Betts v. Option Care Enterprises, Inc. et al
Filing
67
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 1/15/2019. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LISA BETTS,
Plaintiff,
Case No. 18-cv-4023
v.
OPTION CARE ENTERPRISES, INC.,
et al.
Judge John Robert Blakey
Defendant.
MEMORANDUM OPINION AND ORDER
In 2004, Plaintiff Lisa Betts, a doctor of pharmacy and 25-year veteran of the
medical field, co-founded a company specializing in immune globulin therapy. The
company achieved great success.
In 2009, she sold that company to Walgreen
Company (Walgreens), which then in 2015 sold its majority interest to Madison
Dearborn Partners (MDP). Throughout these ownership changes, Plaintiff remained
at the company and continued to grow the product lines she oversaw. Then, on April
18, 2017, the company she co-founded more than a decade earlier, abruptly fired her.
Plaintiff now sues that company, Option Care, as well as Walgreens and MDP,
alleging that Defendants discriminated against her because of her gender and
wrongfully terminated her employment, in violation of various federal and state laws.
Defendants move to dismiss [38] [41] [44]. For the reasons explained below, this
Court denies Defendants’ motions.
1
I.
The Complaint’s Allegations 1
A.
Plaintiff’s Background
Plaintiff, who has a doctorate degree in pharmacy, has spent over 25 years
working in the medical field. [35] ¶ 9. In 2004, Plaintiff co-founded one of Option
Care’s predecessor companies, a home infusion company specializing in immune
globulin (IG) therapy.
Id. ¶¶ 9–10.
That company achieved financial success,
generating $30 million in annual revenue within five years. Id. ¶ 10.
In 2009, Walgreens purchased Plaintiff’s company and requested Plaintiff and
her business partner stay on for at least two years to oversee its continued success
(the two-year retention period). Id. ¶ 11. Walgreens operated the company under
the name “Walgreens Infusion Services.” Id. During the two-year retention period,
Plaintiff served as the General Manager for the company’s Lombard facility; in that
role, she oversaw operations and helped grow the IG program into the largest
revenue-generating infusible therapy for the company. Id. ¶ 13.
Following the two-year retention period, Plaintiff became the National
Director of IG, and in that role, oversaw all operations and sales for IG therapy. Id.
¶ 14. The company’s revenues grew from $64 million each year to $420 million each
year. Id. ¶ 15. Plaintiff also grew the two product lines she oversaw and created and
designed a data outcome IG software program, which she published in the Journal of
Neurology. Id. ¶ 16.
1
This Court takes these alleged facts from Plaintiff’s amended complaint [35].
2
In 2015, Walgreens sold its majority ownership interest in the company to
MDP (a private equity firm), retaining a minority interest. Id. ¶¶ 7, 12. After this
sale, the company’s new name became “Option Care.” Id. ¶ 12.
B.
The Alleged Discriminatory Conduct
Plaintiff asserts that, despite her accomplishments and contributions to the
company, Defendants discriminated against her because of her gender. Id. ¶ 19.
Plaintiff alleges that Defendants’ discrimination included:
● In September 2016, Option Care replaced Plaintiff with a male
employee, Steven Hess, to fill a position Plaintiff held since 2009.
Option Care paid Hess, who was less qualified than Plaintiff and had no
experience in IG or infusion drugs, more than it paid Plaintiff for the
same work. Upon hiring him, Option Care immediately gave Hess the
more prestigious title of “Vice President,” whereas Plaintiff held the
subordinate title of “Director.” Id. ¶¶ 21–23.
● Plaintiff interviewed Hess when Option Care considered hiring him.
During the interview, Hess repeatedly disparaged another female
employee. When Plaintiff voiced concern to her direct supervisor, Chief
Operations Officer John Rademacher, he ignored her concerns. Id. ¶ 24.
● Hess engaged in gross misconduct, including sexual harassment,
without repercussion. For instance, Hess told Plaintiff that he wanted
to “spoon” with her. On another occasion, in the presence of another
employee, Hess said that he and Plaintiff were “going to make love.”
3
Another employee witnessed the latter comment and reported it to her
supervisor. Id. ¶ 24.
● Hess undermined Plaintiff’s authority and standing, ignoring Plaintiff’s
calls, text messages and emails. He did not treat male colleagues in a
similar manner. Id. ¶ 25.
● Once Option Care removed Plaintiff from her position that it ultimately
gave Hess, Option Care held her to unreasonable performance
expectations. Specifically, Option Care told Plaintiff it expected her to
increase revenues by over 15% within the next calendar year, under
threat of termination, even though no one had ever attained that level
of growth within one fiscal year. Further, Option Care made several
decisions in 2017 that interfered with Plaintiff’s efforts to increase
revenues, including, for example, taking actions that decreased the
company’s market share. Id. ¶¶ 27–30.
● Option Care criticized Plaintiff on a weekly basis when revenue did not
grow at the high rate it set; when Plaintiff tried to discuss the issues
with Rademacher, he was dismissive and disinterested in addressing
them. Plaintiff also unsuccessfully attempted to discuss the issues with
CFO Mike Shapiro, who told her he had no time to speak with her, and
CEO Paul Mastrapa, who told Plaintiff she was being defensive. Id. ¶
32.
4
● Further, while holding Plaintiff to high performance expectations not
similarly placed upon men, Option Care took away Plaintiff’s
administrative support staff. Option Care also took away Plaintiff’s
office in Lombard and gave it to Hess, forcing Plaintiff to work in
Bannockburn, even though it was a 1–2 hour drive from her home. In
contrast, Hess had the option of working at either location on a day-today basis. Id. ¶ 33.
● In fall 2016, Plaintiff asked Ted Raad, Option Care’s Chief Commercial
Officer, for a raise, but Raad asked her why she needed more money
since she had done well after selling her company to Option Care.
Similarly, in October 2015, Mastrapa commented on Plaintiff’s
continuing to work when she did not need the money. These executives
did not direct such comments to male employees who chose to work but
did not need to do so. Id. ¶¶ 35–37.
● Between 2009 and 2016, Plaintiff did not receive a single meaningful
pay raise. Upon Plaintiff’s information and belief, similarly situated
men received better pay and meaningful raises over the years. Further,
Plaintiff did not receive an opportunity to invest in the company when
Walgreens sold its majority interest to MDP in 2015, even though lowerlevel employees and Plaintiff’s former partner—a male—received such
opportunities. Id. ¶¶ 38–39.
5
In addition to Plaintiff, Hess directed discriminatory conduct toward other
employees. For instance, Hess made sexually explicit comments to at least one other
female employee. Id. ¶ 24. He asked that female employee about her boyfriend and
then, while making an obscene gesture with his hand and fingers, said, “Oh, you have
a fuck buddy.” Id. When the female employee expressed offense, Hess said, “We’re
at an after-hours event so you can’t report me, plus I’m good friends with [the Senior
Vice President of] Human Resources.” Id.
Further, at a business meeting which Plaintiff attended, Hess mocked an
Asian employee for her accent; that Asian employee teared up and told Hess that she
did not think Human Resources would like what he just did to her. Id. Hess
responded by telling the Asian employee that he was friends with the Senior Vice
President of Human Resources. Id.
And, at yet another business meeting, Hess mimicked a disabled person by
twitching his body and making offensive facial expressions. Id.
C.
Plaintiff’s Complaints
Plaintiff protested Hess’ conduct to him directly when she worked with him.
Id. ¶ 50. Plaintiff also reported unlawful discrimination to Rademacher in February
2017, describing to him Hess’ discriminatory and sexually harassing conduct toward
her and other women. Id. ¶ 51. After speaking with Rademacher, Plaintiff reported
unlawful discrimination to Mastrapa in late February 2017. Id. ¶ 52.
Plaintiff also told both Rademacher and Mastrapa that other employees were
afraid to come forward because of Hess’ close friendship with Mike Rude, the Senior
6
Vice President of Human Resources. Id. ¶¶ 24, 45, 53. Plaintiff told them that Hess
frequently bragged about being connected to Human Resources and said that he
would never get in trouble for what he did. Id. ¶ 53. Plaintiff also voiced concerns to
both
Rademacher
and
Mastrapa
about
other
incidents,
including
Hess’
discriminatory conduct toward an Asian employee and mimicking a disabled person.
Id. ¶ 54. Despite Plaintiff’s complaints, Rademacher told Plaintiff she needed to
figure out a way to get along with Hess. Id. ¶ 55. And, although Mastrapa said he
would look into Plaintiff’s concerns, he took no disciplinary action against Hess. Id.
Plaintiff also reported other discriminatory conduct that occurred during her
employment. In late 2016, Plaintiff spoke to Rademacher to protest Option Care’s
decision to fire a female employee because of the costs associated with insuring her
sick children. Id. ¶ 56. Plaintiff asked Rademacher why the company fired her rather
than a male employee when that woman was paid less than the male but performed
better; Rademacher was furious with Plaintiff for challenging the termination. Id.
Plaintiff also spoke with Rude in October 2016 about a male employee who
used company property to exchange sexually explicit text messages with a woman.
Id. ¶¶ 44, 57. That male employee’s messages, which included statements such as a
reference to a “kissable” vagina, were included in a group text to various clients of
Defendants. Id. When Plaintiff spoke with Rude about this incident, she told him
she had a copy of the text messages. Id. ¶ 57. Rude told Plaintiff to delete the text
messages. Id.
7
On other occasions, Plaintiff complained about her wages. Id. ¶ 58. For
example, in late 2015, when Plaintiff discovered she had been denied the opportunity
to invest in Option Care when other men were allowed to do so, she complained to
Raad, who then reported Plaintiff’s concerns to Rude. Id.
Similarly, in fall 2016, Plaintiff asked Rademacher for a raise; and, while she
ultimately received a nominal raise, her salary remained well below that of other
similarly situated men. Id. Rademacher lied to her that her new salary was “very
close” to Hess’ salary. Id. Rademacher then threatened Plaintiff with termination if
she wanted more. Id.
D.
Plaintiff’s Termination
On April 18, 2017, Defendants fired Plaintiff. Id. ¶ 59. At that time, Mastrapa
told Plaintiff that her “heart is not in it anymore.” Id. ¶ 61. Plaintiff asserts that
this reason is completely pretextual, given her outstanding job performance and
dedication. Id. ¶ 62. Plaintiff had been recently recognized at the area Vice President
meeting for being “passionate and engaged,” and had received a plaque praising her
engagement, excellence, and quality.
Id. ¶ 63.
Likewise, in early 2017, before
Plaintiff complained about gender discrimination and sexual harassment,
Rademacher gave Plaintiff a performance evaluation in which he found her work
“completed satisfactorily.” Id. ¶ 17.
Defendants subsequently offered different and inconsistent reasons for
terminating Plaintiff. Id. ¶ 64. They said they fired Plaintiff due to “a reduction in
8
force,” but then they claimed they fired Plaintiff for “poor performance, as a result of
Option Care losing market share under her leadership.” Id. ¶ 65.
Then, Option Care threatened to enforce a non-compete agreement that
Plaintiff signed during her employment. Id. ¶ 69. They threatened Plaintiff with the
agreement immediately upon firing her and repeated the threat after she retained
counsel and expressed her intent to pursue legal claims. Id. Plaintiff alleges upon
information and belief that Defendants did not similarly threaten male employees
who did not complain about discrimination when they left the company, including
Hess, who left the company in 2017 to work for a competitor. Id. ¶ 70.
E.
Walgreens and MDP
From the beginning of Plaintiff’s employment in 2009 until 2015, Walgreens
owned 100% of Option Care; after 2015, it owned 49%. Id. ¶ 73. From 2015 on, MDP
has owned 51% of Option Care. Id. ¶ 74.
Walgreens set Plaintiff’s salary when it bought her company and hired her in
2009. Id. ¶ 75. Walgreens also placed Plaintiff in charge of operations at its Lombard,
Illinois facility. Id. Further, up until 2015, Walgreens exclusively made all decisions
regarding Plaintiff’s employment and compensation. Id. ¶ 77.
In 2015, when MDP acquired Option Care, it offered an equity buy-in to lower
level male employees but not to Plaintiff. Id. ¶ 80. MDP also set Plaintiff’s sales
goals for 2017. Id. ¶ 82.
Option Care’s board of directors (board) discusses its liabilities and internal
issues, including various employment matters. Id. ¶ 79. Since 2015, Walgreens’ and
9
MDP’s employees have comprised Option Care’s board. Id. ¶¶ 77–78. Further,
Option Care’s CEO Mastrapa—who fired Plaintiff—was at all relevant times a
member of MDP’s board and reported directly to MDP. Id. ¶ 78.
F.
Administrative Charges
Plaintiff filed charges for discrimination and unlawful retaliation against
Defendants with the EEOC on August 3, 2017. Id. ¶ 87. The EEOC issued Plaintiff
a Notice of Right to Sue on February 26, 2018. Id. ¶ 88. The EEOC also cross-filed
Plaintiff’s discrimination charge with the Illinois Department of Human Resources
(IDHR), and the IDHR adopted the EEOC’s determination on May 29, 2018. Id. ¶ 89.
G.
The Amended Complaint’s Causes of Action
Plaintiff brings a nine-count amended complaint. See [35]. She asserts claims
against all Defendants for: (1) sex discrimination in violation of Title VII (Count I);
(2) retaliation in violation of Title VII (Count II); (3) violation of the federal Equal
Pay Act (federal EPA) (Count III); (4) retaliation in violation of the federal EPA
(Count IV); (5) sex discrimination in violation of the Illinois Human Rights Act
(IHRA) (Count V); (6) retaliation in violation of the IHRA (Count VI); (7) violation of
the Illinois Equal Pay Act (IEPA) (Count VII); (8) retaliation in violation of 42 U.S.C.
§ 1981 (Count VIII); and (9) retaliation in violation of the Americans with Disabilities
Act (ADA) (Count IX). Id.
II.
Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide
a “short and plain statement of the claim” showing that the pleader merits relief, Fed.
10
R. Civ. P. 8(a)(2), so the defendant has “fair notice” of the claim “and the grounds
upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A complaint must also contain “sufficient factual matter” to state a facially
plausible claim to relief—one that “allows the court to draw the reasonable inference”
that the defendant committed the alleged misconduct. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570). This plausibility standard “asks
for more than a sheer possibility” that a defendant acted unlawfully. Iqbal, 556 U.S.
at 678.
In evaluating a complaint under Rule 12(b)(6), this Court accepts all well-
pleaded allegations as true and draws all reasonable inferences in the plaintiff’s
favor. Id. This Court does not, however, accept a complaint’s legal conclusions as
true. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
III.
Analysis
Walgreens and MDP move to dismiss on the basis that Plaintiff fails to
sufficiently plead an employment relationship with either party. [38] [44].
Additionally, all three Defendants move to dismiss Plaintiff’s amended complaint on
various substantive grounds. [41]. This Court addresses each motion in turn below.
A.
Walgreens and MDP
Walgreens and MDP seek dismissal on the basis that Option Care was
Plaintiff’s sole employer during the relevant time period, and thus that Plaintiff
cannot recover against either of them. [38] [44]. Plaintiff does not dispute that
liability against those parties depends upon an employment relationship, but
11
maintains that both of those defendants exercised sufficient power and control over
Plaintiff’s employment to incur liability. See [58] at 4–5; [59] at 4–5.
1.
Definition of “Employer”
At the outset, this Court sets forth how each relevant cause of action defines
an employer-employee relationship.
Title VII, the ADA, and Section 1981.
Counts I and II allege Title VII
violations; Count IX alleges an ADA violation; and Count XIII alleges unlawful
retaliation under 42 U.S.C. § 1981. [35] at 21, 25, 26. Both Title VII and the ADA
define “employer” as “a person engaged in an industry affecting commerce who has
fifteen or more employees for each working day in each of twenty or more calendar
weeks in the current or preceding calendar year, and any agent of such a person.” 42
U.S.C. § 2000e(b); 42 U.S.C.A. § 12111(5)(A). Further, the same standards apply to
Title VII and § 1981 discrimination and retaliation claims. Baines v. Walgreen Co.,
863 F.3d 656, 661 (7th Cir. 2017). This Court thus looks to Title VII case law
regarding the definition of “employer” for Plaintiff’s Title VII, ADA, and Section 1981
claims.
It is well-settled that “multiple entities may be considered an employee’s
‘employer’ for the purposes of Title VII liability.” Tamayo v. Blagojevich, 526 F.3d
1074, 1088 (7th Cir. 2008). An affiliated corporation may be considered an employer
under Title VII, in addition to the direct employer, if the affiliate “directed the
discriminatory act, practice, or policy of which the employee is complaining.” Id.
(quoting Worth v. Tyer, 276 F.3d 249, 260 (7th Cir. 2001)). A defendant may also be
12
considered a “de facto or indirect employer” if there is evidence that the defendant
“controlled the plaintiff’s employment relationship.” EEOC v. Illinois, 69 F.3d 167,
169 (7th Cir. 1995). To determine whether there existed an employer-employee
relationship, courts “look to the economic realities of the work situation.” Bridge v.
New Holland Logansport, Inc., 815 F.3d 356, 361 (7th Cir. 2016).
Federal EPA and IEPA. Counts III and IV assert that Defendants violated the
federal EPA. [35] at 22–23. Like Title VII and the ADA, the federal EPA expressly
contemplates that multiple entities may be employers. Tamayo, 526 F.3d at 1088; 29
U.S.C. § 203(d). The federal EPA defines “employer” as “any person acting directly
or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. §
203(d). Similar to Title VII claims, courts look to the “economic reality” of a situation
to determine the existence of an employer-employee relationship under the federal
EPA, including considering the degree of control the purported employer asserted.
Estate of Suskovich v. Anthem Health Plans of Va., Inc., 553 F.3d 559, 565 (7th Cir.
2009).
Count VII alleges an IEPA violation. [35] at 24. Under the IEPA, “‘employer’
means an individual, partnership, corporation, association, business, trust, person,
or entity for whom 4 or more employees are gainfully employed in Illinois.”
820 ILCS 112/5. Illinois courts look to common law to interpret the IEPA’s definition
of “employer,” and under the common law, “the most important factor . . . is whether
it has the right to control the manner and method in which the work is to be carried
13
out.” Delgado v. Life Time Fitness, Inc., 2012 IL App (2d) 110464-U, ¶ 33 (quoting
Landers-Scelfo v. Corp. Office Sys., Inc., 827 N.E.2d 1051, 1060 (Ill. App. Ct. 2005)).
IHRA.
Counts V and VI allege violations under the IHRA.
The IHRA
imposes liability upon “employers,” defined in relevant part as any “person employing
15 or more employees within Illinois during 20 or more calendar weeks within the
calendar year of or preceding the alleged violation.” 775 ILCS 5/2-101(B)(1)(a). Like
the IEPA, courts look to common law factors, including “control of the manner in
which work is done” in assessing the existence of an employment relationship.
Mitchell v. Dep’t of Corr., 856 N.E.2d 593, 598 (Ill. App. Ct. 2006).
2.
Walgreens and MDP Plausibly Meet the Definition of
“Employer”
As explained above, as to every cause of action under which Plaintiff seeks
relief, whether a party meets the definition of “employer” depends primarily upon
whether it exerts control over a plaintiff’s conditions of employment.
Plaintiff sufficiently alleges that Walgreens and MDP controlled her
employment. For Walgreens, she pleads that, up until 2015, Walgreens exclusively
made all decisions regarding her employment and compensation.
[35] ¶ 77.
Additionally, after Walgreens sold its majority interest to MDP in 2015, its employees
partially comprised Option Care’s board, which made decisions on Option Care’s
internal issues, including employment matters. Id. ¶¶ 75, 77.
Further, Plaintiff alleges that, due to its majority ownership since 2015, MDP
has been actively involved with Option Care and its operations, and that MDP
employees comprise a majority of Option Care’s board. Id. ¶ 78. And importantly,
14
Mastrapa—Option Care’s CEO who fired Plaintiff—was at all relevant times a
member of MDP’s board and reported directly to MDP. Id.
These allegations plausibly allege that Walgreens and MDP exerted sufficient
control over Option Care’s employment decisions and that both entities had the key
powers to hire and fire. See Harris v. Allen Cty. Bd. of Commissioners, 890 F.3d 680,
684 (7th Cir. 2018) (noting in the context of an ADA employment discrimination case
that the “key control powers are those of hiring and firing.”) (internal quotation
omitted); see also Tamayo, 526 F.3d at 1088 (allegations that defendant exerted
sufficient control over the plaintiff’s conditions of employment were sufficient to avoid
dismissal of Title VII and federal EPA claims). Thus, this Court finds that Plaintiff
plausibly alleges employment relationships with both Walgreens and MDP and
denies Walgreens’ and MDP’s motions to dismiss. See, e.g., Brown v. Cook Cty., No.
17 C 8085, 2018 WL 3122174, at *7 (N.D. Ill. June 26, 2018) (collecting employment
discrimination cases declining to dismiss claims without a full factual record to
illuminate the exact extent of an employment relationship).
B.
Defendants’ Motion to Dismiss
This Court turns next to Defendants’ joint motion to dismiss on substantive
grounds.
1.
Statute of Limitations
Defendants first move to dismiss so-called untimely allegations from Plaintiff’s
Amended Complaint. [41] at 2; [61] at 1–4. Specifically, they contend that some of
Plaintiff’s
sex-based
discrimination
allegations—which
15
describe
Defendants’
purported conduct from 2009 to 2017—are time-barred to the extent that Plaintiff did
not timely file related charges with the EEOC and the Illinois Department of Human
Rights (IDHR). [61] at 1–4.
To be sure, Title VII and the IHRA both require a plaintiff to timely file
administrative charges before filing suit in federal court. That is, plaintiffs must file
Title VII charges with the EEOC within 300 days of their employer’s alleged
misconduct, and IHRA charges with the IDHR within 180 days of the misconduct.
See Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 839 (7th Cir. 2014); Copeling
v. Ill. State Toll Highway Auth., No. 12 C 10316, 2014 WL 540443, at *4 (N.D. Ill.
Feb. 11, 2014).
But whether an individual may recover for acts that fall outside of the
limitations period depends upon the type of act at issue. See Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 114 (2002). 2
In Morgan, the Supreme Court
distinguished between two types of discriminatory acts: (1) “discrete” acts, and (2)
acts that contribute to a “hostile work environment.” Id. at 110–18. The Court held
that each “discrete act” constitutes a separate actionable practice that restarts the
clock for filing charges. Id. As such, “discrete discriminatory acts that fall outside
the statute of limitations are time-barred even though they may relate to other
discrete acts that fall within the statute of limitations.” Lucas v. Chicago Transit
2
Courts utilize the same analyses to adjudicate Title VII and IHRA discrimination claims. See Volling
v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016).
16
Auth., 367 F.3d 714, 723 (7th Cir. 2004) (quoting Morgan, 546 U.S. at 112–13).
Paradigmatic discrete acts include “termination, failure to promote, denial of
transfer, or refusal to hire.” Morgan, 536 U.S. at 114.
In contrast, a hostile work environment claim, which is a type of continuing
violation, “will not be time barred so long as all acts which constitute the claim are
part of the same unlawful employment practice and at least one act falls within the
time period.” Id. at 122. Acts that contribute to a hostile work environment include
“repeated conduct” that “occurs over a series of days or perhaps years.” Id. at 115.
Statutes of limitation do “not bar the court from considering conduct that occurred
‘10, 15, or 20 years ago,’ so long as it formed a single unlawful employment practice
that reached into the statutory period.” Milligan-Grimstad v. Stanley, 877 F.3d 705,
712 (7th Cir. 2017) (quoting Pruitt v. City of Chicago, 472 F.3d 925, 928 (7th Cir.
2006)).
Consistent with her amended complaint, and as stated in her brief and at oral
argument, Plaintiff intends to prove her discrimination claims by demonstrating both
that she suffered disparate treatment and that Defendants’ alleged sexual
harassment created a hostile working environment. See [57] at 7–8. 3 As to the latter,
the Seventh Circuit has noted that sexual harassment is “not limited to acts of sexual
3
Defendants take issue with the fact that Plaintiff did not expressly plead the words “hostile work
environment” in her amended complaint. [61] at 3. But a plaintiff need not do so to satisfy federal
pleading standards. See Jajeh v. Cty. of Cook, 678 F.3d 560, 567 (7th Cir. 2012) (holding that a hostile
work environment claim “was properly raised in the complaint” even though the plaintiff did not
expressly plead those words). Here, as discussed in more detail below, this Court finds that Plaintiff
pleads sufficient facts from which this Court infers that Plaintiff proceeds under a hostile work
environment theory.
17
desire, but rather is a broad term which encompasses all forms of conduct that
unreasonably interfere with an individual’s work performance or create an
intimidating, hostile, or offensive working environment.” Hildebrandt v. Ill. Dep’t of
Nat. Res., 347 F.3d 1014, 1033 (7th Cir. 2003) (internal quotation omitted).
Under that standard, Plaintiff’s allegations plausibly set forth a continuing
and repeated pattern of conduct alleged sexual harassment that continued up until
her termination in April 2017. See [35] ¶¶ 24–26, 28–34, 35–37, 43–49, 50–58.
Because at least one of these acts occurred within the statutory time frame, none of
these allegations are time-barred under Morgan.
See Morgan, 536 U.S. at 117
(“Provided that an act contributing to the claim occurs within the filing period, the
entire time period of the hostile environment may be considered by a court for the
purposes of determining liability.”).
Further, as the Court in Morgan recognized, plaintiffs can use “prior acts as
background evidence in support of a timely claim.”
536 U.S. at 113; see also
Mathewson v. Nat’l Automatic Tool Co., 807 F.2d 87, 91 (7th Cir. 1986) (holding that
“evidence of earlier discriminatory conduct by an employer that is time-barred is
nevertheless entirely appropriate evidence to help prove a timely claim based on
subsequent discriminatory conduct by the employer”). Therefore, even if any of
Plaintiff’s allegations constitute untimely acts, this Court declines to dismiss them,
because they may constitute background evidence to support her timely claims.
18
2.
Sexual Harassment Claims
Defendants next contend that Plaintiff’s Title VII and IHRA sexual
harassment claims should be dismissed because she did not allege that she
experienced severe and pervasive conduct.
[42] at 4; [61] at 4–6.
Defendants
characterize Plaintiff’s allegations as amounting to little more than “perceived
workplace slights, or boorish behavior.” [61] at 5.
To state an actionable Title VII sexual harassment claim under a hostile work
environment theory, a plaintiff must allege that her co-worker or supervisor harassed
her because of her sex, and that the harassment was “so severe or pervasive as to
alter the conditions of [the victim’s] employment and create an abusive working
environment.” Hilt-Dyson v. City of Chicago, 282 F.3d 456, 462–63 (7th Cir. 2002)
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998)). The Seventh
Circuit has instructed that “harassing conduct does not need to be both severe and
pervasive”; rather, one incident may be enough. Jackson v. Cty. of Racine, 474 F.3d
493, 499 (7th Cir. 2007). Moreover, “gender-based comments and epithets, when used
pervasively in the workplace, can meet the standard for severe or pervasive
harassment.” Passananti v. Cook Cty., 689 F.3d 655, 668 (7th Cir. 2012); Boumehdi
v. Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir. 2007) (“anti-female remarks
are severe enough to support a hostile work environment claim.”).
Under these standards and at this early stage of the proceedings, this Court
disagrees with Defendants’ characterization that Plaintiff’s allegations can only
amount to “perceived workplace slights” or “boorish behavior.” Contra [61] at 5.
19
Plaintiff alleges that her supervisors made a variety of sexually explicit and genderbased demeaning comments in her presence. See, e.g., [35] ¶¶ 24, 35–37. Accepting
these allegations as true, and drawing inferences in her favor, this Court finds that,
prior to the benefit of full discovery and a complete factual record, Plaintiff
sufficiently pleads that the harassment was severe or pervasive for the purposes of a
motion to dismiss. See, e.g., Savoy v. BMW of N. Am., LLC, 313 F. Supp. 3d 907, 916
(N.D. Ill. 2018) (finding that the plaintiff sufficiently alleged conduct that was severe
or pervasive where she pled “several instances in which her supervisor uttered racist
or racially-charged remarks”).
3.
EPA Pay Differential Claims
Defendants next seek dismissal of Counts III and VII, Plaintiff’s federal EPA
and IEPA claims. [42] at 4–7.
To succeed on those claims, Plaintiff must plead and prove: “(1) that different
wages are paid to employees of the opposite sex; (2) that the employees do equal work
which requires equal skill, effort, and responsibility; and (3) that the employees have
similar working conditions.” Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d
906, 912–13 (7th Cir. 2002) (quoting Fallon v. State of Ill., 882 F.2d 1206, 1208–09
(7th Cir. 1989)); Wanless v. Ill. Human Rights Comm’n, 695 N.E.2d 501, 503 (Ill. App.
Ct. 1998) (“When analyzing claims of discrimination under the [IHRA] Act, Illinois
courts have looked to the standards applicable to analogous federal claims.”).
Defendants contend that Plaintiff fails to allege that Defendants paid superior
wages to a man who performed equal work. [42] at 4–7. Defendants’ argument can
20
be distilled to their theory that one of Plaintiff’s alleged male comparators—Hess—
held a different job title than the Plaintiff (Vice President rather than Director). [61]
at 7. Defendants’ position is untenable, however, because Plaintiff need not show
that she and her male comparator had the exact same job titles. Fallon v. State of
Ill., 882 F.2d 1206, 1208 (7th Cir. 1989). Rather, Plaintiff need only show that she
and her male comparator had “substantially equal” duties. Id.
Here, Plaintiff alleges that in September 2016, Hess replaced Plaintiff in the
position she had held since 2009. [35] ¶ 21. Plaintiff further alleges that Option Care
paid Hess more in base salary and bonus than it paid Plaintiff “for doing the same
work” and holding “the same job.” Id. ¶ 22. These allegations sufficiently establish
Hess as a male comparator at the pleadings stage. See Fallon, 882 F.2d at 1208.; see
also Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1461 (7th Cir. 1994) (“This
differential between the plaintiff’s salary and that of her successors is sufficient to
support an action under the EPA.”).
Moreover, the primary case upon which Defendants rely is distinguishable. In
Parks v. Speedy Title & Appraisal Review Services, the court found that the plaintiff,
a female, failed to state a federal EPA claim because she alleged that she was paid
less than both male and female coworkers. 318 F. Supp. 3d 1053, 1069 (N.D. Ill.
2018). Here, in contrast, Plaintiff alleges a gender-based pay disparity. 4
4
Defendants also argue that Walgreens and MDP should be dismissed from the EPA claims because
Plaintiff’s amended complaint contains no allegations that they controlled anyone’s pay but Plaintiff’s.
[61] at 8. This Court rejects this argument because Plaintiff alleges that all Defendants controlled her
pay and/or that of her male comparators. [35] ¶¶ 38–41, 75–78, 80, 82.
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4.
Plaintiff’s Federal EPA Retaliation Claim
Finally, Defendants move to dismiss Plaintiff’s federal EPA retaliation claim
(Count IV). [42] at 7. To establish a prima facie case of retaliation, a plaintiff must
plead that: (1) she engaged in protected activity; (2) she suffered an adverse
employment action subsequent to her participation; and (3) a causal connection exists
between the adverse employment action and her participation. Bell v. EPA, 232 F.3d
546, 554 (7th Cir. 2000). Here, Plaintiff asserts that Defendants retaliated against
her after she made two oral complaints about pay: (1) a late 2015 complaint to Raad
about being denied the opportunity to invest in Option Care; and (2) a fall 2016
complaint to Rademacher, requesting a pay raise so that her earnings would be
comparable to similarly situated men. [35] ¶ 58.
Defendants argue that Plaintiff did not adequately allege that she engaged in
protected activity under the EPA, because Plaintiffs’ alleged complaints about her
pay (1) were not filed, in writing; and (2) consist solely of her general dissatisfaction
with wages, rather than a complaint about gender disparity. [42] at 7; [61] at 10–11.
This Court disagrees with both points.
First, contrary to Defendants’
argument, the Supreme Court has expressly recognized that the EPA’s antiretaliation provision protects oral complaints made to one’s supervisors. Kasten v.
Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 17 (2011). Therefore, Plaintiff
need not have filed in writing any of those complaints to assert them as protected
activity.
22
Second, while Defendant correctly argues that a complaint regarding general
dissatisfaction over wages generally does not “trigger protection of the statute,” Leong
v. SAP Am., Inc., 67 F. Supp. 3d 972, 985 (N.D. Ill. 2014), Plaintiff’s allegations reveal
that her complaints went beyond such general dissatisfaction. For instance, she
specifically alleges, with respect to the fall 2016 complaint to Rademacher, that she
asked for a raise “so her earnings would be comparable to those of similarly situated
men, particularly Hess.” [35] ¶ 58. Her complaint therefore was directed specifically
at gender-based pay discrepancies, rather than general dissatisfaction about pay.
Defendants also argue that Plaintiff fails to plead causation because neither of
the above incidents—which occurred approximately three years and seven months,
respectively, before Plaintiff’s termination—could plausibly be linked to the
Defendants’ decision to terminate her. [61] at 11. This Court rejects this argument,
too, because Plaintiff plausibly alleges that Defendants terminated her precisely
because she complained: She states that, after she complained to Rademacher in the
fall of 2016, Rademacher gave her a nominal raise but then threatened her with
termination if she wanted more. [35] ¶ 58.
23
IV.
Conclusion
This Court denies Defendants’ motions to dismiss [38] [41] [44]. All dates and
deadlines stand.
Dated: January 15, 2019
Entered:
_________________________________
John Robert Blakey
United States District Judge
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