Solomon v. Wardlaw Claim Service, LLC

Filing 42

OPINION AND ORDER GRANTING in part and DENYING in part 19 Motion to Dismiss. The Court hereby DISMISSES Count V of the Complaint (intentional infliction of emotional distress). Signed by Magistrate Judge Andrew P Rodovich on 8/3/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
MARLO SOLOMON,
Plaintiff,
v.
WARDLAW CLAIM SERVICE, LLC,
Defendant.

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) Case No. 4:17-cv-92
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OPINION AND ORDER
This matter is before the court on the Motion to Dismiss Portions of Plaintiff’s Complaint
[DE 19] filed by the defendant, Wardlaw Claim Service, LLC, on February 28, 2018. Based on
the following reasons, the motion is GRANTED in part and DENIED in part.
Background
The plaintiff, Marlo Solomon, filed her Complaint on November 30, 2017, alleging
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq. Solomon has
brought claims under Title VII for race discrimination and hostile work environment (Count I);
sex discrimination and hostile work environment (Count II); retaliation (Count III); and Indiana
statutory and state law claims for blacklisting (Count IV) and intentional infliction of emotional
distress (Count V).
Solomon was an employee of the defendant, Wardlaw Claim Service, LLC. Wardlaw is
an independent insurance adjusting company located in West Lafayette, Indiana. On March 9,
2016, Wardlaw terminated Solomon’s employment. Solomon has alleged that while she was
employed at Wardlaw she was discriminated against due to her race and sex in violation of Title

VII, and she was retaliated against for reporting alleged sexual harassment. Solomon represents
that Wardlaw engaged in harassment and discriminatory employment practices.
After her termination from Wardlaw, Solomon began working for State Farm Insurance
in Duluth, Georgia. She was terminated from State Farm on May 24, 2016. Solomon has
alleged that Wardlaw continued to retaliate against her by reporting to State Farm that she was
“terminated for not submitting and for falsifying performance reports of employees who reported
her.” Therefore, Solomon contends that based on Wardlaw’s false report State Farm fired her
and placed her on the “Do not rehire” list.
Solomon filed two charges of discrimination against Wardlaw with the United States
Equal Employment Opportunity Commissioner. The first charge of discrimination, Charge No.
461-2016-0092, was filed on April 1, 2016. Solomon alleged discrimination based on race, sex,
and retaliation. Solomon filed a second charge of discrimination, Charge No. 470-2017-00600,
on February 13, 2017, alleging discrimination based on race, age, and retaliation. The second
charge stated that Solomon filed her first charge of discrimination against Wardlaw on April 1,
2016 and that on May 24, 2016 she was terminated from State Farm due to Wardlaw providing
unfavorable references and accusing her of committing fraud. Solomon represents that she has
received notices of right to sue letters on both charges.
Wardlaw has moved to dismiss portions of the Complaint under Federal Rules of Civil
Procedure 12(b)(1), (3), and (6). Wardlaw asserts that the Northern District of Indiana is not the
proper venue for Solomon’s retaliation claim (Count III) predicated on the facts alleged in the
second charge of discrimination. Moreover, Wardlaw argues that Solomon has failed to exhaust
her administrative remedies. Wardlaw contends that Solomon’s second charge of discrimination
was not timely filed with the EEOC within 180 days of the unlawful employment action.

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Wardlaw also has moved to dismiss Solomon’s blacklisting and intentional infliction of
emotional distress claims (Count IV and V) pursuant to Rules 12(b)(1) and (3). Additionally,
Wardlaw has argued that Solomon’s intentional infliction of emotional distress claim should be
dismissed pursuant to Rule 12(b)(6) for failure to state a claim. Solomon filed a response in
opposition on March 13, 2018, and Wardlaw filed its reply on March 15, 2018.
Discussion
Federal Rule of Civil Procedure 12(b)(1) requires a court to dismiss a cause of action
when the court lacks subject matter jurisdiction. Federal courts have subject matter jurisdiction
in all civil actions arising under the Constitution, laws, or treaties of the United States, in
addition to cases between citizens of different states where the amount in controversy exceeds
$75,000. 28 U.S.C. § 1331; 28 U.S.C. § 1332. The “district court must accept as true all wellpleaded factual allegations, and draw reasonable inferences in favor of the plaintiff.” Ezekiel v.
Michel, 66 F.3d 894, 897 (7th Cir. 1995). However, when subject matter jurisdiction is not
apparent on the face of the complaint and is contested, the district court may “properly look
beyond the jurisdictional allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Evers v.
Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008). In all cases, the party asserting federal jurisdiction
has the burden of proof to show that jurisdiction is proper. Travelers Prop. Cas. v. Good, 689
F.3d 714, 722 (7th Cir. 2012) (citing McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)).
Federal Rule of Civil Procedure 12(b)(3) permits dismissal of an action for improper
venue. “Analysis of the Rule 12(b)(3) dismissal motion begins with the question of whether
venue is, in fact, improper in this district.” Brantley v. Luxottica Retail North America, Inc.,

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2014 WL 4370848, at *2 (S.D. Ill. Sept. 3, 2014) (emphasis in original). In a civil action, venue
is proper in, among other places, “a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of the property that is the subject
of the action is situated.” 28 U.S.C. § 1391(b)(2). The plaintiff bears the burden of establishing
that venue is proper. Marzano v. Proficio Mortg. Ventures, LLC, 942 F. Supp. 2d 781, 787
(N.D. Ill. 2013). When ruling on a Rule 12(b)(3) motion to dismiss, the court must take all
allegations in the complaint as true, unless contradicted by an affidavit, and can consider facts
outside the complaint. Nagel v. ADM Inv'r Servs., Inc., 995 F. Supp. 837, 843 (N.D. Ill. 1998).
When venue is improper, the court “shall dismiss [the case], or if it be in the interest of justice,
transfer such case to any district or division in which it could have been brought.” See 28 U.S.C.
§ 1406(a).
Federal Rule of Civil Procedure 12(b)(6) allows for a complaint to be dismissed if it
fails to “state a claim upon which relief can be granted.” Allegations other than those of fraud
and mistake are governed by the pleading standard outlined in Federal Rule of Civil Procedure
8(a)(2), which requires a “short and plain statement” to show that a pleader is entitled to relief.
See Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). The Supreme Court
clarified its interpretation of the Rule 8(a)(2) pleading standard in a decision issued in May of
2009. While Rule 8(a)(2) does not require the pleading of detailed allegations, it nevertheless
demands something more “than an un-adorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868
(2009). In order to survive a Rule 12(b)(6) motion, a complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S.
at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed.

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2d 929 (2007)); Cincinnati Life Ins., 722 F.3d at 946 (“The primary purpose of [Fed.R.Civ.P. 8
and 10(b)] is to give defendants fair notice of the claims against them and the grounds supporting
the claims.”) (quoting Stanard v. Nygren, 658 F.3d 792, 797 (7th Cir. 2011)); Peele v. Clifford
Burch, 722 F.3d 956, 959 (7th Cir. 2013) (explaining that one sentence of facts combined with
boilerplate language did not satisfy the requirements of Rule 8); Joren v. Napolitano, 633 F.3d.
1144, 1146 (7th Cir. 2011). This pleading standard applies to all civil matters. Iqbal, 556 U.S.
at 684.
Solomon has alleged that Wardlaw violated her rights under Title VII, which forbids
employment discrimination against any individual based on that individual's race, color, religion,
sex, or national origin. Burlington Northern & Santa Fe Railroad Company v. White, 548 U.S.
53, 56, 126 S.Ct. 2405, 2408, 165 L.E.2d 345 (2006) (citing Pub.L., 88352, 704, 78 Stat. 257, as
amended, 42 U.S.C. § 2000e2(a)). Title VII's separate anti-retaliation provision seeks to prevent
harm to individuals based on what they do, i.e., their conduct. Burlington N., 548 U.S. at 63,
126 S.Ct. at 2412. Unlawful retaliation in violation of Title VII occurs when an employer takes
actions that discriminate against an employee because she has opposed a practice that Title VII
forbids, or testified, assisted, or participated in a Title VII proceeding or investigation. 42
U.S.C. § 2000e-3(a); see also Hicks v. Forest Preserve District of Cook County,
Illinois, 677 F.3d 781, 787 (7th Cir. 2012). An employer effectively retaliates against an
employee by taking actions not directly related to the employment or by causing harm outside
the workplace. Burlington N., 548 U.S. at 63, 126 S.Ct. at 2412.
Wardlaw asserts that “venue is improper regarding Plaintiff’s wrongful discharge from
employment in Georgia in May of 2016.” Solomon has indicated that she has not raised a claim
against State Farm for terminating her employment in this instant matter. The court notes that

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Wardlaw’s arguments are based on Solomon’s allegations that Wardlaw unlawfully retaliated
against her by reporting to State Farm that she was “terminated for not submitting and for
falsifying performance reports of employees who reported her” resulting in her May 24, 2016
termination from State Farm. Therefore, the conduct of Wardlaw, not State Farm, is at issue in
this case.
Title VII contains its own venue provision. See 42 U.S.C. § 2000e–5(f)(3). The Title
VII venue provision “is not simply a supplement to 28 U.S.C. § 1391, it is the exclusive venue
provision for all Title VII . . . actions.” Nathan v. Morgan Stanley Renewable Dev. Fund, LLC,
No. 11 C 2231, 2012 WL 1886440, at *11 (N.D. Ill. May 22, 2012) (quoting Gwin v. Reynolds
& Reynolds Co., No. 01 C 770, 2001 WL 775969, at *1 (N.D. Ill. Jul. 10, 2001)). Under this
provision, venue is proper: (1) in any judicial district in the state in which the unlawful
employment practice is alleged to have been committed; (2) in the judicial district in which the
employment records relevant to such practice are maintained and administered; or (3) in the
judicial district in which the aggrieved person would have worked but for the alleged unlawful
employment practice. 42 U.S.C. § 2000e–5(f)(3). For venue to be proper, a plaintiff only needs
to establish one of the Title VII venue provisions. Graham v. Spireon, Inc., 2014 WL 3714917,
at *2 (N.D. Ill. 2014).
Wardlaw contends that the retaliation claim based on the second charge of discrimination
should be dismissed pursuant to Title VII’s mandatory venue provision. Wardlaw has argued
that: (1) the unlawful employment practices occurred in Duluth, Georgia, which is located in the
Northern District of Georgia; (2) the employment records relevant to the unlawful employment
practices are maintained and administered, if at all, in the Northern District of Georgia and the
Western District of Texas; and (3) but for Wardlaw’s alleged retaliation, Solomon would have

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worked in the Northern District of Georgia. Wardlaw has submitted the Declaration of Crystal
Bell, Executive Vice President for Wardlaw. She attests that all communications, if any, that she
had with the representatives of State Farm on or after March 9, 2016, regarding Solomon’s
employment were made from or received in Texas. Therefore, it is Wardlaw’s contention that
the Northern District of Indiana is the improper venue for Solomon’s retaliation claim.
Solomon filed two charges of discrimination with the EEOC. The first charge related to
the discrimination and retaliation Solomon allegedly experienced while employed by Wardlaw in
West Lafayette, Indiana. The second charge indicated that Solomon had filed a charge of
discrimination against Wardlaw with the EEOC on April 1, 2016. She began working for State
Farm on April 30, 2016, but she was terminated due to Wardlaw providing unfavorable
references and accusing her of committing fraud. Solomon’s allegation of retaliation relating to
her employment in Duluth, Georgia, is alleged solely against Wardlaw and its alleged retaliatory
conduct.
Wardlaw does not contest venue as to the claims that relate to the first charge of
discrimination. Therefore, venue is proper on Solomon’s race and sex discrimination claims and
the retaliation claim predicated on the first charge. However, venue is improper as it relates to
the allegations contained in the second charge. The court acknowledges that venue must be
established for each claim. Therefore, since venue is improper on Solomon’s retaliation claim
based on the second charge, it appears that claim should be dismissed or transferred. However,
that outcome is unfair and undermines the goals of judicial economy, fairness to litigants, and
convenience to parties and witnesses on which venue is based. The claims are asserted against
the same defendant, and presumably will have similar evidence and witnesses.

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The court recognizes that Crystal Bell attests that the communication to State Farm came
from Wardlaw’s headquarters located in Waco, Texas. However, the alleged conduct, i.e.,
committing fraud, that supported the unfavorable references occurred while Solomon worked in
West Lafayette, Indiana. Therefore, relevant witnesses are located in the Northern District of
Indiana. Solomon’s claims are so interrelated that ordinarily she would be expected to bring
them in one proceeding. It would result in a waste of judicial resources and would not serve
judicial economy to separate Solomon’s claims. See Sabay v. Reno, 1996 WL 167332, at *3
(N.D. Ill. 1996) (separating plaintiff's Title VII claims from his ADEA claim would result in a
waste of judicial resources and would not serve judicial economy).
According to the doctrine of “pendent venue,” a claim that is not properly venued
standing alone still can be heard by a court as long as another properly venued claim arising out
of a common nucleus of operative facts also is brought at the same time in the same district.
Pacer Global Logistics, Inc. v. National Passenger R.R. Corp., 272 F.Supp.2d 784, 789 (E.D.
Wis. 2003). The courts may exercise their discretion to hear claims as to which venue is lacking
if the interests of judicial economy are furthered by hearing the claims together. Sierra Club v.
Johnson, 623 F.Supp.2d 31, 37 (D.D.C. 2009). Federal courts increasingly are recognizing the
doctrine of pendent venue. See Giordano v. City of Palm Bay, 2007 WL 4365341, *2 (N.D. Ill.
Dec. 12, 2007) (“venue may be proper with respect to an improperly venued claim if the claim is
joined to a properly venued claim, and the claims arise out of a common nucleus of operative
fact.”)
The court finds that the majority of the factual allegations contained in the complaint are
predicated on the first charge of discrimination. Therefore, the events giving rise to this matter
predominantly occurred in the Northern District of Indiana. Since venue has been established on

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Solomon’s Title VII race and sex discrimination claims by applying the exclusive venue
provision, judicial economy weighs heavily in favor of keeping all of her claims before one
court.
Next, Wardlaw has argued that Solomon has failed to exhaust her administrative
remedies. In ruling on a motion to dismiss, the court generally does not look outside the
pleadings. “[H]owever, the court may take into consideration documents incorporated by
reference to the pleadings and also may take judicial notice of matters of public record.”
Milwaukee Police Assoc. v. Flynn, 863 F.3d 636, 640 (7th Cir. 2017) (internal quotation marks
omitted). The court takes judicial notice of the two charges of discrimination that were attached
and incorporated by reference in the Complaint.
Solomon filed her second charge of discrimination with the Indiana Civil Rights
Commission on February 13, 2017. Wardlaw has argued that Solomon’s second charge of
discrimination was untimely. Wardlaw contends that the discriminatory acts are alleged to have
occurred in Georgia and that Georgia is a “non-deferral” state. Therefore, a charge of
discrimination must be filed with the EEOC within 180 days of the last discriminatory act. See
Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th Cir. 2003) (“Because Georgia is a nondeferral state, Watson was required to file a Charge of Discrimination within 180 days of the
alleged unlawful employment action.”) As alleged in Solomon’s second charge of
discrimination, the last discriminatory act occurred on May 24, 2016. However, she did not file
the charge with the EEOC until February 13, 2017, 285 days later.
The court finds that Wardlaw’s argument is without merit. Solomon filed her charge of
discrimination with the Indiana Civil Rights Commission. An individual alleging discrimination
under Title VII “must file a Charge [of Discrimination] with the EEOC within 180 days of the

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complained-of employment action . . .” 42 U.S.C. § 2000e–5(e). However, Indiana is a
“deferral” state, meaning that if an individual files her charge of discrimination with a state or
local agency (such as the Indiana Civil Rights Commission, for example), “the time limit for
filing with the EEOC is extended to 300 days.” EEOC v. Commercial Office Prods. Co., 486
U.S. 107, 110, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988)); Whipple v. Taylor University, Inc., 162
F.Supp.3d 815, 829 (N.D. Ind. 2016). Accordingly, Solomon has exhausted her administrative
remedies.
Wardlaw has argued that Solomon’s claims for blacklisting and intentional infliction of
emotional distress should be dismissed for lack of subject matter jurisdiction and improper
venue. However, the court first will address Wardlaw’s contention that Solomon’s intentional
infliction of emotional distress claim fails pursuant to Rule 12(b)(6).
The elements of an intentional infliction of emotional distress claim are that the
defendant: (1) engages in extreme and outrageous conduct (2) which intentionally or recklessly
(3) causes (4) severe emotional distress to another. Curry v. Whitaker, 943 N.E.2d 354, 361
(Ind. Ct. App. 2011). “The requirements to prove this tort are rigorous.” Branham v. Celadon
Trucking Servs., Inc., 744 N.E.2d 514, 523 (Ind. Ct. App. 2001) (citations omitted). Indiana
requires conduct that is so extreme that it “goes beyond all possible bounds of decency” and
would cause an average member of the community to shout “Outrageous!” Westminster
Presbyterian Church of Muncie v. Yonghong Cheng, 992 N.E.2d 859, 870 (Ind. Ct. App. 2013)
(quoting Bradley v. Hall, 720 N.E.2d 747, 752–53 (Ind. Ct. App. 1999) (quoting Restatement
(Second) of Torts § 46 cmt. d (1965)). “Liability has only been found where the conduct has
been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

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decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Bradley v. Hall, 720 N.E.2d 747, 753 (Ind. Ct. App. 1999).
Indiana courts have been reluctant to award damages for intentional infliction of
emotional distress in employment cases. Cortezano v. Salin Bank & Tr. Co., 680 F.3d 936, 941
(7th Cir. 2012). In Cortezano, the employee alleged that an officer of the employer “shouted
directly in her face that [her husband] was ‘garbage’ and a ‘piece of shit’” approximately one
week before she was terminated. Cortezano, 680 F.3d at 941. The Seventh Circuit concluded
that while the officer’s actions were “unprofessional, inappropriate, and no doubt upsetting,” this
conduct “did not meet the standard Indiana requires to establish extreme and outrageous
conduct.” Cortezano, 680 F.3d at 941. “Generally, disciplining and terminating an employee is
not severe enough to meet the standard to show extreme and outrageous conduct.” Walton v.
United States Steel Corp., 2012 WL 6681725. *11 (N.D. Ind. Dec. 21, 2012).
Solomon’s intentional infliction of emotional distress claim is predicated on the same set
of facts as her Title VII discrimination claims. Solomon concedes that termination of
employment in most cases falls short of the outrageous standard. However, she has argued that
“the instant case is far from typical.” Solomon has alleged that she defended her coworkers
when they were subjected to sexual harassment and that she was subjected to sexual harassment
herself. Also, she reported the alleged sexual harassment to her supervisors, which ultimately
led to her being retaliated against and terminated from her employment. In Count V of the
Complaint, Solomon alleged that Wardlaw punished her for protecting female employees from
sexual harassment, criticized her many accomplishments, and intentionally destroyed her
successful career. Solomon has not cited any case authority to support her contention that the
conduct alleged would amount to outrageous.

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The court, viewing in the light most favorable to Solomon, finds that the evidence does
not support her intentional infliction of emotional distress claim. Solomon has not shown that
Wardlaw’s conduct was extreme or outrageous. She has not alleged facts that are more extreme
than those of a typical employment claim. Accordingly, Solomon’s intentional infliction of
emotional distress claim is dismissed.
Finally, Wardlaw contends that Solomon’s claim for blacklisting under Indiana Code 225-3-1 should be dismissed for lack of subject matter jurisdiction and improper venue because the
facts alleged are extraterritorial acts that occurred in Georgia and/or Texas. Wardlaw has
dedicated approximately one paragraph to each of its arguments. “Arguments not developed in
any meaningful way are waived.” Cent. States, Se. & Sw. Areas Pension Fund v. Midwest
Motor Express, Inc., 181 F.3d 799, 808 (7th Cir. 1999). However, the court will address
Wardlaw’s brief arguments.
Indiana Code 22-5-3-1 provides:
(a) A person who, after having discharged any employee from his service,
prevents the discharged employee from obtaining employment with any
other person commits a Class C infraction and is liable in penal damages
to the discharged employee to be recovered by civil action; but this
subsection does not prohibit a person from informing, in writing, any other
person to whom the discharged employee has applied for employment a
truthful statement of the reasons for the discharge.
(b) An employer that discloses information about a current or former
employee is immune from civil liability for the disclosure and the
consequences proximately caused by the disclosure, unless it is proven by
a preponderance of the evidence that the information disclosed was known
to be false at the time the disclosure was made.
The court has original jurisdiction over Solomon’s Title VII claims. Therefore, the court
must determine whether it should exercise supplemental jurisdiction. “The district courts shall
have supplemental jurisdiction over all other claims that are so related to claims in the action

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within such original jurisdiction that they form part of the same case or controversy under Article
III of the United States Constitution.” 28 U.S.C. § 1367. Therefore, whether a claim is part of
the same case or controversy as the claim within a court's original jurisdiction is determined
according to the standard for exercising pendent jurisdiction set forth in United Mine Workers v.
Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). In Gibbs, the Supreme Court held
that federal courts may exercise pendant jurisdiction over a state claim if the state and federal
claims “derive from a common nucleus of operative fact,” so that the claims “are such that [a
plaintiff] would ordinarily be expected to try them all in one judicial proceeding.” Gibbs, 383
U.S. at 725. “A loose factual connection between the claims is generally sufficient” to meet this
requirement. Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir. 1995).
Solomon has indicated that the “exact same facts that bolsters Plaintiff’s retaliation claim
under Title VII also underpin Plaintiff’s blacklisting claim.” The court has found that it would
be a waste of judicial resources and would not serve judicial economy to separate Solomon’s
claims. Therefore, the court has allowed Solomon to proceed on her retaliation claim based on
the facts alleged in the second charge of discrimination. The court finds that Solomon’s Title
VII claims and her blacklisting claim are derived from a common nucleus of operative fact.
Moreover, in a civil action venue is proper in, among other places, “a judicial district in
which a substantial part of the events or omissions giving rise to the claim occurred, or a
substantial part of the property that is the subject of the action is situated.” 28 U.S.C. §
1391(b)(2). Solomon has alleged that Wardlaw terminated her employment and prevented her
from obtaining employment with State Farm by knowingly providing false information to State
Farm. Solomon was employed by Wardlaw located in West Lafayette, Indiana. Therefore, the
conduct that formed the basis of the alleged false information that Wardlaw reported to State

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Farm occurred while she was employed in West Lafayette, Indiana. Accordingly, Wardlaw’s
request to dismiss the blacklisting claim is denied.
Based on the foregoing reasons, the Motion to Dismiss Portions of Plaintiff’s Complaint
[DE 19] is GRANTED in part and DENIED in part. Accordingly, the court hereby
DISMISSES Count V of the Complaint (intentional infliction of emotional distress).
ENTERED this 3rd day of August, 2018.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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