Neal v. AccuGear Inc et al

Filing 49

OPINION AND ORDER granting Mueller s, Zemmol s, and Andreski s 20 , 33 and 38 Motions to Dismiss. Neals Title VII claim against them is DISMISSED WITH PREJUDICE because there is no set of facts that Neal could allege that would permit recove ry against individual defendants under Title VII. THE INDIVIDUAL DEFENDANTS ARE NOT DISMISSED FROM THE CASE. Each of Mueller, Zemmol, and Andreski has 30 days from the entry of this Order to file an answer or, if he chooses, a motion to dismiss with respect to the claim against him arising under 42 U.S.C. § 1981. Signed by Chief Judge Philip P Simon on 7/29/15. cc: Neal (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MICHAEL D. NEAL,
Plaintiff,
v.
ACCUGEAR, INC., JAY ZEMMOL,
JAY MUELLER, and
DENNIS ANDEROSKI [sic],
Defendants.

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1:14-cv-00395-PPS-SLC

OPINION AND ORDER
Plaintiff Michael Neal represents himself in this Title VII discrimination case against
his former employer Accugear Inc. and three of its employees who held supervisory or
personnel positions. The individual defendants have each moved to dismiss the case.
Defendants Jay Zemmol, Jay Mueller, and Dennis Andreski (the correct spelling, caption
notwithstanding, per Docket Entry 38 at 1) each argue that Neal cannot state a claim upon
which relief can be granted because Title VII does not permit Neal to sue them as
individuals. Because Neal cannot allege facts that subject the individual defendants to
liability under Title VII, all three motions are granted. But the individual defendants are
not dismissed from the case at this point because Neal’s complaint states a claim against
each of them under 42 U.S.C. § 1981.
BACKGROUND
Neal filed a pro se employment discrimination complaint in January 2015
(correcting errors in a December 2014 version) against his former employer of

approximately four months, AccuGear, and individuals who worked there in
supervisory or personnel capacities. [DE 5 at 1-4.] No one has explained exactly what
AccuGear does, but it has something to do with operating machines and “running
parts.” [DE 5 at 7.] Neal’s complaint is scattered, but includes some troubling
allegations. Here’s the gist of it:
Neal, who is black, [Id. at 4], alleges that prior to being terminated from
AccuGear, he suffered racial discrimination in a racially hostile work environment. [Id.
at 2.] Specifically, he alleges that because of his race he was disciplined and evaluated
negatively by his supervisor Mueller for a work assignment shortcoming. At the same
time, a white employee who was equally responsible was not disciplined. [Id. at 4, 6-7.]
Neal further alleges that Mueller referred to him as a “n______”. [Id. at 8.] Neal
complained to AccuGear’s Human Resource Manager, Jay Zemmol, to no avail. [Id. at 2,
6.] Zemmol allegedly gave Neal unfairly negative employee reviews and participated in
Neal’s wrongful termination. [DE 5 at 2.] Neal’s EEOC charge of discrimination, which
is attached to his complaint, alleges that Mueller said that Neal talks like a “hoodlum”
and told other employees that Neal “look[s] black, talk[s] black, act[s] black, but [is]
really white, but will never be anything more than a n[______].” [Id. at 4.] Neal alleges
that Andreski, AccuGear’s Plant Manager, falsely accused Neal of sleeping during a
work meeting, and fired Neal for that alleged transgression. [Id. at 9-10.] Neal alleges
that the real reason for his termination was discrimination or retaliation for his
complaint about discrimination. [Id. at 2.]
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This District offers assistance in filing a complaint in a case like this one by way
of a fillable form called “Employment Discrimination Complaint.” Neal completed that
form. There are several laws under which a plaintiff may allege employment
discrimination, and the form allows a plaintiff to check the laws applicable to his case.
In this case, Neal checked only the Title VII box. But there is also a checkbox for “Equal
rights under law (42 U.S.C. § 1981).” [DE 5 at 1-2.]
Neal seeks a corrected employment history removing false allegations about his
employment performance, possible re-employment, lost wages, “punitive damages for
cost[s],” and $250,000 in damages for the defendants’ intentional and knowing
discriminatory and retaliatory conduct. [Id. at 3.]
Zemmol filed a 12(b)(6) motion on March 9, 2015 [DE 20]; Andreski and Mueller
each filed an identical 12(b)(6) motion after that. [DE 33, 38.] Neal responded, the
defendants each replied, and the motions are now fully briefed. I will take up together
the three motions to dismiss for failure to state a claim upon which relief can be granted
because they raise identical issues. The defendants argue that they are not “employers”
as that term is defined in Title VII because they are individuals, and so Title VII does
not create a cause of action against them. [DE 21 at 3; DE 34 at 3; DE 39 at 3.] The
defendants argue for dismissal with prejudice because Neal cannot support a claim for
individual liability under any set of facts. [E.g., id.] Neal counters that the defendants
are individually liable as “agents” of AccuGear. [E.g., DE 41 at 1.]

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DISCUSSION
The minimum pleading requirements are, in pertinent part, “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro.
8(a)(2). The Supreme Court held in Bell Atlantic Corporation v. Twombly that mere “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do[;]” instead, a complaint’s factual allegations must “raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citations
omitted). This essentially “impose[s] two easy-to-clear hurdles. First, the complaint
must describe the claim in sufficient detail to give the defendant fair notice of what the
claim is and the grounds upon which it rests. Second, its allegations must plausibly
suggest that the [plaintiff] has a right to relief” that is more than speculative. E.E.O.C. v.
Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citations, quotation marks
and ellipsis omitted). ” Id. The type of case dictates how detailed the factual pleading
must be. Limestone Dev. Corp. v. Vill. of Lemont, Ill., 520 F.3d 797, 803 (7th Cir. 2008). If the
complaint falls below the required threshold, Rule 12(b)(6) authorizes dismissal for
failing to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
Title VII prohibits discrimination by an employer with respect to race. 42 U.S.C. §
2000e(b). Under Title VII, an “employer” potentially subject to liability is “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). Persons acting
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in an individual capacity such as “supervisors” have been categorically rejected by the
Seventh Circuit as “employers” under Title VII. Although the Title VII statute includes
the phrase “and any agent of such [employer,]” the Seventh Circuit holds that this
phrase was merely intended to impose vicarious liability upon employers so that suits
could be brought against employers. See, e.g., Smith v. Bray, 681 F.3d 888, 896 (7th Cir.
2012) (“One key difference between § 1981 and Title VII is that the latter authorizes suit
only against the employer as an entity rather than against individual people who are
agents of the employer. Under § 1981, individuals may be liable.”); Williams v. Banning,
72 F.3d 552, 553-55 (7th Cir. 1995) (“Because a supervisor does not, in his individual
capacity, fall within Title VII’s definition of employer, [Plaintiff] can state no set of facts
which would enable her to recover under the statute. The district court’s dismissal
under Rule 12(b)(6) for failure to state a claim on which relief can be granted was
proper.”); EEOC v. AIC Sec. Investig’ns, Ltd., 55 F.3d 1276, 1281 (7th Cir. 1995); Garner v.
Knoll Bros. Quick Marts, Inc., 962 F. Supp. 1115, 1121-22 (N.D. Ind. 1997).
Because individuals cannot be held liable for employment discrimination under
Title VII, individual defendants Zemmol’s, Mueller’s, and Andreski’s motions to
dismiss are each GRANTED and Neal’s Title VII claim against each is DISMISSED
WITH PREJUDICE. [DE 20, 33, 38.]
But dismissing the Title VII claim against the three individual defendants isn’t
the end of the matter, especially when the plaintiff is proceeding pro se and I am under
an obligation to construe his complaint liberally. As I’ve noted, Neal need only offer a
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short and plain statement of his claim that, if true, would entitle him to relief. The
employment discrimination complaint form’s checkboxes are nice for flagging
potentially relevant laws, but nothing in the federal rules requires a plaintiff to have
checked the correct boxes, so long as the facts that are alleged alert the defendants to the
claims leveled against them. Here, although Neal didn’t check the box for 42 U.S.C. §
1981, the facts that Neal alleges state a claim under § 1981.
Judge Hamilton provides a thorough and clear rundown of § 1981’s evolution
and judicial interpretation in Smith v. Bray, 681 F.3d 888, 895-96 (7th Cir. 2012)1, so I’ll
only summarize briefly here. Section 1981 protects people’s contract rights, including
the formation, performance, and termination of contracts, regardless of race. It includes
a right to sue for retaliation when one person acts against another for seeking the
equality of contract rights ensured by § 1981. Unlike a Title VII claim, a § 1981 claim
may be brought against individual defendants. See, e.g., Bray, 681 F.3d at 895-6. Section
1981 is a versatile vehicle. Here are some relevant ways that it may be applied: As the
Seventh Circuit has explained, “in this circuit, ‘cat’s paw’ liability may be imposed on
an employer where the plaintiff can show that an employee with discriminatory animus
provided factual information or other input that may have affected the adverse
employment action.” Id., 681 F.3d at 897 (quotation marks, citation omitted). “[W]ith §
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As an aside I note that Neal’s allegations are strikingly similar to the facts in Smith v.
Bray – an allegedly discriminatory supervisor, a human resources employee getting
both the disciplinary reports and complaints of discrimination, that human resources
employee being involved in the termination without making the final decision, and
even the allegation that the plaintiff was sleeping on the job.
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1981, individual liability . . . is appropriate where the individual defendant caused or
participated in a constitutional deprivation.” Id. at 899 (quotation marks, citation
omitted). And the final link in the chain of liability:
It logically follows that an individual can be liable under § 1981
for retaliatory conduct that would expose her employer to
liability under Title VII or § 1981. It also makes sense as a matter
of basic fairness: why should the “hapless cat” (or at least his
employer) get burned but not the malicious “monkey”? The
cat’s paw theory can support individual liability under § 1981
for a subordinate employee who intentionally causes a
decision-maker to take adverse action against another employee
in retaliation for statutorily protected activity.
Id.
Here, Neal alleges that Mueller made racist comments and unfairly
discriminated against Neal in imposing disciplinary measures. Zemmol allegedly gave
Neal unfair and discriminatory negative employee reviews based on Mueller’s
discriminatory actions. Andreski terminated Neal for allegedly sleeping at a company
meeting, which basis Neal alleges is pretext for a discriminatory reason for his
termination. The only suggestion of overt racism at this point applies to Mueller, but
that doesn’t invalidate the § 1981 claim against Zemmol, Andreski, or AccuGear given
the cat’s paw theory. Here, the allegation is that Mueller’s discriminatory disciplinary
action, and an intent to retaliate against Neal for complaining about that, led to
Zemmol’s negative reviews. Zemmol and the negative reviews, as well as a desire to
retaliate against Neal for causing trouble by complaining about Mueller’s
discrimination, led to the false allegation of Neal sleeping, which was the pretext for
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Andreski’s firing Neal. Therefore this case may proceed under § 1981 against the three
individual defendants whose motions to dismiss have been granted with respect to
individual liability under Title VII. None of this is to say that Neal will ultimately
prevail in this case, or even get past summary judgment – he needs to offer proof of his
allegations – but at this stage he has stated a claim against the individual defendants
under § 1981 such that dismissal is inappropriate.
CONCLUSION
For the foregoing reasons, Mueller’s, Zemmol’s, and Andreski’s Motions to
Dismiss are GRANTED, and Neal’s Title VII claim against them is DISMISSED WITH
PREJUDICE because there is no set of facts that Neal could allege that would permit
recovery against individual defendants under Title VII. THE INDIVIDUAL
DEFENDANTS ARE NOT DISMISSED FROM THE CASE, however, because the
facts alleged state a claim under 42 U.S.C. § 1981. Each of Mueller, Zemmol, and
Andreski has 30 days from the entry of this Order to file an answer or, if he chooses, a
motion to dismiss with respect to the claim against him arising under 42 U.S.C. § 1981.
SO ORDERED.
Entered: July 29, 2015
/s/Philip P. Simon________________
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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