Hall v. Walsh Constr. Co.
| Decision Date | 09 August 2012 |
| Docket Number | No. 11 CV 08706,11 CV 08706 |
| Parties | WILLIAM HALL and JASEN WINFREY Plaintiffs, v. WALSH CONSTRUCTION COMPANY, INTERNATIONAL DECORATORS, INC., and CHICAGO REGIONAL COUNCIL OF CARPENTERS, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
OPINION AND ORDER
William Hall and Jasen Winfrey filed a complaint against defendants Walsh Construction Company ("Walsh"), International Decorators, Inc. ("IDI"), and the Chicago Regional Council of Carpenters ("CRCC"), alleging racial harassment, discrimination, retaliation, and unlawful termination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. Before the court are Walsh's and IDI's motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).1 IDI also moves to strike certain allegations from the complaint pursuant to Federal Rule of Civil Procedure 12(f). For the reasons set forth below, Walsh's motion to dismiss [#24] will be denied, IDI's motion to dismiss [#29] will be granted, and IDI's motion to strike will be denied.
IDI hired Hall and Winfrey as carpenters in March 2006. Both Hall and Winfrey are African American. In July 2006, Walsh hired IDI as a subcontractor and Hall and Winfrey were assigned to work at various Walsh job sites. Walsh controlled the job operations, subcontractors, and workers' day-to-day duties at some of the sites where Hall and Winfrey worked. IDI controlled Hall's and Winfrey's terms of employment and job responsibilities and assigned them to work at specific job sites.
Hall and Winfrey were subjected to numerous forms of racial harassment and discrimination by IDI and Walsh employees, managers, and supervisors. They were called racially derogatory names, including "spook," "shadow-man," and "batman," and there was -a picture of a hooded KKK clansman and a noose made out of carpentry tools at one of the job sites. When Hall and Winfrey complained to Walsh and IDI about the harassment and discrimination, they were simply transferred to another job site.
Both Hall and Winfrey stopped working for IDI in December 2006. Citing Winfrey's attendance violations, IDI terminated Winfrey by phone on November 6, 2006. Winfrey was immediately re-hired, however, when one of his attorneys contacted IDI. Winfrey was again terminated by phone on December 6, 2006. After Hall experienced continued racial harassment and discrimination at his job sites, he was forced to resign from IDI on December 10, 2006.
Winfrey filed a charge of discrimination against IDI on December 22, 2006, alleging discrimination based on race and retaliation for complaining about the discrimination. (IDI's Mot. to Dismiss Ex. 1.)4 Hall filed a charge with the EEOC against IDI on May 1, 2006, also alleging discrimination based on race and retaliation. (IDI's Mot. to Dismiss Ex. 2.) The particulars of the two charges are nearly identical.
The charges assert that, in October 2006, Hall and Winfrey were "subjected to racial harassment in that [they were] intimidated, threatened and subject to racially derogatory remarks by [IDI] and other subcontractors." (IDI's Mot. to Dismiss Exs. 1 & 2.) The charges further allege that when Hall and Winfrey complained to IDI about the discrimination later that month, they were transferred to another location. Finally, each charge asserts, "As of today, [IDI] continues to harass me and retaliate against me for complaining of discrimination." (Id.)
The EEOC issued determinations in favor of Winfrey and Hall and against IDI on June 6, 2011.5 (Compl. Exs. B, E.) The determinations explain that the EEOC's investigation of Hall'sand Winfrey's charges against IDI established reasonable cause to believe that Hall and Winfrey were subjected to harassment and intimidation based on their race and that IDI retaliated against them for complaining of the harassment by transferring them to another location, in violation of Title VII. (Id.) The EEOC issued notices of right to sue on September 8, 2011.
A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6); GE Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In ruling on a 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis, but must also establish that the requested relief is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (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." Iqbal, 556 U.S. at 678. At the same time, the plaintiff need not plead legal theories. Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). Rather, it is the facts that count.
Hall and Winfrey allege that the conduct of Walsh's and IDI's employees constituted racial harassment, discrimination, and retaliatory transfer in violation of Title VII. Walsh moves to dismiss the claims against it on the ground that the complaint does not allege facts sufficient to give rise to the inference that Walsh was either plaintiff's employer. Winfrey also alleges thatIDI's termination constitutes race discrimination and retaliation for having complained about unlawful employment practices. Hall similarly alleges that he was forced to resign in retaliation for having made complaints and that his forced resignation constitutes race discrimination.6 IDI moves to dismiss plaintiffs' claims of unlawful termination on the ground that they are beyond the scope of the charges Hall and Winfrey filed with the EEOC.
Hall and Winfrey, who are represented by counsel, filed no response to defendants' motions to dismiss. "If [a court is] given plausible reasons for dismissing a complaint, [the court is] not going to do the plaintiff's research and try to discover whether there might be something to say against the defendant's reasoning." Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999). Hall and Winfrey's failure to respond may therefore constitute waiver or forfeiture of their right to contest dismissal. See Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011); Lekas v. Briley, 405 F.3d 602, 614 (7th Cir. 2005). If the reasons given for dismissing the complaint are not sound, however, the court need not grant the motion as a matter of course. See, e.g., Dodd v. Pentair Pump Grp., No. 11 C 4478, 2012 WL 1985701, at *1 (N.D. Ill. Jun. 1, 2012).
In order to maintain a Title VII action, a plaintiff must plead and prove the existence of an employment relationship with the defendant. See Small v. Chao, 398 F.3d 894, 897 (7th Cir. 2005); Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 492 (7th Cir. 1996); Ost v. W. Suburban Travelers Limousine, Inc., 88 F.3d 435, 440 (7th Cir. 1996); Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 380 (7th Cir. 1991); see also 42 U.S.C. § 2000e-2(a).Walsh contends that it was merely a general contractor and that plaintiffs' allegations show that IDI, not Walsh, was plaintiffs' employer.
The Seventh Circuit has made clear, however, that an employee may have multiple employers for liability purposes under Title VII. See Tamayo v. Blagojevich, 526 F.3d 1074, 1088 (7th Cir. 2008) . A company can be considered a "de facto or indirect employer" if it "directed the discriminatory act, practice, or policy of which the employee is complaining." Id. (quoting Papa v. Katy Indus., Inc., 166 F.3d 937, 941 (7th Cir. 1999)). A company can also be considered an indirect employer when it "control[s] the plaintiff's employment relationship." Id. (quoting EEOC v. Illinois, 69 F.3d 167, 169 (7th Cir. 1995)). "De facto or indirect employer liability depends on the amount of the control a putative Title VII defendant exerts over the plaintiff's employment." Kerr v. WGN Cont'l Broad. Co., 229 F. Supp. 2d 880, 886 (N.D. Ill. 2002) (citing EEOC, 69 F.3d at 171-72). In Tamayo, for example, the plaintiff alleged that she was directly employed by the Illinois Gaming Board, which hired, promoted, demoted and constructively discharged her. Id. at 1087. The Gaming Board's budget, however, was controlled by the Illinois Department of Revenue, which had to approve the plaintiff's salary and also made certain personnel decisions such as hiring outside counsel and laying off five employees. Id. at 1087. The Seventh Circuit concluded that these allegations suggested that the Department of Revenue was also plaintiff's employer for the purposes of Title VII, even though the plaintiff conceded that the Gaming Board was an independent agency. Id. at 1087-88.
Hall and Winfrey allege that Walsh controlled the job operations, subcontractors, and day-to-day duties at some of the job sites where they worked. In addition, Hall and Winfrey allege that Walsh employees, managers, and supervisors - along with IDI employees, managers, and supervisors - made racially derogatory comments, hung a picture of a hooded KKK clansmen, and put up a noose made...
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