Phillips v. Baxter et al

Filing 34

MEMORANDUM Opinion: The Court grants Defendants' motion to dismiss 22 . Civil case terminated. Signed by the Honorable Charles P. Kocoras on 5/24/2017. Mailed notice(vcf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GARFIELD PHILLIPS,
Plaintiff,
v.

16 C 8233

PHYLLIS BAXTER, et al.,
Defendants.
MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Before the Court is Defendants’ Illinois Department of Human Services (“IDHS”)
and individual state employees Phyllis Baxter (“Baxter”), William Willis (“Willis”),
Rosemary

Norris

(“Norris”),

and

Gayle

Stricklin

(“Stricklin”)

(collectively,

“Defendants”) motion to dismiss Plaintiff Garfield Phillips’ (“Phillips”) verified
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following
reasons, the Court grants Defendants’ motion.
BACKGROUND
The following facts are taken from Phillips’ verified complaint and are assumed to
be true for purposes of this motion. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.
1995). The Court draws all reasonable inferences in favor of Phillips. See Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
IDHS employed Phillips as a Human Service Caseworker Manager until March 7,
2016, when he voluntarily terminated his employment. Phillips alleges that in March

2015, he criticized Baxter’s management style, the IDHS Region 2 SNAP Accuracy
Liaison/Acting Local Office Administrator, by questioning Baxter’s assignment of
caseworkers. In April 2015, Phillips informed union leadership that Baxter, along with
other managers, routinely reported to work late and submitted improper time cards. Due
to his statements, Phillips claims that Baxter took retaliatory actions against him,
including: restricting Phillips’ phone to permit only local calls, limiting Phillips’ security
profile to prevent him from creating and assigning office tags to front line staff, and
barring Phillips from assigning new cases to frontline staff.
On August 20, 2015, Phillips interviewed for a position as Public Service
Administrator at IDHS’ local office in Kankakee (the “Local Office”). Norris was
awarded the position. Phillips claims that he had more training and experience to fulfill
the duties and responsibilities of a Public Service Administrator than Norris did. On
December 3, 2015, Phillips interviewed for the position of Region 2 SNAP AccuracyLiaison. Baxter was awarded the position.
In January 2016, Phillips alleges that he was instructed to begin processing
Spanish applications and to assist frontline staff with non-managerial “common
casework.” Phillips maintains that other similarly situated employees were not required
to perform these tasks. In February 2016, Phillips claims that Baxter, Stricklin, Willis,
and Norris discussed an inter-office transfer of Phillips from the Region 2 Processing
Hub to the Local Office without his consultation. Subsequently, Phillips contends that he
accidentally walked into a meeting between Willis and Norris, at which time Willis

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stated, “we need your help at the Kankakee Local Office.” On February 19, 2016, Baxter
notified Phillips, that on February 22, 2016, he was going to be transferred. Phillips told
Baxter that he would not consent to a transfer. Phillis alleges that he was informed that if
he did not accept the transfer, he would be disciplined for insubordination and subject to
discharge.
Phillips claims that on February 22, 2016, at 9:00 a.m., Baxter entered Phillips’
office and told him to pack up and leave. When Phillips told Baxter that she did not have
the authority to transfer him, Phillips claims that Baxter became enraged. Specifically,
Phillips contends that Baxter told him to “leave before something bad happens to you,”
and that Baxter would “call the cops” on Phillips if necessary.

Furthermore, Phillips

claims that Baxter told union representatives at the Local Office to “come and get him . . .
before something bad happens to him!” Phillips also received an email from Stricklin
informing him to leave the building by noon. Phillips contends that he left the office in
fear that he was in danger. Moreover, a union representative allegedly informed Phillips
that he was no longer allowed to access the Region 2 Processing Hub and that he should
report to the Kankakee Family Resource Center because his work experience was needed
to improve the performance of that office.
On March 7, 2016, Phillips voluntarily terminated his employment with IDHS.
Since resigning, Phillips claims that he has been eliminated from consideration for postemployment contractual work with IDHS, which is usually offered to former employees
who are in good standing.

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LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) “tests
the sufficiency of the complaint, not the merits of the case.” McReynolds v. Merrill
Lynch & Co., 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. 8(a)(2). A plaintiff need not provide detailed factual allegations,
but must provide enough factual support to raise his right to relief above a speculative
level. Bell Atlantic. 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 misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The claim must be described “in sufficient detail to
give the defendant ‘fair notice of what the . . . claim is and the grounds upon which it
rests.’” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)
(quoting Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements,” are insufficient to withstand a Rule
12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 678.
DISCUSSION
Phillips sues IDHS and individual state employees Baxter, Willis, Norris, and
Stricklin for conspiracy to interfere with rights under 42 U.S.C. § 1985(3) (Count I),
retaliation under 42 U.S.C. § 1981 (Count II), state-law intentional infliction of emotional
distress (“IIED”) (Count III), and state-law negligence (Count IV).

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I.

42 U.S.C. § 1985(3)
To state a claim under Section 1985(3), Phillips must allege: “(1) the existence of

a conspiracy, (2) a purpose of depriving a person or class of persons of equal protection
of the laws, (3) an act in furtherance of the alleged conspiracy, and (4) an injury to person
or property or a deprivation of a right or privilege granted to U.S. citizens.” Majeske v.
Fraternal Order of Police, Local Lodge No. 7, 94 F.3d 307, 311 (7th Cir. 1996) (citations
omitted). To establish that the purpose of the conspiracy is to “deprive a person or class
of persons of equal protection of the laws,” Phillips must allege “some racial, or perhaps
otherwise class-based invidiously discriminatory animus behind the conspirators’ action.”
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
Defendants argue that Phillips “fails to sufficiently allege ‘a purpose of depriving
a person or class of persons of equal protection of the laws.”’ (Citing Majeske, 94 F.3d at
311). We agree, and we dismiss Count I for two reasons. First, in his verified complaint,
Phillips asserts, without citing to any factual support, that Defendants “were motivated by
discriminatory based ethnocentrism.” As the Seventh Circuit held in Sung Park v.
Indiana University School of Dentistry, an unsupported legal conclusion is insufficient to
state a claim. 692 F.3d 828, 832 (7th Cir. 2012).
Second, Defendants argue that Phillips’ Section 1985(3) claim is also barred by
the intra-corporate conspiracy doctrine. The intra-corporate conspiracy doctrine—which
applies to large state agencies—holds that “a conspiracy cannot exist solely between the
members of the same entity.” See Payton v. Rush-Presbyterian-St. Luke’s Med. Cntr.,

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184 F.3d 623, 632 (7th Cir. 1999). Thus, employees of a government entity jointly
pursuing its business do not become “conspirators” under Section 1985 when acts within
the scope of their employment are alleged to be discriminatory or retaliatory. Wright v.
Ill. Dep’t of Children & Family Servs., 40 F.3d 1492, 1508–09 (7th Cir. 1994).
“[E]gregious circumstances” serve as an exception to the doctrine.

Id. at 1509. An

“egregious circumstance” arises: (i) “where corporate employees are shown to have been
motivated solely by personal bias,” and (ii) where “the conspiracy was part of some
broader discriminatory pattern . . . , or . . . permeated the ranks of the organization’s
employees.” Hartman v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 4 F.3d 465, 470–71
(7th Cir. 1993).
Here, Phillips claims that individual Defendants, in the course of their
employment with IDHS, conspired to transfer him to the Local Office without his consent
and in violation of the collective bargaining agreement. Defendants contend that this
action—an unwanted inter-office transfer—was not egregious. This Court concurs with
Defendants.
First, Phillips has not alleged that Defendants acted solely from personal bias.
Hartman F.3d at 470. The Ku Klux Klan incorporating to avoid conspiracy liability for
“carrying out acts of violence” is an example of personal bias. Travis v. Gary Cmty.
Mental Health Ctr., Inc., 921 F.2d 108, 110 (7th Cir. 1990). Nothing in Phillips’ verified
complaint suggests that level of egregiousness. Phillips also alleges in his verified
complaint that he was transferred for the innocent motive of “improve[ing] the

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performance” of the Kankakee Family Community Resource Center. Therefore, this
exception will not save Phillips’ conspiracy claims.
Second, Phillips has not alleged that the “conspiracy was part of some broader
discriminatory pattern” or “that it in any way permeated the ranks of the organization’s
employees.” Hartman, F.3d at 470. Phillips contends that he was subjected to an
unwanted inter-office transfer, along with verbal threats if he did not comply with the
transfer, which created a hostile work environment. However, in Cole v. Board of
Trustees of Northern Illinois University, this Court held that allegations that a handful of
officers had demoted and suspended the plaintiff, and created a hostile work environment
were insufficient to plausibly allege either a broad discriminatory pattern or that
discriminatory behavior had permeated the ranks of the organization’s employees. F.3d
925, 935 (N.D. IL 2014). Thus, this exception is of no benefit to Phillips and his
conspiracy claim. Accordingly, Count I is dismissed.
II.

42 U.S.C. § 1981(a)
Count II alleges a violation of Section 1981 against state actors. However, the

Seventh Circuit held in Campbell v. Forest Pres. District of Cook County that Section
1983 is the exclusive remedy for alleged violations brought against state actors. 752 F.3d
665, 671 (7th Cir. 2014).

Phillips, in response to Defendants’ motion to dismiss,

concedes that he cannot proceed on Count II. Because there is no private right of action
against Stricklin and Baxter under Section 1981, we dismiss Count II.

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III.

Intentional Infliction of Emotional Distress (IIED)
Under Illinois law, to establish a claim for IIED, Phillips must show that: (i)

Stricklin and Baxter’s conduct was truly extreme and outrageous; (ii) they intended to
inflict severe emotional distress or knew that there was a high probability that their
conduct would cause severe emotional distress; and (iii) their conduct did cause severe
emotional distress. See Harriston v. Chi. Tribune Co., 992 F.2d 697, 702 (7th Cir. 1993);
McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988). “[T]he tort does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” McGrath,
533 N.E.2d at 809.

“The conduct must go beyond all bounds of decency and be

considered intolerable in a civilized community.” Honaker v. Smith, 256 F.3d 477, 490
(7th Cir. 2016). To determine whether the conduct alleged is extreme and outrageous,
courts apply an objective standard. Lewis v. School Dist. #70, 523 F.3d 730, 747 (7th
Cir. 2008).
Phillips contends that Stricklin and Baxter’s conduct “was extreme and
outrageous, exceeding all bounds of human decency.” Specifically, Phillips claims that
he suffered serve emotional distress when Baxter instructed him to pack up his current
office and report to the Local Office. When Phillips refused to leave, he alleges that
Baxter threatened to involve the authorities and requested assistance from union
representatives at the Local Office.
Defendants argue that Phillips’ allegations do not rise to the level of conduct that
can be deemed extreme and outrageous. In support of their position, Defendants cite to

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Harriston v. Chicago Tribune Company.

992 F.2d 697, 703 (7th Cir. 1993).

In

Harriston, the Seventh Circuit held that the plaintiff failed to state a claim for IIED even
though she alleged that she was subjected to a continuous series of intentionally
discriminatory conduct, including: that the defendants reprimanded her for no reason,
refused to allow her to participate in a management incentive fund, forced her out of her
management position, took away her major accounts and gave her less lucrative accounts
in return, falsely accused her of having poor sales, threatened her with discipline,
excluded her from office activities, monitored her telephone calls with an eavesdropping
device, and ignored concerns for her health and safety after her personal property was
damaged on company premises. 992 F.2d at 703. The Court determined that these
allegations were “not so severe that a reasonable person could not be expected to endure
it, and it did not go beyond all possible bounds of decency.” Id. Phillips’ claims do not
reach the level of the conduct alleged in Harriston. Therefore, this Court concludes that
Stricklin and Baxter’s alleged conduct was not extreme and outrageous, and dismisses
Count III.
IV.

State Lawsuit Immunity Act
Defendants contend that Counts III and IV of Phillips’ verified complaint, alleging

state-law tort claims for IIED and negligence, are barred by the State Lawsuit Immunity
Act. 745 Ill. Comp. Stat. 5/1. Phillips fails to respond to Defendants’ argument. “The
Illinois State Lawsuit Immunity Act, provides that the State of Illinois is immune from
suit in any court, except as provided in the Illinois Court of Claims Act, 705 Ill. Comp.

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Stat. 505/8 (and other statutes not relevant here), which vests jurisdiction over state tort
claims against the state in the Illinois Court of Claims.” Richman v. Sheahan, 270 F.3d
430, 441 (7th Cir. 2001). “[S]tate rules of immunity are binding in federal court with
respect to state causes of action.” Omosegbon v. Wells, 335 F.3d 668, 673 (7th Cir. 2003)
(citations omitted).
The State Lawsuit Immunity Act bars Phillips from naming IDHS as a Defendant
in a state-law tort action before this Court. Furthermore, Phillips cannot evade sovereign
immunity by merely adding individual Defendants to his verified complaint. See Healy
v. Vaupel, 549 N.E.2d 1240, 1247 (Ill. 1990) (“[T]he prohibition ‘against making the
State of Illinois a party to a suit cannot be evaded by making an action nominally against
the servants or agents of the State’” (quoting Sass v. Kramer, 381 N.E.2d 975, 977 (Ill.
1978))). In determining whether an action is against the State itself, courts generally
consider whether: (i) there are no allegations that a State agent or employee acted beyond
the scope of his or her authority through wrongful acts; (ii) the duty alleged to have been
breached was not owed to the public generally independent of the fact of State
employment; and (iii) the complained-of actions involve matters ordinarily within that
employee’s normal and official functions of the State. Jinkins v. Lee, 807 N.E.2d 411,
418 (Ill. 2004). Furthermore, “[e]ven when these criteria are not met, a court must
consider the relief sought.” Welch, 751 N.E.2d at 1193. Sovereign immunity applies if a
judgment for the plaintiff could operate to control the actions of the State or subject it to
liability. Id.

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Here, Phillips alleges that Stricklin and Baxter assigned him diminished duties as a
manager, facilitated his transfer to another location, and threatened him with disciplinary
action upon his refusal to comply with the transfer. These allegations are directly tied to
Stricklin and Baxter’s authority as IDHS Administrators. Therefore, Phillips’ allegations
involve precisely the type of evaluation and personnel decisions that are within normal
and official supervisory job duties. See Cortright v. Doyle, 898 N.E.2d 1153, 1159-60
(Ill. App. Ct. 2008). Thus, Stricklin and Baxter were acting as agents of the State of
Illinois. For that reason, Count IV is dismissed.1
CONCLUSION
For the aforementioned reasons, the Court grants Defendants’ motion to dismiss.

Dated: 5/24/2017
_____________________________
Charles P. Kocoras
United States District Judge

1

While Count III was dismissed because Phillips did not state a claim for IIED, it is similarly
barred by the State Lawsuit Immunity Act.
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