Alam v. Miller Brewing Co., 11–2456.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation709 F.3d 662
Docket NumberNo. 11–2456.,11–2456.
PartiesSyed M. ALAM, Plaintiff–Appellant, v. MILLER BREWING COMPANY, et al., Defendants–Appellees.
Decision Date27 February 2013


Christopher J. Wilmes (argued), Attorney, Hughes Socol Piers Resnick & Dym, Ltd., Chicago, IL, for PlaintiffAppellant.

Michael Aldana (argued), Attorney, Quarles & Brady LLP, Milwaukee, WI, for DefendantsAppellees.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge.

Syed Alam brought suit against Miller Brewing Company and MillerCoors LLC under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., alleging that MillerCoors, at the direction of Miller Brewing, refused to do business with him in retaliation for a discrimination suit previously filed by Alam against Miller Brewing.1 The district court dismissed the suit, concluding that Alam had failed to sufficiently allege that MillerCoors was Alam's “employer” for purposes of Title VII and that Alam had failed to exhaust administrative remedies against Miller Brewing. We affirm.


In 2005, Alam filed an employment discrimination lawsuit under Title VII against Miller Brewing, his former employer. Alam and Miller Brewing settled the case in 2006. At some point thereafter, Alam, whose company Alam & Company provides software and consulting services to the brewing industry, approached MillerCoors about developing a software prototype for MillerCoors and its distributors. MillerCoors is a joint venture between Miller Brewing and Coors Brewing Company. MillerCoors told Alam that if he developed the software prototype, MillerCoors would give him an opportunity to make a sales presentation for the prototype to MillerCoors executives.

After Alam spent over two months working to develop the prototype and collaborating with MillerCoors employees, however, MillerCoors indicated that it would no longer consider working with Alam. Mike Pelto, the Senior Director of IT and Vendor Management at MillerCoors, told Alam that he would not work or meet with Alam because of Alam's prior lawsuit against Miller Brewing. Pelto had previously worked as a manager and member of the Executive Committee of the IT Department at Miller Brewing and knew about Alam's lawsuit against Miller Brewing. MillerCoors thereafter refused to allow Alam to pursue business opportunities with MillerCoors.

On June 10, 2009, Alam received a letter from counsel for MillerCoors that stated in part:

When you pressed him, Mr. Pelto also said that you needed to talk to me, because he knew there had been issues in the past, but he was not part of that and I was the one with whom you needed to follow up.... As I indicated during our conversation, MillerCoors is not interested in engaging you or your company. In addition to what Mr. Pelto explained to you about our strategic sourcing model, MillerCoors has made his decision based on the terms of Paragraph 8 of the settlement and release agreement dated January 17, 2006 (the “Settlement Agreement[”] ). Paragraph 8 of the Settlement Agreement provides: “I agree not to reapply for employment with or otherwise work for or provide services to Miller Brewing Company ... or any of its parent, affiliates or subsidiaries.”

Alam received another letter from MillerCoors' counsel on June 29, 2009, which stated in part:

Miller Brewing Company paid you a substantial sum to resolve the litigation and ensure that it and its related entities would never have to deal with you again. Obviously, a primary purpose of paragraph 8 of the Release was to ensure that no entity in which Miller Brewing Company had an ownership interest and thus from which Miller Brewing Company derived profit or loss would ever have to risk dealing with you as an employee or other form of service provider.

Alam claimed, on information and belief, that these letters were sent at the behest of Miller Brewing, and that Miller Brewing directed MillerCoors to deny Alam the opportunity to present the prototype he created to executives at MillerCoors because of his previous discrimination lawsuit against Miller Brewing.

Alam filed a charge of discrimination against MillerCoors with the Equal Employment Opportunity Commission (“EEOC”) on December 5, 2009. After the EEOC issued Alam a right-to-sue notice on March 22, 2010, Alam initiated suit against Miller Brewing and MillerCoors, alleging a retaliation claim under Title VII and a state law claim for promissory estoppel.

Miller Brewing and MillerCoors filed a motion to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), which the district court granted on December 16, 2010. The district court concluded that the complaint failed to state a retaliation claim against MillerCoors because it did not plausibly suggest that MillerCoors was Alam's “employer” for purposes of Title VII. As to Alam's retaliation claim against Miller Brewing, the district court concluded that it failed because Alam had not named Miller Brewing in his EEOC charge nor sufficiently alleged that this lapse could be excused pursuant to Eggleston v. Chi. Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 (7th Cir.1981) (permitting Title VII claim to proceed against a defendant not named in the plaintiff's EEOC charge). The district court permitted Alam to file an amended complaint, which Alam did on January 12, 2011. After this filing, Alam's counsel withdrew and Alam proceeded pro se.

Miller Brewing and MillerCoors again moved to dismiss the amended complaint under Rule 12(b)(6). On May 26, 2011, the district court granted the motion as to Alam's federal claims, concluding that the amended complaint did not cure the deficiencies identified in the district court's previous order. The district court also relinquished jurisdiction over Alam's state promissory estoppel claim and entered final judgment. On June 13, 2011, Alam wrote a letter to the district court requesting leave to file a second amended complaint. The district court construed the letter as a motion under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment and, on August 4, 2011, denied the motion. On June 28, 2012, while Alam's Rule 59(e) motion was still pending, Alam filed a notice of appeal.2


Alam contends that the district court erred in dismissing his complaint against Miller Brewing and MillerCoors. We review de novo a dismissal under Rule 12(b)(6) for failure to state a claim. Citadel Grp. Ltd. v. Wash. Reg'l Med. Ctr., 692 F.3d 580, 591 (7th Cir.2012). To avoid dismissal, Alam's complaint must contain allegations that ‘state a claim to relief that is plausible on its face.’ Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In reviewing the sufficiency of a complaint under the plausibility standard, we accept the well-pleaded facts in the complaint as true, but we “need not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.2009). The [f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955, 167 L.Ed.2d 929. That is, the complaint must contain “allegations plausibly suggesting (not merely consistent with) an entitlement to relief. Id. at 557, 127 S.Ct. 1955. This does not impose a probability requirement on plaintiffs: “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Id. at 556, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (citation omitted).

A. Dismissal of Miller Brewing

Alam first argues that the district court erred in dismissing his Title VII claim against Miller Brewing for failure to exhaust administrative remedies. Prior to filing suit under Title VII, a party must first file a charge of discrimination with the EEOC, 42 U.S.C. § 2000e–5(f)(1), and a party not named as the respondent in the charge may not ordinarily be sued in a private civil action under Title VII. Tamayo v. Blagojevich, 526 F.3d 1074, 1089 (7th Cir.2008) (citing Olsen v. Marshall & Ilsley Corp., 267 F.3d 597, 604 (7th Cir.2001); Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir.1989)). This requirement “gives the employer some warning of the conduct about which the employee is aggrieved and affords the EEOC and the employer an opportunity to attempt conciliation without resort to the courts.” Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir.2005) (citation omitted). With this two-fold purpose in mind, we have recognized an exception to the rule that a party not named in the EEOC charge is not subject to suit under Title VII where the “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[.] Eggleston, 657 F.2d at 905 (citations omitted).

Alam does not dispute that he named only MillerCoors, and not Miller Brewing, in his EEOC charge. He contends, however, that his claims against Miller Brewing should be allowed to proceed under the exception recognized in Eggleston, and that the district court misconstrued the exception by requiring Alam to “prove” that Miller Brewing had notice of the EEOC charge. But the district court required no such “proof,” as that would be inappropriate at the pleadings stage. Instead, the district court properly interpreted our precedent to require that Alam allege that Miller Brewing had notice of the EEOC charge against it and an opportunity to participate in conciliation proceedings. See Tamayo, 526 F.3d at 1089 (affirming dismissal of ...

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