Alam et al v. Miller Brewing Company et al

Filing 15

ORDER signed by Judge Rudolph T Randa on 12/16/2010 granting 9 Motion to Dismiss, but allowing Alam thirty (30) days to re-plead. (cc: all counsel) (Koll, J)

A l a m et al v. Miller Brewing Company et al

D o c . 15

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN

S Y E D ALAM, ALAM & COMPANY, LLC, P l a i n t if f s , C a s e No. 10-C-512 -vsM I L L E R BREWING COMPANY, COORS B R E W I N G COMPANY and MILLERCOORS, LLC, Defendants.

D E C IS IO N AND ORDER

In 2006, Syed Alam ("Alam") settled a Title VII lawsuit against his former employer, M ille r Brewing Company ("Miller"). Thereafter, Alam (through Alam & Company, LLC) a p p ro a c h ed Miller's subsequently-formed joint venture with Coors Brewing Company (" C o o rs" ) ­ MillerCoors LLC ­ about developing a software prototype. MillerCoors told A la m that if Alam continued working on the prototype, MillerCoors would entertain his sales p itc h and consider buying the software. After two months working on the prototype, M ille rC o o rs pulled the plug on Alam, citing Alam's prior lawsuit against Miller as the p rim a ry justification. "As I indicated during our conversation, MillerCoors is not interested in engaging you or your company. . . . MillerCoors has made this decision based on the terms . . . of the settlement and release dated January 17, 2006. . . . Paragraph 8 of the Settlement A g re e m e n t provides: `I agree not to reapply for employment with or otherwise work for or p ro v id e services to [Miller] or any of its parent, affiliates or subsidiaries.'" Alam alleges that

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a ll of the defendants ­ Miller, Coors, and MillerCoors LLC ­ retaliated against him on the b a sis of his previous lawsuit against Miller. Alam also brings a state common law claim for p ro m is s o ry estoppel. The defendants move to dismiss for failure to state a claim. "T o survive a motion to dismiss, a complaint must contain sufficient factual matter, a c ce p te d as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S . Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). " A claim has facial plausibility when the pleaded factual content allows the court to draw the re a so n a b le inference that the defendant is liable for the misconduct alleged." Id. Notice p le a d in g "marks a notable and generous departure from the hyper-technical, code-pleading re g im e of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with n o th in g more than conclusions." Id. at 1950. While a complaint must plead enough facts to state a plausible claim, a complaint can also plead too much by "pleading facts that e sta b lis h an impenetrable defense . . ." Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th C ir. 2008). T itle VII's anti-retaliation provision makes it an "unlawful employment practice for a n employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this su b c h a p ter ." 42 U.S.C. § 2000e-3(a). Employees are protected from retaliation by their f o rm e r employers. Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997); Veprinsky v. Fluor D a n ie l, Inc., 87 F.3d 881 (7th Cir. 1996). Accordingly, Alam can maintain a retaliation c la im against his former employer, Miller Brewing Company. However, Alam was never

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e m p lo ye d by Coors or MillerCoors, and it is not unlawful discrimination for an employer to re ta lia te against another employer's employee. Hale v. Marsh, 808 F.2d 616, 618-19 (7th C ir. 1986) (emphasis in original).1 T h e re f o re , Miller Brewing Company can be considered Alam's "employer" for p u rpo se s of a Title VII retaliation claim, but stating a claim against Coors and MillerCoors p re se n ts a trickier proposition. Limited liability ordinarily insulates a corporation from the lia b iliti e s of its affiliates. Marshal v. H & R Block Tax Servs., Inc., 564 F.3d 826, 828 (7th C ir. 2009). Affiliated corporations forfeit their limited liability and become a "single e m p lo ye r" under the following circumstances: (1) when the traditional conditions for p ie rc in g the corporate veil are present; (2) by taking actions for the express purpose of a v o id in g liability under the discrimination laws; or (3) by directing the discriminatory act, p ra c tic e , or policy of which the employee is complaining. Worth v. Tyer, 276 F.3d 249, 2596 0 (7th Cir. 2001); Papa v. Katy Indus., Inc., 166 F.3d 937, 940-41 (7th Cir. 1999). "The b a sic principle of affiliate liability is that an affiliate forfeits its limited liability only if it acts to forfeit it ­ as by failing to comply with statutory conditions of corporate status, or m islea d in g creditors of its affiliate, or configuring the corporate group to defeat statutory

It should be noted that Alam is not suing as an "applicant for employment" with MillerCoors LLC, 42 U.S.C. § 2 0 0 0 e - 3 ( a ) , perhaps realizing his status as an independent contractor. Heinemeier v. Chemetco, Inc., 246 F.3d 1078, 1082 ( 7 t h Cir. 2001); Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 492-93 (7th Cir. 1996).

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jurisd ic tio n , or commanding the affiliate to violate the right of one of the affiliate's e m p lo ye e s." Papa at 941.2 T h e Court cannot pierce the corporate veil to impose liability on Coors or MillerCoors a s Alam's former employer. Piercing the corporate veil occurs when "corporate formalities a re ignored and the actions of one company can accrue to another." Worth at 260. There m u s t be "such unity of interest and ownership that the separate personalities . . . no longer e x ist," and the "circumstances must be such that adherence to the fiction of separate c o rp o ra te existence would sanction a fraud or promote injustice." Id. (quoting Van Dorn Co. v . Future Chem. & Oil Corp., 753 F.2d 565, 569-70 (7th Cir. 1985)). The defendants were a f f ilia te d at the time of the alleged retaliatory conduct, but this is not enough to attach af filiate liability. There must be an underlying employment relationship, and neither Coors n o r MillerCoors were affiliated with Miller when Miller employed Alam. The actions of M ille r in creating an employment relationship with Alam could not possibly have "accrued" t o the joint venture because the parties were not a joint venture at that time. Stated more sim p ly, the joint venture was not acting as a "single employer" (or a single former employer) w h en it refused to hear Alam's sales pitch. Miller is the only former employer. T h e re f o re , Alam cannot state a retaliation claim against Coors or MillerCoors. He can p ro c e ed against Miller, but Alam's complaint alleges that the joint venture, not Miller, agreed
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In Papa, the Seventh Circuit rejected the four-factor "integrated enterprise" test that was previously used in th is circuit to determine whether a group of affiliated corporations could be considered a "single employer." Rogers v. S u g a r Tree Prods., Inc., 7 F.3d 577, 582 (7th Cir. 1994) (interrelation of operations, common management, centralized c o n tr o l, and common ownership). "W h e re a focus on integration makes sense is in the original context of the four-factor te s t: the determination by the National Labor Relations Board of whether it has jurisdiction over an employer or, even m o r e clearly, what the appropriate bargaining unit is. . . . But there is no argument for making one affiliate liable for the o t h e r's independent decision to discriminate." Papa at 942 (internal citations omitted).

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b u t then refused to hear his sales pitch. It could be that Miller was responsible behind the s c e n es , but the allegations in Alam's complaint do not plausibly suggest this scenario. M o re o v e r, Alam did not name Miller in his EEOC charge.3 Alam argues that this can be e x c u se d pursuant to Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F .2 d 890, 905 (7th Cir. 1981) ("where an unnamed party has been provided with adequate n o tice 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"). Once again, Alam's complaint does not plausibly s u g g e st that the Eggleston exception applies here. B a se d on the foregoing, the Court will GRANT the motion to dismiss [D. 9], but a llo w Alam thirty (30) days to re-plead. Barry Aviation Inc. v. Land O'Lakes Mun. Airport C o m 'n , 377 F.3d 682, 687 (7th Cir. 2004). If Alam fails to state a plausible federal claim, th e Court will relinquish jurisdiction over the supplemental state law claims and dismiss this c a s e in its entirety. Van Harken v. City of Chi., 103 F.3d 1346, 1354 (7th Cir. 1997); 28 U .S .C . § 1367(c)(3). D a te d at Milwaukee, Wisconsin, this 16th day of December, 2010. S O ORDERED, s / Rudolph T. Randa HON. RUDOLPH T. RANDA U.S. District Judge

The Court can consider Alam's EEOC charge without converting this motion into one for summary judgment. D r e b i n g v. Provo Group, Inc., 494 F. Supp. 2d 910, 912 (N.D. Ill. 2007); Henson v. CSC Credit Servs., 29 F.3d 280, 284 ( 7 th Cir. 1994) (court can take judicial notice of public documents without converting motion to dismiss into motion for s u m m a r y judgment).

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