Towns et al v. Peoples Gas Light & Coke Co., et al
Filing
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MEMORANDUM Opinion and Order: The Court grants in part and denies in part Defendants' Joint Partial Motion to Dismiss 18 and grants WEC's Motion to Dismiss 19 in its entirety. The Court grants Defendants' Joint Partial Motion to Dismiss as to Count X regarding all Plaintiffs and Count VII regarding Woods only. The Court denies the remainder of Defendants' Joint Partial Motion to Dismiss. All other claims may proceed against Peoples Gas. All dismissals ordered in this opinion are without prejudice. Plaintiffs are granted leave to amend their complaint within 30 days if they believe in good faith that they can cure the deficiencies identified in this opinion. Signed by the Honorable Sharon Johnson Coleman on 10/28/2024. Mailed notice. (ym)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JASON TOWNS, GARLAND ELEBY, LETITIA
JACKSON, KAREN LANFORD, TAMIA NUNN,
REGINALD SCOGGINS, CHRISTOPHER
TRASS, DARRYL WOODS, ERICKA GARMON,
SHAWNDA SIMMONS, and LATICIA DANIEL,
individually and on behalf of all others similarly
situated,
Plaintiffs,
v.
PEOPLES GAS LIGHT & COKE CO. and WEC
ENERGY GROUP,
Defendants.
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Case No. 23-cv-16316
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Plaintiffs Jason Towns, Garland Eleby, Letitia Jackson, Karen Lanford, Tamia Nunn,
Reginald Scoggins, Christopher Trass, Darryl Woods, Ericka Garmon, Shawnda Simmons, and
Laticia Daniel (together, “Plaintiffs”) are all current or former employees of defendant Peoples Gas
Light & Coke Co. (“Peoples Gas”), which is a wholly owned subsidiary of defendant WEC Energy
Group (“WEC”) (together, “Defendants”). Plaintiffs, who are all African American, 1 bring a tencount complaint on behalf of a proposed class of African American Peoples Gas employees alleging
race and disability discrimination, retaliation, interference with federal employment rights, and
violations of various state statutes and common law duties.
Defendants move to dismiss part of that complaint, including: all Plaintiffs’ claims of
discrimination in violation of 42 U.S.C. § 1981 (Count I); all Plaintiffs’ claims of discrimination in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-1, et seq.
Plaintiffs’ complaint alternates between using “African American” and “Black” to describe Plaintiffs’ race.
The Court uses “African American” except when directly quoting a party or case.
1
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(Count II); Woods’s claim of discrimination in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq. (Count IV); all Plaintiffs’ claims of discrimination in violation of
the Illinois Human Rights Act (“IHRA”), 775 ILCS 5/1-101, et seq. (Count VII); and all Plaintiffs’
claims of intentional infliction of emotional distress (“IIED”) (Count X). WEC moves separately to
dismiss all claims against it for failure to state a claim. For the following reasons, the Court grants in
part and denies in part Defendants’ Joint Partial Motion to Dismiss [18] and grants WEC’s Motion
to Dismiss [19].
BACKGROUND
The following facts are accepted as true for the purposes of resolving Defendants’ motions
to dismiss. The Court recounts only the facts from the complaint that are relevant to the
Defendants’ pending motions.
Peoples Gas is a public utility company that provides natural gas service to over 800,000
people in and around Chicago, Illinois. WEC is the parent company of Peoples Gas, and it allegedly
oversees and supports Peoples Gas, including by formulating corporate HR policies. Plaintiffs are
all either current or former employees of Peoples Gas in Chicago. Plaintiffs Eleby, Lanford,
Scoggins, Trass, Woods, Garmon, and Simmons are all African American and all presently work for
Peoples Gas. All other plaintiffs, who are also African American, were allegedly constructively
discharged or unlawfully terminated—Jackson in 2022, Nunn in 2022, and Daniel in 2023. Plaintiff
Towns, who is also African American, was allegedly unlawfully terminated in 2022, but returned to
Peoples Gas in 2023.
Plaintiffs allege that Peoples Gas has “actively cultivated a racially hostile work
environment” and that it is “engaged in a pattern and practice of systemic race discrimination
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and intentionally employs policies and practices that have a disparate impact on Black workers.”
Plaintiffs allege that they were each affected by Peoples Gas’s allegedly discriminatory practices
relating to promotion, job assignments, overtime, and discipline.
Although they do not identify specific speakers, Plaintiffs allege that various Peoples Gas
supervisors use racist slurs, including the n-word, to describe their African American colleagues and
employees. Plaintiffs also allege that Peoples Gas leaders “state that they need to ‘crack the slave
whip,’ or words to that effect.” Along with these racial slurs, Plaintiffs allege that Peoples Gas
employees and supervisors engage in racist stereotyping against African American employees and
customers, and that these stereotypes result in the African American employees and customers
receiving worse treatment.
Plaintiffs allege that Peoples Gas’s job assignment process illustrates one form of this
differential treatment. Peoples Gas allegedly “steers African Americans to more dangerous locations
and assignments but denies them adequate security to keep them safe on the job, resulting in assault
and robbery of African American employees, often at gunpoint.” Plaintiffs allege that these
disparate assignments are explained by Peoples Gas as “segregating its workforce by race” and
“assign[ing] its African American Utility Workers, because of their race, to work in more dangerous
neighborhoods more frequently than it does non-Black employees.” To further illustrate this
disparity, Plaintiffs allege that twenty-one out of the twenty-two (95%) Peoples Gas employees who
were assaulted at gunpoint on job assignments in the last several years were African American.
According to Plaintiffs, “Peoples Gas disproportionately assigns African American
employees to work in more dangerous neighborhoods” because of its management’s “racially biased
views where African Americans belong to a more dangerous sector of society.” Each individual
Plaintiff alleges that he or she was assigned to a high-crime neighborhood through these practices
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because of his or her race, except for Garmon, Simmons, and Daniel who do not allege that they
were deployed to do field work.
Plaintiffs also allege that Peoples Gas maintains uniform practices that operate to deny
African American employees advancement opportunities. For instance, Plaintiffs allege that Peoples
Gas:
•
“gives non-Black employees study materials far in advance” of difficult promotion exams,
but “routinely springs these exams on African American employees, forcing them to take the
exams with little or no preparation”;
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hires no African American supervisors in its South Shop so that “occupational segregation
concentrates power in the hands of disproportionately non-Black supervisors”;
•
distributes overtime disproportionately by race because supervisors believe “Black people
don’t want to work,” and assigns African American employees only “backbreaking work,
while the easier, less physical labor is reserved for non-Black workers”;
•
targets African American employees for unequal discipline, including by scrutinizing their
time clock entries while allowing employees of other races “free reign to clock out early
without fear of discipline.”
Each Plaintiff alleges that he or she was subjected to the practices described above.
Moreover, there is no dispute at this juncture that Plaintiffs exhausted their Title VII administrative
remedies for their race discrimination claims before bringing the claims at issue here. Plaintiff
Woods, however, does not allege whether he exhausted his remedies under the IHRA with the
Illinois Human Rights Commission before filing this lawsuit.
LEGAL STANDARD
A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency
of the complaint, not its merits. See Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir.
2014). When considering dismissal of a complaint, the Court accepts well pleaded factual allegations
as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89,
94, 127 S.Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam); Trujillo v. Rockledge Furniture LLC, 926
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F.3d 395, 397 (7th Cir. 2019). To survive a motion to dismiss, plaintiff must “state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.
Ed. 2d 929 (2007). A complaint is facially plausible when the plaintiff alleges “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
DISCUSSION
Plaintiffs’ ten-count complaint is complex. Defendants therefore understandably seek to
simplify the claims before discovery begins. To do so, Defendants divide Plaintiffs’ discrimination
claims into eight subcategories of various combinations of people and theories. 2 But that asks too
much of Plaintiffs at this point in the case, and it mischaracterizes their allegations. As Plaintiffs
point out, they do not assert standalone “racial steering,” “denial of overtime,” or “denial or
advancement” claims—they assert “only claims for disparate treatment under § 1981, [the IHRA,]
and Title VII.” (Dkt. 29 at 7.)
Each Plaintiff will ultimately have to prove that he or she was individually injured. But at
this stage, the bar is relatively low. Plaintiffs do not need to plead a prima facie case or “allege facts
aligning with [their] claim’s every element.” Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 777 (7th Cir.
2022). Rather, they “need only allege enough facts to allow for a plausible inference that the adverse
action suffered was connected to [their] protected characteristics.” Id. (citing Graham v. Bd. of Educ.,
Specifically, Defendants categorize the purportedly deficient discrimination allegations as follows: “(a) All of
the race discrimination claims under Counts I, II and VII alleging racial steering [fail] to state a claim; (b)
Alternatively, the racial steering claims of Plaintiffs Eleby, Nunn and Towns in Count I [are] time-barred; (c)
All of Plaintiffs’ non-racial steering disparate impact claims asserted under Title VII and the IHRA in Counts
II and VII [fail] to state a claim; (d) The following individual discrimination claims in Counts I, II, and VII
[fail to state a claim]: (i) the ‘denial of overtime’ claims of Towns, Eleby, Jackson, Lanford, Nunn, Scoggins,
Trass, Woods, Garmon, Simmons and Daniel; (ii) Jackson’s claim of being “passed over for promotion or
reassignment;” (iii) Nunn’s and Scoggins’s claims for discrimination in ‘discipline;’ and (iv) Woods’s claim of
being denied ‘advancement and promotional opportunities;’ (e) The discrimination claims by Woods in
Counts II, IV and VII arising more than 300 days before he filed his EEOC charge as time-barred.” (Dkt. 20
at 24–25.)
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8 F.4th 625, 627 (7th Cir. 2021); Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)). And
although courts and parties have an interest in narrowing the legal issues as the case progresses, the
Seventh Circuit has expressed its “strong commitment to the idea that a plaintiff need not plead
legal theories in her complaint.” King v. Kramer, 763 F.3d 635, 642 (7th Cir. 2014) (citing Rabe v.
United Air Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011) (collecting cases)). Thus, in cases like this
one, “[w]here a complaint will survive based on some legal theory, there is no occasion to preclude
the [plaintiff] from pursuing alternative theories as well, even if the allegations of the complaint
would not appear to support recovery under those alternative theories.” Glenn v. Bd. of Educ. of
Barrington 220 Cmty. Unit Sch. Dist., No. 17-CV-02974, 2018 WL 5298529, at *4 (N.D. Ill. Oct. 25,
2018) (Tharp, J.).
The Court explains below why Plaintiffs’ so-called “racial steering” claim survives
Defendants’ motion to dismiss, and why their general disparate treatment claims are sufficient at this
stage. For the reasons above, the Court does not address every specific subcategory of argument as
outlined by Defendants. The Court does, however, separately address Plaintiffs’ disparate impact
claims and Defendants’ arguments that some of Plaintiffs’ claims are time-barred.
1. Counts I, II, and VII – Disparate Treatment
Counts I, II, and VII of Plaintiffs’ complaint allege disparate treatment of African American
employees in violation of Title VII, the IHRA, and § 1981. Title VII prohibits employers from
discriminating against employees on the basis of race. 42 U.S.C. § 2000e-2(a). The IHRA likewise
prohibits employment discrimination, and Illinois courts apply the same Title VII analytical
framework to IHRA claims. Zaderaka v. Illinois Hum. Rts. Comm’n, 131 Ill. 2d 172, 178, 545 N.E.2d
684, 687 (1989). And under 42 U.S.C. § 1981, “[a]ll persons within the jurisdiction of the United
States shall have the same right … to the full and equal benefit of all laws … as is enjoyed by white
citizens.” 42 U.S.C. § 1981. Courts analyze § 1981 claims under the same Title VII and IHRA
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framework, Equal Emp. Opportunity Comm’n v. DHL Express (USA), Inc., 577 F. Supp. 3d 754, 797
(N.D. Ill. 2021) (Lee, J.), except that Plaintiffs “bear[ ] the burden of showing that race was a but-for
cause of [their] injury.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S. 327, 333, 140
S. Ct. 1009, 1014, 206 L. Ed. 2d 356 (2020).
To succeed on their discrimination claims, Plaintiffs must demonstrate “(1) that [they are]
member[s] of a protected class, (2) that [they] suffered an adverse employment action, and (3)
causation.” Lewis v. Indiana Wesleyan Univ., 36 F.4th 755, 759 (7th Cir. 2022) (citing Abrego v. Wilkie,
907 F.3d 1004, 1012 (7th Cir. 2018)). At the pleading stage, however, Plaintiffs “need only aver that
the employer instituted a (specified) adverse employment action against [them] on the basis of [their
protected characteristic].” Tamayo, 526 F.3d at 1084. This less mechanical formulation accounts for
the fact that “[e]mployers are familiar with discrimination claims and know how to investigate them,
so little information is required to put the employer on notice of these claims.” Carlson v. CSX
Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014) (citation omitted).
Defendants challenge Plaintiffs’ discrimination claims as (1) failing to allege intent, (2) failing
to allege causation, and (3) being conclusory. The Court will address each argument in turn.
a. Intent
To sufficiently state a discrimination claim, Plaintiffs need only “allege [Defendants’] intent
quite generally.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 781 (7th Cir. 2007) (citations
omitted). Discriminatory intent can be inferred “from suspicious words or actions.” Hossack v.
Floor Covering Assocs. of Joliet, Inc., 492 F.3d 853, 862 (7th Cir. 2007). But before the Court can address
whether Plaintiffs adequately allege intent, it must address a threshold disagreement between the
parties.
Defendants frame the intent at issue here as Peoples Gas’s intent to cause Plaintiffs to be
victims of crimes in the field. Specifically, Defendants argue that Plaintiffs “plead no facts even
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suggesting that Peoples Gas acted with discriminatory intent to … subject[ ] its Black employees to
violent incidents in the field.” (Dkt. 20 at 7–8.) Plaintiffs frame the relevant intent differently,
arguing that the relevant intent is Peoples Gas’s intent to assign Plaintiffs to worse working
conditions, regardless of the outcome of those assignments. The Court agrees with Plaintiffs.
Defendants mistake the alleged adverse action in this case, and thus the relevant intent.
Plaintiffs do not allege that Peoples Gas intended for them to be victims of crime. Instead, their
complaint makes clear that Plaintiffs allege Peoples Gas discriminated against them by assigning
African American employees to worse working conditions (service locations with higher crime
rates), while assigning employees of other races to better working conditions (service locations with
lower crime rates). The negative consequences that followed from those assignments—Plaintiffs
falling victim to crimes—were incidental to the discriminatory assignments.
Plaintiffs rely on DHL Express, 577 F. Supp. 3d at 801, to support their framing of the
issues. In DHL Express, the Equal Employment Opportunity Commission (“EEOC”) sued a
delivery company on behalf of a group of African American truck drivers alleging race
discrimination based on the routes the company assigned to them. Id. at 759. Among other things,
the EEOC contended that the company disproportionately assigned African American drivers to
higher-crime areas. Id. at 798–99. The Court addressed evidence that showed working in highercrime areas was more difficult, more dangerous, and more degrading. Id. And it credited the
EEOC’s “statistical analysis to support the conclusion that [the company] disproportionately
assigned drivers to such routes.” Id. at 800. Therefore, the court found “triable issues of fact
regarding whether Black drivers were subject to an adverse employment action.” Id. at 801.
As Defendants point out, the DHL Express court made its decision on a motion for
summary judgment and did not directly analyze intent. But it is important that the DHL Express
court applied Plaintiffs’ proposed framing of the issues rather than Defendants’. In other words, the
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court viewed the adverse employment action as the company’s job assignments themselves rather
than any harm that may result from those assignments. The intent relevant to that adverse action is
the company’s intent to disproportionately assign African American drivers to more dangerous
routes.
Under this more appropriate framing, Defendants’ cited cases—Bankhead v. Wintrust Fin.
Corp. and McReynolds v. Merrill Lynch & Co.—are inapposite. See Bankhead v. Wintrust Fin. Corp., No.
1:22-CV-02759, 2023 WL 6290548, at *4 (N.D. Ill. Sept. 27, 2023) (Blakey, J.); McReynolds v. Merrill
Lynch & Co., 694 F.3d 873, 885 (7th Cir. 2012). In Bankhead, the plaintiff alleged that the defendantlending company gave African American borrowers worse mortgage rates than borrowers of other
races. See Bankhead, 2023 WL 6290548, at *4. But the plaintiff also alleged that the lending
company’s policy was race neutral, and the plaintiff failed to allege any racial animus in the
company’s policy decisions. Id. In McReynolds, the plaintiff alleged that the defendant knew its
“production-credit system” disparately impacted African American employees but did not allege “the
retention program itself was adopted” with the intent to discriminate against African American
employees. 694 F.3d at 885 (emphasis in original).
In contrast to Bankhead and McReynolds, the thrust of Plaintiffs’ claims here is not that
Peoples Gas intended disparate outcomes (more African American employees becoming crime
victims) through a neutral policy, but that Peoples Gas maintained a policy or practice of intentional
race discrimination (disproportionately assigning African American employees to higher-crime
areas). Thus, contrary to Defendants’ argument, Plaintiffs need only allege that Peoples Gas
intended to assign African American employees to less desirable working conditions.
Returning to the controlling standard, Plaintiffs can allege intent quite generally. See
Concentra Health, 496 F.3d at 781. Plaintiffs’ allegations, set forth above, about disproportionate
assignment might alone imply intent at this stage. Plaintiffs also allege a statistic to support this
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theory, noting that of the twenty-two assaults against Peoples Gas employees assigned to these
locations in the last several years, twenty-one of the employees were African American. (Id. ¶ 31.)
But even if those allegations are not sufficient on their own, Plaintiffs plead numerous
additional “suspicious words or actions,” Hossack, 492 at 862, that support plausible allegations of
intent. For instance, Plaintiffs allege that Peoples Gas management justifies its assignments based
on “racially biased views where African Americans belong to a more dangerous sector of society,”
Dkt. 1 ¶ 34; that racial slurs and stereotyping is commonplace among Peoples Gas managers and
employees, id. ¶¶ 23-28, 120; and that Peoples Gas managers apply stricter disciplinary standards to
African American employees than employees of other races for the same conduct, id. ¶¶ 40-42.
Taken together, Plaintiffs’ allegations describe widespread animus against African American
employees paired with a suspicious distribution of negative job assignments. At this stage, such
allegations plausibly support intent.
b. Causation
To succeed on a § 1981 claim, “a plaintiff must initially plead and ultimately prove that, but
for race, it would not have suffered the loss of a legally protected right.” Comcast Corp., 589 U.S. at
341. The Supreme Court has described this familiar but-for test as “direct[ing] [courts] to change
one thing at a time and see if the outcome changes. If it does, [the court] ha[s] found a but-for
cause.” Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 656, 140 S. Ct. 1731, 1739, 207 L. Ed. 2d 218
(2020). Defendants argue that Plaintiffs fail to plead but-for causation because “the random assaults
and robberies were not caused by Peoples Gas; they were committed and caused by third-party
criminals while its employees were working in the neighborhoods of Chicago.” (Dkt. 20 at 9.)
Plaintiffs argue that Defendants “analyze the wrong question.” The Court agrees. As
described in the above discussion of intent, Defendants again wrongly construe the adverse
employment action as the alleged crimes committed against Plaintiffs rather than their assignment to
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higher crime areas. As Plaintiffs put it, the issue is whether they “plausibly alleged ‘but for race’ they
would not have been sent to dangerous areas at a rate disproportionately higher than their non-Black
peers and without adequate security.” (Dkt. 29 at 14.) Plaintiffs allege that (1) Peoples Gas’s
practice is to assign African American employees to more dangerous areas, (2) they are African
American and were assigned to a more dangerous area, and (3) therefore, Peoples Gas assigned
them to a more dangerous area because of their race. (See Dkt. 1 ¶¶ 29-35.) That is enough at this
point to support causation.
Nonetheless, Defendants warn that:
to allow Plaintiffs to maintain their intentional race discrimination claim here based
merely on their territorial work assignments is to effectively declare that any employer
that serves the public on the south or west sides of Chicago and requires field work in
those areas has intentionally discriminated against those employees if they should happen
to be subjected to the completely random, unpredictable actions of third-party criminals
while engaged in their work.
(Dkt. 20 at 10.)
The Court disagrees. First, at this stage, the Court must accept as true that Plaintiffs were
assigned to locations with higher crime rates. In discovery, Plaintiffs will have to identify the
specific locations at issue and prove that any alleged disparity in crime rate is factually and legally
significant enough for assignment to those locations to constitute an adverse employment action.
Second, and more importantly, Plaintiffs do not and cannot allege that it is illegal to send employees
to certain neighborhoods on the south or west sides of Chicago. They allege instead that it is illegal
to send only African American employees to those neighborhoods simply because those employees
are African American.
For these reasons, Plaintiffs have sufficiently alleged that Defendants’ actions were the butfor cause of their being assigned to locations with high crime rates.
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c. Sufficiency of the Allegations
Defendants also argue that Plaintiffs fail to offer enough “specifics about any of the
circumstances surrounding” Peoples Gas’s allegedly discriminatory practices and fail to connect each
Plaintiff-employee with each adverse action. But that overstates the standard here. “[L]ittle
information is required” to put an employer on notice of its employee’s discrimination claims.
Carlson, 758 F.3d at 827; see also Tamayo, 526 F.3d at 1084. Plaintiffs’ general allegations about
“steering,” “denial of overtime,” disparate discipline practices, and so on, apply to each Plaintiff
individually. That is, each Plaintiff asserts that he or she “was subjected to and harmed by Peoples
Gas’s discriminatory policies and practices described [in the body of the complaint].” (See Dkt. 1 ¶¶
45, 55, 62, 75, 81, 91, 97, 101, 110, 118, 123.)
The body of the complaint, and Plaintiffs’ individual claims by reference, contains adequate
specificity to put Defendants on notice, including when, where, how, and by whom Plaintiffs were
discriminated against. Specifically, the complaint alleges that managers required African American
employees to keep strict time while employees of other races were free to clock out early; that
supervisors gave African American employees more physically difficult overtime while other
employees were given less physical and more desirable labor; and that African American employees
were denied overtime at a higher rate than other employees based on supervisors’ racist views that
“Black people don’t want to work.” Additionally, Plaintiffs provide rough statistical differences by
alleging the percentage of African American employees that were assaulted in the field and noting
that they were “disproportionately” given dangerous assignments.
Plaintiffs have fairly put Defendants on notice of their specific discrimination claims and the
grounds for each, and have plausibly suggested they have a legal right to relief. See Tamayo, 526 F.3d
at 1084. That is enough to allege a disparate treatment claim. Plaintiffs are not required at this stage
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to reiterate every fact individually in discussing each theory, nor to connect each employee to each
supervisor and each specific instance of misconduct in minute detail.
The Court therefore denies Defendants’ motion to dismiss Plaintiffs’ disparate treatment
claims under Counts I, II, and VII.
2. Counts I, II, and VII – Disparate Impact
Disparate treatment claims are distinct from disparate impact claims, which involve
“employment practices that are facially neutral in their treatment of different groups but that in fact
fall more harshly on one group than another and cannot be justified by business necessity.” Raytheon
Co. v. Hernandez, 540 U.S. 44, 52 (2003). Defendants argue that Plaintiffs fail to allege a disparate
impact claim.
The Seventh Circuit has held that in “complex disparate-impact cases” it “would expect to
see some factual content in the complaint tending to show … a relevant and statistically significant
disparity between” employees of different races. Adams v. City of Indianapolis, 742 F.3d 720, 733 (7th
Cir. 2014). But the Seventh Circuit has also emphasized the importance of discovery in disparate
impact cases, noting that “‘basic allegations’ regarding the disparity between the racial makeup of [a
defendant’s] workforce and the surrounding area are sufficient to survive a motion to dismiss.”
Chaidez v. Ford Motor Co., 937 F.3d 998, 1007 (7th Cir. 2019).
Defendants rely on the standard articulated in Adams, claiming that “Plaintiffs’ general
allegations fail to identify with sufficient facts the details of the specific employment practice at
issue,” Dkt. 20 at 12; that “Plaintiffs have not adequately alleged that the territory assignment
process … causes a relevant and statistical disparity between Black and non-Black employees
becoming victims of crime,” id. at 13; and that Plaintiffs have not adequately alleged which overtime,
promotion, and discipline policies are at issue and whether the policies have “caused a relevant and
statistically significant disparity between Black and non-Black employees,” id. at 16. It must be
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noted, however, that the alleged policy in Adams was far more complex than the policies and
practices at issue here. “The challenged process [in Adams] involved combining several test scores,
an interview, and a personnel file evaluation for each candidate into a composite score and ranking
each candidate according to those scores, while also allowing for a degree of discretion in promotion
decisions.” Chaidez, 937 F.3d at 1007 n.5.
Plaintiffs’ claims here are far simpler. They allege that (1) Peoples Gas supervisors and
managers assign African American employees to more dangerous neighborhoods, which is
illustrated by the disproportionate number of African American employees working in those
neighborhoods and becoming victims of crime; (2) Peoples Gas “gives nonblack employees study
materials” for promotion exams while “springing these exams on African American employees;” (3)
“Peoples Gas openly acknowledges the role of race in assigning overtime” and denies African
American employees substantial overtime work, resulting in a concrete wage gap; and (4) Peoples
Gas scrutinizes African American employees’ time clocks while giving employees of other races
“free reign to clock out early without fear of discipline,” resulting in unwarranted and differential
discipline against African American employees.
Each of these claims is much closer to the “basic allegations” in Chaidez, 937 F.3d at 1007.
In each instance, Plaintiffs allege that the plain application of an identified policy or practice
disproportionately affects African American employees with no business justification (other than
racial animus). Defendants “may present contrary evidence at the summary judgment stage or at
trial to show there is no suspect racial disparity, and [Plaintiffs], for their part, will need to utilize the
discovery process to support their allegations with statistical and comparative evidence.” Id. at 1007.
But Plaintiffs have alleged enough for their disparate impact claims to survive Defendants’ motion
to dismiss.
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3. Count I – Statute of Limitations for Eleby, Nunn, and Towns
Section 1981 claims “premised on conduct which took place after the formation of [an]
employment contract” are subject to a four-year statute of limitations. Dandy v. United Parcel Serv.,
Inc., 388 F.3d 263, 269 (7th Cir. 2004). In contrast, “if a Section 1981 claim involves the making or
enforcement of contracts … the state statute of limitations applies (which, in Illinois, is two years).”
Porter v. Pipefitters Ass’n Loc. Union 597, U.A., No. 12-CV-9844, 2013 WL 5162206, at *4 (N.D. Ill.
Sept. 12, 2013) (Darrah, J.). Defendants argue that, even if the longer four-year statute of limitations
period applies in this case, Plaintiffs Eleby, Nunn, and Towns’s § 1981 claims are time-barred
because each Plaintiff was assigned to their work location when they joined Peoples Gas more than
four years before filing their complaint.
Plaintiffs respond that their claims are “ongoing” and thus timely. Another court in this
district has allowed similar claims to proceed on a similar theory, holding that § 1981 claims were
not time-barred even though the plaintiffs’ initial territory assignments occurred more than four
years prior to filing their lawsuit because they “allege[d] that they were denied favorable
[assignments] throughout their” tenure with the defendant. Williams v. State Farm Mut. Auto. Ins. Co.,
609 F. Supp. 3d 662, 687 (N.D. Ill. 2022) (Valderrama, J.).
Defendants reply that the complaint only alleges Peoples Gas employees are assigned
territory once, and that their claims are therefore not ongoing. But Defendants’ reading of the
complaint fails to make inferences in Plaintiffs’ favor.
Ultimately, the facts about the assignment process are not developed enough to rule that
Plaintiffs have pled themselves out of court by alleging time-barred claims. See Xechem, Inc. v. BristolMyers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004) (“Only when the plaintiff pleads itself out of
court—that is, admits all the ingredients of an impenetrable defense—may a complaint that
otherwise states a claim be dismissed under Rule 12(b)(6).”) (citing Walker v. Thompson, 288 F.3d
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1005 (7th Cir. 2002)). The Court therefore rejects Defendants’ argument, at this stage, that Plaintiffs
Eleby, Nunn, and Towns’s claims are time-barred.
For these reasons, Count I may proceed for all Plaintiffs.
4. Counts II, IV, and VII – Woods’s Claims
Defendants also target Plaintiff Woods’s individual claims under Counts II (Title VII
discrimination), IV (ADA discrimination), and VII (IHRA discrimination). Defendants first argue
that some of Woods’s claims—those “discrete employment actions occurring before May 20, 2021,”
Dkt. 20 at 22—are time-barred. Second, Defendants argue that Woods failed to exhaust his
administrative remedies under the IHRA. The Court addresses each argument in turn.
a. Statute-of-Limitations
Defendants’ statute-of-limitations argument is inappropriate at this stage. Defendants
impermissibly attempt a “piecemeal dismissal[ ] of parts of claims” that is not permitted under Rule
12(b)(6). BBL, Inc. v. City of Angola, 809 F.3d 317, 325 (7th Cir. 2015). Defendants do not move to
dismiss all of Counts II, IV, and VII as to Woods, but rather “some” of his claims “based on
discrete employment actions occurring before May 20, 2021.” (Dkt. 20 at 22.) This kind of
attempted winnowing is better saved for summary judgment. See BBL, Inc., 809 F.3d at 325. The
Court therefore denies this aspect of Defendants’ motion.
b. Failure-to-Exhaust
Defendants’ argument that Plaintiffs’ IHRA claim should be dismissed is better supported
by the case law. The IHRA’s exhaustion requirement is jurisdictional. See Garcia v. Vill. of Mount
Prospect, 360 F.3d 630, 640 (7th Cir. 2004) (“[T]he Act also limits the jurisdiction of Illinois courts,
mandating that any party seeking to pursue a civil-rights claim in Illinois must first exhaust
administrative remedies available under the Act ….”); Hankins v. Best Buy Co., No. 10 CV 4508, 2011
WL 6016233, at *5 (N.D. Ill. Dec. 2, 2011) (Lefkow, J.) (“The IHRA limits the court’s jurisdiction to
16
claims that have first been raised through the administrative procedures set forth in the statute.”)
(citations omitted). Defendants argue that Woods has “failed to plead any facts demonstrating that
he complied with the IHRA’s exhaustion requirements.” (Dkt. 20 at 23.)
In response, Plaintiffs do not point to any allegations that Woods complied with the IHRA’s
exhaustion requirements but argue only that “exhaustion … is an affirmative defense that need not
be pleaded.” (Dkt. 29 at 24.) But that ignores the jurisdictional nature of the issue and the
numerous courts in this district that have found that “failure to comply with [the IHRA’s]
exhaustion requirements warrants dismissal of” a plaintiff’s claims. Bakhtiari v. Doe, No. 22 C 2406,
2023 WL 415548, at *4 (N.D. Ill. Jan. 25, 2023) (Ellis, J.) (collecting cases). Because Plaintiffs have
identified no allegations suggesting that Woods exhausted his administrative remedies under the
IHRA, the Court grants this portion of Defendants’ motion to dismiss.
In summary, the Court grants Defendants’ motion to dismiss Count VII as to Plaintiff
Woods only and dismisses Count VII without prejudice to refiling if Plaintiff Woods can cure the
deficiencies identified here. Woods’s remaining individual claims may proceed.
5. Count X – Preemption of IIED Claims
Defendants argue that the IHRA, 775 ILCS 5/8-111(C), preempts Plaintiffs’ IIED claims in
Count X. To succeed on an IIED claim, a plaintiff must show “‘(1) the defendant’s conduct was
extreme and outrageous, (2) the defendant intended to inflict severe emotional distress or knew that
there was at least a high probability that his conduct would inflict severe emotional distress, and (3)
the defendant’s conduct did cause severe emotional distress.’” Naeem v. McKesson Drug Co., 444 F.3d
593, 605 (7th Cir. 2006) (quoting Van Stan v. Fancy Colours & Co., 125 F.3d 563, 567 (7th Cir. 1997)).
IIED claims may be preempted by the IHRA when discrimination is “the core of [the plaintiff’s]
theory.” Smith v. Chicago Sch. Reform Bd., 165 F.3d 1142, 1151 (7th Cir. 1999). But not every IIED
claim is preempted by the IHRA. Preemption in these circumstances turns on the legal duty at issue;
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“that is, if the conduct would be actionable even aside from its character as a civil rights violation
because the IHRA did not furnish[ ] the legal duty that the defendant was alleged to have breached,
the IHRA does not preempt a state law claim seeking recovery for it.” Naeem, 444 F.3d at 604
(quoting Krocka v. City of Chicago, 203 F.3d 507, 516–17 (7th Cir. 2000)) (internal quotation marks
removed).
Plaintiffs first argue that IHRA preemption is an affirmative defense that they need not
plead around. That is true, but Plaintiffs can plead themselves out of court if they allege all
ingredients of that defense, Xechem, Inc., 372 F.3d at 901, and this Court has dismissed IIED claims
in the past for this very reason. See, e.g., Van v. Ford Motor Co., No. 14 CV 8708, 2016 WL 1182001,
at *7 (N.D. Ill. Mar. 28, 2016) (Coleman, J.). The key issue here is whether Plaintiffs have alleged
conduct that would be actionable even aside from the legal duty imposed by the IHRA. See Naeem,
444 F.3d at 604.
The Court finds that the conduct at issue, at least as alleged and argued, would not be
independently actionable. Plaintiffs contend that “[a]n employer intentionally sending employees to
dangerous areas without security, causing their assaults, often at gunpoint, is actionable as a tort
regardless of any intent to discriminate.” (Dkt. 29 at 25.) But those claims only arise in the
employment context. Defendants could not send Plaintiffs anywhere were it not for their
employment relationship. And as explained above, Plaintiffs’ claims are actionable not because they
were sent to allegedly higher-crime areas, but because they were sent to higher-crime areas because
they are African American. The legal duty at issue—the duty not to discriminate—is imposed by the
IHRA.
The Court therefore grants Defendants’ motion to dismiss as to Count X. 3
Defendants also argue that Count X is preempted by the Illinois Workers Compensation Act (“IWCA”).
But because the Court dismisses Count X based on IHRA preemption, the Court need not address
Defendants IWCA argument at this time.
3
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6. Allegations Against WEC
Defendants argue that no allegations in Plaintiffs’ complaint plausibly allege any wrongdoing
by WEC. They note that Plaintiffs occasionally improperly describe “Defendants” together when
referring to Peoples Gas, but otherwise make only one allegation against WEC; that “WEC oversees
and supports Peoples Gas, including in Human Resources, and formulates corporate policies
governing Peoples Gas employees.” (Dkt. 1 ¶ 10.)
Plaintiffs respond by disavowing vicarious liability and arguing that WEC is liable for its own
conduct. Plaintiffs argue that WEC (1) directed discriminatory conduct or policies; (2) was Plaintiffs
de facto employer because it controlled Peoples Gas’s discriminatory acts; and (3) can be held liable as
Peoples Gas’s human resources “agent.” But Plaintiffs do not point to any allegations that could
support these theories. Indeed, aside from the single allegation that Defendants cite, Plaintiffs
identify only one more—that WEC maintained an “ethics hotline” through which Plaintiff Towns
filed a complaint.
Neither of these allegations, even viewed in Plaintiffs’ favor, support a claim of
discrimination against WEC. The Court is unable to draw an inference that WEC is liable for any
misconduct. See Iqbal, 556 U.S. at 678. Plaintiffs do not allege which policies WEC “formulates,”
nor how WEC “oversees and supports Peoples Gas.” Moreover, Plaintiffs do not allege what
authority WEC had to address complaints through its “ethics hotline,” nor how it discriminated
against Plaintiff Towns after he called the hotline.
Plaintiffs’ complaint therefore fails to state a claim against WEC, and the Court grants this
portion of Defendants’ motion.
CONCLUSION
For these reasons, the Court grants in part and denies in part Defendants’ Joint Partial
Motion to Dismiss [18] and grants WEC’s Motion to Dismiss [19] in its entirety. The Court grants
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Defendants’ Joint Partial Motion to Dismiss as to Count X regarding all Plaintiffs and Count VII
regarding Woods only. The Court denies the remainder of Defendants’ Joint Partial Motion to
Dismiss. All other claims may proceed against Peoples Gas. All dismissals ordered in this opinion
are without prejudice. Plaintiffs are granted leave to amend their complaint within 30 days if they
believe in good faith that they can cure the deficiencies identified in this opinion.
IT IS SO ORDERED.
Date: 10/28/2024
Entered:
_____________________________
SHARON JOHNSON COLEMAN
United States District Judge
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