry Country Club, 571 F. Supp. 2d 851, 859 (N.D. Ill. 2008) (“‘Although Title VII
requires that a claimant be notified of her right-to-sue before filing a complaint, it does not state
any requirement that a plaintiff attach the right-to-sue letter to her complaint.’” (quoting
Raymond v. City of Chicago, 183 F.Supp.2d 1060, 1066 n.3 (N.D. Ill. 2002)). Johnson filed the
SAC (in which he first alleged the ADA claims) on November 5, 2015, well within the 90-day
window after he alleges that he received the notice of right-to-sue, as required under 42 U.S.C.
§ 2000e-5(f)(1). 14 However, Johnson expressly states (SAC ¶ 6) that the EEOC charge was only
directed to defendant Melton (not against Great West, Jensen, Brummond, or the individual
Melton defendants), so claims against defendants other than Melton (see SAC ¶ 174-75) are
outside the scope of the EEOC claim and are therefore dismissed for failure to exhaust. See, e.g.,
Cheek v. Peabody Coal Co., 97 F.3d 200, 202-03 (7th Cir. 1996) (dismissing claim for failure to
exhaust where “the [EEOC] charges implicate different individuals” than the complaint).
In any event, even assuming Johnson’s claims to be within the scope of his EEOC
charge, his ADA claims must be dismissed. 15 His discrimination claims are based on the denial
14
Johnson does not, however, allege that he received authorization from the Illinois
Department of Human Rights to sue under the Illinois Human Rights Act (“IHRA”). Although
Johnson states that he received a notice of right-to-sue from the EEOC, “a right to sue letter from
the EEOC does not serve as a substitute for a final order from the IDHR.” Egan v. Huntington
Copper Moody & Maguire, Inc., No. 12 C 9034, 2015 WL 1396187, at *3 (N.D. Ill. Mar. 24,
2015) (citation omitted); see also 775 Ill. Comp. Stat. 5/7A-102(A-1)(1)-(3) (IDHR may issue
order adopting EEOC’s determination).
15
The same reasoning applies to his claims under the IHRA. See Zaderaka v. Ill. Human
Rights Comm'n, 131 Ill.2d 172, 545 N.E.2d 684, 687 (1989) (age discrimination claims under the
12
of his workers’ compensation claims: “Defendants . . . [have] excluded Plaintiff from the Group
policy and denied him the opportunity to participate in the plan . . . provided by the Defendant
Great West only after Plaintiff became disabled on May 3, 2013.” SAC ¶ 174. While it is true
that Johnson’s workers’ compensation claim was denied after he fell and injured his hand on
May 3, 2013, the public records clearly indicate that Johnson’s claims were not denied because
of his injury but rather because he did not have sufficient connections to the state (the Ohio
claim) or because he failed to appear and prosecute the proceedings (the Illinois claim).
Johnson’s argument is the equivalent of saying he was denied disability benefits because he is
disabled. The workers’ compensation policy, however, exists for the benefit of workers who
have been injured, and Johnson acknowledges that Melton’s plan provides benefits to injured
workers. SAC ¶ 39 (“Defendant Melton provides Defendants Peterson, Dargel, Rogan, and
Williams with benefits in the event they are injured due to a work-related accident or injury.”).
This is not an instance where an employer crafted its benefits to exclude disabled employees.
See, e.g., Piquard v. City of E. Peoria, 887 F. Supp. 1106, 1114 (C.D. Ill. 1995) (“Plaintiffs
allege that the Board, in determining who may participate in the Fund, uses eligibility criteria
and methods of administration which discriminate against qualified individuals with
disabilities.”). Moreover, none of the defendants were the decision makers on either claim; state
administrators were responsible for the dismissal of Johnson’s respective workers’ compensation
claims. As to any argument that Great West or any of the defendants effectively “excluded”
Johnson from the plan by opposing his claims, this Court has explained that “the exclusive
remedy for ‘unreasonable or vexatious’ efforts to avoid and delay payment of workers’
IHRA should be analyzed in the same way as ADEA claims); Luckett v. Human Rights Comm'n,
210 Ill. App. 3d 169, 569 N.E.2d 6, 14 (1989) (“When analyzing claims of discrimination under
the [IHRA], Illinois courts have looked to the standards applicable to analogous federal
claims.”).
13
compensation benefits is an award of additional compensation under the IWCA.” Johnson, 2015
WL 4751128, at *2 (citing 820 Ill. Comp. Stat. 305/19(k)).
Johnson’s failure to accommodate claim also suffers from a number of fatal flaws. To
state a claim for failure to accommodate, a plaintiff must show: 1) that he is a qualified
individual with a disability; 2) that the defendant was aware of his disability; and 3) that the
defendant failed to reasonably accommodate his disability. E.E.O.C. v. AutoZone, Inc., 809 F.3d
916, 919 (7th Cir. 2016). Johnson asserts that, since his fall, his fingers on his left hand
“remain[ ] completely frozen” and, as a result, he “is unable to work as the operator of a
commercial motor vehicle.” 16 SAC ¶¶ 53-54. The Court need not reach the question of whether
Johnson has adequately alleged that he is a qualified individual with a disability because he has
failed to plead that Melton was aware of his alleged disability at the time of his termination and
that he requested any sort of accommodation when he was an employee.
Johnson asserts that he took a leave of absence on June 12, 2013 to visit the doctor for his
hand injury and that he was terminated that day “pursuant to [Melton’s] new and unannounced
leave policy.” SAC ¶ 186. There is no allegation that the defendants were aware of Johnson’s
allegedly disabling condition at the time of his termination (other than his message to Melton on
May 5, 2013 that he injured his hand and would be seeking medical treatment at some point,
SAC ¶ 51). Although Johnson states that the defendants “have received medical records
indicating his inability to carry and lift heavy items,” SAC ¶ 187, he had not yet seen a doctor as
of June 12, 2013, so Melton could not have received any medical records regarding Johnson’s
16
It is difficult to tell due to the inconsistent tenses in which the SAC is drafted whether
Johnson is asserting that the impairment to his hand continues to this day: “On June 12, 2013,
Plaintiff’s fingers to his left hand from the fall on May 3, 2013 remained completely frozen a
physical impairment that substantially limited his ability to carry and lift heavy items . . .
Johnson is unable to work as the operator of a commercial motor vehicle because he is disabled
due to his medical conditions . . . .” SAC ¶¶ 53-54.
14
alleged impairment at the time of his termination. Johnson’s assertion that the defendants
“regarded” him as having a substantially limiting impairment—“his present inability to carry and
lift a heavy tarp, attach the bungee cords to the tarp, and similar activities with his left hand . . .
on June 12, 2013,” SAC ¶ 188—is illogical for the same reason; Johnson had not yet seen a
doctor, so unless he told Melton of these limitations (which he does not claim to have done, and
how could he if he had not yet received a diagnosis?), there is no explanation of how Melton
would have known about or considered his alleged disability at the time it terminated his
employment. 17
Nor has Johnson pleaded that he requested any accommodation prior to his termination.
Instead, he argues that Melton has failed to provide an accommodation that would permit him to
return to work, “including, but not limited to, reassignment to an open position” of driver
manager. SAC ¶¶ 191-92. As already established, Johnson has not pleaded facts plausibly
establishing that Melton terminated him because of his alleged disability but rather for one of a
number of other possible reasons; the ADA does not entitle Johnson to be rehired with an
accommodation. Cf. Goelzer v. Sheboygan Cty., Wis., 604 F.3d 987, 993 (7th Cir. 2010) (“[A]n
employee is not entitled to return to her former position if she would have been fired regardless
17
Johnson does not expressly assert that he was terminated because of his disability, but
to the extent that his complaint could be read to assert such a claim, it fails for this reason.
Because he has not pled that Melton was aware of his alleged disability at the time of his
termination, Johnson fails to establish that his alleged disability factored in any way into
Melton’s decision to terminate him. See Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th
Cir. 1995) (“At the most basic level, it is intuitively clear when viewing the ADA’s language in a
straightforward manner that an employer cannot fire an employee ‘because of’ a disability unless
it knows of the disability. If it does not know of the disability, the employer is firing the
employee ‘because of’ some other reason.”). Moreover, Johnson further undermines any
argument that he was terminated because of his alleged disability by stating a number of
additional reasons for his termination, including that “[he] had previously complained of unpaid
Wages; and [he] had ‘stolen’ the commercial motor vehicle while en-route home . . . .” SAC
¶ 33.
15
of [her disability].”); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 695 (7th Cir. 1998)
(employer has a duty to consider reassigning its disabled employees—not former employees—to
other positions for which they are qualified). 18
V.
Counts IX-X: Due Process Claims
Johnson invokes 42 U.S.C. § 1983 in alleging that the denial of his claims under the
workers’ compensation plan violates his due process rights. Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law . . . .
42 U.S.C. § 1983. Section 1983 is a remedy for constitutional violations committed by state
actors. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 815-16 (7th
Cir. 2009). Johnson claims that the state actor here is “Illinois Arbitrator Williams,” who
presided over his Illinois workers’ compensation claim and that the defendants acted at the
direction of Arbitrator Williams to deny Johnson benefits under the workers’ compensation
18
Moreover, the position Johnson suggests as a reasonable accommodation is a driver
manager, which, as he was previously a driver, is almost certainly a promotion. An employer is
not required to promote an employee as an accommodation. Malabarba v. Chicago Tribune Co.,
149 F.3d 690, 699 (7th Cir. 1998). Nor has Johnson demonstrated that he is qualified for this
position. See SAC Ex. 4 (including in prerequisites for driver manager position a “minimum [of]
2 years dispatch experience or driver relation experience”), ¶ 192 (Johnson’s assertion that he
qualified because he “is an actual Driver who has performed the duties as set forth the job
description of the position of Driver Manager”); see also Jackson v. City of Chicago, 414 F.3d
806, 813 (7th Cir. 2005) (employee requesting accommodation bears burden of showing vacant
position exists for which he is qualified). Furthermore, Johnson implies that he is requesting this
position in place of two employees currently in the position, “Mr. Floyd” and “Defendant
Williams,” see SAC ¶ 192, but “an employer has no duty to ‘bump’ an incumbent from a
position just to accommodate the request of a disabled employee.” Dalton v. Subaru-Isuzu Auto.,
Inc., 141 F.3d 667, 678 (7th Cir. 1998).
16
plan. 19 SAC ¶¶ 208, 223. As explained supra: Johnson’s Illinois workers’ compensation claim
was not denied on the merits but rather for failure to appear; the defendants did not deny Johnson
benefits under the plan (that is the role of the “arbitrator”) but rather opposed his claim; and “the
exclusive remedy for ‘unreasonable or vexatious’ efforts to avoid and delay payment of workers’
compensation benefits is an award of additional compensation under the IWCA.” Johnson, 2015
WL 4751128, at *2. Because Johnson has failed to identify a state action that violated his right to
due process, his § 1983 claims are dismissed.
VI.
Count XI: Invasion of Privacy
Johnson asserts that the defendants have used his nonpublic personal information “to
facilitate the commercial advantage to Defendants . . . from denying the ‘existence’ of coverage,”
in violation of the ADA, the Gramm-Leach-Bliley Act (“GLBA”), and Illinois law. SAC ¶ 236.
Like the majority of his claims, this, too, is rooted in the defendants’ participation in the
workers’ compensation proceedings: Johnson asserts that Melton shared his personal
information, such as his address, date of birth, and information about his medical condition, with
its insurer, Great West, in relation to his coverage under the workers’ compensation policy. See
SAC ¶ 234.
The ADA protects the privacy of employees with disabilities via prohibitions on the use
of medical information as a condition of employment, including “a prohibition against using pre-
19
“Illinois Arbitrator Williams” is not a defendant in this case and would in any event be
entitled to absolute immunity in performing a judicial function. Coleman v. Dunlap, 695 F.3d
650, 652 (7th Cir. 2012) (“Parties who, although not judges, engage in adjudication (such as
private arbitrators or administrative tribunals) or execute the orders of judges (such as police
officers executing a bench warrant, or a party executing a judicially-ordered sale) also enjoy
absolute immunity.”).
17
employment medical tests; a prohibition against the use of medical tests that lack job-relatedness
and business necessity; and a prohibition against the use of tests which screen out (or tend to
screen out) people with disabilities.” Karraker v. Rent-A-Ctr., Inc., 411 F.3d 831, 834 (7th Cir.
2005) (citing 42 U.S.C. § 12112(d)). The GLBA requires that financial institutions “respect and
protect the security and confidentiality of [ ] customers’ nonpublic personal information.” 15
U.S.C. § 6801. Neither statute, however, bars an employer from providing information necessary
to defend against a worker’s compensation claim initiated by the employee. Cf. E.E.O.C. v. C.R.
England, Inc., 644 F.3d 1028, 1047-48 (10th Cir. 2011) (disclosure of information supplied
voluntarily by an employee does not violate the ADA). That Johnson’s former employer shared
information with its insurer necessary to evaluate Johnson’s workers’ compensation claim under
its insurance policy, however, is not an invasion of his privacy under the ADA or the GLBA. 20
Illinois law prohibits the public disclosure of private facts: to prevail, a plaintiff “must
show that private facts were made public and that the matter made public would be highly
offensive to a reasonable person.” Karraker, 411 F.3d at 838 (7th Cir. 2005) (citing Wynne v.
Loyola Univ. of Chicago, 741 N.E.2d 669, 676-77 (Ill. App. Ct. 2000)). “Disclosure to persons
with a ‘natural and proper interest’ in the information is not actionable.” Karraker, 411 F.3d at
838 (quoting Roehrborn v. Lambert, 660 N.E.2d 180, 182-83 (Ill. App. Ct. 1995)). As the insurer
providing Melton’s workers’ compensation coverage, Great West had a “natural and proper
interest” in Johnson’s basic identifying information and medical condition. See, e.g., Roehrborn,
660 N.E.2d at 182-83 (no privacy violation in disclosing probationary officer’s psychological
20
The GLBA, moreover, does not provide for a private right of action, so Johnson would
not be able to bring a claim under that Act even if he had pled sufficient facts to state a claim.
See, e.g., Abdelfattah v. U.S. Dep't of Homeland Sec., 893 F. Supp. 2d 75, 83 (D.D.C. 2012),
aff’d in part, rev’d in part on other grounds, 787 F.3d 524 (D.C. Cir. 2015); Barnett v. First
Premier Bank, No. 11–16504, 2012 WL 3041056, at *1 (9th Cir. 2012); Dunmire v. Morgan
Stanley DW, Inc., 475 F.3d 956, 960 (8th Cir. 2007).
18
and polygraph test results to administrator of police training institute because administrator had
“a natural and proper interest in knowing the performance of potential applicants”).
Accordingly, the motions to dismiss Johnson’s invasion of privacy claim are granted.
VII.
Count XII: Breach of Contract, Conversion, and Unjust Enrichment Claim
Johnson’s breach of contract claim stems from an incident on June 12, 2013: although the
facts alleged are not entirely clear, it seems that while Johnson was off-duty driving his tractor
and trailer to his home in Gary, Indiana, defendant Williams called and “demanded” that he
continue working or otherwise relinquish his vehicle. SAC ¶¶ 244, 248-250. Johnson apparently
refused either option, and Williams called the Gary police to report that Johnson had stolen
Melton’s tractor. See SAC ¶¶ 249-50.
Johnson asserts that he had various agreements “in writing” with Melton, including that
he would park his tractor and trailer at his home in Gary when he was off on “home-time” and
that he would notify Melton of his home-time by electronically recording the dates in advance in
Melton’s computer system. SAC ¶¶ 241-42. He claims that by terminating him because he drove
the tractor to his home when he was off-duty, Melton breached these written agreements.
Melton’s sole argument for dismissal of the breach of contract claim is that Johnson cannot state
a claim “because [he] has not alleged the existence of a contract that was breached.” Mem. in
Supp. 11. Not so; Johnson states that he and Melton had an agreement that he could park the
tractor at his home when he was off-duty and that Melton terminated him when he tried to do so.
Taking all facts as true as the Court must on a motion to dismiss, Johnson has sufficiently alleged
that the parties mutually assented to specific conditions as part of his employment and that
Melton breached those agreements. The motion to dismiss the breach of contract claim is
therefore denied.
19
The same cannot be said of the conversion claim; a claim for conversion requires “(1) an
unauthorized and wrongful assumption of control, dominion, or ownership by defendant over
plaintiff’s personalty; (2) plaintiff’s right in the property; (3) plaintiff’s right to the immediate
possession of the property, absolutely and unconditionally; and (4) a demand for possession of
the property.” Cohen v. Am. Sec. Ins. Co., 735 F.3d 601, 614 (7th Cir. 2013) (quoting Gen.
Motors Corp. v. Douglass, 565 N.E.2d 93, 96-97 (Ill. App. Ct. 1990). The property Johnson
identifies as having been converted are his wages, see SAC ¶ 253; Illinois law, however, limits
conversion actions for money to instances where the money is “capable of being described as a
specific chattel . . . [A]n action for the conversion of funds may not be maintained to satisfy a
mere obligation to pay money.” Eggert v. Weisz, 839 F.2d 1261, 1264 (7th Cir. 1988) (quoting In
re Thebus, 483 N.E.2d 1258, 1260 (Ill. 1985)). Johnson’s claim is for an alleged obligation to
pay wages he lost as a result of Melton’s breach of contract and, as such, fails to state a claim for
conversion. See, e.g., Horbach v. Kaczmarek, 288 F.3d 969, 978 (7th Cir. 2002) (“[T]he
plaintiff’s right to the money must be absolute[:] ‘It must be shown that the money claimed, or
its equivalent, at all times belonged to the plaintiff and that the defendant converted it to his own
use.’” (emphasis added; citations omitted)).
Because a plaintiff may seek to recover lost wages based on an unjust enrichment theory,
see, e.g., Dempsey v. Nathan, No. 14 CV 812, 2014 WL 4914466, at *9 (N.D. Ill. Sept. 30,
2014), the motion to dismiss the unjust enrichment claim is denied. 21
21
The Court notes that relief is only available under an unjust enrichment theory when
there is no express contract governing the relationship between the parties. See Karimi v. 401 N.
Wabash Venture, LLC, 952 N.E.2d 1278, 1284 (Ill. App. Ct. 2011) (“where a specific contract
governs the relationship between the parties, the doctrine of unjust enrichment is inapplicable”).
Although Johnson describes a contract governing at least some aspects of his employment
relationship with Melton, he is permitted to plead alternative and/or inconsistent theories at this
stage. See Fed. R. Civ. P. 8(d).
20
VIII. Counts XIII-XIV: Wrongful Termination and Retaliatory Discharge
In his penultimate claim, Johnson invokes the Surface Transportation Assistance Act
(“STAA”), which protects employees who report or are about to report violations of commercial
motor vehicle safety and security standards from discharge, discipline, or discrimination. 49
U.S.C. § 31105(a). An employee who has suffered discharge, discipline, or discrimination in
violation of § 31105(a) may file a complaint with the Secretary of Labor within 180 days of the
alleged violation. 49 U.S.C. § 31105(b). If the Secretary of Labor has not issued a final decision
within 210 days of the filing of the complaint, the employee may bring an original action in a
district court. 49 U.S.C. § 31105(c).
Johnson states that he “brought the conduct of Defendant Melton to the attention of the
U.S. Department of Labor” on July 14, 2014. SAC ¶ 255. By “conduct,” Johnson explains that to
mean that he was going to report to the Department of Labor that drivers were working off the
clock, which put their health and safety at risk. SAC ¶ 256. Even assuming that bringing this
conduct to the attention of the Department of Labor is the equivalent of filing a complaint with
the Secretary of Labor (which is a necessary prerequisite to exhaust his administrative remedies),
Johnson did so well past the 180-day period after the alleged violation; he was terminated on
June 12, 2013 but did not report the incident to the Department of Labor until July 14, 2014,
more than a year (397 days, to be specific) later. Accordingly, Johnson’s STAA claim must be
dismissed as untimely.
Johnson titles his final claim, “Retaliation in Violation of the Illinois Workers’
Compensation Act.” SAC Count XIV. He makes two contrasting arguments, that the defendants
accused him of filing his workers compensation claim in retaliation for his termination, and that
the Melton defendants retaliated against him by informing the Ohio arbitrator of Johnson’s
21
complaints about safety conditions. See SAC ¶¶ 262-63. Putting aside the nonsensical argument
that accusing Johnson of filing a retaliatory workers’ compensation claim is somehow itself
retaliatory, Johnson fails to state a claim for retaliatory discharge; he was terminated prior to the
filing of any of his workers’ compensation claims, so he could not have been terminated in
retaliation for filing those claims. Nor does he allege that he planned to file a claim at the time he
was terminated (he had not even seen a doctor at the time of his termination), so it is not
plausible that Melton discharged him in anticipation of his filing of a workers’ compensation
claim. See Jacobson v. Knepper & Moga, P.C., 706 N.E.2d 491, 493 (Ill. 1998) (Illinois law
permits retaliatory discharge claims “when an employee is discharged for filing, or in
anticipation of the filing of, a claim under the Workers’ Compensation Act”). Johnson’s claim
for retaliation in violation of the IWCA is, therefore, dismissed.
IX.
Motions for Sanctions
The Great West defendants have moved for sanctions against the plaintiff. They ask for
reasonable attorney’s fees and costs defending this action and for an injunction preventing
Johnson from filing any additional civil actions against them without pre-certification that the
claims are not frivolous. Johnson has filed four lawsuits in this district asserting claims against
Great West and Melton, 22 has filed three appeals in this case alone [45, 77, 110], and moved to
consolidate this case as an MDL with, apparently, a number of other unrelated cases against
Great West. [136]. In addition, Johnson has filed numerous motions in this case that contravene
the Court’s orders. 23 Nevertheless, to this point Mr. Johnson has not had a final ruling on any of
22
See supra Note 3.
23
For example, in addition to his response to the Melton defendants’ motion to dismiss
(ECF No. 174), Johnson filed “objections” to Melton’s motion to dismiss, which are directed
only to the Lanham Act claim. Obj. Melton Mot. Dismiss, ECF No. 163. This is one of the
myriad filings Johnson submitted, despite this Court’s numerous admonishments to Johnson that
22
his claims against GW and at this juncture the Court is not inclined to impose sanctions on
Johnson, a pro se litigant, for continuing his attempts to identify a viable legal theory against
GW. Those efforts, however, have failed, and the Court now dismisses Johnson’s claims against
GW with prejudice. In the absence of a successful appeal of this dismissal, further efforts to
assert such claims in this Court may warrant sanctions.
Mr. Johnson’s motion for sanctions, however, is plainly frivolous and procedurally
improper. The filings by the Great West defendants have been anything but sanctionable. What
Johnson characterizes as “bad faith litigation conduct” on the part of the Great West defendants
is simply the presentation of meritorious legal positions. Accordingly, Johnson’s motion for
sanctions is denied and Mr. Johnson is advised that the filing of a baseless motions for sanctions
is itself sanctionable conduct.
* * * * *
For the foregoing reasons, the Great West defendants’ motion to dismiss the Second
Amended Complaint [117] is granted; the claims against the Great West defendants are
dismissed with prejudice. The Melton defendants’ motion to dismiss the Second Amended
he refrain from such extraneous filings. See Min. Entry June 22, 2015, ECF No. 52 (“The Court
notes that Plaintiff has filed at least seven motions, all procedurally flawed, in the past two
weeks. The repeated filing of improper motions diverts the Court’s attention from matters that
have been properly presented and briefed, such as the motion to dismiss that is pending in this
case. Accordingly, absent an emergency need for relief, Plaintiff is directed not to file further
pleadings until the Court has addressed the pending motion to dismiss. Further motions filed in
violation of this order will be stricken without review.”); Min. Entry Sept. 22, 2015, ECF No. 88
(“The Court has [ ] attempted to direct the plaintiff to stop filing collateral motions that divert the
Court’s resources and attention from addressing the claims and defenses in the case . . . .”); Min.
Entry Jan. 6, 2016, ECF No. 143 (“To facilitate orderly resolution of the issues and claims in this
case, no further motions are to be filed without leave of court unless emergency relief is
requested.”).
The Court notes as well that, despite prior admonishment (see ECF 22), Mr. Johnson
continues to make inaccurate statements, such as “the Ohio Arbitrator has rejected all of the
assertions made by Defendants at Arbitration,” SAC ¶ 136, when in fact, the Ohio Administrator
rejected Johnson’s claim.
23
complaint [156] is granted in part and denied in part. The claims against defendants Peterson,
Dargel, Williams, and Ragan are dismissed for lack of personal jurisdiction; that dismissal is
final as to this case but without prejudice to the filing of claims in any other forum. The claims
against Melton and the Plan are denied with prejudice, with the exception of the plaintiff’s
FLSA, breach of contract, and unjust enrichment claims against Melton, as to which the motion
to dismiss is denied. The respective sanctions motions of the plaintiff [137] and the Great West
defendants [132] are denied.
Dated: September 30, 2016
John J. Tharp, Jr.
United States District Judge
24
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