Stucker v. Benevolent & Protective Order of Herrin Elks #1146

• Decision Date: 11 January 2012
• Docket Number: CIVIL NO. 10-1033-GPM
• Parties: TINA STUCKER and ROBERT STUCKER, Plaintiff, v. BENEVOLENT & PROTECTIVE ORDER OF HERRIN ELKS #1146, ILLINOIS ELKS ASSOCIATION, and BENEVOLENT & PROTECTIVE ORDER OF ELKS OF THE UNITED STATES OF AMERICA, Defendants.
• Court: U.S. District Court — Southern District of Illinois

TINA STUCKER and ROBERT STUCKER, Plaintiff,

v. BENEVOLENT & PROTECTIVE ORDER OF HERRIN ELKS #1146,ILLINOIS ELKS ASSOCIATION, and BENEVOLENT& PROTECTIVE ORDER OF ELKS OF THE UNITED STATES OF AMERICA, Defendants.

CIVIL NO. 10-1033-GPM

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DATED: January 11, 2012

MEMORANDUM AND ORDER

MURPHY, District Judge:

This matter is before the Court on the motion to dismiss brought by Defendant Benevolent & Protective Order of Elks of the United States of America ("BPOEUSA") (Doc. 39) and the motion to dismiss brought by Defendants Benevolent & Protective Order of Herrin Elks #1146 ("BPOE #1146") and Illinois Elks Association ("IEA") (Doc. 46). Also before the Court is BPOEUSA's motion to strike the response brought by Plaintiffs Tina Stucker and Robert Stucker to BPOEUSA's motion to dismiss (Doc. 54). It appears from the allegations of the complaint in this case that Tina Stucker began employment as a janitor for BPOE #1146 in Herrin, Illinois, in February 2008. Stucker's supervisor was Tom McVey, a trustee of BPOE #1146. According to the complaint, McVey subjected Stucker to sexually harassing comments, creating a hostile workplace. It further appears that, when Stucker complained about McVey's conduct to other trustees andmembers of BPOE #1146, she was compelled to work without pay and was constructively discharged from her employment with BPOE #1146 in May 2010. Stucker asserts claims for gender discrimination in employment against BPOE #1146, IEA, and BPOEUSA under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/1-101 et seq., together with asupplemental state-law claim for intentional infliction of emotional distress. Stucker's husband, Robert Stucker, asserts a derivative claim for loss of consortium. BPOE #1146, IEA, and BPOEUSA now seek dismissal of Mr. and Mrs. Stuckers' claims for failure to state a claim upon which relief can be granted. The Court rules as follows.

As an initial matter, the Court notes the standard under which it must evaluate the instant motions to dismiss. In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the Court accepts all well-pleaded allegations in a plaintiff's complaint as true. See Fed. R. Civ. P. 12(b)(6); Cleveland v. Rotman, 297 F.3d 569, 571 (7th Cir. 2002); Whitwell v. Wal-Mart Stores, Inc., Civil No. 09-513-GPM, 2009 WL 4894575, at *2 (S.D. Ill. Dec. 11, 2009); S.C. Johnson & Son, Inc. v. Buske, Civil No. 09-286-GPM, 2009 WL 3010833, at *8 (S.D. Ill. Sept. 17, 2009). The purpose of a Rule 12(b)(6) motion is to decide the adequacy of the complaint, not to determine the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990); Payne v. Schneider Nat'l Carriers, Inc., Civil No. 09-559-GPM, 2010 WL 685819, at *1 (S.D. Ill. Feb. 22, 2010). A complaint should not be dismissed unless it either fails to provide adequate notice - as has been required consistently under Rule 8 of the Federal Rules of Civil Procedure - or does not contain "enough facts to state a claim to relief that is plausible on its face," that is, the claim has not been "nudged . . . across the line from conceivable toplausible[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." James v. Illinois Sexually Dangerous Persons Act, Civil No. 09-40-GPM, 2009 WL 2567910, at *2 (S.D. Ill. Aug. 19, 2009) (quoting Bell Atl., 550 U.S. at 555) (brackets, citations, and internal punctuation omitted).

To establish a prima facie case of employment discrimination under Title VII, Mrs. Stucker must establish the following elements: (1) she is a member of a protected class; (2) she was meeting her employer's legitimate performance expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably than similarly-situated individuals who are not members of her protected class. See Barricks v. Eli Lilly & Co., 481 F.3d 556, 559 (7th Cir. 2007); Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir. 2006); Whittaker v. Northern Ill. Univ., 424 F.3d 640, 647 (7th Cir. 2005); Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir. 2005); Mason v. City of Chicago, 436 F. Supp. 2d 946, 953 (N.D. Ill. 2006).¹ Similarly, to establish a prima facie case of sex discrimination under the IHRA, Stucker must prove that: (1) she is a member of a protected class; (2) she was performing her job satisfactorily; (3) she was discharged despite theadequacy of her work; and (4) similarly situated employees who were not members of the protected group were not discharged. See Anderson v. Chief Legal Counsel, Ill. Dep't of Human Rights, 778 N.E.2d 258, 262 (Ill. App. Ct. 2002); Kalush v. Illinois Dep't of Human Rights Chief Legal Counsel, 700 N.E.2d 132, 141 (Ill. App. Ct. 1998); Southern Ill. Clinic, Ltd. v. Human Rights Comm'n, 654 N.E.2d 655, 659-60 (Ill. App. Ct. 1995); ISS Int'l Serv. Sys., Inc. v. Illinois Human Rights Comm'n, 651 N.E.2d 592, 597 (Ill. App. Ct. 1995); Marinelli v. Human Rights Comm'n, 634 N.E.2d 463, 469 (Ill. App. Ct. 1994). However, to plead adequately a claim of gender discrimination, Stucker must allege rather less.

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff in an employment discrimination case need not allege facts corresponding to each element of a prima facie case of gender discrimination. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) ("The prima facie case [of employment discrimination] . . . is an evidentiary standard, not a pleading requirement."). "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl., 550 U.S. at 555). In short, fact pleading not required in federal court. In the specific context of claims of employment discrimination, the United States Court of Appeals for the Seventh Circuit instructed recently that "a plaintiff alleging employment discrimination . . . may allege these claims quite generally." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). "A complaint need not 'allege all, or any, of the facts logically entailed by the claim,' and it certainly need not include evidence." Id. (quoting Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)) (emphasis in original). "Indeed,'litigants are entitled to discovery before being put to their proof, and treating the allegations of the complaint as a statement of the party's proof leads to windy complaints and defeats the function of Federal Rule of Civil Procedure Rule 8'" Id. (emphasis in original) (brackets omitted). The Tamayo court proceeded to "reaffirm[ ] the minimal pleading standard for simple claims of race or sex discrimination." Id. at 1084. Under that minimal pleading standard, "in order to prevent dismissal under Rule 12(b)(6), a complaint alleging [employment] discrimination need only aver that the employer instituted a (specified) adverse employment action against the plaintiff on the basis of her sex." Id. "[O]nce a plaintiff alleging illegal discrimination has clarified that it is on the basis of her [protected status], there is no further information that is both easy to provide and of clear critical importance to the claim." EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 782 (7th Cir. 2007). Here, Mrs. Stucker's allegations more than satisfy the Tamayo standard by pleading enough facts to state a plausible claim for discrimination on the basis of her gender. See Tamayo, 526 F.3d at 1085-86 (the plaintiff adequately stated a gender-discrimination claim sufficient to withstand Rule 12(b)(6) scrutiny where she alleged that she is female, she suffered an adverse employment action, the defendant discriminated against her based on her gender, and similarly-situated male employees were treated more favorably). The Court concludes that Mrs. Stucker has pled enough facts to show that her claim of gender discrimination in violation of Title VII and the IHRA indeed is plausible and to "provide the defendants with sufficient notice to begin to investigate and defend against her claim." Id. at 1085.

The Court turns next to the matter of Mrs. Stucker's state-law claim for intentional infliction of emotional distress and Mr. Stucker's claim for loss of consortium. The Court concludes that Mrs. Stucker's claim for intentional infliction of emotional distress is preempted by the IHRA. TheIHRA contains a preemption provision which states: "Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act." 775 ILCS 5/8-111(D). The statute provides also that "[i]t is a civil rights violation . . . [f]or any employer, employee, [or] agent of any employer . . . to engage in sexual harassment[.]" 775 ILCS 5/2-102(D). The effect of these two provisions read in pari materia is that sexual harassment constitutes a civil rights violation under Illinois law for which a plaintiff may seek a remedy only according to the IHRA. Although it can be difficult to determine whether a specific state common-law claim falls within the category of a civil rights violation preempted by the IHRA, in Geise v. Phoenix Co. of Chicago, Inc., 639 N.E.2d 1273 (Ill. 1994), the court found that the plaintiff's common-law claims "inextricably linked" to...