Waller v. Axiom Properties, Inc. et al
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 1/17/17.Mailed notice(ca, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
AXIOM PROPERTIES, INC.;
ARBORS APARTMENTS, LLC;
JERIKA GOIKE; JOSH KENNEDY;
and BARBARA DITZENBERGER,
16 C 8003
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiff Clarence Waller has sued Axiom Properties, Inc. and Arbors
Apartments, LLC, as well as individuals Jerika Goike, Josh Kennedy, and Barbara
Ditzenberger. Waller alleges race discrimination and a hostile work environment in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(Count I), as well as race discrimination in violation of the Illinois Human Rights
Act (IHRA), 775 Ill. Comp. Stat. 5/1 et seq. (Count II). Defendants move to dismiss
the complaint. For the reasons set forth herein, Defendants’ motion to dismiss is
granted in part and denied in part.
From October 2013 to July 2015, Plaintiff Clarence Waller worked as a
leasing consultant at Arbors Apartments, LLC. Compl. ¶ 15, ECF No. 1. Arbors
Apartments serves as a property management company for Axiom Properties, Inc.,
which operates and manages residential buildings throughout Illinois, Wisconsin,
Id. ¶¶ 7, 14.
As a leasing consultant, Waller’s responsibilities
included showing apartment units to prospective tenants, assisting in daily
inspections, and maintaining reports. Id. ¶ 16. In general, Waller was scheduled to
work six days per week. Id. ¶ 20.
During Waller’s employment at Arbors Apartments, he was supervised by
Assistant Manager Jerika Goike. Id. ¶ 8. In turn, Goike’s supervisor was Regional
Manager Josh Kennedy. Id. ¶ 9. Barbara Ditzenberger was the Head of Human
Resources at Axiom Properties. Id. ¶ 10.
Waller is African American.
Id. ¶ 18.
He alleges that throughout his
employment at Arbors Apartments, Goike regularly made derogatory comments to
Waller about his race. Id. ¶¶ 31–35, 69. These comments were made in front of
both residential tenants and other employees at Arbors Apartments.
Id. ¶ 24.
Waller repeatedly asked Goike to stop making these comments, but Goike ignored
his requests. Id. ¶ 36. Waller also left several voice messages with Kennedy to
report Goike’s comments, but Kennedy did not return Waller’s calls, and
Ditzenberger likewise did not respond when Waller raised his concerns with her.
Id. ¶¶ 39, 53–54. In the meantime, Goike’s derogatory racial comments continued
on a daily basis. Id. ¶¶ 31–35, 58.
On July 15, 2015, Ditzenberger terminated Waller from his employment. Id.
Shortly before his termination, Kennedy told Waller that he had broken
company policy, but Kennedy did not specify which policy Waller was accused of
Id. ¶ 59.
Waller asserts that his employment was terminated
“without provocation,” and that Defendants discriminated against him on account of
his race over the course of his employment. Id. ¶¶ 68–69, 72.
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(6), a complaint must “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint “need
only provide a short and plain statement of the claim showing that the pleader is
entitled to relief, sufficient to provide the defendant with fair notice of the claim and
its basis.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008); see also Fed.
R. Civ. P. 8(a)(2). In reviewing a motion to dismiss, a court must accept as true all
well-pleaded allegations in the complaint and must draw inferences in the plaintiff’s
favor. See Tamayo, 526 F.3d at 1081.
Defendants raise two arguments in support of their motion to dismiss. 1 First,
Defendants argue that Waller’s Title VII and IHRA claims must be dismissed
because Waller failed to timely file a charge with the Equal Employment
Opportunity Commission (EEOC). Mot. Dismiss at 4–7, ECF No. 6.
Under 42 U.S.C. § 2000e-5(e)(1), a charge of employment discrimination in
violation of Title VII must be filed with the EEOC no more than 300 days after the
Defendants have fashioned their motion as a motion to dismiss pursuant to Rules
12(b)(1) and 12(b)(6). None of their arguments, however, involves a challenge to the Court’s
subject-matter jurisdiction under Rule 12(b)(1). The Court therefore treats the entirety of
Defendants’ motion as a motion to dismiss for failure to state a claim pursuant to Rule
alleged unlawful employment practice. Roney v. Ill. Dep’t of Transp., 474 F.3d 455,
460 (7th Cir. 2007). Similarly, under the IHRA, a charge must be filed with either
the EEOC or the Illinois Department of Human Rights (IDHR) no later than 180
days after the alleged unlawful employment practice. Bagwe v. Sedgwick Claims
Mgmt. Servs., Inc., 811 F.3d 866, 886 n.2 (7th Cir. 2016) (citing 775 Ill. Comp. Stat.
Failure to timely file an administrative charge with the EEOC is an
affirmative defense. Laouini v. CLM Freight Lines, Inc., 586 F.3d 473, 475 (7th Cir.
2009). But it is well established that “a plaintiff ordinarily need not anticipate and
attempt to plead around affirmative defenses.” Hyson USA, Inc. v. Hyson 2U, Ltd.,
821 F.3d 935, 939 (7th Cir. 2016) (citing Chi. Bldg. Design v. Mongolian House, Inc.,
770 F.3d 610, 613 (7th Cir. 2014)); Stuart v. Local 727, Int’l Bhd. of Teamsters, 771
F.3d 1014, 1018 (7th Cir. 2014). Accordingly, at the motion to dismiss stage, “[t]he
mere presence of a potential affirmative defense does not render the claim for relief
invalid,” Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir.
2012). As such, dismissal based upon the affirmative defense of failure to timely file
a charge with the EEOC is appropriate only when the allegations in the complaint
unambiguously establish the elements of the defense, such that the plaintiff pleads
himself out of court. Stuart, 771 F.3d at 1018; Bibbs v. Sheriff of Cook Cnty., 618 F.
App’x 847, 849 (7th Cir. 2015).
Here, Defendants assert that Waller’s Title VII and IHRA claims should be
dismissed as time-barred because Waller did not file a signed charge of race
discrimination with the EEOC until April 14, 2016. Mot. Dismiss at 2. Waller’s
complaint, however, does not contain—and is not required to contain—factual
allegations regarding whether and when Waller filed charges of race discrimination
with the EEOC or IDHR. See Stuart, 771 F.3d at 1018. Although Defendants may
prevail at the summary judgment stage, Defendants’ attempt to dismiss Waller’s
claims on this basis is unavailing.
Defendants’ second argument is that Waller’s Title VII claim should be
dismissed with respect to Goike, Kennedy, and Ditzenberger on the ground that
Title VII does not contemplate liability for individuals serving as an employer’s
agents. Mot. Dismiss at 8. In response, Plaintiff expressly concedes that there is no
individual liability under either Title VII or the IHRA. Resp. at 9, ECF No. 12.
Plaintiff’s concession is consistent with relevant precedent. See Passananti v. Cook
Cnty., 689 F.3d 655, 662 n.4 (7th Cir. 2012) (citing Williams v. Banning, 72 F.3d
552, 555 (7th Cir. 1995)) (“Title VII authorizes suit only against the employer.
Individual people who are agents of the employer cannot be sued as employers
under Title VII.”); Washington v. Univ. of Ill. at Chi., No. 09 C 5691, 2010 WL
1417000, at *3 (N.D. Ill. Apr. 2, 2010) (noting that there is no individual liability
under Title VII or the IHRA). The Court therefore grants Defendants’ motion to
dismiss Counts I and II with respect to Goike, Kennedy, and Ditzenberger. In all
other respects, however, Defendants’ motion to dismiss is denied.
For the reasons stated herein, Defendants’ motion to dismiss is granted in
part and denied in part.
Counts I and II are dismissed with prejudice as to
individual defendants Goike, Kennedy, and Ditzenberger.
In all other respects,
Defendants’ motion to dismiss is denied. As such, Waller may proceed with his
claims in Counts I and II against defendants Axiom Properties, Inc. and Arbors
Apartments, LLC. Waller is also given leave, per his request, to file an amended
complaint within fifteen days of the entry of this Memorandum Opinion and Order.
IT IS SO ORDERED.
John Z. Lee
United States District Judge
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