Volling v. Kurtz Paramedic Servs., Inc.

• Citation: 840 F.3d 378
• Decision Date: 19 October 2016
• Docket Number: No. 15-3572,15-3572
• Parties: Shannon Volling and Allen Springer, Plaintiffs–Appellants, v. Kurtz Paramedic Services, Inc., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

840 F.3d 378

Shannon Volling and Allen Springer, Plaintiffs–Appellants,

v.Kurtz Paramedic Services, Inc., Defendant–Appellee.

No. 15-3572

United States Court of Appeals, Seventh Circuit.

Argued September 15, 2016

Decided October 19, 2016

M. Megan O'Malley, Lindsey Erin Goldberg, O'Malley & Madden, P.C., Chicago, IL, for Plaintiffs–Appellants.

Melinda S. Kollross, John M. Hynes, Clausen Miller, Chicago, IL, for Defendant–Appellee.

Before Flaum, Manion, and Hamilton, Circuit Judges.

Flaum, Circuit Judge.

Plaintiffs Shannon Volling and Allen Springer brought federal and state retaliation claims against Antioch Rescue Squad (“ARS”) and its subcontractor, Kurtz Paramedic Services, Inc. (“Kurtz”). Plaintiffs allege the companies wrongfully refused to hire them as emergency medical technicians (“EMTs”) because of plaintiffs' earlier complaints alleging sexual harassment against ARS and Metro Paramedic Services, Inc. (“Metro”).¹ Plaintiffs settled with ARS, and Kurtz moved to dismiss plaintiffs' claim. The district court dismissed the case with prejudice. We affirm, in part, and reverse, in part.

I. Background

A. Factual Background

Plaintiffs Shannon Volling and Allen Springer worked as EMTs for Metro and its contractor, defendant ARS. ARS provided emergency medical services and ambulance transport to the Village of Antioch and surrounding areas using a two-tiered employment structure. For daytime, weekday shifts, ARS used paid EMTs through subcontracts with private ambulance companies. For evening and weekend shifts, ARS used unpaid EMT volunteers. Volling began working for ARS as an unpaid, evening and weekend EMT in May 2008. Later, in March 2010, she transitioned to paid, weekday shifts under ARS and Metro. Springer began working for ARS and Metro in 2009.

In April 2011, Volling filed charges against ARS and Metro with the Equal Employment Opportunity Commission, alleging sexual harassment, discrimination, and retaliation. Later, in July 2011, Volling filed a complaint in the Northern District of Illinois against ARS and Metro, alleging sex discrimination and misconduct in violation of the Emergency Medical Services Act. Volling alleged a panoply of illegal behavior including sexual harassment, physical and sexual abuse of patients, and on-duty alcohol and drug abuse. On October 26, 2011, Volling reported this misconduct to the Illinois Department of Public Health, sparking an investigation, fines, and EMT license suspensions. Through June 2012, Volling continued to pursue her federal lawsuit, raise her concerns at ARS meetings, and attend Village of Antioch public meetings addressing ARS issues.

In late 2011, Springer filed a supporting declaration in Volling's lawsuit against ARS and Metro. He also aided the Illinois Department of Public Health's investigation into ARS. Finally, Springer, like Volling, voiced his concerns at both ARS and Village of Antioch meetings.

Plaintiffs alleged that ARS began acting against them immediately after they filed the lawsuit and declaration. Volling claimed ARS reduced her work hours and threatened to terminate her employment. Similarly, Springer claimed ARS disciplined him for talking about Volling's lawsuit and denigrating ARS management.

The alleged retaliation at issue in this case started on June 15, 2012. ARS terminated its subcontract with Metro and all eight daytime, weekday Metro EMTs. On the same day, ARS replaced Metro with defendant Kurtz. The next day, Kurtz began exclusively hiring former Metro EMTs. Kurtz did not publicize its EMT vacancies or inform plaintiffs about them. ARS instructed every former Metro EMT—except plaintiffs—on how to apply for employment under the new Kurtz contract. Kurtz then asked ARS for the former Metro EMTs' contact information to schedule interviews.² Neither Volling nor Springer received application instructions, applied, or interviewed for a Kurtz EMT position. Ultimately, within one day, ARS and Kurtz allegedly “jointly” rehired every other Metro EMT except Volling and Springer.

B. Procedural Background

In June 2014, plaintiffs filed suit against ARS and Kurtz, bringing federal and state retaliation claims. First, plaintiffs alleged ARS and Kurtz acted against them for engaging in protected activity, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–3(a) (“Title VII”). Second, they said defendants violated the Illinois Human Rights Act, 775 Ill. Comp. Stat. 5/1–101, et seq . (“IHRA”) and the Illinois Whistleblower Act, 740 Ill. Comp. Stat. 174/1, et seq . (“IWA”). ARS settled with plaintiffs. Kurtz moved to dismiss plaintiffs' complaint.

On March 9, 2015, the district court granted Kurtz's motion to dismiss. The court found plaintiffs had failed to exhaust their administrative remedies as required under Title VII and the IHRA. The district court also concluded that, regardless, plaintiffs had failed to adequately state a claim for relief, as they did not apply for employment with Kurtz. Plaintiffs moved for reconsideration and for leave to file an amended complaint. On July 10, 2015, the district court granted the latter request.

On July 31, 2015, plaintiffs filed an amended complaint with additional details, alleging the same violations. Kurtz again moved to dismiss plaintiffs' complaint. This time, the district court dismissed plaintiffs' case with prejudice. The court first found plaintiffs had failed to establish an adverse employment action under Title VII and the IHRA, as they did not apply for employment with Kurtz. Further, the court held that plaintiffs failed to adequately link their protected activity against ARS and Metro to any adverse employment action. Finally, the district court dismissed plaintiffs' IWA claims because they were never Kurtz's employees and were outside the statute's scope.

Plaintiffs now appeal.

II. Discussion

We review de novo a district court's grant of a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. Roberts v. City of Chi. , 817 F.3d 561, 564 (7th Cir. 2016) (citation omitted). “In construing the complaint, we accept all well-pleaded facts as true and draw reasonable inferences in the plaintiffs' favor.” Id . (citation omitted). To survive a motion to dismiss, the complaint must “state a claim to relief that is plausible on its face.” Id. (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 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.” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A. Title VII and the Illinois Human Rights Act

“Title VII prohibits various ‘unlawful employment practices' involving discrimination on the basis of ‘race, color, religion, sex or national origin.’ ” E.E.O.C. v. CVS Pharmacy, Inc. , 809 F.3d 335, 339 (7th Cir. 2015) (quoting 42 U.S.C. §§ 2000e–2, 2000e–3 ). Title VII also prohibits discriminating against an employee “because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–3(a). Retaliation is also “a cognizable claim under ... the IHRA.” Bagwe v. Sedgwick Claims Mgmt. Servs., Inc. , 811 F.3d 866, 887 (7th Cir. 2016) (citing 775 Ill. Comp. Stat. 5/6–101 ). Illinois courts apply the federal Title VII framework to IHRA claims. See Rabé v. United Air Lines, Inc. , 971 F.Supp.2d 807, 821 (N.D. Ill. 2013) (citing Zaderaka v. Ill. Human Rights Comm'n. , 131 Ill.2d 172, 137 Ill.Dec. 31, 545 N.E.2d 684, 687 (1989) ). To succeed on a Title VII retaliation claim, plaintiffs must “present evidence of (1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two.” Turner v. The Saloon, Ltd. , 595 F.3d 679, 687 (7th Cir. 2010) (citation omitted).

In the case at hand, it is undisputed that plaintiffs engaged in protected activity. The dispute, therefore, revolves around the final two elements.

1. Materially Adverse Employment Action

Plaintiffs allege Kurtz refused to hire them in retaliation for their engaging in protected activity against ARS and Metro. In the “failure to hire” context, a plaintiff satisfies the materially adverse employment action requirement by showing she “(1) ... engaged in a statutorily protected activity; (2) ... applied and had the technical qualifications required for the ... position; (3) ... was not hired for the position; and (4) a similarly situated individual who did not [engage in statutorily protected activity] was hired for the position.” Cichon v. Exelon Generation Co., LLC , 401 F.3d 803, 812 (7th Cir. 2005). It is undisputed that plaintiffs engaged in protected activity, were qualified for the job, were not hired, and that others who did not engage in protected activity were hired. What the parties dispute is whether plaintiffs' failure to apply to the new Kurtz positions is fatal to their retaliation claims.

We conclude plaintiffs adequately pled an adverse employment action against Kurtz despite not applying for the EMT positions. “[T]he Supreme Court made clear in McDonnell Douglas that the prima facie [Title VII] case is not inflexible ...” Hague v. Thompson Distrib. Co. , 436 F.3d 816, 821 (7th Cir. 2006). “The facts necessarily will vary in Title VII cases, and the ... prima facie proof required from [employees] is not necessarily applicable in every respect to differing factual situations.” McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 n.13, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ; see also Int'l Bhd. of Teamsters v. United States , 431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (Title VII plaintiffs need only initially “create an inference that an employment decision was based on [an illegal] discriminatory criterion”); Ortiz v. Werner Enters., Inc. , 834 F.3d 760, 766, No. 15–2574, 2016 WL...