Hanson et al v. Levan et al

Filing 74

MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 7/27/2017: Granting in part and denying in part Defendants' partial motion to dismiss #67 . Mailed notice (mw, )

Case: 1:15-cv-05354 Document #: 74 Filed: 07/27/17 Page 1 of 8 PageID #:660

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAWN HANSON, et al.,

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Plaintiffs,
v.
MILTON TOWNSHIP, et al.,
Defendants.

No. 15 C 5354

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ partial motion to dismiss. For
the reasons stated below, the partial motion to dismiss is granted in part and denied
in part.

BACKGROUND
Plaintiff Dawn Hanson, Plaintiff Christine Fernald (Fernald), Plaintiff
Deborah Hansen (Hansen), Plaintiff Leanne Muscari (Muscari), and Plaintiff Cathy
Zinga (Zinga) were allegedly employed as deputy assessors (collectively referred to
as “Deputy Assessors”) for Defendant Milton Township (Township). Plaintiff
Phillip Popa (Popa) was allegedly employed as an Information Technology
Administrator. In April 2013, Defendant Chris Levan (Levan) was allegedly elected

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as the Township Assessor. On January 1, 2014, Levan allegedly took office. On
January 3, 2014, Levan allegedly terminated Plaintiffs’ employment due to their
support of the prior Assessor during the April 2013 election. Plaintiffs include in
their third-amended complaint claims brought under 42 U.S.C. § 1983 (Section
1983) alleging retaliation in violation of their First Amendment rights brought by all
Plaintiffs (Count I), Section 1983 equal protection claims based upon age
discrimination brought by all Plaintiffs (Count II), claims alleging age discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29
U.S.C. § 621, et seq. brought by all Plaintiffs (Count III), claims alleging age
discrimination in violation of the Illinois Human Rights Act (IHRA), 775 ILCS 5/1101 et seq. brought by all Plaintiffs (Count IV), claims alleging violations of the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. brought by Hansen, Muscari,
and Zinga (Count V), claims alleging violations of the Illinois Minimum Wage Law
(IMWL), 820 ILCS 105/1 et seq. brought by Hansen, Muscari, and Zinga (Count
VI), claims alleging violations of the Illinois Wage Payment and Collection Act
(IWPCA), 820 ILCS 115/1 et seq. brought by Hansen, Muscari, and Zinga (Count
VII), claims alleging discrimination in violation of the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12101 et seq. brought by Fernald (Count VIII), ADA
retaliation claims brought by Fernald (Count VIII), and Section 1983 equal
protection claims based upon disability discrimination brought by Fernald and Zinga
(Count IX). The court notes that Count IX is inaccurately listed in the third-amended
complaint as “Count XI.” Defendants now move to dismiss certain claims in Counts
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II, VII, and IX.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences
that favor the plaintiff, construe allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)
(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)); see also
Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive a
motion to dismiss, the complaint ‘must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,’ and that ‘[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’”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

DISCUSSION
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I. Repled Claims from Prior Complaint
On April 6, 2016, the court granted Defendants’ partial motion to dismiss
certain claims in the second amended complaint. On February 10, 2017, Plaintiffs
filed a third-amended complaint repleading some of the previously dismissed claims.
The court granted Defendants’ motion to dismiss the Deputy Assessors’ First
Amendment retaliation claims, ADEA claims, IHRA claims, FLSA claims, and
IMWL claims. The claims brought by the Deputy Assessors in Counts I, III, IV, V,
and VI in the third-amended complaint essentially remain unchanged. Plaintiffs in
fact indicate in the third-amended complaint that such claims are being replead “for
purposes of preserving” the claims “for appeal.” (Compl. 6, 18, 19, 20, 23). For the
same reasons provided in the April 6, 2016 memorandum opinion, such claims are
dismissed.

II. Equal Protection Claims
Defendants move to dismiss the Section 1983 equal protection claims based
upon age discrimination brought by the Deputy Assessors and Popa in Count II and
the Section 1983 equal protection claims based upon disability discrimination
brought by Fernald and Zinga in Count IX. Defendants argue that Plaintiffs allege in
Count I that their employment was terminated for political reasons and that such a
reason is permissible under the law. Defendants contend that Plaintiffs cannot allege
inconsistently in Count II that their employment was terminated due to their age.
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Pursuant to Federal Rule of Civil Procedure 8(d), a party may plead causes of action
in the alternative. Fed. R. Civ. P. 87(d). Simply because Plaintiffs alleged one
reason for their termination in Count I does not mean that an alternative reason
cannot be alleged in Count II. Nor is there necessarily any inconsistency since
Plaintiffs could assert that their employment was terminated due to political reasons
and because of their age and/or disability. Plaintiffs have presented ample facts in
their third-amended complaint detailing alleged age discrimination and plausibly
suggest age discrimination. Defendants cite to Thompson v. Illinois Dep't of Prof'l
Regulation, 300 F.3d 750 (7th Cir. 2002), but in that case the motion to file an
amended complaint was denied and the ruling did not address pleading in the
alternative. Id. at 759. Also, in Thompson, unlike in this case, the plaintiff had
sought to cure pleading deficiencies in an amended complaint after two motions to
dismiss were filed. Id. Although Defendants argue that Plaintiffs should not be
allowed to amend their pleadings in hindsight after the court’s ruling on the prior
complaint, Defendants filed no formal objection to the filing of the third-amended
complaint and that complaint is now before this court. It is also worth noting that
allegations of such age and disability discrimination were presented in the original
complaint in this case. Plaintiffs have alleged sufficient facts at this juncture to state
valid equal protection claims based on age and disability discrimination. Even if
Plaintiffs could be terminated at will for political reasons, that does not mean that
Plaintiffs were stripped of all constitutional rights and could be fired because of their
age or disability. At the summary judgment stage, Plaintiffs will need to point to
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sufficient evidence to support such claims. Therefore, Defendants’ motion to
dismiss the equal protection claims in Counts II and IX is denied.

III. IWPCA Claims
Defendants move to dismiss the IWPCA claims brought by Hansen, Muscari,
and Zinga in Count VII. The IWPCA does not create “a substantive right to payment
of any particular regular or overtime wage.” Redmon v. Harris & Harris, Ltd., 2017
WL 2973581, at *2 (N.D. Ill. 2017)(internal quotations omitted)(quoting Hoffman v.
Roadlink Workforce Sols., LLC, 2014 WL 3808938, at *4 (N.D. Ill. 2014)). Thus, in
order to state an IWPCA claim, a “ plaintiff must plead that wages or final
compensation is due to him or her as an employee from an employer under an
employment contract or agreement.” Id. (internal quotations omitted)(quoting
Deschepper v. Midwest Wine & Spirits, Inc., 84 F. Supp. 3d 767, 779 (N.D. Ill.
2015)). Defendants contend that Plaintiffs IWPCA claims are premised on an
alleged failure to pay Plaintiffs for unused personal and vacation days and overtime
pay. Defendants contend that Plaintiffs fail to allege that such compensation is owed
under an employment contract or agreement. Plaintiffs contend that Defendants did
not raise this argument in response to the prior complaint, but such failure does not
preclude Defendants from raising it now after Plaintiffs chose to replead. Plaintiffs
argue that an employment policy can suffice in certain instances to support an
IWPCA claim and that such policy is alleged in this case. Defendants agree that a
formal written employment contract is not always required, but contend that there
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must be some type of agreement relating to a supporting policy. (Reply. 6).
Plaintiffs have alleged sufficient facts to plausibly suggest a policy that could support
an IWPCA claim. Defendants argue that the written personnel policy would not be
sufficient to constitute an employment contract or agreement, but Defendants have
not cited any controlling precedent on point that presents such black letter law.
Whether there existed a written policy that was sufficient to support an IWPCA
claim can be determined by examining the evidence beyond the pleadings. At the
summary judgment stage, Plaintiffs will have to point to sufficient evidence to
support their IWPCA claims. Therefore, Defendants’ motion to dismiss the IWPCA
claims is denied.
Defendants also move in the alternative to dismiss the IWPCA claims to the
extent that they are brought against the Township and against Levan in his individual
capacity. An IWPCA claim may be brought against a plaintiff’s employer. 820
ILCS 115/1. Plaintiffs argue that the definition of an employer in the IWPCA
context is a broad one and that claims can be brought against individuals. See 820
ILCS 115/2 (defining what constitutes an employer). In the instant action, however,
Plaintiffs fail to allege facts that would plausibly suggest that Plaintiffs were
employees of any entity or individual other than the Assessor. Plaintiffs also argue
that officers or agents of an employer who knowingly permit an employer to violate
the IWPCA can be sued under the IWPCA, but there are not sufficient specific
allegations to suggest such misconduct by Levan. Therefore, Defendants’ alternative
motion to dismiss the IWPCA claims brought against the Township and against
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Levan in his individual capacity is granted.

CONCLUSION
Based on the foregoing analysis, Defendants’ alternative partial motion to
dismiss the IWPCA claims brought against the Township and against Levan in his
individual capacity is granted, and the remainder of the partial motion to dismiss is
denied.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: July 27, 2017

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