BENDER v. AVON EDUCATION FOUNDATION et al

Filing 83

ORDER denying Defendant Avon Education Foundation's 70 Motion to Dismiss Second Amended Complaint for Failure to State a Claim. See Order for details. Signed by Magistrate Judge Tim A. Baker on 2/18/2021. (SWM)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SARA BENDER,
Plaintiff,
v.
AVON COMMUNITY SCHOOL
CORPORATION,
AVON EDUCATION FOUNDATION,
Defendants.

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No. 1:19-cv-04694-TAB-RLY

ORDER ON DEFENDANT AVON EDUCATION FOUNDATION'S
MOTION TO DISMISS SECOND AMENDED COMPLAINT
I.

Introduction
This matter is before the Court on Defendant Avon Education Foundation's motion to

dismiss Plaintiff Sara Bender's second amended complaint under Fed. R. Civ. P. 12(b)(6).
[Filing No. 70.] The Foundation argues that Bender failed to exhaust her administrative
remedies and that the Foundation is not an employer under either the Family Medical Leave Act
or Title VII of the Civil Rights Act. [Filing No. 70, at ECF p. 3, 6.] As discussed below, the
Foundation is estopped from claiming a lack of notice to Bender's discrimination charge.
Additionally, Bender's second amended complaint sets forth sufficient factual allegations of
joint, possibly interrelated, employers to survive a Rule 12(b)(6) motion. Therefore, the Court
denies the Foundation's motion to dismiss.

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II.

Background
Bender filed her original complaint on November 26, 2019, alleging she was jointly

employed by the Foundation and Defendant Avon Community School Corporation as the
Executive Director at the Foundation. [Filing No. 1.] Bender claimed that Defendants violated
federal law by not providing her with required FMLA leave and then retaliated against her for
seeking FMLA leave. [Filing No. 1, at ECF p. 2.] On December 3, 2019, Defendants fired
Bender. [Filing No. 67, at ECF p. 6.] Bender alleged that she was fired in retaliation for
asserting her federally protected rights and for filing this lawsuit. [Filing No. 67, at ECF p. 6.]
On February 10, 2020, Bender filed her Indiana Civil Rights Commission and EEOC charge of
discrimination. [Filing No. 71-1, at ECF p. 1.] The charge identified Bender's employer as
"Avon Community School Corp via Avon Education Foundation," with the address 7203 E. US
Hwy 36, Avon IN, 46123. [Filing No. 71-1, at ECF p. 1.] The same address appears on the
summons issued to the Foundation as well as the School Corporation. [Filing No. 3, at ECF p.
1.] In the charge, Bender stated: "I worked for the Avon Community School Corporation from
August 2017 until my termination on December 3, 2019. My position was the Executive
Director of the Avon Education Foundation." [Filing No. 71-1, at ECF p. 2.]
On March 26, 2020, the Court approved the parties' Case Management Plan. [Filing No.
21.] In the CMP, Bender stated that she "has filed an EEOC charge for gender discrimination
and will amend her complaint to include discrimination and retaliation claims under 42 USC
2000e." [Filing No. 21, at ECF p. 2.] In the same section, Defendants stated that Bender was
only employed by the Foundation and "[t]o the extent Plaintiff amends her Complaint to
incorporate her EEOC charge, [Bender] was not discriminated against on the basis of her sex or
disability or otherwise suffered retaliation." [Filing No. 21, at ECF p. 2.]

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On October 8, 2020, Bender filed an amended complaint. [Filing No. 52.] Subsequently,
Bender filed a motion for leave to file a second amended complaint, stating that she wished to
remove ADA and Rehabilitation Act claims from the lawsuit and "to contend that the attorney
for [the School Corporation] and [the Foundation], Mr. Jon Becker, told [Bender] that [the
School Corporation] was her employer and that [the Foundation] is not an employer." [Filing
No. 62, at ECF p. 1.] The Court granted the motion [Filing No. 66], and Bender filed her second
amended complaint [Filing No. 67]. On January 5, 2021, the Foundation filed the pending
motion to dismiss Bender's second amended complaint. [Filing No. 70.]
III.

Discussion
The Foundation argues Bender's FMLA and Title VII claims against the Foundation

should be dismissed, with prejudice, under Fed. R. Civ. P. 12(b)(6). [Filing No. 70.] Rule
12(b)(6) provides that a party may move to dismiss a complaint that fails to state a claim upon
which relief can be granted. To survive a Rule 12(b)(6) motion, "[t]he complaint must contain
allegations that collectively state a claim to relief that is plausible on its face. We accept all
well-pleaded allegations of fact as true and draw all reasonable inferences in the plaintiffs'
favor." Alarm Detection Sys., Inc. v. Vill. of Schaumburg, 930 F.3d 812, 821 (7th Cir. 2019)
(internal citations and quotation marks omitted).

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A.

Exhaustion of Administrative Remedies

The Foundation first contends that Bender's second amended complaint should be
dismissed as it relates to the Foundation because Bender failed to exhaust her administrative
remedies prior to filing. [Filing No. 71, at ECF p. 3.] Generally, under Title VII, 42 U.S.C. §
2000e-5(f)(1), before a party may bring a Title VII action, they must file an EEOC charge
naming that party as a respondent. See, e.g., Whitaker v. Milwaukee Cnty., Wisconsin, 772 F.3d
802, 812 (7th Cir. 2014) ("An ADA plaintiff must file a charge with the EEOC before bringing a
court action against an employer. A plaintiff is barred from raising a claim in the district court
that had not been raised in his or her EEOC charge unless the claim is reasonably related to one
of the EEOC charges and can be expected to develop from an investigation into the charges
actually raised." (Internal citations, quotation marks, and brackets omitted)). However, there is
an exception to the filing requirement when an unnamed party was provided with adequate
notice of the charge and an opportunity to participate in the EEOC conciliation proceedings.
Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130 , 657 F.2d 890, 905 (7th Cir.
1981) ("With the two-fold purposes of EEOC charge filing in mind, courts have recognized
several exceptions to the rule that parties not named in the EEOC charge are not subject to suit in
a private civil action. As to one exception of import here, this court has determined that where
an unnamed party has been provided with adequate notice of the charge, under circumstances
where the party has been given the opportunity to participate in conciliation proceedings aimed
at voluntary compliance, the charge is sufficient to confer jurisdiction over that party.").
The Foundation argues that while Bender filed a charge with the ICRC and EEOC against
the School Corporation, she did not bring one against the Foundation. [Filing No. 71, at ECF p.
3.] In addition, the Foundation argues that the exception for an unnamed party should not apply

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because the Foundation was neither provided with notice nor given a chance to participate in
conciliation proceedings. [Filing No. 71, at ECF p. 3-4.] While counsel for the School
Corporation received the EEOC's response and right to sue letter, the Foundation argues that its
counsel did not. [Filing No. 71, at ECF p. 3.]
The Foundation contends that the most comparable case is Schnellbaecher v. Baskin
Clothing Co., 887 F.2d 124 (7th Cir. 1989). In Schnellbaecher, the plaintiff filed pro se charges
with the EEOC against Baskin Clothing, but not against its parent company, Hartmarx Specialty
Stores, Inc. Id. at 125. The Seventh Circuit affirmed dismissal of federal court charges against
Hartmarx because while Hartmarx had notice of the charges against Baskin, it did not have
notice of the charges against it, nor did Hartmarx have any opportunity to conciliate on its own
behalf. Id. at 127.
The Foundation also draws comparisons to Tamayo v. Blagojevich, 526 F.3d 1074 (7th
Cir. 2008). In Tamayo, the plaintiff filed a discrimination charge naming the Illinois Department
of Revenue as her employer, but did not name the Gaming Board, which operates under the
Department and for which the plaintiff worked as Deputy Chief Counsel. Id. at 1079. The
plaintiff subsequently filed a complaint in federal district court against both entities. Id. at 1080.
The Seventh Circuit affirmed dismissal of the Title VII claims against the Gaming Board,
finding that while Tamayo put the Board on notice of her claims against the Department of
Revenue, she had not put the Board on notice of her claims against the Board itself. Id. at 1089.
The present case, however, is distinguishable from Schnellbaecher and Tamayo. As
noted above, Bender's charge identified her employer as both the Foundation and the School
Corporation, stating "Avon Community School Corp via Avon Education Foundation[.]" [Filing
No. 71-1, at ECF p. 1.] In addition, the Foundation and the School Corporation share an address,

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which was also listed in the charge. [Filing No. 71-1, at ECF p. 1.] Finally, the charge stated
that Bender worked for the School Corporation as Executive Director of the Foundation. [Filing
No. 71-1, at ECF p. 2.] Therefore, Bender put the Foundation on notice of her claims against
both the School Corporation and the Foundation.
Moreover, even if Bender failed to properly name the Foundation as her employer in the
charge, the Foundation was aware, through the course of the litigation in this Court, that the
discrimination charge had been filed and identified Bender as Executive Director of the
Foundation. Bender has consistently named both the School Corporation and the Foundation as
her employer in pursuing redress through administrative channels and in this litigation. The
Foundation's name appears in the charge, as well as its address, and the School Corporation's
counsel works in the same law firm as the Foundation's pro bono legal counsel. [Filing No. 81,
at ECF p. 6.] As Bender states, "[i]t strains credibility for [the Foundation] to claim it had no
notice of the EEOC Charge when one attorney in the law firm responded to the Charge while his
partner does legal work for [the Foundation]." [Filing No. 81, at ECF p. 6.] Thus, the
Foundation received sufficient notice of Bender's EEOC charge.
Furthermore, while the Foundation claims it did not receive the right to sue letter and had
no chance to participate in the EEOC administrative process, it appears more likely that the
Foundation strategically chose not to participate in the process, believing that it does not qualify
as an employer under the relevant statutes. (This argument is addressed in more detail below.)
Therefore, the Foundation is estopped from claiming a lack of notice or opportunity to conciliate
on its own behalf as to Bender's EEOC charge.

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B.

Joint Employer

The Foundation next argues that Bender failed to allege an essential element of both her
FMLA and Title VII claims because the Foundation is not an "employer" as defined by the
statutes. [Filing No. 71, at ECF p. 6.] The FMLA defines an employer as "any person engaged
in commerce or in any industry or activity affecting commerce who employs 50 or more
employees." 29 U.S.C. § 2611(4)(A)(i). Title VII similarly excludes small employers, defining
an employer as "a person engaged in an industry affecting commerce who has fifteen or more
employees." 42 U.S.C. §2000e(b). The Foundation contends that Bender was the Foundation's
sole employee, and that while Bender alleged she was a joint employee of the Foundation and
the School Corporation, she did not describe anyone else as a joint employee. [Filing No. 71, at
ECF p. 7.] Thus, the Foundation's main argument is that even assuming Bender was a joint
employee of both the Foundation and the School Corporation, with only one employee, the
Foundation is not subject to the FMLA or Title VII, so those claims should be dismissed.
However, as noted above, at the pleading stage, the Court construes all inferences in
Plaintiff's favor. See Alarm Detection Sys., Inc. v. Vill. of Schaumburg, 930 F.3d 812, 821 (7th
Cir. 2019) ("The requirements for surviving a motion to dismiss are now familiar. The
complaint must contain allegations that collectively state a claim to relief that is plausible on its
face. We accept all well-pleaded allegations of fact as true and draw all reasonable inferences in
the plaintiffs' favor. If the well-pleaded allegations plausibility suggest—as opposed to possibly
suggest—that the plaintiffs are entitled to relief, the case enters discovery." (Internal citations
and quotation marks omitted)). After stating that she was jointly employed by Defendants as
Executive Director of the Foundation and an administrator of the School Corporation, Bender set
out facts in the second amended complaint demonstrating that she may have meant to plead an

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integrated employer relationship. See, e.g., 29 C.F.R. § 825.104(c)(2) ("Separate entities will be
deemed to be parts of a single employer for purposes of FMLA if they meet the integrated
employer test. Where this test is met, the employees of an entities making up the integrated
employer will be counted in determining employer coverage and employee eligibility. A
determination of whether or not separate entities are an integrated employer is not determined by
the application of any single criterion, but rather the entire relationship is to be reviewed in its
totality."). Bender argues that paragraphs 7 through 34 of Bender's second amended complaint
set out facts reflecting "an interrelation between operations, a centralized control of labor
relations and a degree of common ownership/financial control such that this well-pled complaint
demonstrates that these two entities may be considered joint employers." [Filing No. 81, at ECF
p. 9.]
At this stage, the Court cannot, and need not, definitively determine whether the
Foundation is a joint employer, or an integrated employer. See, e.g., Penteris v. Citgo Petroleum
Corp., 104 F. Supp. 3d 894, 900 (N.D. Ill. 2015) ("Determining whether an entity is a joint
employer is a fact-intensive inquiry that typically requires further development through
discovery[.]"); Tyus v. United States Postal Service, No. 15-CV-1467, 2017 WL 52609, at *7
(E.D. Wisc. Jan. 4, 2017) ("Tyus has alleged several ways in which USPS was to exercise
control over ABM personnel. Accepting these facts as true at this stage, and drawing all
reasonable inferences therefrom in favor of Tyus, the court finds that he has sufficiently plead a
prospective joint employer relationship with USPS so as to survive a Rule 12(B)(6) motion to
dismiss."). The question is not whether Bender will ultimately succeed, but whether she has
offered enough evidence to get past the initial pleading stage. See, e.g., Cole v. U.S. Capital,
Inc., 389 F.3d 719, 724 (7th Cir. 2004) ("A complaint should not be dismissed unless it appears

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beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief. The issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims." (Internal citations and quotation
marks omitted)).
Bender's second amended complaint sets forth sufficient factual allegations of a joint,
possibly integrated, employer relationship to survive the Foundation's motion to dismiss.
Therefore, the Foundation's motion to dismiss under Fed. R. Civ. P. 12(b)(6) is denied.
IV.

Conclusion
The Foundation is estopped from claiming a lack of notice to Bender's discrimination

charge, which named the Foundation as one of her employers, identified her position with the
company when relaying the facts, and contained the Foundation's address. In addition, Bender's
second amended complaint sets forth sufficient factual allegations of joint, and possibly
interrelated, employers to survive the Foundation's Rule 12(b)(6) motion. For these reasons, the
Foundation's motion [Filing No. 70] to dismiss Bender's second amended complaint is denied.

Date: 2/18/2021

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

Distribution:
All ECF-registered counsel of record via email

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