Andreivich v. The Art Institute of Wisconsin LLC et al

Filing 21

ORDER signed by Magistrate Judge William E Duffin. IT IS THEREFORE ORDERED that the defendants' 14 Motion to Dismiss is granted in part. The defendants shall file an answer to the Amended Complaint on or before October 13, 2015. (cc: all counsel) (asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEBORAH K. ANDREIVICH,
Plaintiff,
v.

Case No. 15-CV-319

THE ART INSTITUTE OF WISCONSIN, LLC,
EDUCATION MANAGEMENT, LLC,
Defendants.
ORDER
INTRODUCTION
Plaintiff Deborah Andreivich filed an action in state court against her former
employers, the Art Institute of Wisconsin, LLC and Education Management, LLC, for
violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. On
March 23, 2015, the defendants filed a notice removing the action to federal court. (ECF
No. 1.) Shortly after removing the case, the defendants moved to dismiss the complaint.
(ECF No. 8.) In response, Andreivich filed an Amended Complaint. (ECF No. 12.) In
accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties have all
consented to the full jurisdiction of a magistrate judge. (ECF Nos. 4, 11.)

The defendants now move to dismiss the Amended Complaint. (ECF No. 14.)
They allege that it fails to state a claim upon which relief can be granted and should be
dismissed under Federal Rule of Civil Procedure 12(b)(6).
FACTS
The following facts are taken from the Amended Complaint and are accepted as
true for purposes of considering the sufficiency of the Amended Complaint. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
The Art Institute, a Wisconsin limited liability company, is owned and operated
by Education Management. (ECF No. 12, ¶ 10.) Andreivich was an employee of both
defendants and worked in Milwaukee, Wisconsin. (ECF No. 12, ¶¶ 8, 11, 14.) ”Under
[the] defendants’ internal application policy, an employee may apply to any open
position….” (ECF No. 12, ¶15.) When an employee applies for another position with the
defendants, the employee’s supervisor is notified of the application. (ECF No. 12, ¶ 15.)
"[I]nternal applicants are screened by superiors at the job where the applicant works….”
(ECF No. 12, ¶ 16.)
“Andreivich applied for the position of senior director of admissions at Argosy
University on or about July 19, 2013.” (ECF No. 12, ¶ 20.) Bill Johnson was Andreivich’s
supervisor. (ECF No. 12, ¶ 17.) Johnson “torpedoed” Andreivich’s application for the
Argosy University position “by making negative, untrue statements because of her
age.” (ECF No. 12, ¶ 21.) Employees of Education Management, in turn, incorrectly

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determined that Andreivich was unqualified for the Argosy University position and
hired someone who was younger and less qualified than Andreivich. (ECF No. 12,
¶¶ 22-24.) Johnson had previously made negative, untrue statements about Andreivich
in connection with seven other positions for which Andreivich applied, and those
positions also went to younger, less qualified candidates. (ECF No. 12, ¶ 25.)
The Amended Complaint contains one cause of action, alleging discrimination
based on age under 29 U.S.C. § 623. It alleges, “Defendants willfully acted contrary to 29
U.S.C. §623(a)(1) by failing and refusing to promote Ms. Andreivich because of her
age.” (ECF No. 12, ¶ 31.) Separately, the Amended Complaint alleges that “Defendants
also discriminated against Ms. Andreivich in compensation and in the terms, conditions
and privileges of employment throughout her employment with the Art Institute.”
(ECF No. 12, ¶ 26.)
ANALYSIS
It is unlawful under the Age Discrimination in Employment Act of 1967 for an
employer “to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).
I.

Statute of Limitations
Although the Amended Complaint contains only one cause of action, the

defendants construe it as setting forth eight separate claims of age discrimination tied to

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each of the eight instances where they are alleged to have failed to hire Andreivich
because of her age. They contend that seven of those claims are barred as untimely.
They point out that an employee in Wisconsin must file an administrative charge of
discrimination with the United States Equal Employment Opportunity Commission
(EEOC) or its state counterpart within 300 days from when the unlawful practice
allegedly occurred. 29 U.S.C. § 626(d)(1)(B). Because Andreivich filed a charge with the
Wisconsin Department of Workforce Development on February 14, 2014 (ECF No. 10-1),
the seven “claims” that allegedly transpired before April 19, 2013, are no longer
actionable. In response, Andreivich concedes that she cannot seek relief for the seven
earliest instances of alleged discrimination but states that they are “circumstantial
evidence” that the defendants discriminated against her when she applied for the senior
director of admissions position at Argosy University. (ECF No. 19 at 4-5.)
The Amended Complaint is not a model of clarity, to put it mildly. But the court
does not read it as alleging eight separate, actionable instances of age discrimination.
Rather, the court reads the Amended Complaint as alleging one instance of actionable
age discrimination associated with the failure to hire Andreivich as the senior director
of admissions at Argosy University on or about July 19, 2013. The other seven alleged
instances of age discrimination are included, not as separate causes of action, but
merely as support for the plaintiff’s allegation that discrimination occurred on July 19,
2013—to use the allegations in the Amended Complaint to show that that decision was

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“part of a pattern and practice of discrimination against Ms. Andreivich based on her
age.” (ECF No. 12, ¶ 25.)
Because the defendants concede that the allegation that they discriminated
against Andreivich on July 19, 2013, is timely, their motion to dismiss on the ground
that the claim is time-barred is denied.
II.

Sufficiency of the Amended Complaint
A.

Defendants’ Liability

The defendants appear to argue, although it is not clear, that the Amended
Complaint does not sufficiently allege that they had any involvement in the decision not
to hire Andreivich for the position at Argosy University. (ECF No. 15 at 7-9.) They also
imply that the court lacks personal jurisdiction over them. (ECF No. 15 at 8-9.) Indeed,
Andreivich interprets the defendants’ argument as one disputing the court’s personal
jurisdiction over them. (ECF No. 19 at 5-6.) However, the defendants never expressly
state that the court lacks personal jurisdiction over them nor do they seek relief under
Federal Rule of Civil Procedure 12(b)(2). As a result, the court construes this second
argument of defendants as simply challenging the Amended Complaint for its failure to
allege their involvement in the subject decision.
Although the Amended Complaint does not clearly identify Argosy University’s
affiliation to the defendants, it does expressly state that “employees of [Education
Management] made the incorrect determination that Ms. Andreivich was not qualified

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for the position of senior director of admissions at Argosy University because of Mr.
Johnson’s negative, untrue statements.” (ECF No. 12, ¶ 22.) The Art Institute, who
employed Andreivich, likewise did not support her application. (ECF No. 12, ¶¶ 18-19.)
Thus, contrary to what the defendants contend, the Amended Complaint does make an
allegation that the defendants were involved in the decision that resulted in Andreivich
not getting the job at Argosy University.
B.

Sufficiency of Factual Allegations

Next, the defendants argue that Andreivich’s two claims lack sufficient
specificity and should be dismissed. (ECF No. 15 at 9-11.) The claims assert that the
defendants, as just discussed, failed to hire her as the senior director of admissions at
Argosy University (ECF No. 12, ¶ 19) and provided her inferior compensation, terms,
conditions, and privileges while she worked at the Art Institute (ECF No. 12, ¶ 26-27).
A complaint must include “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). When a complaint “fail[s] to
state a claim upon which relief can be granted,” a defendant may move to dismiss it.
Fed. R. Civ. P. 12(b)(6). A motion to dismiss challenges not the merits of the suit but the
sufficiency of the complaint. Five Star Airport Alliance, Inc. v. Milwaukee Cnty., 939 F.
Supp. 2d 936, 937 (E.D. Wis. 2013) (citing Gibson v. City of Chicago, 910 F.2d 1510, 1520
(7th Cir. 1990)). To avoid dismissal, a complaint must contain allegations that “state a
claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 679-80 (quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002), decided before Twombly
and Iqbal, the issue was whether a complaint alleging employment discrimination must
establish a prima facie case of discrimination under the framework set forth in
McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973), in order to survive a motion to
dismiss. The Supreme Court said no, and applied the “ordinary rules for assessing the
sufficiency of a complaint,” which require simply that the complaint “give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.” Id. at 511-12 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). This was “easily”
accomplished through allegations that “detailed the event leading to termination,
provided relevant dates, and included the ages…of at least some of relevant persons
involved with his termination.” Id. at 514.
In Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010), after noting that
Swierkiewicz was cited with approval in Twombly, the Court of Appeals for the Seventh
Circuit stated that it will be no more difficult for a discrimination plaintiff to meet the
Swierkiewicz pleading burden than it was before Twombly and Iqbal:
A plaintiff who believes that she has been passed over for a promotion
because of her sex will be able to plead that she was employed by
Company X, that a promotion was offered, that she applied and was
qualified for it, and that the job went to someone else.
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Id. “Employers are familiar with discrimination claims and know how to investigate
them, so little information is required to put the employer on notice of these claims.”
Carlson v. CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014) (citing EEOC v. Concentra
Health Services, Inc., 496 F.3d 773, 782 (7th Cir. 2007)).
The Amended Complaint alleges that the defendants failed to hire Andreivich as
the director of admissions at Argosy University because of her age. It alleges the who,
what, and when of the alleged discrimination. Andreivich applied for the position as
senior director of admissions at Argosy University around July 2013 (when), and the
defendants’ employee-supervisor, Johnson (who), made negative and untrue statements
about Andreivich because of her age (what). (ECF No. 12, ¶¶ 17-24.) As a result,
“[d]efendants, by Mr. Johnson and others, willfully discriminated against Ms.
Andreivich by refusing and failing to promote her because of her age….” (ECF No. 12,
¶ 19.) Although these factual allegations may be thin in other contexts, they are, as
Swanson noted, “all that she needed to put in the complaint.” 614 F.3d at 405.
The Amended Complaint also alleges that the defendants “discriminated against
Ms. Andreivich in compensation and in the terms, conditions and privileges of
employment throughout her employment with the Art Institute. Defendants offered
Ms. Andreivich less favorable compensation and less favorable terms, conditions and
privileges than similarly situated employees.” (ECF No. 12, ¶26-27.) Although in the

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context of the other allegations in the Amended Complaint one could conclude that this
alleged discrimination was based on Andreivich’s age, the complaint does not say so.
Passing that problem, the Amended Complaint contains no factual allegations
that inform the defendants as to the who, what, and when of this alleged
discrimination. Specifically, when did the defendants offer Andreivich “less favorable
compensation and less favorable terms, conditions and privileges” than similarly
situated employees? Who was it that offered the less favorable compensation and terms,
conditions, and privileges? And what compensation, terms, conditions, and privileges is
this talking about? Andreivich simply quoted the statutory language of 29 U.S.C. § 623
(which makes it unlawful to discriminate with respect to an employee’s “compensation,
terms, conditions, or privileges of employment”). But reciting statutory language does
not provide a defendant with the notice required by Rule 8(a). Swanson, 614 F.3d at 404
(quoting Brooks, 57 F.3d 574).
To the extent that the Amended Complaint purports to state a claim under 29
U.S.C. §623, it is insufficient. The defendants’ motion to dismiss that part of the
Amended Complaint is granted.
CONCLUSION
Andreivich’s allegation that the defendants failed to hire her as the director of
admissions at Argosy University sufficiently alleges a claim upon which relief can be
granted. However, the claim that the defendants discriminated against Andreivich with

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regard to “compensation and in the terms, conditions and privileges of employment
throughout her employment” is dismissed.
IT IS THEREFORE ORDERED that the defendants’ Motion to Dismiss (ECF No.
14) is granted in part. Under Federal Rule of Civil Procedure 12(a)(4)(A), the defendants
shall file an answer to the Amended Complaint on or before October 13, 2015.
Dated at Milwaukee, Wisconsin this 28th day of September, 2015.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

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