Badal et al v. Ariens Company
Filing
20
DECISION AND ORDER signed by Chief Judge William C Griesbach on 6/18/2018 Denying as Moot 8 Motion to Dismiss, and Granting-in-Part and Denying-in-Part 12 Motion to Dismiss. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
HAWO BADAL, et al.,
Plaintiffs,
v.
Case No. 17-C-1704
ARIENS COMPANY,
Defendant.
DECISION AND ORDER GRANTING IN PART MOTION TO DISMISS
Plaintiffs, nineteen American Black Muslims of Somali national origin, brought this suit
against Defendant Ariens Company, alleging race, national origin, and religious discrimination,
retaliation, and a hostile work environment, in violation of Title VII, 42 U.S.C. § 2000e et seq.,
and race discrimination, in violation of 42 U.S.C. § 1981. Now before the court is Ariens=
motion for partial dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
ECF No. 12. Ariens contends that Plaintiffs have failed to state a claim under either Title VII or
Section 1981 for discrimination on account of their race, national origin or ethnic background,
and seeks dismissal of their complaint as to those claims. For the reasons explained below,
Ariens= motion will be granted in part.
Rule 12(b)(6) Motion To Dismiss and Rule 8 Pleading Standard
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a pleading. Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001). To state a cognizable claim under
the federal notice pleading system, the plaintiff is required to provide a Ashort and plain statement
of the claim showing that [he] is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). The complaint must
contain sufficient factual matter Athat is plausible on its face.@ Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In Twombly, the Court rejected the liberal pleading standard of Conley v. Gibson, under
which a complaint was not to be dismissed for failure to state a claim Aunless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.@ Twombly, 550 U.S. at 561–62 (quoting Conley, 355 U.S. 41, 45–46 (1957)). Rather
than requiring the defendant to show at the pleading stage that the plaintiff can prove no set of
facts to support his claim, Twombly held that to survive a Rule 12(b)(6) motion to dismiss, a
complaint must allege Aenough facts to state a claim to relief that is plausible on its face.@ Id. at
570. In so ruling, the Court expressed concern over the cost of discovery, particularly in
complex anti-trust litigation of the kind presented in Twombly itself. The Court rejected the view
that judicial supervision of the discovery process and the availability of summary judgment could
effectively curb discovery abuse and expense. Id. at 559–60 (AIt is no answer to say that a claim
just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery
process through careful case management, . . . given the common lament that the success of
judicial supervision in checking discovery abuse has been on the modest side. See, e.g.,
Easterbrook, Discovery as Abuse, 69 B.U. L. Rev. 635, 638 (1989) (‘Judges can do little about
impositional discovery when parties control the legal claims to be presented and conduct the
discovery themselves’). And it is self-evident that the problem of discovery abuse cannot be
solved by careful scrutiny of evidence at the summary judgment stage, much less lucid
instructions to juries . . . .@) (internal quotations and citations omitted). Based upon these
considerations, the Court concluded that A[w]hile a complaint attacked by a Rule 12(b)(6) motion
2
to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the
>grounds= of his >entitle[ment] to relief= requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. at 555 (internal citations omitted).
In Iqbal, a civil rights action, the Court made clear that the pleading standard it had
announced in Twombly was not confined to complaints asserting anti-trust claims but was
grounded in the language of Rule 8(a) of the Federal Rules of Civil Procedure: AOur decision in
Twombly expounded the pleading standard for >all civil actions’ . . . and it applies to antitrust and
discrimination suits alike.@ 556 U.S. at 684.
Iqbal also highlighted Atwo working principles@ underlying Twombly. Id. at 678. First,
the Court noted that the rule requiring the court to accept as true all of the allegations of the
complaint did not apply to legal conclusions: AThreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.@ Id. Though it acknowledged
that ARule 8 marks a notable and generous departure from the hypertechnical, code-pleading
regime of a prior era,@ the Court emphasized that Ait does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.@ Id. at 678–79. The second Twombly
principle the Court highlighted in Iqbal is that Aonly a complaint that states a plausible claim for
relief survives a motion to dismiss.@ Id. at 679. ATo survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to >state a claim to relief that is plausible
on its face.=@ Id. (quoting Twombly, 550 U.S. at 570). The Court emphasized that determining
whether a complaint states a plausible claim for relief is a Acontext-specific task that requires the
reviewing court to draw on its judicial experience and common sense.@ Id. While Anot akin to a
probability requirement,@ the standard requires Amore than a sheer possibility that the defendant
acted unlawfully.@ Id. at 678.
3
These are the principles that must govern the determination of Ariens= motion to dismiss.
Allegations of First Amended Complaint
According to the First Amended Complaint (FAC), Plaintiffs are all AAmerican Black
Muslims of Somali national origin,@ who are either currently employed by Ariens or were
employed at the time in question. FAC, ECF No. 11, at ¶¶ 11–29, 35. Ariens is described
simply as a Afor-profit corporation@ located in Brillion, Wisconsin, and an employer within the
meaning of Title VII. Id. ¶ 30. By way of background, however, the court notes that Ariens is a
manufacturer
of
lawn
mowers,
snow
blowers
and
other
machines.
ARIENS,
https://www.ariens.com/en-us (last visited June 13, 2018). In any event, the FAC alleges that, as
practicing Muslims and in accordance with their sincerely-held religious beliefs, each Plaintiff
performs a prayer ritual five times a day. These prayer rituals take about five minutes and must
be performed during prescribed time frames that vary depending upon the position of the sun.
Some of the prayer times occur while Plaintiffs are at work. Id. ¶¶ 35–36.
At the time they were hired, Plaintiffs requested religious accommodations to allow them
to take short breaks during their shifts to perform their daily prayer rituals. Ariens= management
assured Plaintiffs that it would provide an accommodation that would allow them short breaks if a
prescribed prayer time should fall during their shift. Initially, Ariens did in fact provide the
accommodation, and Plaintiffs, two at a time, would take short breaks to perform the ritual. This
accommodation was in line with the company-wide policy of allowing employees to take short
breaks for a variety of purposes, including to use the restroom, smoke, make a phone call, or
purchase a snack. Id. ¶¶ 37–42. Plaintiffs allege that the religious accommodation worked
smoothly and caused no problems or burdens to the operation of Ariens= business. Id. ¶¶ 43–44.
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Sometime in December 2015, Ariens= management team held a meeting with all of the
Somali Muslim employees, including Plaintiffs, and announced that their religious
accommodation would be revoked, effective January 25, 2016. Some of the Somali Muslims,
including some Plaintiffs, expressed concern that Ariens= scheduled breaks did not coincide with
the times in which they needed to say their prayers. All of the Somali Muslim workers, including
Plaintiffs, walked out of the meeting and did not return to work that day in protest of the upcoming
change. Some of the workers, including some Plaintiffs, resigned in protest of the revocation of
their religious accommodation. Id. ¶¶ 47–52.
Between that date and January 25, 2016, Ariens= management met with the Somali
Muslims several additional times. At each meeting, management encouraged the employees to
voluntarily resign and later explained that they risked being terminated if they continued to take
prayer breaks after the accommodation was revoked. Management also informed the Somali
Muslims that if they resigned, they could seek unemployment benefits. Instructions on how to
apply for such benefits were provided, both in English and in the Somali language. Id. ¶¶ 52–64.
Despite this encouragement, some of the Somali Muslims did not resign and continued to
work even after the accommodation was revoked on January 25, 2016. Many sought and
received verbal permission from their supervisor to perform the prayer ritual. When they
returned to their work station, however, they discovered a written warning which threatened
disciplinary actions for taking a break in violation of Ariens= new policy. Ariens= management
also moved the Somali Muslims into one area to monitor them and ensure they were not
requesting bathroom breaks to say their prayers. Again, Ariens= management advised the Somali
Muslims to voluntarily resign or they would continue to receive warning slips until a disciplinary
action was taken against them. Id. ¶¶ 66–69.
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On February 1, 2016, Ariens= Manufacturing Leader told several Somali Muslim
employees, including seven of the Plaintiffs, to sign a document acknowledging they were
violating company policy and that they may be fired if they continued to request the religious
accommodation. All of the employees, including the seven Plaintiffs, refused to sign. Later
that day, the Manufacturing Leader met with these employees, accused them of being
Atroublemakers,@ and terminated them all. Those Plaintiffs who remained employed continued to
request permission to perform their prayer ritual and continued to receive verbal or written
warnings until their employment was terminated. Id. ¶¶ 78–88.
Based on these background factual allegations, the amended complaint asserts four
separate claims or counts. Count I asserts a claim of ADiscrimination in Violation of Title VII.@
Count II asserts a claim for ARetaliation in Violation of Title VII.@ Count III asserts a claim of
AHostile Work Environment in Violation of Title VII.@ Finally, Count IV (misnumbered V)
asserts a claim for AViolation of 42 U.S.C. ' 1981(c).@ It is to the race and national origin
components of Plaintiffs= Title VII claims and their Section 1981 claim that Ariens= motion is
directed.
ANALYSIS
A. Race and National Origin Discrimination Under Title VII
Title VII of the Civil Rights Act of 1964, 42 U.S.C. ' 2000e et seq., prohibits
discrimination Aagainst any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual=s race, color, religion, sex, or national
origin.@ 42 U.S.C. ' 2000e-2. Ariens argues that Plaintiffs= Title VII claim, to the extent it is
intended to include race or national origin discrimination, should be dismissed because the FAC
fails to allege sufficient facts to support a claim for discrimination on those bases. Ariens notes
6
that the FAC alleges that Plaintiffs resigned or were terminated from their employment because
Ariens changed its policy of accommodating the Muslim prayer schedule and Plaintiffs continued
to take prayer breaks at unscheduled times during the work day. Although the FAC alleges that
the policy accommodating the Muslim prayer schedule created no problems in the workplace,
Ariens contends that it changed its policy because it concluded allowing additional and
unscheduled breaks throughout the work day caused undue hardships in the form of increased
costs of production, reductions in efficiency, and additional burdens on those employees who did
not leave the production line for unscheduled breaks. Def.=s Mem. in Supp. of Mot. to Dismiss,
ECF No. 13, at 1. Ariens recognizes that Plaintiffs= allegation that the policy did not cause any
problems to its business is sufficient to state a claim under Title VII. See Trans World Airlines,
Inc. v. Hardison, 432 U.S. 63, 74 (1977) (noting that intent and effect of Title VII=s definition of
religion is Ato make it an unlawful employment practice under § 703(a)(1) for an employer not to
make reasonable accommodations, short of undue hardship, for the religious practices of his
employees and prospective employees@); see also 29 C.F.R. § 1605.2 (Reasonable
accommodation without undue hardship as required by § 701(j) of Title VII of the Civil Rights
Act of 1964). Ariens contends, however, that there are no facts alleged in the FAC that even
suggest the decision to rescind the accommodation had anything to do with Plaintiffs= race or
national origin.
In particular, Ariens notes that Plaintiffs have not alleged that Ariens harbored any animus
against Plaintiffs based on their race and/or national origin. There is no allegation that Ariens
allowed white, non-Somali employees to take breaks at times and for reasons that black Somali
employees were denied, or that non-Black and non-Somali employees were exempt from break
time monitoring.
Nor is there any allegation that Ariens otherwise applied its policies or
7
disciplined employees for violating its policies in a manner that discriminated against employees
based on race or national origin. Def.=s Mem. in Supp. at 4–5. Absent any allegations tying
Ariens= decision to rescind the religious accommodation and the actions taken to implement that
decision to Plaintiffs= race or national origin, Ariens contends, Plaintiffs are precluded from
pursuing race and national origin claims.
In response, Plaintiffs argue that under the minimal pleading standards in employment
discrimination cases, it is enough for them to allege that their employer instituted an adverse
employment action against them on the basis of their race or national origin. Pls.= Resp. in Opp.
to Mot. to Dismiss, ECF No. 15, at 4 (citing Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014,
1028 (7th Cir. 2013); Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). Plaintiffs also contend
that their race and national origin are inseparable from their religious beliefs: APlaintiffs= claims of
religious, race and national origin [discrimination] are >so interrelated as to be indistinguishable.=@
Id. at 7 (quoting Sasannejad v. Univ. of Rochester, 329 F. Supp. 2d 385, 391 (W.D.N.Y. 2004)).
Plaintiffs also note that the FAC alleges that ADefendant actively and repeatedly segregated the
black Somali Muslim employees.@ Id. (citing FAC ¶¶ 47, 52, 63, 70). ASegregating Somali
black employees into a single area for singular scrutiny is racially discriminatory,@ Plaintiffs
contend, Aeven if the Defendant also had a religiously discriminatory purpose.@ Id. Plaintiffs
add that they are Anot blind to the American history of racial segregation.@ Id.
Plaintiffs= argument is unpersuasive. Their Title VII claim, to the extent it is intended to
include race and national origin discrimination, fails to meet even the minimal pleading standard
Plaintiffs claim is applicable in employment discrimination cases. Plaintiffs contend that in
order to state a claim for race or national origin discrimination under this minimal pleading
standard, they need only allege that Ariens terminated their employment or otherwise
8
discriminated against them in the conditions or terms of their employment because of their race
and national origin. But the FAC does not even offer that conclusory allegation in support of
Plaintiffs= Title VII claims. Indeed, there is no allegation of discrimination on the basis of race or
national origin in any of the Title VII counts or any of the factual allegations on which they are
based. For Count I, the FAC alleges that Ariens violated Title VII by
(1) subjecting Plaintiffs to harassment, intimidation, threats and disciplinary action
for exercising their sincerely-held religious beliefs, (2) revoking the original
reasonable accommodation of permitting Plaintiffs to take short, unscheduled
breaks during their shifts to perform their obligatory prayers, and not providing an
alternative reasonable accommodation that would have enabled Plaintiffs to
adhere to their sincerely-held religious beliefs and practices, even though such an
accommodation would not have interfered with business operations, and (3)
terminating Plaintiffs= employment or placing them on track for eventual
termination when they insisted on adhering to those beliefs and practices.
FAC ¶ 93. Although each of the Plaintiffs are identified in the FAC as an AAmerican Black
Muslim of Somali national origin,” there is no allegation in Count I or in any of the 91 preceding
allegations that are re-alleged and incorporated by reference that Ariens acted against them in any
way on account of their race or national origin. On their face, the factual allegations assert only
that Ariens violated Title VII by revoking the accommodation it had previously granted for
Plaintiffs to take work breaks for prayer, took steps to insure that Plaintiffs did not take
unauthorized breaks for that purpose, and imposed discipline up to and including termination
when they did. That is not the same as saying that Ariens discriminated against Plaintiffs on
account of their race or national origin.
Only the Ajurisdiction and venue@ section of the FAC mentions discrimination on the basis
of race and national origin, and even there the FAC does not allege that Ariens actually
discriminated against Plaintiffs on those bases; instead, it alleges that APlaintiffs= claims for
discrimination on the basis of race, religion and national origin, retaliation, and hostile work
9
environment in violation of Title VII are brought pursuant to 42 U.S.C. ' 2000(e) et seq.@ Id. ¶ 3.
There is no question, however, that the court has jurisdiction over claims that Ariens
discriminated against Plaintiffs because of their race or national origin. The question is whether
the FAC alleges Aenough facts to state [such] a claim to relief that is plausible on its face.@
Twombly, 550 U.S. at 570. It does not.
A careful reading of the background allegations of the FAC, as well as those specific to the
Title VII counts, leaves one at a loss as to the relevance of Plaintiffs= race or national origin to their
Title VII claims. The entire focus of the FAC is on the denial of a religious accommodation.
While there may be cases in which the religion, race, and national origin of the plaintiff are
intertwined and inseparable so as to be indistinguishable, this is not such a case based on the
allegations of the FAC. Plaintiffs allege no facts that make plausible their claim that this case
involves more than a dispute over whether the religious accommodation they demand is required
by Title VII. As the Court noted in Iqbal, Rule 8 Adoes not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.@ 556 U.S. at 678–79. And Plaintiffs’
allegations of religious discrimination cannot, without anything more, unlock the doors of
discovery on allegations of race and national origin discrimination. As to their Title VII counts,
Plaintiffs do not offer even Aa formulaic recitation of the elements of the cause of action@ or
Aconclusory statements.@ Id. at 678. Consequently, they have failed to state a claim.
Finally, the FAC=s allegations that Ariens Asegregated@ Plaintiffs, stripped of their racist
connotations, amounts to nothing more than allegations that Ariens management met with its
Muslim employees several times after Ariens decided it would no longer accommodate their
prayer schedule to inform them of its decision and explain when the change would go into effect
and what it would mean. FAC ¶¶ 47, 52, 63. Additionally, the FAC alleges that Ariens Aalso
10
segregated all Somali Muslim workers, including the Plaintiffs that were still employed, in an
apparent but discriminatory attempt to ease the process of enforcing their ban on religious breaks.@
Id. ¶ 70. Although Ariens strenuously denies the allegation that Somali Muslim employees were
segregated at work and insists they Aworked on varying shifts, lines, and positions throughout
Ariens Company,@ Def.=s Reply Mem., ECF No. 16, at 7 n.3, even if the allegation is true, it does
not make Plaintiffs= claim of race or national origin discrimination more plausible, at least not in
light of the fact that the reason alleged for the Asegregation@ was Ato ease the process of enforcing
the ban on religious breaks.@ FAC ¶ 70. An allegation that employees were segregated by
religion does not make plausible a claim of race or national origin discrimination, especially when
the stated reason for the alleged segregation was to monitor the employees= compliance with the
new policy prohibiting unscheduled breaks for religious reasons.
In sum, Count I of the FAC states a claim for discrimination in the terms and conditions of
Plaintiffs= employment on the basis of Plaintiffs= religion in violation of Title VII. It fails to state
a Title VII claim for discrimination against Plaintiffs on account of their race or national origin.
B. Hostile Work Environment
Count III of the FAC is entitled AHostile Work Environment in Violation of Title VII.@
FAC at 16. In addition to re-alleging and incorporating the previous paragraphs, the FAC alleges
in support of Count III that Ariens
subjected Plaintiffs to a hostile work environment in violation of Title VII by (1)
subjecting Plaintiffs to harassment, intimidation, threats and disciplinary action for
exercising their sincerely-held religious beliefs, (2) revoking the original
reasonable accommodation of permitting Plaintiffs to take short, unscheduled
breaks during their shifts to perform their obligatory prayers, and not providing an
alternative reasonable accommodation that would have enabled Plaintiffs to
adhere to their sincerely-held religious beliefs and practices, even though such an
accommodation would not have interfered with business operations, and (3)
terminating Plaintiffs= employment or placing them on track for eventual
termination when they insisted on adhering to those beliefs and practices.
11
Id. ¶ 97 (misnumbered ¶ 43).
To prevail on a hostile work environment claim, a plaintiff must demonstrate that: (1) the
work environment was both objectively and subjectively offensive; (2) the harassment
complained of was based on the plaintiff=s membership in a protected class under Title VII, such
as the plaintiff=s race, religion or national origin; (3) the conduct was either severe or pervasive;
and (4) there is a basis for employer liability. Porter v. City of Chi., 700 F.3d 944, 955 (7th Cir.
2012); Dear v. Shinseki, 578 F.3d 605, 611 (7th Cir. 2009). To the extent Count III is intended to
state a claim that Plaintiffs were subjected to a hostile work environment because of their race or
national origin, it fails for the same reason Count I fails to state a claim for discrimination on that
basis. There are no facts alleged in support of Count III that make plausible the claim that
Plaintiffs were subjected to any harassment on account of their race or national origin. Ariens
argues, however, that Count III also fails to state a hostile work environment claim based on
Plaintiffs= religion.
Ariens argues that of the three Aconclusory allegations@ asserted in Count III, only the
first—that Ariens Asubject[ed] Plaintiffs to harassment, intimidation, threats and disciplinary
action for exercising their sincerely-held religious beliefs”—Ainvolves the type of conduct
recognized by the federal courts as giving rise to a claim for a hostile work environment.@ Def.=s
Mem. in Supp. at 4. And because the FAC Afails to allege specific facts to support its conclusory
assertion of a hostile work environment,” Ariens argues that claim should be dismissed in full.
Id. at 4B5. Ariens also contends that the Aonly plausible allegation of religious-based harassment
involves a single instance of Ariens= management calling the Plaintiffs >troublemakers.=@ Id. at 6
(citing FAC ¶ 79). Citing Porter, 700 F.3d at 956, Ariens argues that A[t]his isolated and
12
relatively mild comment is neither sufficiently severe, nor sufficiently pervasive to create an
actionable hostile workplace.@ Def.=s Mem. in Supp. at 6.
Plaintiffs= conclusory allegation that they were subjected to Aharassment, intimidation,
threats and disciplinary action for exercising their sincerely-held religious beliefs@ is insufficient
to state a claim for hostile work environment. This is because Alegal conclusions and conclusory
allegations merely reciting the elements of the claim are not entitled to this presumption of truth.@
McCauley v. Chi., 671 F.3d 611, 616 (7th Cir. 2011) (citing Iqbal, 556 U.S. at 681). When one
looks beyond Plaintiffs= conclusions to the specific factual allegations underlying Plaintiffs=
claim, it is clear that the FAC=s conclusory allegation that Ariens subjected Plaintiffs to
Aharassment, intimidation, threats and disciplinary action@ is simply Plaintiffs= characterization of
Ariens decision to rescind the accommodation it had previously allowed and management=s effort
to implement that decision.
Indeed, one struggles to discern how Plaintiffs= religious
discrimination claim in Count I differs from their hostile work environment claim in Count III.
The language used in the underlying allegations is identical. Compare FAC ¶ 93, with ¶ 97
(misnumbered ¶ 43).
There is no suggestion that Ariens denigrated Plaintiffs= religion or treated them
differently from any other employee except as necessary to insure they complied with the new
policy, a concern that for obvious reasons did not exist with non-Muslim employees. Ariens
simply concluded that the accommodation it had previously allowed was unduly burdensome.
Cf. Huri v. Office of Chief Judge of Circuit Court of Cook Cty., 804 F.3d 826, 829–30 (7th Cir.
2015) (Muslim employee=s supervisor was unfriendly from moment they met; repeatedly referred
to other colleagues and herself as Agood Christians@ or Agood churchgoing Christians;@ instructed
coworker to work with Agood Christian@ rather than plaintiff, Awho was evil;@ said a prayer Ain the
13
name of Jesus Christ;@ falsely criticized plaintiff and made false misconduct charge against her;
and screamed at plaintiff and subjected her to greater scrutiny and different rules than her
co-workers).
Yet, the fact that the two claims overlap does not mean that both cannot be asserted.
Plaintiffs allege that Ariens unreasonably revoked the accommodation for their prayer schedule
that it had assured them it would provide when it hired them, even though the accommodation
Aworked smoothly@ and placed Ano burden of any kind@ on Ariens= business. FAC ¶¶ 38, 43–44.
Assuming, as is required in deciding a motion to dismiss, that these allegations are true, then
Ariens= decision revoking the accommodation amounts to religious discrimination against
Plaintiffs. Ariens= efforts to prohibit Plaintiffs from praying as required by their religion, which
included warnings, discipline, monitoring their restroom breaks, providing false information
about their eligibility for unemployment benefits, and eventually terminating their employment
could amount to the kind of severe and pervasive conduct needed to demonstrate a hostile work
environment. Under these circumstances, the hostile work environment claim of Count III likely
rises or falls with the religious discrimination claim of Count I. In other words, if Ariens=
decision to rescind the accommodation was justified for business reasons, then its efforts to
implement its new policy in the face of the Plaintiffs= resistance would, at least for the most part,
be deemed reasonable and nondiscriminatory. If, on the other hand, there was no business
justification for rescinding the accommodation, then Ariens= decision to do so and management=s
actions in prohibiting prayer breaks and taking steps to enforce its new policy, given the
importance of prayer in the Muslim religion, may amount to the kind of harassment and
intimidation hostile work environment claims are intended to redress. For these reasons, Ariens=
motion to dismiss Count III in its entirety will be denied. To the extent Count III is intended to
14
assert a hostile work environment claim based on race or national origin discrimination, however,
Ariens= motion is granted.
C. Section 1981
Finally, Count IV (misnumbered Count V) of the FAC alleges a violation of Section 1 of
the Civil Rights Act of 1866, 14 Stat. 27, 42 U.S.C. § 1981. Section 1981 prohibits racial
discrimination in the making and enforcement of private contracts. Runyon v. McCrary, 427
U.S. 160, 168 (1976).
Section 1981 has also been held to protect from discrimination
Aidentifiable classes of persons who are subjected to intentional discrimination solely because of
their ancestry or ethnic characteristics.@ Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613
(1987). However, Section 1981 does not protect against discrimination based on one=s religion.
Lubavitch-Chabad of Ill., Inc. v. Northwestern Univ., 772 F.3d 443, 447 (7th Cir. 2014). Ariens
argues the FAC has failed to allege a plausible Section 1981 claim and that Count IV should
therefore be dismissed.
Count IV of the FAC re-alleges and incorporates all of the preceding paragraphs which the
court has already determined do not state a plausible claim for discrimination based on the race or
national origin of Plaintiffs. In addition to these allegations, however, Count IV of the FAC
includes two additional allegations. Here, Ariens is alleged to have
violated 42 U.S.C. ' 1981 by subjecting Plaintiffs to intentional discrimination by
harassing, intimidating, threatening, implementing disciplinary action, and by
terminating Plaintiffs or placing them on track for eventual termination on the
basis of their race, ethnic background and ancestry, which had the purpose and/or
effect of denying Plaintiffs full and equal access to the making of any
employer-employee contractual relationship between Plaintiffs and Defendant.
Id. ¶ 101 (misnumbered ¶ 45).
Count IV of the FAC also alleges that ADefendant=s
above-described conduct was discriminatory based on Plaintiffs= race, ethnic background and
ancestry and was motivated by racial animus in violation of 42 U.S.C. § 1981.@ Id. ¶ 103
15
(misnumbered ¶ 47). Plaintiffs contend that these allegations, combined with the preceding
allegations that are re-alleged and incorporated into Count IV, are sufficient to state a claim under
42 U.S.C. § 1981.
It is true that in support of its Section 1981 claim, the FAC has finally alleged that Ariens
was motivated by racial animus and engaged in racial discrimination, an allegation entirely
missing from the Title VII claims. But the allegations of racial animus and discrimination, like
those of discrimination based on ethnic background and ancestry, are conclusory and precisely the
type of allegations that Iqbal and Twombly said should be disregarded in assessing the plausibility
of a claim when deciding a Rule 12(b)(6) motion to dismiss. See McReynolds v. Merrill Lynch &
Co., 694 F.3d 873, 886 (7th Cir. 2012) (AWe agree with the district court that these allegations of
intent are the sort of conclusory allegations that are insufficient under Iqbal.@). Just as the court
did in McReynolds, it is helpful to compare the FAC to the complaint that was rejected in Iqbal.
Iqbal, it is important to recall, was an action brought by a Muslim Pakastani pretrial
detainee against current and former government officials, alleging that they unconstitutionally
confined him under harsh conditions because of his religion, race, and/or national origin. 556
U.S. at 669. The Court granted certiorari to review the lower courts= denial of the defendants=
motion to dismiss on grounds of qualified immunity. Id. at 670. After reaffirming the two
Aworking principles@ that underlay its decision in Twombly, the Iqbal Court began its analysis Aby
identifying the allegations in the complaint that are not entitled to the assumption of truth.@ 556
U.S. at 680. These included the allegations that Apetitioners knew of, condoned, and willfully
and maliciously agreed to subject him to harsh conditions of confinement as a matter of policy,
solely on account of his religion, race, and/or national origin and for no legitimate penological
interest;@ that AAshcroft was the principal architect of this invidious policy and that Mueller was
16
instrumental in adopting and executing it.@ Id. at 680B81 (internal quotes, brackets and citations
omitted). AThese bare assertions,@ the Court stated, Amuch like the pleading of conspiracy in
Twombly, amount to nothing more than a formulaic recitation of the elements of a constitutional
discrimination claim, . . . namely, that petitioners adopted a policy >because of,= not merely >in
spite of,= its adverse effects upon an identifiable group.@ Id. at 681 (internal quotations and
citations omitted). AAs such,@ the Court concluded, Athe allegations are conclusory and not
entitled to be assumed true.@ Id.
The Court made clear that it was not rejecting Athese bald allegations on the ground that
they are unrealistic or nonsensical.@ Id. AIt is the conclusory nature of respondent's allegations,@
the Court explained, Arather than their extravagantly fanciful nature, that disentitles them to the
presumption of truth.@ Id.
The Court then turned to the factual allegations of the complaint Ato determine if they
plausibly suggest an entitlement to relief.@ Id. Here, the Court noted that Athe complaint alleges
that Athe FBI, under the direction of Defendant MUELLER, arrested and detained thousands of
Arab Muslim men . . . as part of its investigation of the events of September 11 . . . . It further
claims that the policy of holding postBSeptemberB11th detainees in highly restrictive conditions
of confinement until they were >cleared= by the FBI was approved by Defendants ASHCROFT and
MUELLER in discussions in the weeks after September 11, 2001.@ Id. (internal quotations,
brackets and citation omitted). ATaken as true,@ the Court observed, Athese allegations are
consistent with petitioners' purposefully designating detainees >of high interest= because of their
race, religion, or national origin.@
Id.
ABut given more likely explanations,@ the Court
concluded, Athey do not plausibly establish this purpose.@ Id.
17
The Amore likely explanations,@ the Court went on to explain, were the events of Athe
September 11 attacks.@ Id. at 682.
These attacks Awere perpetrated by 19 Arab Muslim
hijackers who counted themselves members in good standing of al Qaeda, an Islamic
fundamentalist group.@ Id. The Court found it unsurprising that Aa legitimate policy directing
law enforcement to arrest and detain individuals because of their suspected link to the attacks
would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the
policy was to target neither Arabs nor Muslims.@ Id. The Court noted that on the facts alleged in
the complaint, Athe arrests Mueller oversaw were likely lawful and justified by his
nondiscriminatory intent to detain aliens who were illegally present in the United States and who
had potential connections to those who committed terrorist acts.@ Id. AAs between that >obvious
alternative explanation= for the arrests, . . . and the purposeful, invidious discrimination
respondent asks us to infer,@ the Court concluded, Adiscrimination is not a plausible conclusion.@
Id.
The same is true in this case. In the face of the conflict alleged between Ariens= change in
policy and Plaintiffs= demands that they be allowed to take additional and unscheduled breaks as a
religious accommodation for their Muslim faith, the conclusory allegations that Ariens is acting
out of animus toward Plaintiffs= race, ethnic background, or national origin are insufficient to
create a plausible claim under Section 1981. There are no allegations that Ariens= management
or other employees made racial or ethnic slurs, or treated those American Black Muslims of
Somali national origin who accepted the new policy any differently than other non-Black or
non-Somali employees. Nor is there any allegation that Ariens treated other African-American
employees in a discriminatory manner. It is Ariens= decision to rescind the accommodation for
Plaintiffs= prayer schedule that accounts for Plaintiffs= conflict with Ariens. As between this
18
obvious alternative explanation for the conflict, which the FAC explicitly alleges, and the
purposeful invidious discrimination Plaintiffs seek to infer, racial or ethnic discrimination is not a
plausible conclusion.
Suggesting that Iqbal and Twombly do not apply to employment discrimination cases,
Plaintiffs cite Luevano v. Wal-Mart Stores, which overturned the district court=s dismissal of a
complaint alleging sex discrimination and retaliation by the pro se plaintiff=s employer. 722 F.3d
at 1030. In Luevano, the court explicitly recognized Asome unresolved tension@ between
Twombly and Iqbal and the Court=s earlier decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002), which held that a complaint in an employment discrimination lawsuit need not contain
specific facts establishing a prima facie case of discrimination under the framework adopted in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Luevano, 722 F.3d at 1028; see also
McCauley, 671 F.3d at 620–29 (Hamilton, J., dissenting). After cutting through a series of
procedural and jurisdictional roadblocks, the court in Luevano held that the district court had erred
in dismissing the complaint on a finding that the plaintiff Adid not plead facts sufficient to show
that her co-worker harassed her because of sex.@ 722 F.3d at 1028. AEven if that was correct,@
the court noted, Athe district court failed to address Luevano's viable claim that her supervisor
discriminated against her because of her sex and her claim that her supervisor subjected her to a
hostile work environment . . . . Luevano's first complaint pled facts consistent with
supervisor-based harassment that, under the lenient pleading standards for pro se plaintiffs, were
sufficient to state a claim that her supervisor harassed her because of her gender.@ Id. at 1028–29.
Luevano is distinguishable in several important respects from this case.
First, the
plaintiff in Luevano was pro se. The court expressly noted A[a]s a preliminary matter, the
pleading standards for pro se plaintiffs are considerably relaxed, even in the wake of Twombly and
19
Iqbal.@
Id. at 1027 (citations omitted).
Here, by contrast, Plaintiffs are represented by
competent counsel. Second, the factual allegations of the complaint in Luevano, as recounted by
the court, were more than mere legal conclusions:
She clearly pled that her supervisor chose not to remedy the situation because her
supervisor and Luevano's co-worker were both males and her supervisor wanted to
help him just as he helps his brother. She also attached documents, not required by
the concise form provided by the Northern District of Illinois, indicating that she
suffered medical consequences as a result of the alleged intimidation and
harassment by her manager. Luevano thus sufficiently pled the facts necessary to
state a claim that she was harassed by her supervisor.
Id. at 1029. Finally, unlike this case and Iqbal, no alternative explanation for the adverse
employment actions alleged by the plaintiff in Luevano appeared in the complaint. An inference
that the supervisor was motivated by the plaintiff=s gender might be reasonable when no other
explanation for his alleged mistreatment of her was apparent. But in this case, essentially the
entire focus of the complaint is Ariens= decision to rescind the religious accommodation and
management’s efforts to implement and enforce the change in policy. Plaintiffs may dispute
Ariens= conclusion that accommodating unscheduled prayer breaks over the work day imposes an
undue burden on its business and other employees. But its conclusion is not so irrational as to
suggest, absent more, that Ariens’ actions must have been motivated by animus toward Plaintiffs=
race or ethnic background.
In any event, notwithstanding the Aunresolved tension@ it has noted between Twombly and
Iqbal, on the one hand, and some of the Court=s previous decisions, on the other, the Seventh
Circuit has rejected the argument that the Twombly/Iqbal pleading standard does not apply to
employment discrimination cases. See McReynolds, 694 F.3d at 885 (rejecting suggestion that
reliance on Iqbal in Title VII case is misplaced); Adams v. City of Indianapolis, 742 F.3d 720, 728
(7th Cir. 2014) (applying Twombly/Iqbal pleading standard to Title VII claims). To be sure, in
20
applying that standard, the Seventh Circuit has held that conclusory allegations such as AI was
subjected to sexual harassment,@ Tate v. SCR Medical Transportation, 809 F.3d 343, 345 (7th Cir.
2015), or A[I] was fired because of [my] age,@ Clark v. Law Office of Terrence Kennedy, Jr., 709 F.
App=x 826, 828 (7th Cir. 2017), suffice when the plaintiff is pro se, the claim is straightforward,
and no obvious alternative explanation is apparent. But none of those exceptions apply here.
Plaintiffs, as noted, are represented by competent counsel, their claims are not straightforward,
and an obvious alternative explanation for the treatment they challenge is not only apparent but is
expressly and unequivocally alleged. Under these circumstances, their conclusory allegations of
racial and/or ethnic discrimination are insufficient. Ariens= motion to dismiss Plaintiffs= Section
1981 claim will therefore be granted.
CONCLUSION
For the reasons set forth above, Ariens= Rule 12(b)(6) motion for partial dismissal (ECF
No. 12) is GRANTED-IN-PART and DENIED-IN-PART.
The motion is granted as to
Plaintiffs’ Title VII claims for racial and national origin discrimination in Counts I and III, and as
to Plaintiffs’ Section 1981 claim in Count IV in its entirety. These claims are dismissed without
prejudice. In all other respects, the motion is denied. Ariens= motion to dismiss the original
complaint (ECF No. 8) is DENIED AS MOOT.
SO ORDERED this
18th
day of June, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court - WIED
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