Stephenson v. Andrabi et al
MEMORANDUM Opinion and Order: The defendants' motion to dismiss 8 is granted in part and denied in part. Stephenson's FLSA retaliation claims and intentional infliction of emotional distress claims are dismissed without prejudice. Signed by the Honorable Sharon Johnson Coleman on 2/14/2018. Mailed notice.(ym, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
TCC WIRELESS, LLC, and OMAR
) Case No. 17-cv-7258
) Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
The plaintiff, L’Oreal Stephenson, brings this action against her former employer, TCC
Wireless, LLC (“TCC”), and her former supervisor, Omar Andrabi. Stephenson alleges that the
defendants failed to pay her overtime and retaliated against her in violation of the Fair Labor
Standards Act, 29 U.S.C. 201 et seq., discriminated against her and constructively discharged her in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and intentionally
inflicted emotional distress on her in violation of Illinois law. The defendants now move to dismiss
the Fair Labor Standards Act claims against Andrabi, to dismiss Stephenson’s Fair Labor Standards
Act retaliation claim against both defendants, and to dismiss Stephenson’s intentional infliction of
emotional distress claim for failure to state a claim on which relief may be granted. For the reasons
set forth herein, that motion  is granted in part and denied in part.
The following facts are taken from Stephenson’s complaint and are accepted as true for the
purpose of ruling on the present motion. TCC is an Illinois corporation that operates T-Mobile
retail stores in Illinois. Each store is supervised by a Retail Sales Manager (“store manager”), who
reports to TCC’s district managers. On February 20, 2017, Stephenson was hired to be a store
manager at TCC’s Chicago Heights location. Before beginning her job, Stephenson was required to
attend a mandatory month-long off-site training, which she completed on March 20, 2017. Andrabi
became Stephenson’s district manager in March 2017. In March, April, and May, Stephenson
performed her duties without criticism. Nevertheless, on June 1, 2017, Andrabi placed Stephenson
on a performance improvement plan (“PIP”) and demoted her to assistant manager at a different
store location, which reduced her salary by $14,000 and doubled the distance of her commute.
Among other things, the PIP accused Stephenson of being responsible for declining sales in
February and March 2017, notwithstanding the fact that Stephenson did not assume her duties at the
Chicago Heights store until March 20, 2017. Stephenson ultimately chose to resign because she had
a small child and could not accommodate the pay reduction and change in her commute.
During the course of her employment, Stephenson worked in excess of 40 hours a week, but
did not receive overtime pay. The Court takes judicial notice of the fact that, in December 2016, a
FLSA collective action was filed in this district against TCC concerning TCC’s failure to pay store
managers and assistant store managers overtime. Wolfe v. TCC Wireless, LLC, 16-cv-11663. An
amended complaint in that action was filed on March 14, 2017. Stephenson, as a store manager, was
a potential member of the putative class in that case.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint, not the merits of the allegations. The allegations must contain
sufficient factual material to raise a plausible right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 569 n.14, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although Rule 8 does not require a plaintiff
to plead particularized facts, the complaint must allege factual “allegations that raise a right to relief
above the speculative level.” Arnett v. Webster, 658 F.3d 742, 751–52 (7th Cir. 2011). Put differently,
Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the2
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009), see also Fed. R. Civ. P. 8(a). When ruling on a motion to dismiss, the Court
must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable
inferences in the plaintiff’s favor. Park v. Ind. Univ. Sch. of Dentistry, 692 F.3d 828, 830 (7th Cir.
The defendants first contend that Stephenson has failed to state a claim for Fair Labor
Standards Act (FLSA) violations against Andrabi because Andrabi is not an “employer” subject to
the FLSA. The FLSA requires employers to pay certain employees overtime compensation of one
and one-half times their normal wages for work in excess of 40 hours per week. 29 U.S.C. § 207(a).
The FLSA defines “employer” to encompass “any person acting directly or indirectly in the interest
of an employer in relation to an employee . . .” 29 U.S.C. § 203. “Employer” thus is defined broadly
enough to include other employees, so long as they had supervisory authority over the complaining
employee and were responsible, in whole or in part, for the alleged violation. Riordan v. Kempiners,
831 F.2d 690, 694 (7th Cir. 1987). The pertinent question is whether the alleged employer exercised
control over the working conditions of the employee. Moldenhauer v. Tazewell-Pekin Consol. Commc’ns
Ctr., 536 F.3d 640, 644 (7th Cir. 2008). In determining this, courts consider whether the alleged
employer had the power to hire and fire employees, supervised and controlled employee work
schedules or conditions, determined the rate and method of payment, and maintained employment
records. Id. Here, Stephenson alleges that Andrabi exercised considerable control over Defendant
TCC’s operations, making him an “employer” subject to FLSA liability” This otherwise conclusory
claim is supported by Stephenson’s factual allegations that Andrabi issued her a PIP, demoted her,
and moved her to a different location and a lower salary. These factual allegations are adequate to
suggest, at this point in the proceedings, that Andrabi exercised sufficient control over Stephenson’s
working conditions to constitute an employer under the Act.
The defendants also contend that Stephenson cannot state a claim for FLSA retaliation. In
order to state a claim for retaliation under the FLSA, a plaintiff must allege (1) that she engaged in a
legally protected activity, (2) that she suffered an adverse employment action, and (3) a causal
connection between the protected activity and the adverse action. Kasten v. Saint-Gobain Performance
Plastics Corp., 703 F.3d 966, 972 (7th Cir. 2012). The anti-retaliation provision of the FLSA
specifically protects employees who “ha[ve] filed any complaint or instituted or caused to be
instituted any proceeding under or related to this Act.” 29 U.S.C. § 215(a)(3). This provision has
been interpreted to include oral complaints, because such complaints provide “fair notice” to the
employer that a complaint has been made. Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1,
14, 131 S.Ct. 1325, 179 L.Ed.2d 379 (2011). Here, Stephenson alleges that her constructive
termination was in retaliation for her status as a putative class member in the not-yet-conditionallycertified class in Wolfe.
Stephenson, however, offers no legal authority establishing that putative class membership
constitutes a legally protected activity under the FLSA.1 Putative class members, unlike named
plaintiffs or even opt-in plaintiffs, cannot be said to have filed a complaint or instituted any
proceeding. Nor can they be said to have taken an action which would provide notice of a complaint
to their employer. Indeed, putative class members often are not aware of their status as such,
especially prior to the issuance of notice. By definition, a protected activity requires some form of
affirmative act protected by the statute that provides fair notice to the employer. Stephenson has
Stephenson notes that the right to bring class actions is a protected “concerted activity” under the National Labor
Relations Act. See Herrington v. Waterstone Mortg. Corp., No. 11-cv-779-bbc, 2012 WL 1242318, at *3-4 (W.D. Wis. March
16, 2012). The NLRA’s protections for collective actions, however, are not comparable to the FLSA’s anti-retaliation
provision, and Stephenson has offered no compelling argument or legal authority justifying adopting NLRA caselaw to
the present context.
failed to establish that potential membership in a putative class satisfies this requirement, and
accordingly fails to state a claim for FLSA retaliation.
Finally, the defendants contend that Stephenson has failed to state a claim for intentional
infliction of emotional distress. In order to state a claim for intentional infliction of emotional
distress under Illinois law, a plaintiff must allege that (1) the defendant’s conduct was extreme and
outrageous, (2) the defendant intended that his conduct should inflict severe emotional distress or
knew that there was a high probability that it would do so, and (3) the conduct in question in fact
caused severe emotional distress. Cook v. Winfrey, 141 F.3d 322, 330 (7th Cir. 1998). The emotional
distress inflicted must be severe, such that no reasonable person could be expected to endure it.
Public Fin. Corp. v. Davis, 360 N.E.2d 765, 767, 66 Ill.2d 85 (1976). Illinois courts limit recovery for
intentional infliction of emotional distress in the employment context to instances where an
employer has engaged in truly egregious conduct, because “personality conflicts and questioning of
job performance are unavoidable aspects of employment and . . . frequently . . . product concern and
distress.” Richards v. U.S. Steel, 869 F.3d 557, 567 (7th Cir. 2017) (quoting Van Stan v. Fancy Colours
& Co., 125 F.3d 563, 567 (7th Cir. 1997)). “As a result, courts are hesitant to conclude that conduct
is extreme and outrageous in the employer-employee context unless an ‘employer clearly abuses the
power it holds over an employee in a manner far more severe than the typical disagreements or jobrelated stress caused by the average work environment.'” Richards, 869 F.3d at 567 (quoting Naeem v.
Mckesson Drug Co., 444 F.3d 593, 605 (7th Cir. 2006) (internal quotation marks omitted)).
Stephenson alleges that she was demoted without cause, and that, as a result of said
demotion, her salary was cut and her commute lengthened. She further alleges that these events
caused her humiliation and distress and made her continued employment untenable. Such
allegations are regrettable, but they do not, alone or in combination, rise to the level of extreme and
outrageous conduct capable of giving rise to an intentional infliction of emotional distress claim. Id.
For the foregoing reasons, the defendants’ motion to dismiss  is granted in part and
denied in part. Stephenson’s FLSA retaliation claims and intentional infliction of emotional distress
claims are dismissed without prejudice.
Sharon Johnson Coleman
United States District Court Judge
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