Worthington v. JJ Severson Affiliates, Inc. et al

Filing 31

MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 1/24/2017: Granting Defendants' partial motions to dismiss 15 , 19 .Mailed notice (mw,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JUSTIN L. WORTHINGTON,

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Plaintiff,
v.
JJ SEVERSON AFFILIATES, INC.,
et al.,
Defendants.

No. 16 C 8573

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ partial motions to dismiss. For
the reasons stated below, the partial motions to dismiss are granted.

BACKGROUND
Plaintiff Justin T. Worthington (Worthington) alleges that he is of Native
American ancestry. In June 2012, Worthington allegedly was employed by
Defendant Jimmy John’s Franchise, LLC at a restaurant in Skokie, Illinois.
Worthington contends that he started as a delivery driver and earned promotions to
the positions of General Manager and Area Manager. Alex Salisbury (Salisbury) and
Harry Therault (Therault) were allegedly Worthington’s direct supervisors.
Worthington contends that Salisbury and Therault repeatedly made remarks and
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jokes about racial stereotypes, ethnic stereotypes, sex and gender stereotypes, and
other groups of individuals. When Worthington became General Manager, Salisbury
and Therault allegedly increased the frequency of their alleged inappropriate conduct
in Worthington’s presence. Salisbury and Therault allegedly began reprimanding
and publicly humiliating Worthington for minor errors and referred to Worthington
by derogatory racial terms and other inappropriate terms. In the summer of 2014,
Worthington claims he could not longer put up with the alleged harassment and he
became withdrawn and less inclined to engage in any conversation or banter with
Salisbury or Therault. Worthington contends that, as a result, in July 2014 he was
demoted and then constructively discharged. Worthington includes in his complaint
claims alleging race discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 (Section 1981)
(Count I), Title VII and Section 1981 color discrimination claims, (Count II), Title
VII and Section 1981 national origin discrimination claim (Count III), Title VII and
Section 1981 hostile work environment claims based on race (Count IV), Title VII
and Section 1981 hostile work environment claims based on color (Count V), and
Title VII and Section 1981 hostile work environment claims based on national origin
(Count VI). Defendants move to dismiss the Title VII color and national origin
discrimination claims and the Title VII hostile work environment claims based on
color and national origin. Defendants also move to dismiss the claims brought
against individual Defendants Brooke Severson and Todd Severson (collectively
referred to as “Individual Defendants”).
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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 the 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, 127 S.Ct. 1955, 1965 (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))(internal quotations
omitted).

DISCUSSION
Defendants argue that the Title VII claims cannot be brought against
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Individual Defendants and that Worthington has not exhausted his administrative
remedies in regard to his Title VII claims premised on his color and national origin.

I. Individual Defendants
Defendants argue that the Individual Defendants cannot be sued in the
personal capacity under Title VII. Title VII does not provide for individual liability
against individuals who are not an employer. See Passananti v. Cook Cty., 689 F.3d
655, 662 (7th Cir. 2012)(stating that “Title VII authorizes suit only against the
employee” and that “[i]ndividual people who are agents of the employer cannot be
sued as employers under Title VII”). Worthington does not allege that Individual
Defendants were his employer and thus they cannot be held liable under Title VII in
their individual capacities. Worthington concedes this point in response to the
instant motion. (Resp. 2 n.1). Therefore, Defendants’ motion to dismiss the claims
brought against Individual Defendants is granted.

II. Exhaustion of Administrative Remedies
Defendants contend that Worthington has not exhausted his administrative
remedies in regard to his Title VII claims premised on his color and national origin
by filing a charge with the Equal Employment Opportunity Commission (EEOC). A
plaintiff seeking to bring a Title VII claim in Illinois must first file a charge with the
EEOC and exhaust the available administrative remedies. Huri v. Office of the Chief
Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 831 (7th Cir. 2015). In
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addition to bringing Title VII claims that fall within the scope of the EEOC charge, a
plaintiff can also file claims that are not specifically referenced in the EEOC charge
if there is “a reasonable relationship between the allegations in the charge and the
claims in the complaint, and the claim in the complaint can reasonably be expected to
grow out of an EEOC investigation of the allegations in the charge.” Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1030 (7th Cir. 2013)(internal quotations
omitted)(quoting Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th
Cir. 1994)); see also Gul-E-Rana Mirza v. The Neiman Marcus Grp., Inc., 649 F.
Supp. 2d 837, 854 (N.D. Ill. 2009)(stating that “[t]o determine whether the
allegations in the complaint fall within the scope of the earlier EEOC charge, a court
must decide whether the allegations are like or reasonably related to those contained
in the [EEOC] charge”)(internal quotations omitted)(quoting Kersting v. Wal-Mart
Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001)).
Worthington filed a charge with the EEOC (Charge). The EEOC charge form
used by Worthington made clear to him that race, color, and national origin
discrimination are entirely distinct forms of discrimination. The form provides a box
to check for “Race,” “Color,” and “National Origin” as bases for discrimination. Of
the three, Worthington only checked the race discrimination box. Nor does
Worthington’s own words suggest color or national origin discrimination. In the
Charge, Worthington stated that he was “racially harassed and sexually harassed.”
(EEOC 1). Worthington checked boxes indicating discrimination based on his race
and sex and indicating he was retaliated against by his employer. (EEOC 1).
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Worthington also stated that he “believe[d] that [he was] discriminated against
because of [his] race, Native American, and sex, male, and in retaliation for engaging
in a protected activity. . . .” (EEOC 1). Worthington failed to reference any
discrimination or harassment based on his color or national origin and thus he failed
to properly raise such claims before the EEOC. Nor has Worthington shown that the
color or national origin discrimination claims are reasonably related to his race
discrimination claim, which is an entirely separate and distinct form of
discrimination. Worthington has also failed to show that the color or national origin
discrimination claims could have been reasonably expected to grow out of an EEOC
investigation of the alleged race discrimination.
Worthington contends that the EEOC Interview Summary in his EEOC
investigation (Summary) shows that certain statements allegedly made by Salisbury
and Therault related to Worthington’s color and national origin. However, still
Worthington failed to specify that he was asserting such discrimination in the
Charge. The Seventh Circuit has explained that “[t]he primary purpose of the EEOC
charge requirement is twofold: it gives the EEOC and the employer a chance to settle
the dispute, and it gives the employer notice of the employee’s grievances.” Huri,
804 F.3d at 831. The Summary appears to be only an informal document prepared
during the investigation. There is no indication that Defendants would have had
notice of the Summary in a timely manner that would have enabled them to address
settlement issues. Nor would the fact that some statements were listed in records
during the investigation be sufficient to alert Defendants to the fact that Worthington
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was expanding his claims. The Summary was not prepared by Worthington and he
did not swear to the accuracy of the facts in the Summary. It would be an
unreasonable burden and a waste of resources to impose on employers to require
them to continually sift through all EEOC investigation records and speculate as to
whether the bases for a plaintiff’s discrimination claims have shifted or expanded.
The court also notes that even if Defendants had notice of the Summary and read the
alleged statements in the Summary, the Summary concludes the section with the
statements by stating that Worthington “believes he was discriminated against
because of his race, Native American, sex, male and in retaliation for engaging in a
protected activity.” (Summary 1). Thus, even if Defendants had been given the
Summary, they would not have had a reasonable basis to conclude that Worthington
was expanding his claims.
Worthington had an opportunity to make his claims clear on the form and he
did so, by his selection of checked boxes and by stating the basis of his claims in his
own words. He cannot now, in retrospect, change that decision and find new bases
for discrimination. Such a result would defeat the purpose of requiring plaintiffs to
seek administrative remedies before resorting to civil litigation. Therefore,
Worthington has failed to exhaust his administrative remedies in regard to his Title
VII color and national origin based claims and Defendants’ motion to dismiss such
claims is granted.

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CONCLUSION
Based on the foregoing analysis, Defendants’ partial motions to dismiss are
granted.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: January 24, 2017

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