Gross v. Peoples Gas Light & Coke Co.
| Decision Date | 24 January 2018 |
| Docket Number | No. 17-CV-3214,17-CV-3214 |
| Parties | JERRY GROSS, Plaintiff, v. THE PEOPLES GAS LIGHT AND COKE COMPANY and WEC ENERGY GROUP, INC., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff Jerry Gross ("Gross") has filed a five-count amended complaint ("AC", ECF No. 21) alleging various violations of federal civil rights statutes: Count I: Race Discrimination-Failure to Promote; Count II: Race Discrimination-Hostile Environment; Count III: Disability Discrimination; Count IV: Age Discrimination; and Count V: Retaliation. The defendants are The Peoples Gas Light and Coke Company ("Peoples Gas") and WEC Energy Group, Inc. ("WEC"). Both defendants move jointly to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that neither was Gross' employer, and Gross has not alleged enough to entitle him to proceed on a joint employer theory. For the reasons stated below, the court finds the allegations against Peoples Gas sufficient at this point to allow Gross to proceed on a joint employer theory as to that defendant. With respect to WEC, however, the court finds the allegations insufficient and grants WEC's motion to dismiss it as a party defendant. The AC is dismissed, with leave to replead, to the extent it asserts claims against WEC.
The corporate relationships involved are complicated by the AC's lack of clarity but otherwise are fairly ordinary. Gross became employed by Integrys Business Support LLC ("IBS") on June 4, 2012, in the position of Safety Consultant in the Human Resources Department. AC ¶ 5. In 2015, WEC acquired Peoples Gas and Integrys Energy Group ("Integrys Energy") and, according to paragraph 7 of the AC, "its subsidiaries, including Peoples Gas and Integrys Business Support, LLC ("IBS")." (Emphasis added.) The meaning of "its" here is mysterious. Does Gross mean that Peoples Gas and IBS are or were subsidiaries of WEC or of Integrys Energy? Confusing, but probably inconsequential.1
Although Gross' description of the corporate history is confusing, the important points are not complex and largely uncontroverted by the parties. Gross was employed by IBS on June 4, 2012. In 2015, WEC acquired IBS. IBS was renamed WBS and IBS employees became WBS employees. Thus, it is agreed that Gross was originally an employee of IBS and in 2015, due to corporate acquisitions and name changes, he became an employee of WBS. Beyond that, there is much controversy.
As a preliminary matter, although both parties appear to treat the issue of whether Gross has adequately alleged his joint employer theory as jurisdictional, the court does not agree. In an analogous case, dealing with Title VII's requirement that to be liable, an employer must have fifteen or more employees, the Supreme Court ruled that there is nothing in Title VII indicatingthat Congress intended to make the employee-numerosity requirement jurisdictional. Arbaugh v. Y & H Corp., 546 U.S. 500, 502 (2006). Similarly, courts treat the issue of whether a Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., defendant is an employer or a joint employer as an element of plaintiff's claim, not as a jurisdictional requirement. Brown v. ABM Indus., Inc., No. 15 C 6729, 2015 WL 7731946, at *3 (N.D. Ill. Dec. 1, 2015). And the Seventh Circuit recently treated joint-employment questions under Title VII as merits issues, reviewing the propriety of summary judgment, rather than as jurisdictional matters. Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 928-30 (7th Cir. 2017). The court finds the analysis set forth in these cases applicable and persuasive here. Whether Peoples Gas and WEC are liable as Gross' employers is a merits question, not a jurisdictional one. The court accordingly treats defendants' motion as a Rule 12(b)(6) motion to dismiss for failure to state a claim.
"To survive a [Rule 12(b)(6)] 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.'"2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible "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. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. When deciding a Rule 12(b)(6) motion, the court must "construe the complaint in the 'light most favorable to the' plaintiff." Zahn v. N. Am. Power & Gas, LLC, 847 F.3d 875, 877 (7th Cir. 2017) (quoting Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016)). The court also assumes that all of the well-pleaded facts in the complaint are true and draws reasonable inferences in the plaintiff's favor. See Iqbal, 556 U.S. at 678; Collins v. Vill. ofPalatine, 875 F.3d 839, 842 (7th Cir. 2017) (citing McCauley v. City of Chicago, 671 F.3d 611, 615-16 (7th Cir. 2011)); Tagami v. City of Chicago, 875 F.3d 375, 877 (7th Cir. 2017) (citing United Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016)).
In the Seventh Circuit, "a plaintiff can, under certain limited circumstances, bring a [Title VII] claim against a defendant who is not his direct employer." Nischan, 865 F.3d at 928 (quoting Love v. JP Cullen & Sons, Inc., 779 F.3d 697, 701 (7th Cir. 2015)) (alteration omitted). A five-factor test applies to claims of joint employment; under it, the first factor, the "right to control and supervise . . . is the most important." Id. at 929 (citing Love, 779 F.3d at 703). The five factors follow:
(1) extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations.
Id. (quoting Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378-79 (7th Cir. 1991)) (alterations and other citation omitted); see also Dittmann v. ACS Human Servs. LLC, 210 F. Supp. 3d 1047, 1053 (N.D. Ind. 2016) ().
The AC contains the following allegations which bear on Gross' joint employer theory asto Peoples Gas.
Throughout his tenure, Plaintiff was assigned to work with Peoples Gas at the Central Shop. Plaintiff performed work at other locations as well, including but not limited to, North and South Shops and Division Street. The Central Shop, North and South Shops, and Division Street are all Peoples Gas facilities. After being assigned to Peoples Gas, Plaintiff was provided with a Peoples Gas' badge and employee ID number (in addition to an IBS badge) and was provided with a Peoples Gas vehicle and work attire. Moreover, Plaintiff was the site leader for Peoples Gas' safety programs and initiatives for the Central, Crawford and Division Street Peoples Gas facilities, and administered their safety training, vehicle accident and occupational injury control programs (affecting Peoples Gas' employees at these very same sites), and was given daily instruction by Peoples Gas management.
Perhaps because Gross is attempting to be vague, or perhaps because the parties appear not to have located or read recent relevant Seventh Circuit cases, Gross fails to provide key specifics on a number of important points. For instance, he provides great detail about the position of African Americans in "the" Human Resources Department, but fails to specify which company's Human Resources Department he is talking about. AC ¶ 9. Based on his description of his own employment, the court gives him the benefit of a favorable reading of the AC and assumes he is talking about IBS's Human Resources Department. See AC ¶ 9. Gross says that he reported to Chuck Wagner and was trained by a senior level Safety Consultant. AC ¶ 13. But he fails to indicate who employed these persons. He alleges elsewhere that he made complaints to "Defendants" but fails to indicate to whom he made the complaints; these persons should be identified to the extent possible and the company for which they work should be specified. AC ¶ 25. Gross similarly fails to specify which individuals (and who employed them) gave him allegedly "unfair performance evaluations" and which individuals (and who employed them) "failed to respond to Plaintiff's complaints." AC ¶¶ 25, 26.
The court nevertheless finds the allegations concerning Peoples Gas to be sufficient at the pleading stage, except that Gross cannot leave so many key points so vague, assuming he has relevant information. Gross must attempt to identify what Human Resources Department he is talking about in paragraph 9. See AC ¶ 9. He must indicate which company Chuck Wagner, as well as the senior level Safety Consultant, worked for. See AC ¶ 13. He must attempt to identify the persons to whom he complained and the company for which they worked. See AC ¶¶ 19-20. And he must specify the company which gave him the allegedly unfair performance evaluations. See AC ¶ 25. Even if IBS is the answer to all these questions, that information is too important to be left completely unspecified, as long as Gross has (and in most cases he should have) the relevant information. Numerous cases establish that the omission of such key information from a complaint is an indicia of artful pleading, rather than a good faith effort to...
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