Torres v. Merck Sharp & Dohme Corp.

Filing 70

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang on 6/8/2017: For the reasons stated in the Opinion, Defendant's motion to dismiss 6 the Illinois Whistleblower Act claim is denied.Emailed notice(Chang, Edmond)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTONIO TORRES,
Plaintiff,
v.
MERCK SHARP & DOHME CORP.,
Defendant.

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No. 16 C 08065
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Antonio Torres has worked at Merck Sharp & Dohme as a customer
representative since 2007. R. 44, First Am. Compl. at 2.1 Torres alleges that Merck
took away career opportunities after finding out that he has rheumatoid arthritis
and then took further retaliatory action once Torres filed a complaint with the
Equal Employment Opportunity Commission (EEOC). Id. at 4-5, 17-18. Torres
contends that either his disability or race or national origin was a motivating factor
in Merck’s actions. Id. at 4. Along with the substantive discrimination claims, he
also alleges that the company violated the Illinois Whistleblower Act, 740 ILCS
174/1 et seq., by retaliating against him when he complained about the
discrimination. First Am. Compl. at 17-19;2 see also R. 38, Pl.’s Resp. Br.3 Merck

1Citations

to the record are noted as “R.” followed by the docket number and the
page or paragraph number. Because Torres partially restarted paragraph numbering under
each count in his complaint, citations to the complaint are by page number rather than
paragraph number.
2The Whistleblower Act claim is Count 5 in the First Amended Complaint, First Am.
Compl. at 17-19, and is unchanged from the original Complaint, R. 1 at 17-20.
3This Court has subject-matter jurisdiction over the federal claims under 28 U.S.C. §
1331, and supplemental jurisdiction over the state-law claims under 28 U.S.C. § 1367.

now moves to dismiss the state whistleblower claim under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), arguing that that claim is preempted by the Illinois
Human Rights Act, 775 ILCS 5/1-101 et seq. R. 6, Def’s. Mot. to Dismiss; see also R.
7, Def.’s Br.; R. 41, Def.’s Resp. to Mot. for Leave (construed as Defendant’s reply to
the motion to dismiss, R. 43, Minute Entry, Jan. 12, 2017).4 For the reasons
discussed below, Merck’s motion to dismiss is denied.
I. Background
For purposes of this motion, the Court accepts as true the allegations in the
First Amended Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Torres, a
resident of Illinois, started working for Merck, a New Jersey corporation, in 2007.
First Am. Compl. at 2. Torres served as a Senior Customer Representative for the
company, assigned to the Lake Michigan West region (mostly in Cook County,
Illinois). Id. From June 2014 to late January 2015, Torres promoted the sale of
Januvia, one of Merck’s drug products, and saw significant regional success in his
role. Id. at 3. From February 2015 to July 2015, Torres promoted Belsomra, a sleep
aid. Id.
Torres has rheumatoid arthritis, a disability that can lead to difficulty in
walking and performing other physical tasks, as well as fatigue, fever, and joint
stiffness. First Am. Compl. at 2. From March 23 to April 10 of 2015, Torres was ill
and had to take sick leave from work. Id. at 3. About a week after he returned,
4Merck’s

Motion to Dismiss also originally targeted Count 6, Torres’ federal
retaliation claim under Title VII, 42 U.S.C. § 2000e-3. Def.’s Mot. to Dismiss. At a motion
hearing held on January 12, 2017, Torres’ motion to file a First Amended Complaint was
granted and Merck was directed to file an Answer to all but Count 5, the sole remaining
target of the dismissal motion. Minute Entry, Jan. 12, 2017.

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Torres told his immediate supervisor, Chris Swanson, that he (Torres) had been
diagnosed with rheumatoid arthritis. Id. Torres needed to miss another day because
of illness on April 29, 2015, after which Swanson told him not to let it happen again.
Id.
About a month later, on May 21, Swanson allegedly congratulated Torres on
his “excellent performance” and then went on to ask what medications Torres was
taking for his rheumatoid arthritis. First Am. Compl. at 4. Word of Torres’ condition
seemed to spread, because a week after that, Merck’s Regional Director Rob Church
asked Torres if he had rheumatoid arthritis. Id. When Torres responded to Church
that he did have the ailment, Church allegedly told Torres that, starting July 1,
2015, Torres could no longer sell Belsomra. Id. Torres says this was a “demot[ion],”
and as a result he has received “fewer duties, responsibilities, and sales
expectations, less job security and is more susceptible for layoff or job elimination
than his previous position.” Id. Torres’ complaint also alleges an instance of racial
or national origin discrimination: in February of 2015, Torres’ supervisor Jerry
Lubben asked Torres, a Mexican, “why Mexicans do not enjoy getting up early in
the morning.” Id. at 3.
Torres filed charges of disability, race, national origin, and color
discrimination with the EEOC on July 21, 2015. First Am. Compl. at 5. He
maintains that Merck then falsely lowered his 2015 performance rating (which was
released in March 2016), putting him in the bottom 5th to 10th percentile of
employees, despite his previously acknowledged strong job performance. Id. at 4.

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Torres argues that this reduction of his work score, which he believes was based on
either disability, race, or national origin discrimination (or associated retaliation),
has also damaged his long term career prospects and caused other types of
suffering. Id. at 4-5.
Based on these allegations, Torres brought ten counts against Merck in the
First Amended Complaint: (i) two American with Disabilities Act violations,
specifically, for the initial demotion (Count 1) and the other for the subsequent false
performance rating (Count 7), First Am. Compl. at 1-9, 24-27; (ii) two Title VII race
discrimination counts, for demotion (Count 2) and false ratings (Count 8), id. at 911, 27-30; (iii) race discrimination counts for demotion and false ratings under 42
U.S.C. § 1981 (Counts 3 and 9), id. at 11-14, 30-32; (iv) two Title VII national origin
discrimination counts, for demotion and false ratings, (Counts 4 and 10), id. at 1416, 33-36; (v) an Illinois Whistleblower Act violation for retaliation (Count 5), 740
ILCS 174/1 et seq., id. at 17-19; and (vi) a Title VII retaliation claim (Count 6), id. at
20-23. Merck now moves to dismiss Count 5, the Illinois whistleblower claim, for
lack of subject matter jurisdiction and failure to state a claim. See Def.’s Mot. to
Dismiss; Def.’s Br.
II. Standard
Merck brings its motion under Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). Rule 12(b)(1) motions test whether the Court has subject-matter
jurisdiction, Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811,
820 (7th Cir. 2009); Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.

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1999), while Rule 12(b)(6) motions test the sufficiency of a complaint, Hallinan, 570
F.3d at 820; Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). When
reviewing a motion to dismiss under either rule, the Court accepts as true all
factual allegations in the complaint and draws all reasonable inferences in the
plaintiff’s favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir.
2007).
Under Rule 8(a)(2), a complaint generally need only include “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The complaint must “give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (alteration in original) (internal quotation marks and citation
omitted). These allegations “must be enough to raise a right to relief above the
speculative level,” id., and must “contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The allegations entitled to the
assumption of truth are those that are factual, rather than mere legal conclusions.
Iqbal, 556 U.S. at 678-79.
In assessing a Rule 12(b)(1) motion, the plaintiff bears the burden of
establishing subject matter jurisdiction. Ctr. for Dermatology & Skin Cancer, Ltd. v.
Burwell, 770 F.3d 586, 588–89 (7th Cir. 2014). “When ruling on a motion to dismiss
for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1), the district court must accept as true all well-pleaded factual allegations,

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and draw reasonable inferences in favor of the plaintiff.” Ezekiel v. Michel, 66 F.3d
894, 897 (7th Cir. 1995). “[A] factual challenge lies where the complaint is formally
sufficient but the contention is that there is in fact no subject matter jurisdiction. …
[W]hen considering a motion that launches a factual attack against jurisdiction, the
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.” Apex Digital, Inc. v.
Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (internal quotation marks
omitted).
III. Analysis
Count 5 alleges that Merck violated the Illinois Whistleblower Act by
retaliating against Torres for filing a discrimination complaint with the EEOC.
First Am. Compl. at 17-19. In response, Merck contends that this claim must be
dismissed because it “is preempted by the Illinois Human Rights Act.” Def.’s Br. at
1; see also Def.’s Resp. to Mot. for Leave at 1-4.
Starting with the text of the relevant statutes, the Illinois Whistleblower Act
disallows, among other things, an employer from retaliating against an employee
who reported an alleged legal or regulatory violation to a court or other government
agency:
An employer may not retaliate against an employee who discloses
information in a court, an administrative hearing, or before a legislative
commission or committee, or in any other proceeding, where the employee
has reasonable cause to believe that the information discloses a violation of a
State or federal law, rule, or regulation.
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740 ILCS 174/15(a). Torres claims that Merck took him off a lucrative project and
falsely lowered his performance ratings in retaliation for filing the discrimination
claim with the EEOC. First Am. Compl. That sequence of events, taken as true at
this stage in proceedings, would seem to fall squarely under the Whistleblower Act.
But Merck argues that the Illinois Human Rights Act prevents, in this
employment setting, any other Illinois-law remedy for retaliation. The Human
Rights Act sets forth an anti-retaliation provision:
§ 6-101. Additional Civil Rights Violations. It is a civil rights violation for a
person, or for two or more persons to conspire, to:
(A) Retaliation. Retaliate against a person because he or she has opposed
that which he or she reasonably and in good faith believes to be unlawful
discrimination, … discrimination based on citizenship status in employment,
because he or she has made a charge, filed a complaint, testified, assisted, or
participated in an investigation, proceeding, or hearing under this Act ….
775 ILCS 5/6-101.
The Act also contains a “Limitation” clause: “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.” 775 ILCS 5/8-111(D). And it
created an administrative procedure to accept complaints. Specifically, the Act
created the Illinois Department of Human Rights and the Human Rights
Commission, and established extensive administrative procedures for investigating
and reviewing civil rights charges and complaints. See generally 775 ILCS 5 arts.
7A, 7B, 8A, and 8B; 775 ILCS 8-103, 8-113.

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The question, then, is whether Torres’ retaliation claim, based on the
reporting of a civil rights violation to a federal agency (the EEOC), can be litigated
via the Illinois Whistleblower Act rather than through the Illinois Human Rights
Act. Put another way, does the “jurisdiction” limitation provision in the Human
Rights Act preempt a civil-rights-based whistleblower retaliation claim brought
under the Illinois Whistleblower Act?5
To determine whether a claim is preempted by the Illinois Human Rights
Act, Illinois courts use the “inextricably linked” test. That is, if a plaintiff’s civil
rights claim is “inextricably linked” to a civil rights violation as defined in the
Human Rights Act “such that there is no independent basis for imposing liability
apart from the Act itself,” then that claim “must be litigated before the
Commission—and only before the Commission.” Maksimovic v. Tsogalis, 687 N.E.2d
21, 22 (Ill. 1997) (quoting Geise v. Phoenix Co. of Chi., Inc., 639 N.E.2d 1273, 1277
(Ill. 1994) (internal quotation marks omitted)). See also Blount v. Stroud, 904
N.E.2d 1, 9-10 (Ill. 2009) (citing and using the test).
Inextricable linkage in Illinois case law depends on whether a claim is
invoking the “legal duties” created by the Human Rights Act or can instead be
established through an “independent” basis. Maksimovic, 687 N.E.2d at 22-23;
Blount, 904 N.E.2d at 9. In the Geise case (as later explained by the Illinois
Supreme Court in Maksimovic), the plaintiff’s negligent hiring and negligent
retention claims were preempted by the Act because they were based only on a legal
5Although

the Illinois legislature used the term “jurisdiction” in the Illinois Human
Rights Act, for the purposes of this Court’s analysis, the “limitation” clause raises a
preemption issue not a subject matter jurisdiction issue.

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duty created by the Act: “[a]bsent the [Illinois Human Rights] Act’s prohibition of
sexual harassment, the employer’s hiring and retention of an employee whose
conduct created a hostile work environment would not have been an actionable
tort.” Maksimovic, 687 N.E.2d at 23. In other words, “in Geise the [Illinois Human
Rights] Act furnished the legal duty that the defendant was alleged to have
breached.” Id.
Maksimovic applied the same test for preemption as deployed in Geise,
namely, whether the proposed claim could be asserted without reference to the
Human Rights Act. In Maksimovic, the plaintiff’s assault, battery, and false
imprisonment claims were not “inextricably linked” to her sexual harassment claim
because she “alleged the elements of each of these torts without reference to legal
duties created by the [Illinois Human Rights] Act” and thus “established a basis for
imposing liability on the defendants independent of the Act.” Maksimovic, 687
N.E.2d at 23. More specifically, the long-recognized, common-law claims of assault,
battery, or false imprisonment are not dependent on the Human Rights Act, even if
those claims relate to incidents of sexual harassment: “Assault, battery and false
imprisonment existed long before the legislature became interested in sexual
harassment and are intended to redress violations of bodily integrity and personal
liberty…. [W]e can find nothing in the language of the Act, or the policy underlying
it, which indicates that the legislature intended to preclude the circuit court from

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exercising jurisdiction over all tort claims related to incidents of sexual
harassment.” Id. at 24.6
The upshot is that, in this preemption context, “inextricably linked” (as fuzzy
a phrase as it is) has a concrete meaning under Illinois law: if the proposed claim
need not refer to the Illinois Human Rights Act to state a valid legal claim, then
there is no preemption. Factual overlap is not the dividing line between preemption
or not. So merely because the facts underlying a claim could be fashioned into a
claim under the Illinois Human Rights Act does not automatically mean it is
preempted by that Act. “A retaliatory discharge claim is not preempted merely
because it rests on facts that could also support a claim under the [Human Rights]
Act, if the retaliatory discharge contravened some public policy other than the one
embodied in the Act ….” Masud v. Rohr-Grove Motors, Inc., 2015 WL 5950712, at *8
(N.D. Ill. Oct. 13, 2015). See also Thurman v. BMO Capital Mkts. Corp., 2011 WL
1004652, at *5 (N.D. Ill. Mar. 16, 2011) (“Plaintiff need not and does not rely on [the
Illinois Human Rights Act] as the source of the duties giving rise to the [Illinois
Whistleblower Act] retaliation claim.”); but see Garcia v. Complete Bldg. Maint. Co.,
6Blount

v. Stroud, cited by Torres, held that a common-law claim of retaliatory
discharge could be brought outside of the Human Rights Act even though the Act has a
provision on retaliatory discharge. Blount, 904 N.E.2d at 9-10. Blount is not, however,
squarely on point here. Although Blount applied the “inextricably linked” test, the Illinois
Supreme Court there relied on an independent factual basis for the common law claim (as
distinct from the Human Rights Act retaliatory discharge claim). Specifically, the commonlaw retaliatory discharge claim was not “inextricably linked” to the Human Rights Act
because the common-law claim asserted that the plaintiff was discharged for refusing to
commit perjury, rather than for reporting a civil-rights violation. So the retaliatory
discharge claim had an “independent basis”: “the state’s public policy against perjury,
embodied in the state’s criminal code.” Id. at 10. Blount also pointed out that “the tort of
retaliatory discharge was first recognized by this court in 1978, one year prior to the
legislature’s adoption of the [Human Rights] Act.” Id. at 9.

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2014 WL 652887, at *8 (N.D. Ill. Feb. 14, 2014) (determining that materially
identical underlying facts means claims are inextricably linked for the purposes of
Illinois Human Rights Act preemption analysis); Alexander v. Ne. Ill. Univ., 586 F.
Supp. 2d 905, 915 (N.D. Ill. 2008) (reading inextricably linked to mean, in part, “not
… alleg[ing] any violations of laws or rules that would not be covered by the [Illinois
Human Rights] Act”).
So the real question, as framed in Geise and Maksimovic, is whether a
plaintiff can state a claim without—either explicitly or implicitly—having to call
upon the Illinois Human Rights Act to support it. If a claim can be brought
independently from the Act, then that claim is not inextricably linked to the Act; it
is “extricable” from it, as it were. Perhaps it would be better to discard the
“inextricably linked” label, which is far from self-defining, in recognition of the real
nature of the analysis, which is whether the Human Rights Act preempts the
proposed claim because the Act is the sole source of the legal duty on which it is
premised. If the answer to that question is yes, then the Act provides the sole cause
of action.7
Turning now to this case, Torres’ Whistleblower Act claim is premised on
Merck’s alleged retaliation for his filing of a discrimination charge with the EEOC.
First Am. Compl. at 17-19. In the EEOC charge, Torres alleged that Merck had

7Nor

does it matter, for the purposes of Human Rights Act preemption analysis,
whether the proposed claim is a common law claim or a statutory claim. Geise and
Maksimovic dealt specifically with common law claims, but nothing in the rationale of
either case suggests a difference for proposed statutory claims. There still is no textual hook
in the Human Rights Act for preempting other types of claims if those claims do not rely on
the Act as the sole source for the legal duty asserted by the proposed claim.

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violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2 et seq. First Am. Compl. at 1, 9,
14. To support the Whistleblower Act claim, Torres specifically alleges that Merck
engaged in retaliation for his reporting of alleged violations of federal law. Id. at 1718 (“In 2016, Defendant and Plaintiff’s immediate supervisors were critical of
Plaintiff’s disability, Rheumatoid Arthritis, his race and national origin and color
and were aware that Plaintiff filed written complaints with the EEOC, a federal
agency complaining about disability discrimination, race discrimination, and
discrimination based upon his national origin and color.... All of the Defendant’s
intentional retaliatory acts above based upon Plaintiff’s above written complaints
against Defendant at the EEOC, a federal government agency, are in violation of
the Illinois Whistleblower Act ….”).
Torres thus is not calling upon the Human Rights Act to undergird his
Whistleblower Act claim in any way. He is instead arguing that there was a breach
of federal law reported to a federal agency, and that Merck later retaliated on that
basis. That retaliation, in turn, violates the state Whistleblower Act. No mention of
the Illinois Human Rights Act is needed at all, so there is no preemption.8

8It

is worth noting that this result leaves the Illinois Human Rights Act’s limitation
clause, 775 ILCS 5/8-111(D), with a narrow preemptive scope (of course, the limitation
clause still strictly limits how (and in what forums) claims brought directly under the Act
must be asserted). But Illinois courts have not been willing to grant exclusivity to the Act
without a more clear and plain expression of abrogation. Maksimovic, 687 N.E.2d at 24
(“legislative intent to abrogate the common law must be clearly and plainly expressed, and
such an intent will not be presumed from ambiguous or doubtful language”). It might be
appropriate for the Illinois state legislature to examine this issue.

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IV. Conclusion
Merck’s motion to dismiss Count 5 is denied.
ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: June 8, 2017

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