Fencl v. Heidrick and Struggles et al
Filing
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MEMORANDUM Opinion: Defendant Karleen Mussman's Rule 12(b)(6) and 12(b)(1) motion to dismiss count II of plaintiff's complaint 14 is granted. Plaintiff's amended complaint is due by 3/18/2015. Signed by the Honorable Charles P. Kocoras on 3/11/2015. Mailed notice(vcf, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WENDY FENCL,
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Plaintiff,
v.
HEIDRICK AND STRUGGLES and
KARLEEN MUSSMAN, individually,
Defendants.
14 C 9102
MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on the motion of Defendant Karleen
Mussman (“Mussman”) to dismiss Count II of Plaintiff Wendy Fencl’s (“Fencl”)
complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) (“Rule 12(b)(1)”) and for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). For the reasons set forth below, the
motion to dismiss Count II is granted without prejudice. Fencl is given seven (7) days
to amend her complaint consistent with this order.
BACKGROUND
For the purposes of the instant motion, the following well-pleaded allegations
derived from Fencl’s complaint are accepted as true. The Court draws all reasonable
inferences in favor of Fencl. According to the allegations contained in the complaint,
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Fencl is fifty-five years old. She is a resident of Willowbrook, Illinois. Defendant
Heidrick and Struggles International Inc. (“Heidrick”) is an executive search firm that
is incorporated in Delaware and does business in Chicago, Illinois. Mussman is a
resident of Oak Park, Illinois. Fencl claims Mussman is in her forties. Heidrick
employed Fencl around June 1, 2011 as an External Consultant. In 2012, Heidrick
hired Fencl full-time as its Global Director of Talent Management. Fencl alleges that
she earned consistent positive performance reviews during her employment with
Heidrick.
In late April or May 2013, Heidrick hired Mussman, as its Senior Vice
President of Human Resources. Around July 2013, Judy Braun (“Braun”), Vice
President of Talent Development and Fencl’s direct supervisor, separated from
Heidrick. For approximately five months following Braun’s departure, Hencl
performed Braun’s job responsibilities while Heidrick searched for a permanent
replacement for Braun’s role. Mussman would give Fencl compliments on her
performance in Braun’s role and thanked her for ensuring that the department
continued to function smoothly.
During this time, on five separate occasions, Fencl asked Mussman, who was in
charge of hiring Braun’s replacement, to consider Fencl for promotion to the
permanent Vice President of Talent Development position. In fact, prior to Mussman
joining Heidrick, Fencl claims that Heidrick had identified Fencl as Braun’s successor
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for this position in its formal succession plan. Despite Fencl’s repeated requests,
Mussman refused to consider her for the role. Instead, around December 2013,
Mussman hired Jill Attkisson (“Attkisson”) for the position, a woman fifteen years
younger than Fencl. Fencl alleges that Attikisson had far less professional
experiences and qualifications than her.
Soon thereafter, Fencl asked Mussman about why she was not considered for
the promotion to Vice President of Talent Development. Mussman allegedly became
angry and first responded by pretending not to know Fencl was interested in the
position. Then, Mussman supposedly started to accuse Fencl of not being sufficiently
“aggressive” in pursuing the position. Mussman subsequently required Fencl to train
Attkisson for the role. On February 7, 2014, Mussman terminated Fencl’s
employment with Heidrick because Mussman was allegedly still upset with Fencl for
questioning her hiring decision.
When terminating Fencl’s employment, Mussman allegedly told Fencl that she
had decided to take “the training department in a new direction” and that she was
“eliminating” Fencl’s position. However, Fencl claims that a month and a half prior
to her termination, Heidrick had publically posted Fencl’s Global Director of Talent
Development position for hire. Fencl alleges that after her termination, Heidrick had
not taken the training department in a new direction or changed any of the programs
in place at the time of Fencl’s employment.
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On April 1, 2014, Fencl filed a charge with the Equal Employment Opportunity
Commission (the “EEOC”) alleging age discrimination in violation of the Age
Discrimination in Employment Act (the “ADEA”). At the EEOC, Fencl alleges that
Heidrick changed its story, and instead claimed to have terminated her for
performance problems. On October 27, 2014, Fencl received her Notice of Right to
Sue from the EEOC.
On November 13, 2014, Fencl filed a two-count complaint, asserting: one claim
for age discrimination in violation of the ADEA against Heidrick (Count I); and a
state law claim for intentional interference with employment/prospective economic
advantage (“tortious interference”) against Mussman (Count II).
On January 12, 2015, Mussman moved to dismiss Count II of Fencl’s
complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6).
LEGAL STANDARDS
I.
Rule 12(b)(1)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the
Court's subject matter jurisdiction. “The standard of review for a Rule 12(b)(1) motion
to dismiss depends on the purpose of the motion.” Bolden v. Wells Fargo Bank, N.A.,
2014 WL 6461690, at *2 (N.D. Ill. Nov. 18, 2014) (citing Apex Digital, Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 443–44 (7th Cir. 2009)). “If a defendant challenges the
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sufficiency of the allegations regarding subject matter jurisdiction (a facial challenge),
the Court must accept all well-pleaded factual allegations as true and draw all
reasonable inferences in the plaintiffs favor.” Bolden, 2014 WL 6461690, at *2
(citing United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.
2003)). A factual challenge to the court's subject matter jurisdiction, on the other
hand, is based on the assertion that “the complaint is formally sufficient but ... there is
in fact no subject matter jurisdiction.” United Phosphorus, 322 F.3d at 946 (emphasis
in original). When considering a factual challenge to the court's jurisdiction, “[t]he
district court may properly look beyond the jurisdictional allegations of the complaint
and view whatever evidence has been submitted on the issue to determine whether in
fact subject matter jurisdiction exists.” Evers v. Astrue, 536 F.3d 651, 656–57 (7th
Cir. 2008) (quoting St. John's United Church of Christ v. City of Chicago, 502 F.3d
616, 625 (7th Cir. 2007)). “Where jurisdiction is in question, the party asserting a
right to a federal forum has the burden of proof, regardless of who raised the
jurisdictional challenge.” Craig v. Ontario Corp., 543 F.3d 872, 876 (7th Cir. 2008).
II.
Rule 12(b)(6)
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint and
not the merits of the case. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873,
878 (7th Cir. 2012). The allegations in a complaint must set forth a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
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8(a)(2). A plaintiff need not provide detailed factual allegations but must provide
enough factual support to raise her right to relief above a speculative level. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim must be facially plausible,
meaning that the pleadings must allow the court to draw the reasonable inference that
the defendant is liable for the purported misconduct. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements,” are insufficient to withstand a motion to dismiss under
Rule 12(b)(6). Id. at 678. The claims must be described “in sufficient detail to give
the defendant fair notice of what the claim is and the grounds upon which it rests.”
EEOC v. Concentra Health Services, 496 F.3d 773, 776 (7th Cir. 2007) (quoting
Twombly, 550 U.S. at 570).
DISCUSSION
I. Dismissal Under Rule 12(b)(6)
In Count II, Fencl alleges a common law claim of tortious interference. To
establish a tortious interference claim, Fencl must show: (1) her reasonable
expectation of a valid continuing business relationship; (2) that Mussman knew of the
expectancy; (3) that Mussman purposefully prevented the expectancy from ripening;
and (4) resulting damages. See Filson v. Big Ten Conference, 06 C 3839, 2006 WL
3626707, at *5 (N.D. Ill. Dec. 11, 2006) (citing Cody v. Harris, 409 F.3d 853, 859
(7th Cir. 2005)). When the actions of a third party cause an employer to decide to fire
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an at-will employee, the third party might be liable in tort. Ali v. Shaw, 481 F.3d 942,
945 (7th Cir. 2007). “A plaintiff states a cause of action only if [she] alleges a
business expectancy with a specific third party as well as action by the defendant
directed towards that third party.” Associated Underwriters of Am. Agency, Inc. v.
McCarthy, 356 Ill. App. 3d. 1010, 1020 (1st Dist. 2005). Such a tortious interference
claim can arise out of an employment relationship where “the defendant’s action is
without justification.” Adams v. Catrambone, 359 F.3d 858, 865 (7th Cir. 2004).
The defendant in Caffarello v. Illinois State Toll Highway Auth., 2014 WL
3559388, at *9 (N.D. Ill. July 17, 2014) asserted the same argument Mussman
provides in her motion to dismiss: Fencl’s claim fails because she has not alleged a
business expectation with a third party. However, the court in Caffarello discussed
Mittelman v. Witous, 135 Ill. 2d 220, 142 Ill. Dec. 232 (1989), abrogated on other
grounds, Kuwik v. Starmark, 156 Ill. 2d 16, 619 N.E. 2d 129 (1993) and dismissed the
plaintiff’s tortious interference claim because he did not allege that his supervisor was
acting solely for his own gain when he terminated the plaintiff’s employment. In fact,
the plaintiff in Caffarello pleaded himself out of court by stating that his supervisor
had the authority for all employment decisions, not the company. The court rejected
the defendant’s third party argument, stating that “in the broadest sense, tortious
interference by a supervisor is actionable if he acted on his own behalf and not in the
company’s interest.” Caffarello, 2014 WL 3559388, at *9 (citing Maddie v. Siebel
Sys., Inc., 04 C 3419, 2004 WL 2515827, at *4 (N.D. Ill. Nov. 5, 2004); see also Ali,
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481 F.3d at 945 (holding “in the corporate world, officers enjoy immunity from these
types of claims provided that they work the action in pursuit of the legitimate interests
of the company.”). Fencl must allege that Mussman took “action…directed towards
the party with whom the plaintiff expects to do business.” Grund v. Donegan, 298 Ill.
App. 3d 1034, 1039 (1998); see also OnTap Preminum Quality Waters, Inc. v. Bank
of N. Ill., N.A., 262 Ill. App. 3d 254, 263 (1994) (dismissing a complaint of tortious
interference that was “devoid of any allegation that defendant directed any action
which purposefully cause the [third party] not to enter into a business relationship
with plaintiff.”).
To support Fencl’s contention that Mussman was motivated by a personal
animus, without intent to further Heidrick’s interests, she alleges that when she told
Mussman that she was disappointed for not being considered for the position and
questioned Mussman as to why, Mussman allegedly became angry and responded by
first pretending not to know that Fencl was interested in the position and then
accusing her of not being “aggressive” enough in pursuing it. Two weeks later,
Heidrick posted Fencl’s position for hire and then less than two months later, Heidrick
terminated Fencl. Further, Fencl claims that Mussman’s reasoning for Fencl’s
termination was false because Heidrick has not yet taken the training department in a
“new direction” or changed any of the programs in place at the time of Fencl’s
employment. In fact, Fencl alleges that at the EEOC, Heidrick changed its story and
now claimed that it terminated Fencl based on performance problems, even though
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Fencl claims that she earned consistent positive performance reviews during her
employment with Heidrick. These allegations, together, create a reasonable inference
that Mussman terminated Fencl unrelated to the legitimate interests of Heidrick.
Overall, Fencl has alleged that Mussman “intentionally, willfully, and without
justification interfered with Plaintiff’s employment and solely for her own benefit
and/or to injure Plaintiff” and Mussman “exercised this interference in her own
personal interest and not in the interest of Defendant Heidrick.” Nothing in the
complaint indicates that Mussman was solely responsible for all employment
decisions or had full control and authority over Fencl’s position. For example, Fencl
states that Heidrick “searched for a permanent replacement for [Braun’s] role” and
that “Mussman hired Attkisson for the position.” Therefore, at this present posture
and drawing all inferences in favor of Fencl, we surmise that there was some type of
communication from Mussman to management at Heidrick about who would replace
Braun, either directly or indirectly, which ultimately controlled Fencl’s relationship
with Heidrick. Discovery will reveal the amount of control Mussman had in the
decision-making process and whether Heidrick relied on Mussman’s alleged
misrepresentations about Fencl, but such information is not necessary at this early
pleading stage.
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II. Dismissal Under Rule 12(b)(1)
Mussman argues that tortious interference claim is inextricably linked to her
age discrimination claim and must be dismissed under Rule 12(b)(1) because it is
preempted by the Illinois Human Rights Act (the “IHRA”). The IHRA gives the
Illinois Human Rights Commission exclusive jurisdiction over civil-rights violations.
775 ILCS 5/8-111(D) (“Except as otherwise provided by law, no court of this state
shall have jurisdiction over the subject of an alleged civil rights violation other than as
set forth in this Act.”). Employment discrimination is defined in the Act as incidents
involving “promotion, renewal of employment . . . discharge, discipline, tenure or
terms, privileges or conditions of employment on the basis of unlawful discrimination
or citizenship status.” Id. 5/2-102(A).
The IHRA preempts common law tort claims that are “inextricably linked to a
civil rights violation such that there is no independent basis for the action apart from
the Act itself.” Johnson v. Chicago Bd. Of Educ., 00 C 1800, 2002 WL 1769976, at
*4 (N.D. Ill. Aug 1, 2002) (citation omitted). The Illinois Supreme Court has
reminded us that framing a claim in terms of a tort does not “alter the fundamental
nature of [a] cause of action.” Geise v. Phoenix Co. v. Chicago, Inc., 159 Ill.2d 507,
518 (1994). The critical issue is whether Fencl’s tortious interference claim can stand
without relying on allegations that constitute an IHRA violation.
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Fencl contends that Mussman was motivated by a personal animus, not for
discriminatory reasons, and that the IHRA does not apply. To support her tortious
interference claim, Fencl claims that she pleaded facts separate and apart from her age
discrimination claim. Indeed, the Court acknowledges that Fencl recites the elements
of tortious interference as allegations under Count II, including her reasonable
expectation of continuing her employment with Heidrick and Mussman’s knowledge
of this expectation, but she also provides additional factual allegations to support her
tortious interference claim, as stated above in Part I, supra.
Mussman argues that Fencl must allege more about Mussman terminating
Fencl for personal gain, or for the purpose of harming Fencl to satisfy the pleading
requirements. We disagree—the facts establish that Mussman’s personal motive for
terminating Fencl’s employment stemmed from Fencl questioning Mussman’s
authority and decision-making abilities. Mussman’s alleged anger is what motivated
her to terminate Fencl. Fencl states that Mussman interfered with her employment
“solely for her own benefit and/or to injure Plaintiff.” Nothing in the complaint
indicates that Fencl questioned Mussman’s decision to not choose her for the position
because of Fencl’s age or based on age discrimination. The independent basis is
Fencl questioning Mussman’s decision-making, and Mussman’s anger that Fencl
inquired about it.
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However, the Court takes issue with how Fencl incorporates prior paragraphs
as reference. In Paragraph 28 of her complaint, she “incorporates by reference the
preceding paragraphs as though fully set forth in this Count II,” which technically
includes the allegations of age discrimination in Count I. Mussman claims that the
inclusion of the paragraphs in Count I “clearly indicates that [Fencl] believes and is
alleging that Ms. Mussman was motivated by age in making her termination
decision.” The Court does not agree with Mussman 1. We will permit Fencl to amend
her complaint to remove the paragraphs in Count I from her tortious interference
claim. The Court grants Mussman’s motion to dismiss Count II without prejudice and
gives Fencl leave to amend her allegations in Count II.
CONCLUSION
For the aforementioned reasons, the Court grants Mussman’s motion to dismiss
Count II without prejudice. Fencl is given seven (7) days to amend her complaint
consistent with this order.
Date: 3/11/2015
_______________________________
Charles P. Kocoras
United States District Court Judge
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The Court is also perturbed with Mussman stringing two very separate allegations from the exhibit
attached to Fencl’s charge of discrimination with the EEOC in attempt to persuade the Court that Fencl
alleged Mussman failed to promote her based on her age. See Mussman’s Reply, p. 13.
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