Krause v. Turnberry Country Club, 07 C 5329.

Citation571 F.Supp.2d 851
Decision Date17 April 2008
Docket NumberNo. 07 C 5329.,07 C 5329.
PartiesKimberly KRAUSE, Plaintiff, v. TURNBERRY COUNTRY CLUB, JMB Golf Shop, Inc., and Jeffrey Buttitta, Defendants.
CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

Michael Thomas Mertz, Hurley McKenna & Mertz, Chicago, IL, for Plaintiff.

Steven Jay Teplinsky, Dorothy M. Brackett, Michael Best & Friedrich, Chicago, IL, Samuel Glenn Harrod, IV, Deborah Schmitt Bussert, Meltzer, Purtill & Stelle LLC, Schaumburg, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

Plaintiff Kimberly Krause ("Krause") filed suit against Defendants Turnberry Country Club ("Turnberry"), JMB Golf Shop, Inc. ("JMB"), and Jeffery Buttitta ("Buttitta") alleging various claims related to unwelcome conduct by Buttitta towards Krause. This action involves the following claims: (1) sexual harassment in violation of Title VII against Turnberry (Count VI1); (2) violation of the Illinois Human Rights Act against Turnberry (Count VII); (3) assault and battery against Turnberry (Count VIII); (4) false imprisonment against Turnberry (Count IX); (5) intentional infliction of emotional distress ("IIED") against Turnberry (Count X); (6) sexual harassment in violation of Title VII against JMB (Count XI); (7) violation of the Illinois Human Rights Act against JMB (Count XII); (8) assault and battery against Buttitta (Count XIII); (9) false imprisonment against Buttitta (Count XIV); and (10) IIED against Buttitta (Count XV). Turnberry moves to dismiss the Complaint as against Turnberry pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). For the reasons stated herein, Turnberry's motion to dismiss is denied.

PLAINTIFF'S ALLEGATIONS2

Krause worked for Turnberry in its golf pro shop as a merchandise assistant from March 2005 through August 15, 2006. (Compl.§ VI, ¶¶ 1-2.) Turnberry provided Krause with business cards that identified her as the merchandise assistant in the golf pro shop and as a Turnberry employee. (Compl.§ VI, ¶ 4.) In addition, Krause received bonuses and other compensation from Turnberry. (Compl.§ VI, ¶ 5.) Turnberry also employed Buttitta, who worked as Turnberry's head golf pro and in Turnberry management. (Compl.§ V, ¶¶ 4, 6(a).3) In addition to his work for Turnberry, Buttitta also owned and operated JMB and conducted business at Turnberry through JMB. (Compl. § V, ¶ 7; Compl. § VI, ¶ 6.) JMB also employed Krause and/or held Krause out as its agent, employee, and/or servant. (Compl.§ V, ¶ 6(b).) Buttitta directly supervised Krause in his capacity with Turnberry and with JMB and acted on behalf of Turnberry in his management and supervision of Krause. (Compl. § V, ¶¶ 8-9; Compl. § VI, ¶¶ 6, 8)

During her employment with Turnberry, Buttitta continuously made unwelcome sexual advances, requests for sexual favors, and physical contact to and with Krause. (Compl.§ VI, ¶¶ 9-11.) This conduct included asking Krause what type of underwear she wore, requesting to see Krause's tan lines, telling Krause that he bought his wife a sex toy, asking Krause to engage in phone sex, staring at Krause's chest and legs, and inviting Krause on a trip to Florida. (Compl.§ VI, ¶ 11.) Krause reported these incident to various Turnberry employees, including the General Manager, two assistant Turnberry golf pros, and a ladies' locker room attendant. (Compl.§ VI, ¶¶ 14-20.) Nevertheless, Buttitta continued to engage in the unwelcome conduct. (Compl.§ VI, ¶ 17.)

On August 15, 2006, Krause terminated her employment with Turnberry as a result of the "intimidating, hostile and offensive work environment" created by Buttitta's conduct. (Compl.§ VI, ¶ 21.) Upon announcing her departure, Buttitta pulled Krause into his office against her will, shut the door, and told her she was committing "career suicide." (Compl. § VI, ¶ 22; § VIII, ¶ 14; § IX, ¶ 14.)

On June 7, 2007, Krause filed a written charge with the Equal Employment Opportunity Commission ("EEOC"), alleging sexual harassment and constructive discharge. (Compl.§ III, ¶ 1). The EEOC issued Krause a right-to-sue letter on June 26, 2007. (Compl.§ III, ¶ 2.) Krause filed this Complaint on September 20, 2007, within ninety days after receiving a right-to-sue letter. (Compl.§ III, ¶ 3.)

STANDARD

When considering a motion to dismiss under Rule 12(b)(6), a court must accept as true all facts alleged in the complaint and construe all reasonable inferences in favor of the plaintiff. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995). To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A plaintiff need not allege all facts involved in the claim. See Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir.1994). However, in order to survive a motion to dismiss for failure to state a claim, the claim must be supported by facts that, if taken as true, at least plausibly suggest that the plaintiff is entitled to relief. See Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Such a set of facts must "raise a reasonable expectation that discovery will reveal evidence" of illegality. Id. at 1965.

DISCUSSION

Turnberry moves to dismiss Counts VI through X. With respect to Counts VI and VII, Turnberry contends that Krause failed to sufficiently allege that she had an employment relationship with Turnberry or, alternatively, that she failed to demonstrate that she exhausted her administrative remedies. With respect to Counts VIII through X, Turnberry asserts that the claims are preempted by the Illinois Human Rights Act or, alternatively, that Turnberry may not be held liable for Buttitta's conduct under a respondeat superior theory of liability. For the reasons stated below, the Court denies Turnberry's Motion to Dismiss.

I. Violations of Title VII and the Illinois Human Rights Act (Counts VI-VII)4

Turnberry contends that the Complaint fails to state a claim under Title VII (Count VI) and the Illinois Human Rights Act ("IHRA") (Count VII) because Krause has failed to sufficiently allege an employer-employee relationship or, alternatively, to demonstrate that she exhausted her administrative remedies. For the reasons set forth below, the Court denies Turnberry's Motion with respect to Counts VI and VII.

A. Employer-Employee Relationship

In general, an employee can only bring a Title VII claim against the employee's employer. See 42 U.S.C. § 2000e-2(a). Under Title VII, an employee is defined as "an individual employed by an employer." 42 U.S.C. § 2000e(f). To determine whether a plaintiff was an employee of the defendant employer, the Seventh Circuit employs a five-factor test based on common-law principles of agency. Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir.2002) (citing Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 492 (7th Cir.1997)). The test requires courts to consider the following factors: (1) the extent of the employer's control and supervision over the worker; (2) the kind of occupation and nature of skill required; (3) which party has responsibility for the costs of operation, such as the provision of equipment and supplies and the maintenance of the workplace; (4) the source of payment and benefits; and (5) the duration of the job. Id. at 550. Of the five factors, the extent of control and supervision over the worker is considered the most significant when determining employment status. Id. In addition, as a prerequisite to considering whether an individual is an employee under common-law agency principle, some courts also require the individual to "have been hired in the first instance" by and to have received a financial benefit from the purported employer. Gulino v. New York State Educ. Dep't, 460 F.3d 361, 372 (2d Cir.2006); see also Graves v. Women's Prof'l Rodeo Assoc., 907 F.2d 71, 74 (8th Cir.1990); Henderson v. YMCA, 05-3179, 2005 WL 3115461, at *1, 2005 U.S. Dist. LEXIS 30427, at *2-3 (C.D.Ill. Nov. 18, 2005). Turnberry contends that Krause failed to allege that Turnberry hired and compensated Krause or, alternatively, that the allegations establish that Krause was employed by JMB rather than Turnberry. Neither argument supports dismissal at this juncture.

First, Turnberry asserts that the Court should not apply the five-factor common-law test because Krause failed to even allege that she was hired by or received compensation from Turnberry. Assuming for the sake of argument that these two elements are prerequisites to finding an employer-employee relationship within the Seventh Circuit, the Complaint contains allegations from which one could reasonably infer both elements. While Krause does not use the word "hire," she alleges that she began working for Turnberry in March 2005 as a merchandise assistant in its golf pro shop and remained in that position until August 15, 2006. (Compl.§ VI, ¶¶ 1-2.) Krause also alleges that Buttitta was employed by Turnberry as its head golf pro, served in Turnberry management, and supervised Krause on behalf of Turnberry. (Compl.§ VI, ¶¶ 6-8.) In addition, Krause specifically alleges that she "received bonuses and other compensation from Defendant Turnberry Country Club." (Compl.§ VI, ¶ 5.) Thus, Krause provide sufficient factual allegations to plausibly suggest that she was hired by and received compensation from Turnberry.

Krause also provides sufficient allegations to state a plausible entitlement to relief under the common-law test. Specifically, Krause alleges, among other things, that: (1) she worked for Turnberry as merchandise assistant; (2) she held this position from March 2005 through August 15, 2006; (3) Turnberry provided Krause with business cards identifying her position and identifying her as an employee of Turnberry; (4) Krause "received bonuses and other...

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