Laurie v. William M. BeDell Achievement and Resource Center et al
Filing
32
ORDER denying 10 Motion to Dismiss. Signed by Judge David R. Herndon on 3/22/17. (lmp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GENEVA LAURIE,
Plaintiff,
v.
Case No. 16-759-DRH-RJD
WILLIAM M. BeDELL ACHIEVEMENT
RESOURCE CENTER and ROSJEAN
CUSTER,
Defendants.
MEMORANDUM and ORDER
HERNDON, District Judge:
I.
Introduction
Pending before the Court is defendant William M. BeDell Achievement and
Resource Center’s (hereinafter “the Center”) motion to dismiss or alternatively to
strike (Doc. 10). The Center contends that Counts III and IV of Laurie’s complaint
should be dismissed for failure to state a claim. The Center also moves to dismiss
or strike the alleged common-law retaliation claim for reporting “on-the-job
injuries” in Count V of the complaint. Laurie responded opposing the motion
(Doc. 29), to which the Center replied (Doc. 30). For the reasons discussed below,
the Center’s’ motion is DENIED.
II.
Background
Plaintiff Geneva Laurie alleges that she was hired as an employee by the
Center in August 2008. Thereafter, around August 2013, Program Director,
Rosjean Custer, began making inappropriate age and health related comments
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about Laurie (Doc. 1-1). On May 22, 2014, Laurie filed a written grievance with
her employer in which she indicated that she felt harassed and discriminated by
Ms. Custer because of her age (Id.). Thereafter, on May 23, 2014, Laurie was
terminated due to “concerns over the safety of staff, failure to meet performance
standards, [and] gross misbehavior and insubordination.” (Id.).
Laurie later filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) on September 10, 2014, in which she alleged that the
Center violated provisions of the Age Discrimination in Employment Act (“ADEA”).
(Doc. 29-1). The complaint was immediately cross-filed with the Illinois
Department of Human Rights (“IDHR”) according to the workshare agreement
between the two agencies. (Doc. 1-1); See 775 ILL. COMP. STAT. ANN. § 5/7A-102(A1) (West 2012); Kaimowitz v. Bd. of Trustees of the Univ. of Ill., 951 F.2d 765 (7th
Cir. 1991). On March 29, 2016, the EEOC issued its “right to sue” letter to Laurie
notifying her that the EEOC was closing her case, and that she had the right to
sue in federal or state court within 90 days of her receipt of the notice (Doc. 1-1,
pg. 15).
According to Illinois Human Rights Act (“IHRA”), a complainant must
“submit a copy of the EEOC's determination [to the IDHR] within 30 days after
service of the determination by the EEOC on complainant.” § 5/7A-102(A-1)(1).
Laurie submitted the copy of EEOC’s right to sue letter to the IDHR on May 19,
2016, 51 days after receiving it (Doc. 29-1). On that basis, the IDHR sent the
parties an Investigation Report stating that they lack jurisdiction to hear the case
Page 2 of 20
because Laurie did not timely file a copy of the EEOC’s determination. On August
2, 2016, the IDHR issued a Notice of Dismissal for Lack of Jurisdiction to notify
the parties that the case was dismissed, and if the complainant disagreed with
this action, the complainant could “(a) seek review of this dismissal before the
Illinois Human Rights Commission” or “(b) commence a civil action in the
appropriate state circuit court within ninety (90) days after receipt of this Notice.”
(Doc. 29-1).
Laurie subsequently filed an action arising from the same operative facts as
the instant case on May 23, 2016, in the Circuit Court of Madison County, Illinois
(Doc. 1-1). Plaintiff’s initial complaint alleged six counts: Count I ADEA
(discrimination); Count II ADEA (retaliation); Count III IHRA (discrimination);
Count IV IHRA (retaliation); Count V Illinois Common Law Retaliation; and Count
VI Complaint against Rosjean Custer.
On July 7, 2016, defendants removed this case to the United States District
Court for the Southern District of Illinois asserting this Court has original
jurisdiction on the basis of a federal question under 28 U.S.C. § 1331 (Doc. 1).
Defendants, on July 14, 2016, moved to dismiss or strike plaintiff’s complaint
arguing that Counts III and IV of the complaint should be dismissed due to
Laurie’s failure to exhaust administrative remedies pursuant to the procedures
enumerated by the IHRA (Doc. 10). Additionally, the Center claims that Laurie
failed to state a claim for common law retaliatory discharge (Count V) for
reporting “on-the-job injuries.” (Id.). Plaintiff Laurie opposes the dismissal by
Page 3 of 20
arguing that she has exhausted her administrative remedies under the IHRA for
Counts III and IV and that she sufficiently pled the Illinois common law claim
retaliation claim (Doc. 29)
III.
Motion to Dismiss
Defendants' motion to dismiss is made pursuant to FEDERAL RULES OF CIVIL
PROCEDURE 12(b)(6). A Rule 12(b)(6) motion challenges the sufficiency of the
complaint to state a claim upon which relief can be granted. Hallinan v. Fraternal
Order of Police Chicago Lodge 7, 570 F.3d 811, 820 (7th Cir. 2009). The
Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007), that Rule 12(b)(6) dismissal is warranted if the complaint fails to set forth
“enough facts to state a claim to relief that is plausible on its face.” In making this
assessment, the district court accepts as true all well-pled factual allegations and
draws all reasonable inferences in the plaintiff's favor. See Rujawitz v. Martin, 561
F.3d 685, 688 (7th Cir. 2009); St. John's United Church of Christ v. City of
Chicago, 502 F.3d 616, 625 (7th Cir. 2007).
Even though Twombly (and Ashcroft v. Iqbal, 556 U.S. 662 (2009)) retooled
federal pleading standards, notice pleading remains all that is required in a
complaint. “A plaintiff still must provide only enough detail to give the defendant
fair notice of what the claim is and the grounds upon which it rests and, through
his allegations, show that it is plausible, rather than merely speculative, that he is
entitled to relief.” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008)
(citations and quotations omitted).
Page 4 of 20
The Seventh Circuit Court of Appeals offers further guidance on what a
complaint must do to withstand dismissal for failure to state a claim. The Court
in Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008) reiterated the premise:
“surviving a Rule 12(b)(6) motion requires more than labels and conclusions;” the
complaint’s allegations must “raise a right to relief above the speculative level.” A
plaintiff’s claim “must be plausible on its face,” that is, “the complaint must
establish a non-negligible probability that the claim is valid…” Smith v. Medical
Benefit Administrators Group, Inc., 639 F.3d 277, 281 (7th Cir.2011); See also
Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir.2012) (Rule 12(b)(1) motion to
dismiss for lack of standing).
With this standard in mind, the Court now turns
to defendant’s arguments for dismissal. 1
IV.
Analysis
A. Count III: IHRA (Age Discrimination) and Count IV: IHRA (Retaliation)
1. Legal Standard
The Illinois Human Rights Act (“IHRA”) provides a state administrative
remedy for human rights abuses such as discrimination based on age, race,
religion, gender, or disability. 775 ILL. COMP. STAT. ANN. 5/1–101, et seq. In order
to implement the goals of the statute, the IHRA established the Department of
Human Rights (“IDHR”) to investigate IHRA complaints and the Human Rights
Commission (“IHRC”) to adjudicate IHRA complaints. Id.; See also Blount v.
1
The Court also considers Laurie's EEOC and IDHR charges and notice of right-to-sue attached to
the complaint, along with additional facts and documents provided in Laurie's opposition to
dismissal that are consistent with the pleadings. See Geinosky v. City of Chicago, 675 F.3d 743,
745 n.1 (7th Cir. 2012).
Page 5 of 20
Stroud, N.E.2d 1, 6 (Ill. 2009). Before a complainant can file a discrimination
case in court, the IHRA requires complainants to first file a complaint with either
the EEOC or the IDHR 180 days after the alleged conduct took place. See § 5/7A102(A-1) (2012); Kaimowitz, 951 F.2d at 765 (the IDHR and the EEOC have a
workshare agreement where a complaint filed in one agency is considered to be
immediately filed with the other). Once the EEOC conducts a preliminary
investigation of the complaint, the agency will either pursue the case or terminate
its proceedings. Id. If the EEOC decides to close the case, the EEOC will issue the
complainant a “right to sue letter” that notifies the complainant of his or her right
to file a lawsuit in court within 90 days. Id. However, after receiving the EEOC’s
right to sue letter, the complainant must send the IDHR a copy of the EEOC’s
letter so the IDHR can then issue its own report within 365 days, usually adopting
the EEOC’s determination. § 5/7A-102(G)(1). The IDHR’s report will notify the
complainant that he or she can either file a lawsuit within 90 days or file an
appeal of the IDHR’s determination with the IHRC. § 5/7A-102(A-1). Failure to
follow this procedure constitutes a failure to exhaust administrative remedies.
“Requiring
the
exhaustion
of
administrative
remedies
allows
the
administrative agency to fully develop and consider the facts of the cause before it;
it allows the agency to utilize its expertise; and it allows the aggrieved party to
ultimately succeed before the agency, making judicial review unnecessary.” Arvia
v. Madigan, 209 Ill.2d 520, 531 (Ill. 2004). For these reasons, the IHRA
traditionally had exclusive jurisdiction over state human rights claims. 775 ILL.
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COMP. STAT. ANN. 5/8-111(D) (West 2008) (“Except as otherwise provided by law,
no court of this state shall have jurisdiction over the subject of an alleged civil
rights violation other than as set forth in this Act.”); Mein v. Masonite Corp., 485
N.E.2d 312, 315 (Ill. 1985). Judicial courts could only review the IHRC’s final
orders and the Commission’s findings of fact must “be sustained unless the court
determines that such findings are contrary to the manifest weight of the evidence.”
§ 5/8-111(B)(2); Flaherty v. Gas Research Inst., 31 F.3d 451, 458 (7th Cir. 1994).
An IHRC final order is a ruling on the merits and determines “whether there is
substantial evidence that the alleged civil rights violation has been committed.” §
5/7A-102(D)(2); Vroman v. Round Lake Area Sch.-Dist., No. 15 C 2013, 2015 WL
7273108 at *2 (N.D. Ill. Nov. 18, 2015) (“Because Plaintiff did not receive a final
order [ruling on substantive evidence] from the IDHR as required under the IHRA,
I am dismissing Plaintiff’s IHRA claims without prejudice for failure to exhaust
administrative remedies.”)
However, many district courts believe that the 2008 Amendment to the
IHRA now authorizes Illinois courts to assert original jurisdiction over IHRA
claims. §§ 5/7A-102(C)(4), (D)(3); See also Scott v. City of Kewanee, No. 1:13–cv–
01292–SLD, 2014 WL 1302025 at *4 (C.D. Ill. March 28, 2014) (“The City fails to
acknowledge the 2008 IHRA amendment and the consensus of courts holding that
the IHRA now permits federal courts to exercise original jurisdiction over IHRA
claims in the absence of a final order from the IHRC.”); Goldberg v. Chicago Sch.
for Piano Tech., No. 14 C 1440, 2015 WL 468792 at *3 (N.D. Ill. Feb. 3, 2015);
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De v. City of Chicago, 912 F.Supp.2d 709, 731–32 (N.D. Ill. 2012) (“The Illinois
legislature amended the Act in 2008 to give original jurisdiction over IHRA claims
to the Illinois Human Rights Commission as well as the circuit courts of Illinois.
Although the Seventh Circuit has not addressed the issue of whether federal
courts may exercise jurisdiction over claims brought pursuant to the IHRA, the
overwhelming majority of district courts within this Circuit that have confronted
the issue have concluded that federal courts do have subject matter jurisdiction
over IHRA claims based on supplemental jurisdiction pursuant to 28 U.S.C. §
1367.”) (citing Hoffman v. Bradley Univ., No. 11–1086, 2012 WL 4482173, at *1
(C.D. Ill. Sept. 27, 2012); Massenberg v. A & R Sec. Servs., Inc., No. 10–CV–7187,
2011 WL 1792735, at *5 (N.D. Ill. May 11, 2011); Lawrence v. E. Cent. Ill. Area
Agency on Aging, No. 10–CV–1240, 2011 WL 1044372, at *1 (C.D. Ill. Feb. 24,
2011); Carr v. Avon Prods., Inc., No. 10–CV–3124, 2011 WL 43033, at *2 (N.D.
Ill. Jan. 6, 2011); Yucus v. Peoples Nat'l Bank, No. 09–609–GPM, 2010 WL
1416140, at *2 (S.D. Ill. Apr. 1, 2010) (“[T]he language of the IHRA—as amended
in January 2008—does not unequivocally confer exclusive jurisdiction upon
Illinois State Courts .... this Court has power under 28 U.S.C. § 1367 to assume
supplemental jurisdiction of plaintiff's [IHRA] claims.”); Glemser v. Sugar Creek
Realty, Inc., No. 09–3321, 2010 WL 375166, at *2 (C.D. Ill. Jan. 26, 2010); Clark
v. Moline Pub. Library, No. 09–4054, 2010 WL 331726, at *3 (C.D. Ill. Jan. 26,
2010)). Therefore, Illinois courts can hear IHRA claims without first obtaining a
final order from the IHRC. But the complainant must still exhaust administrative
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remedies according to the IHRA; meaning a complainant needs to file a charge
with the IDHR and receive a determination. Scott, 2014 WL 1302025 at *5.
2. Analysis
Defendant is correct that receiving a right-to-sue letter from the EEOC is
not sufficient to establish the exhaustion of administrative remedies pursuant to
the IHRA. See Wierciszewski v. Granite City Ill. Hosp. Co., No. 11–120–GPM,
2011 WL 1615191 at *3 (S.D. Ill. Apr. 28, 2011); Hankins v. Best Buy Co., Inc.,
No. 10 CV 4508, 2011 WL 6016233 at *6 (N.D. Ill. Dec. 2, 2011); Jimenez v.
Thompson Steel Co., Inc., 264 F.Supp.2d 693, 695 (N.D. Ill. 2003). However,
based on the above consensus, Laurie’s failure to obtain a final order on the
merits does not immediately bar her from filing suit in court. After the new
amendment entered into force, Illinois courts have recognized supplemental
jurisdiction over IHRA claims provided that the complainant shows that he or she
filed a charge with the IDHR or EEOC and received an IDHR determination. Here,
although Laurie sent her EEOC right-to-sue letter to the IDHR 21 days late, the
IDHR issued Laurie a Notice of Dismissal stating that the Department lacked
jurisdiction and the complainant had the right to sue in the appropriate circuit
court within 90 days (Doc. 29-1). The IHRA statute provides that “[t]he notice of
dismissal issued by the Director shall give the complainant notice of his or her
right to seek review of the dismissal before the Human Rights Commission or
commence a civil action in the appropriate circuit court. . . . If the complainant
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chooses to commence a civil action in a circuit court, he or she must do so within
90 days after receipt of the Director's notice.” § 5/7A–102(C)(4).
Therefore, the IHRA allows complainants to proceed in court after receiving
a Notice of Dismissal. Indeed, district courts have upheld IHRA claims merely
based on evidence of filing with the EEOC and IDHR and receiving a notice of
dismissal. See Goldberg, 2015 WL 468792 at *3–4 (holding that plaintiff timely
filed the lawsuit after receiving a Notice of Dismissal for lack of jurisdiction and
properly stated an IHRA claim); Engler v. Brown, No. 3:11–cv–00997–DRH–DGW,
2012 WL 3150295 at *2 (S.D. Ill. Aug. 1, 2012) (“Despite defendant’s arguments,
plaintiff alleges and shows in her motion in opposition to defendant’s motion to
dismiss and attachments thereto that she did in fact first file this complaint with
the Human Rights Commission and the United States Equal Employment
Opportunity Commission. . . . Accordingly, defendant’s motion to dismiss
plaintiff’s complaint based on failure to comply with administrative procedure is
denied.”); Moultrie v. Penn Aluminum Intern, LLC, No. 11–cv–500–DRH, 2012 WL
3113914 at *2–3 (S.D. Ill. July 31, 2012) (citing § 5/7A–102(C)(4)) (holding that a
plaintiff that received a Notice of Dismissal had 90 days to file a lawsuit, but
plaintiff’s lawsuit was four months late and hereby dismissed); Brandenburg v.
Earl L. Henderson Trucking, Co., No. 09–0558–DRH, 2010 WL 2219603 at *4
(S.D. Ill. June 2, 2010) (same). Defendant’s argument that Laurie failed to exhaust
administrative remedies because a Notice of Dismissal is not a right-to-sue letter
does not defeat Laurie’s IHRA claims.
Page 10 of 20
However, Laurie received the IDHR letter on August 2, 2016, but she had
prematurely filed her lawsuit on May 23, 2016. (Doc. 1-1). Although an
overwhelming majority of Illinois courts agree that a lawsuit filed after the 90 day
window after receiving an IDHR determination is properly dismissed as untimely,
the difficult issue here is the fact that the complainant filed her lawsuit too early.
Moultrie, 2012 WL 3113914 at *2; Brandenburg, 2010 WL 2219603 at *4;
O’Connell v. Cont’l Elec. Const. Co., No. 11 C 2291, 2011 WL 4915464 at * (N.D.
Ill. Oct. 17, 2011); Robinson v. Human Rights Comm’n, 559 N.E.2d 229, 233 (Ill.
App. Ct. 1990). Also, withdrawing a complaint from the IDHR before the
department makes a determination and filing a lawsuit clearly constitutes a
failure to exhaust administrative procedures. See Anderson v. Ctrs. for New
Horizons, Inc., 891 F.Supp.2d 956, 960 (N.D. Ill. 2012); Slaughter v. Weber, 570
F.Supp.2d 1054, 1057–58 (S.D. Ill. 2008); Shah v. Inter–Cont’l Hotel Chicago
Operating Corp., 314 F.3d 278, 282 (7th Cir. 2002). However, once again, the
more difficult issue is where, as here, a complainant files a lawsuit too early.
Several Illinois cases suggest that either filing too early or too late demands
dismissal of IHRA claims. See Muller v. Morgan, No. 12 C 1815, 2013 WL
2422737 at *5 (N.D. Ill. June 3, 2013); O’Connell, 2011 WL 4916464 at *12;
McCarrell v. Wirtz Beverage Ill., LLC, No. 10 C 1530, 2010 WL 3548004 at *2
(N.D. Ill. Sept. 7, 2010) (citing Davis v. Human Rights Comm’n, 676 N.E.2d 315,
322–24 (Ill. App. Ct. 1997)); see also Castaneda v. Ill. Human Rights Comm’n,
175 Ill.App.3d 1085, 1087–88 (Ill. App. Ct. 1988) (“The exhaustion requirement,
Page 11 of 20
however, cannot be avoided simply because relief may be, or even probably will
be, denied by the agency.”). However, the aforementioned case law, although
persuasive, is not binding on this court. There is no definitive ruling that states
that IHRA claims must be dismissed due to premature filing. Because Laurie
received the IDHR’s Notice of Dismissal and filed her lawsuit within the 90 day
window, her complaint satisfies the exhaustion requirement of the IHRA at the
pleading stage. For the sake of judicial efficiency, the Court finds it appropriate to
forgo dismissal without prejudice given that Laurie has since received IDHR’s
Notice of Dismissal. Dismissal of her complaint due to premature filing—only to
turn around and allow Laurie to file a timely amended complaint— would not aid
judicial efficiency, conservation of resources, or the swift resolution of this
litigation.
B. Count V: Common Law Retaliation
1. Legal Standard
Traditionally, at-will employees can be terminated with or without cause.
However, the Illinois Supreme Court created the tort of retaliatory discharge as an
exception to the at-will employment doctrine. See Kelsay v. Motorola, Inc., 384
N.E.2d 353, 357–59 (Ill. 1978); Sweat v. Peabody Coal Co., 94 F.3d 301, 305 (7th
Cir. 1996). In order to succeed with a common law retaliatory discharge claim,
the plaintiff must show that she has been “(1) discharged; (2) in retaliation for the
employee’s activities; and (3) that the discharge violates a clear mandate of public
policy.” Turner v. Memorial Med. Ctr., 233 Ill.2d 494 (Ill. 2009); see also McCoy
Page 12 of 20
v. Maytag Corp., 495 F.3d 515, 520–21 (7th Cir. 2007). The last prong is the most
difficult to satisfy, as the Illinois Supreme Court commented, the “Achilles heel of
the principle lies in the definition of public policy.” Belline v. K-Mart Corp., 940
F.2d 184 (7th Cir. 1991) (citing Palmateer v. Int’l Harvester Co., 421 N.E.2d 876,
878 (Ill. 1981)). Illinois courts have struggled to define a “clear mandate of public
policy,” The Palmateer court stated that “public policy concerns what is right and
just and what affects the citizens of the State collectively.... [A] matter must strike
at the heart of a citizen’s social rights, duties, and responsibilities before the tort
will be allowed.” Id. at 421 N.E.2d at 878–79. Therefore, Illinois does not
recognize retaliatory discharge for private or individual grievances. Chicago
Commons Ass’n v. Hancock, 804 N.E.2d 703, 706 (Ill. App. Ct. 2004). Because
the cause of action requires a clear mandate of public policy, “a broad, general
statement of policy is inadequate to justify finding an exception to the general rule
of at-will employment.” Turner, 233 Ill.2d at 502. Courts look for specific, clear
mandates of public policy “in the State’s constitution and statutes and, when they
are silent, in its judicial decisions.” Thakkar v. Station Operators Inc., 697
F.Supp.2d 908, 929 (N.D. Ill. 2010) (quoting Turner, 233 Ill.2d at 500). However,
public policy must strike at the heart of a citizen’s rights, duties, or health, so
“simply citing a constitutional or statutory provision in the complaint is not
enough.” Hicks v. Resolution Trust Corp., 970 F.2d 378, (7th Cir. 1992) (citing
Barr v. Kelso-Burnett, 478 N.E.2d 1354, 1357 (Ill. 1985)) (ruling that the federal,
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financially oriented Community Reinvestment Act did not state a clear mandated
Illinois public policy).
Although the retaliatory discharge public policy definition is a narrow and
limited exception, Hillmann v. City of Chicago, 834 F.3d 787, 793 (7th Cir. 2016),
Illinois courts have decided that the standard is met when: (1) an employee is
fired for asserting a workers’ compensation claim, Kelsay, 384 N.E.2d at 357–59;
(2) an employee is fired for refusing to engage in illegal conduct or reporting the
illegal conduct of others, Palmateer, 421 N.E.2d at 879; or (3) an employee is
fired for protecting the health or safety of the public, Gaines v. K-Five Constr.
Corp., 742 F.3d 256, 269–70 (7th Cir. 2014) (citing Wheeler v. Caterpillar Tractor
Co., 108 Ill.2d 502 (Ill. 1985)).
Here, Laurie claims that she was discharged in retaliation for reporting
illegal activities of the Center’s employees to her supervisors and for reporting
work-related injuries to her supervisors (Doc. 1-1, pg. 10–11). There is no dispute
that Laurie was discharged, but the parties disagree on whether Laurie was
discharged in retaliation for her reports and if that discharge violates a clear
mandate of public policy. Defendants only challenge the validity of Laurie’s workrelated injuries claim under the retaliatory discharge doctrine.
2. Analysis
a. Reporting Work-Related Injuries
As stated above, Illinois courts generally recognize the assertion of
worker’s compensation claims as a protected activity under common law
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retaliatory discharge. Beatty v. Olin Corp., 693 F.3d 750, 753 (7th Cir. 2012)
(“The Illinois Supreme Court has recognized a common-law cause of action for
retaliatory discharge where an employee is terminated because of his actual or
anticipated exercise of workers’ compensation rights.”) (emphasis added).
Retaliatory discharge is a narrow exception so the reporting of work-related
injuries can only be evaluated under the Illinois Worker’s Compensation Act
(“IWCA”). Zimmerman v. Buchheit of Sparta, Inc., 645 N.E.2d 877, 881 (Ill. 1994)
(stating that the Illinois Supreme Court is disinclined to expand retaliatory
discharge exceptions). Defendants claim that because Laurie did not specifically
cite the IWCA in her complaint, the claim must fail (Doc. 11, pg. 5–6). But when
evaluating a motion to dismiss, the Court will construe the complaint liberally in
favor of the plaintiff. Sweat v. Peabody Coal Co., 94 F.3d 301, 305 (7th Cir. 1996).
Accordingly, Laurie’s allegation that she “reported work-related injuries to her
supervisors” will be evaluated under the IWCA retaliatory discharge standard.
In order to succeed with a retaliatory discharge claim based on a
violation of the IWCA, Laurie will ultimately have to prove three elements: (1) she
was employed by the Center at the time of her injury; (2) she exercised a right
granted by the IWCA; and (3) her discharge was causally related to the exercise of
her rights under the IWCA. Hillmann, 834 F.3d at 794. At the motion to dismiss
stage, she need not prove those claims outright in her complaint; the claim will
survive if she stated enough facts to give the defendant notice of the claim “and the
grounds upon which it rests and, through h[er] allegations, show that it is
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plausible, rather than merely speculative, that [s]he is entitled to relief.” Tamayo,
526 F.3d at 1083 (7th Cir. 2008).
There is no dispute that Laurie was an employee of the Center prior to
her termination. Additionally, the ability to report a work-related injury to the
employer is a right guaranteed by the IWCA. 820 ILCS 305 § 6(c). Illinois courts
have identified three main methods showing that an employee exercised his or her
right under the IWCA: an employee (1) filed a workers’ compensation claim; (2)
informed the employer that he or she intends to file a workers’ compensation
claim; or (3) requested or sought medical treatment for the work-related injury.
Gordon v. FedEx Freight, Inc., 674 F.3d 769, 773 (7th Cir. 2012). Laurie’s
complaint does not state that she filed a workers’ compensation claim or that she
sought medical attention for her injuries, so this element may only be satisfied if
she stated enough facts to demonstrate the second method.
Although Laurie did not file a workers’ compensation claim, “Illinois
courts recognize that the limited tort of retaliatory discharge may apply where a
plaintiff is preemptively fired to prevent such a filing.” Id. Illinois state courts
agree with the Seventh Circuit in that a retaliatory discharge claim can be brought
if an employee was fired in anticipation of filing a workers’ compensation claim.
See Richardson v. Ill. Bell Tel. Co., 510 N.E.2d 134, 137 (Ill. App. Ct. 1987)
(citing Horton v. Miller Chem. Co., 776 F.2d 1351, 1355 (7th Cir. 1985), cert.
denied (1986)) (“in reviewing a jury verdict, the United States Court of Appeals for
the Seventh Circuit recognized the extension of the tort to an employee discharged
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in anticipation of his exercising his rights.”); Fuentes v. Lear Siegler, Inc., 529
N.E.2d 40, 42 (Ill. App. Ct. 1988) (same); Planell v. Whitehall North, LLC., 2015
IL App. (1st) 140799 at *1 (Ill. App. Ct. 2015) (same).
As the Seventh Circuit stated, “[f]actual support that the employer was
informed or in some way found out about the plaintiff's intent to pursue relief
under the Act is essential to a retaliatory discharge action.” Roger v. Yellow
Freight Sys., Inc., 21 F.3d 146, 150 (7th Cir. 1994). Retaliatory discharge claims
often fail under the second method of showing an exercise of a right under the
IWCA because the employer is unaware of the employee’s injury or possible intent
to file a workers’ compensation claim. See Gordon, 674 F.3d at 773 (holding that
Gordon did not qualify under this theory because “at the time FedEx made the
decision to terminate Gordon, no one knew the extent of her injuries and Gordon
expected to be back to work within a day or two.”); Sweat, 94 F.3d at 305 (“There
is no evidence in the record that Peabody knew or even suspected that Sweat
might file a workers’ compensation claim”); Beatty, 693 F.3d at 753 (“No witness
says that Moore talked with the medical department, DeProw, Kern, or anyone
else who knew of Beatty's injury; nor is there any other evidence tending to
suggest that Moore was aware of Beatty’s medical status when he issued the
termination order.”). Here, Laurie alleges that she did inform her employer that
she had sustained work-related injuries (Doc. 1-1, pg. 11). Because she was
terminated after the Center obtained this knowledge, an inference can be made
that the Center fired her in order to prevent her from filing a workers’
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compensation claim. See Richardson, 510 N.E. at 515 (“A reasonable inference
from these facts is that defendant feared plaintiff would file a claim for additional
benefits for a long disability, and terminated him to prevent him from doing so.
While other inferences are also possible, we must view the complaint in the light
most favorable to the plaintiff.”); see also Cannella v. Cordell Enter., 980 F.Supp.
272, 275 (N.D. Ill. 1997) (holding that the plaintiff’s statement that defendant
“discharged plaintiff because plaintiff ... planned to file a claim for workers’
compensation” alleged enough facts to establish that an employee exercised a
right under the IWCA because “[s]ince we are at the claim alleging rather than the
claim proving stage, it is unnecessary to consider whether plaintiff will be able to
survive a motion for summary judgment or prevail at trial on this claim.”).
The critical question is whether the complaint sufficiently pled facts
setting forth the causal connection between the reporting of work-related injuries
and her termination to withstand the motion to dismiss standard. The causation
requirement ultimately rests on the employer’s motive in discharging the
employee. Hillmann, 834 F.3d at 794 (citing Clemons v. Mech. Devices Co., 704
N.E.2d 403, 406 (Ill. 1998)). Therefore, “the element of causation is not met if the
employer has a valid basis, which is not pretextual, for discharging the employee.”
Dotson v. BRP, 520 F.3d 703, 707 (7th Cir. 2008) (quoting Hartlein v. Ill. Power
Co., 601 N.E.2d 720, 728 (Ill. 1992)) (holding that discharge for excessive
absenteeism is valid even if the absence is due to work-related injuries); See e.g.
Phillips v. Cont’l Tire the Americas, 743 F.3d 475, 477–78 (7th Cir. 2014) (ruling
Page 18 of 20
that Continental Tire’s drug testing policy complies with the IWCA and does not
deter employees from exercising their rights under the Act). To demonstrate an
unlawful motive, it is crucial to show that the relevant staff member responsible
for the employee’s termination knew of the report or potential of a future workers’
compensation claim. Hunt v. DaVita, Inc., 680 F.3d 775, 779 (7th Cir. 2012)
(citing Hiatt v. Rockwell Int’l Corp., 26 F.3d 761, 769 n.7 (7th Cir. 1994))
(“Evidence that those responsible for an employee’s termination knew that he
intended to file, or, as in this case had filed, a workers’ compensation claim is
essential to a retaliatory discharge action under Illinois law.”).
At this time in the proceedings, Laurie has provided enough facts, if
viewed in a light most favorable to the complainant and taken as true, that she
was fired in retaliation for reporting illegal activities and work-related injuries to
her supervisors. Although Laurie does not state if the person responsible for her
termination knew of the report provided to her supervisors, she does allege that
she reported her injuries to her supervisors and then was subsequently fired.
(Doc. 1-1, pg. 11-12). The complaint states that Custer was Laurie’s supervisor
and Custer terminated Laurie on May 23, 2014 for poor performance and
insubordination after receiving Laurie’s reports of alleged illegal activities and her
work-related injuries (Doc. 1-1). Because Custer was Laurie’s supervisor and
Laurie claims that she reported her injuries to her supervisors, it is safe to infer
that Custer was aware of Laurie’s work-related injury report at the time of her
termination. Furthermore, Illinois courts have held that suspicious timing and
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ambiguous statements support an inference of retaliation. Casna v. City of Loves
Park, 574 F.3d 420, 427 (7th Cir. 2009); Ramey v. Am. Coal Co., No. 12–cv–
01236–DRH–PMF,
2013
WL
1932677
at
*2
(S.D.
Ill.
May
8,
2013)
(“Circumstantial evidence can include: (1) suspicious timing, ambiguous
statements, etc., (2) evidence that similarly situated employees were treated
differently, or (3) evidence that the employee was qualified and passed over for the
job and the employer's reason for the difference in treatment is a pretext for
retaliation.”); See also Thakkar, 697 F.Supp.2d at 930 (“The timing of Vasant’s
dismissal, coming immediately on the heels of his second complaint against
Bissias, bolsters his retaliatory discharge claim.”). Accordingly, the motion to
dismiss as to Laurie’s retaliatory discharge claim is denied.
V.
Conclusion
For the reasons stated above, the Court DENIES defendant’s motion to
dismiss (Doc. 10).
IT IS SO ORDERED.
Signed this 22nd day of March, 2017.
Digitally signed by
Judge David R. Herndon
Date: 2017.03.22
16:20:43 -05'00'
United States District Judge
Page 20 of 20
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