Herrera v. Di Meo Bros., Inc.

529 F.Supp.3d 819

Arturo HERRERA, Plaintiff,

v.DI MEO BROTHERS, INC., John DiMeo, Individually, Tim Gavin, Individually, and Mark DiMeo, Individually, Defendants.

Case No. 19-cv-8298

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

Signed March 29, 2021

Stacey Blaire Vucko, Joseph William Vucko, Vucko Law LLP, Oak Brook, IL, for Plaintiff.

Douglas Richard Johnson, Douglas R. Johnson & Associates, Katherine Ann Rehan, Katherine A. Rehan Attorney At Law, Chicago, IL, Jonathan R. Ksiazek, Di Monte & Lizak, LLC, Margherita Maria Albarello, Riccardo Anthony DiMonte, DiMonte & Lizak, Park Ridge, IL, for Defendants Di Meo Brothers, Inc., Tim Gavin, John DiMeo.

Jonathan R. Ksiazek, Di Monte & Lizak, LLC, Park Ridge, IL, for Defendant Mark DiMeo.

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge

For the reasons set forth below, the motion to dismiss [37] is granted in part and denied in part. Specifically, the motion is granted with respect to: disparate treatment claims in Counts I and II; claims based on ethnicity in Counts I and II; Count III; and Count V, all of which are dismissed without prejudice. The motion is denied with respect to: constructive discharge claims in Counts I and II; Count IV; and all requests to strike material from the amended complaint. Plaintiff is given until April 29, 2021, to file a second amended complaint, if he wishes and can do so consistent with the reasoning in this order and Federal Rule of Civil Procedure 11. Counsel are directed to file a joint status report no later than May 6, 2021 that includes a proposed case management plan.

I. Background¹

Plaintiff Arturo Herrera has sued his former employer, its owners, and an employee for, in short, discriminating against him based on his ethnicity or national origin or both and for failing to pay certain wages he claims to be owed. Defendants move to dismiss many of the discrimination claims. The facts relevant to resolving the motion to dismiss are as follows.

Plaintiff worked as a driver and shop maintenance worker for Defendant Di Meo Brothers, Inc. from approximately November 7, 2017 until June 17, 2019. [34 at ¶ 10.] The company provides construction services and is owned by Defendants John and Mark Di Meo. [Id. at ¶¶2, 3, 5.] Plaintiff is Hispanic and of Mexican national origin. [34 at ¶ 9.] Plaintiff's supervisor was Defendant Timothy Gavin, who is Caucasian. [Id. at ¶¶ 12, 13.]²

Plaintiff claims that during his time at Di Meo Brothers, Inc., the company, John Di Meo, Mark Di Meo, and Gavin (together, "Defendants") subjected Plaintiff to harassment and abuse that Plaintiff says was based on his ethnicity or national origin or both. For example, Gavin singled Plaintiff out for discriminatory questions, including inquiries about his citizenship and about whether his tattoos were gang related; Gavin used an ethnic slur to refer to Mexicans while on Di Meo Brothers premises without consequences or discipline on at least one occasion; and Gavin subjected Plaintiff to stricter observation than other employees outside of Plaintiff's protected class, including by taking photographs of Plaintiff performing his work. [Id. at ¶ 14.]

Plaintiff also alleges several instances of damage to his personal vehicle and his wife's vehicle while they were parked on Di Meo Brothers' premises during work hours. Between March 2019 and June 2019, Plaintiff discovered that screws had been driven into the tires of both his and his wife's vehicles on multiple occasions, and he discovered air leaking out of his vehicle's Schrader valve. [Id. at ¶ 15.] "One or more individuals threw rocks at the vehicles while parked in the designated employee parking lot, which cracked Plaintiff's windshield and caused him to incur costs in having it replaced." [Id. ] After he had the windshield replaced, he continued to suffer harassment and his vehicle continued to sustain damage—including chips to paint, glass, and his newly replaced windshield, scratches and dents, nuts and bolts being loosened, the removal of a lug nut and a nut from the shock bolt—and on June 13, 2019, someone pulled the electrical harness out of his vehicle's transmission while it was parked on company property, rendering it undrivable. [Id. at ¶¶ 15, 18.] (The complaint does not allege who caused any of the damage to the vehicles.)

Plaintiff reported the incidents to the company and its owners, John and Mark, several times. Neither did anything to stop the abuse, and John laughed at Plaintiff at least once. [Id. at ¶¶ 16-17.] On June 17, 2019, Gavin approached Plaintiff at work and said that further complaints would cause Plaintiff to lose his job. [Id. at ¶ 19.] Gavin then made a phone call, and shortly afterwards Plaintiff received a call from Pete, a superintendent at Di Meo Brothers, who told Plaintiff that he needed to stop complaining to the company about the damage to his vehicle. [Id. at ¶¶ 19-20.] Shortly after that, Mark approached Plaintiff and yelled at him. Mark said that he would always take Gavin's side and if Plaintiff wanted to lose his job over a truck, he could go home. [Id. at ¶ 21.] Mark then required Plaintiff to stay at the job site to do sewer and water work, despite knowing that the work would require Plaintiff to violate his work restrictions, which were the result of an injury he suffered while working at Di Meo Brothers. [Id. at ¶ 22.] As a result of the abuse he received, Plaintiff was forced to leave his position with Di Meo Brothers on June 17, 2019. [Id. at ¶ 23.]

Plaintiff filed a complaint [1] in this court on December 19, 2019 and an amended complaint [34] on July 31, 2020. The amended complaint contains seven counts:

• Count I: Violation of 42 U.S.C. § 2000(E) et seq. ("Title VII") National Origin/ Ethnicity Discrimination (Disparate Treatment, Harassment, Hostile Work Environment, Constructive Discharge) Against Defendant Di Meo Brothers, Inc.

• Count II: Violation of The Illinois Human Rights Act ( 775 ILCS 5/2-101 et seq. ) (Disparate Treatment, Harassment, Hostile Work Environment, Constructive Discharge) Against Defendant Di Meo Brothers, Inc.

• Count III: Intentional Infliction of Emotional Distress Against All Defendants • Count IV: Violation of 42 U.S.C. § 1981 Discrimination and Retaliation Against All Defendants

• Count V: Negligent Supervision Against Defendant Di Meo Brothers, Inc.

• Count VI: Violation of The Fair Labor Standards Act ( 29 U.S.C. § 201 et seq. ) Against Defendants Di Meo Brothers, Inc., John DiMeo, Individually, and Mark DiMeo, Individually

• Count VII: Violation of The Illinois Minimum Wage Law ( 820 ILCS 105/1, et seq. ) Against Defendants Di Meo Brothers, Inc., John DiMeo, Individually, and Mark DiMeo, Individually

Defendants moved to dismiss Counts I through V on various grounds [37].

II. Legal Standard

To survive a Federal Rule of Civil Procedure ("Rule") 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level." E.E.O.C. v. Concentra Health Servs., Inc. , 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

Dismissal for failure to state a claim under Rule 12(b)(6) is proper "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Twombly , 550 U.S. at 558, 127 S.Ct. 1955. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiff's well-pleaded factual allegations and draws all reasonable inferences in Plaintiffs' favor. Killingsworth v. HSBC Bank Nevada, N.A. , 507 F.3d 614, 618 (7th Cir. 2007). However, "[t]o survive a motion to dismiss, the well-pleaded facts of the complaint must allow the court to infer more than the mere possibility of misconduct." Langworthy v. Honeywell Life & Acc. Ins. Plan , 2009 WL 3464131, at *2 (N.D. Ill. Oct. 22, 2009) (citing McCauley v. City of Chicago , 671 F.3d 611, 616 (7th Cir. 2011) ). Additionally, the Court "need not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Brooks v. Ross , 578 F.3d 574, 581 (7th Cir. 2009) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). Evaluating whether a "claim is sufficiently plausible to survive a motion to dismiss is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ " Id. (quoting McCauley , 671 F.3d at 616 ).

III. Analysis

A. Counts I and II, and Administrative Exhaustion

Defendants argue that there is an administrative exhaustion problem with Count I, the Title VII claims, and Count II, the Illinois Human Rights Act ("IHRA") claims. In short, they say that Plaintiff's complaint asserts claims that are not administratively exhausted because they were not included in the original administrative charge. The core issue is what documents the Court may consider as part of an administrative charge.

Under the general rule, claims under these statutes cannot be pursued in court if they have not been administratively exhausted. For example, a party can fail to administratively...