Fuesting v. Uline, Inc.

30 F.Supp.3d 739

Allen Fuesting, Jonathan Savage, Joshua Gehrig and Laurie Garza, Plaintiffs

v.Uline, Inc., a Delaware Corporation, Defendant.

No. 13 C 7082

United States District Court, N.D. Illinois, Eastern Division.

Signed March 21, 2014

Bradley J. Smith, Paul W. Ryan, Eugene K. Hollander, The Law Offices of Eugene K. Hollander, Chicago, IL, for Plaintiffs.

Bennett L. Epstein, Christopher G. Ward, John Louis Litchfield, Foley & Lardner LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Robert W. Gettleman, United States District Judge

Plaintiffs Allen Fuesting, Jonathan Savage, Joshua Gehrig, and Laurie Garza have sued defendant Uline, Inc., alleging on sexual harassment, a hostile work environment, and retaliation in violation of Title VII, 42 U.S.C. § 2000(e), et seq.; violations of the Illinois Gender Violence Act (“IGVA”), 740 ILCS 82/1, et seq. ; and state law claims for negligent hiring, supervision, and retention. Defendants have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss Counts III, IV, VII, VIII, X, XI, XIII, and XIV for failure to state a claim upon which relief can be granted. These eight counts involve all claims under the IGVA and the state law claims for negligent hiring, supervision, and retention. For the reasons stated below, defendant's motion to dismiss is granted in part and denied in part.

BACKGROUND¹

Plaintiffs are all former employees of defendant. Defendant is a corporation that manufactures and distributes office supplies nationwide. Defendant also employed Scott Zingsheim, a Warehouse Manager, and Jim Small, a Warehouse Department Manager.

The complaint alleges that both Zingsheim and Small sexually harassed plaintiffs by repeatedly groping and improperly touching them. Zingsheim engaged in additional acts of harassment, which include: thrusting his groin and a radio antennae into Fuesting's and Savage's buttocks, respectively; placing his genital area against Gehrig's and Garza's buttocks and simulating a sexual movement; and lifting Garza's shirt.

Each plaintiff made clear to Zingsheim and Small that this behavior was unwelcome. Each plaintiff complained to members of management, including, in at least one instance, Dick Uihlein, the CEO. Each plaintiff also emailed complaints to various members of management. On March 19, 2012, Savage emailed Connie Voeller, a Human Resources Representative. A few weeks later, Garza emailed Danielle Gough, the Human Resources Director. Three days after that, Fuesting emailed Voeller. Eight days later, Gehrig emailed Voeller, Gough, and Brad Harper, a Branch Manager. After these complaints, defendant allegedly took no corrective actions.

Plaintiffs allege that Zingsheim also sexually harassed at least one other employee who notified defendant. In early 2009, Jonathan Marsden, an “Assistant UPS Manager” for defendant, complained to his superiors about Zingsheim's behavior. On April 25, 2012, Marsden also emailed a complaint to defendant's Human Resources Department and Branch Manager. Marsden is not a plaintiff in the instant case.

Defendant terminated both Fuesting and Savage about a month after they complained to Voeller. Gehrig was constructively discharged about three months after he complained.

DISCUSSION

Defendants have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss Counts III, IV, VII, VIII, X, XI, XIII, and XIV of plaintiffs' complaint for failure to state a claim upon which relief can be granted. In evaluating a motion to dismiss, the court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A motion to dismiss for failure to state a claim tests the sufficiency of the complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). To survive such a motion, the complaint must allege sufficient facts that, if true, would raise a right to relief above the speculative level, showing that the claim is plausible on its face. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. To be plausible on its face, the complaint must plead facts sufficient for 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).

Defendant first argues that plaintiffs' IGVA claims—Counts III, VII, X, XIII—should be dismissed because the IGVA does not recognize corporate or respondeat superior liability. The IGVA provides a cause of action against “a person or persons perpetrating ... gender-related violence.” 740 ILCS 82/10. Perpetrating “means either personally committing the gender-related violence or personally encouraging or assisting the act or acts of gender-related violence.” Id. (emphasis added).

In interpreting the IGVA, this court must apply the law “as it believes the highest court of the state would apply it if the issue were presently before that tribunal.” State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir.2001). Because the Illinois Supreme Court has not decided whether a corporation is a “person” under the IGVA, “the rulings of the state intermediate appellate courts must be accorded great weight.” Id. Here, though, the decisions of the Illinois Appellate Court cannot be relied upon. None of the three Illinois appellate decisions dealing with the IGVA and corporate defendants “have ... squarely addressed” whether such defendants are “persons” under the IGVA. Doe ex rel. Smith v. Sobeck, 941 F.Supp.2d 1018, 1026 (S.D.Ill.2013). Presumably for this reason, neither party in the instant case relies significantly on Illinois appellate decisions. Therefore, an analysis consistent with “traditional statutory interpretation principles” is the best predictor of how the Illinois Supreme Court would rule. See id. (noting that the Illinois Supreme Court “would surely observe” such principles).

When interpreting a statute, the court's “primary objective ... is to give effect to the intent of the legislature [.]” In re Madison H., 215 Ill.2d 364, 294 Ill.Dec. 86, 830 N.E.2d 498, 503 (2005). The “best indicator of legislative intent” is “the plain meaning of the statutory language.” Ready v. United/Goedecke Servs., Inc., 232 Ill.2d 369, 328 Ill.Dec. 836, 905 N.E.2d 725, 740 (2008) (citing Michigan Avenue National bank v. County of Cook, 191 Ill.2d 493, 247 Ill.Dec. 473, 732 N.E.2d 528 (2000) ). Statutory language “should not be considered in isolation,” but, instead, must be read in context. Cnty. of Du Page v. Illinois Labor Relations Bd., 231 Ill.2d 593, 326 Ill.Dec. 848, 900 N.E.2d 1095, 1101 (2008). When the statutory language is clear, the “plain and ordinary meaning must be given effect without resorting to other aids of construction.” Bailey v. Illinois Liquor Control Comm'n, 405 Ill.App.3d 550, 345 Ill.Dec. 190, 938 N.E.2d 629, 634 (2010) (quoting In re Marriage of Beyer, 316 Ill.App.3d 161, 249 Ill.Dec. 207, 735 N.E.2d 1032, 1032 (2001) ). Statutes should, whenever possible, not be read so as to make a word, clause, or sentence “superfluous.” Sylvester v. Indus. Comm'n, 197 Ill.2d 225, 258 Ill.Dec. 548, 756 N.E.2d 822, 827 (2001) (citing McNamee v. Federated Equipment & Supply Co., 181 Ill.2d 415, 229 Ill.Dec. 946, 692 N.E.2d 1157 (1998) ). Statutes also must be read reasonably to avoid “absurdity, inconvenience, or injustice.” Id. (citing Michigan Avenue National Bank v. County of Cook, 191 Ill.2d 493, 247 Ill.Dec. 473, 732 N.E.2d 528 (2000) ).

A statutory analysis consistent with the above principles demonstrates that the IGVA's cause of action cannot be brought against corporations. “[T]he plain and ordinary meaning of the term ‘person’ is ‘an individual human being.” People v. Christopherson, 231 Ill.2d 449, 326 Ill.Dec. 40, 899 N.E.2d 257, 260 (2008) (quoting People v. Christopherson, 377 Ill.App.3d 752, 316 Ill.Dec. 647, 879 N.E.2d 1035 (2007) ) (internal quotation marks omitted). Absent a more expansive statutory definition of the word, “person” does not generally include legal entities within its meaning. Fayfar v. CF Mgmt.-IL, LLC, 2012 WL 6062663, at *1 (N.D.Ill. Nov. 4, 2012). Consistent with this presumption, the Illinois legislature has, in the past, expressly indicated when it intends “person” to have a broader meaning. See id. at *2 (“It appears that when the Illinois legislature intends the statutory term “person” to include legal entities other than individuals, it defines the term in that way”); Fleming v. Fireside W., LLC, 2012 WL 6604642, at *3 (N.D.Ill. Dec. 18, 2012) (“[I]n other instances when the Illinois legislature has included business entities within the scope of the term ‘person,’ it has done so expressly”).

In addition to the plain and ordinary meaning of “person,” the context surrounding the word in the IGVA also indicates that corporations are not included in its meaning. In the IGVA, the word “perpetrating” immediately follows the phrase “person or persons.” Perpetrating “means either personally committing the gender-related violence or personally encouraging or assisting the act or acts of gender-related violence.” 740 ILCS 82/10 (emphasis added). Corporations cannot act “personally” because they act through their agents; thus, they cannot “perpetrate” under the IGVA. Sobeck, 941 F.Supp.2d at 1026 ; Fayfar, 2012 WL 6062663, at *2 ; Fleming, 2012 WL 6604642, at *3 ; Flood v. Washington Square Rest., Inc., 2012 WL 6680345, at *3 (N.D.Ill. Dec. 21, 2012). Because a corporation cannot “perpetrate,” it cannot be a “person” under the IGVA. A contrary conclusion would violate fundamental principles of statutory interpretation. A corporation could not be held liable under the IGVA unless “perpetrate” was read to be “meaningless surplusage.” Sobeck, 941 F.Supp.2d at 1027. To find a corporation was a “person” but could never be held liable under the IGVA would “be absurd.” Id. at 1026. Thus, the...