Peppers v. Benedictine Univ.

ELLIOTT E. PEPPERS Plaintiff, v. BENEDICTINE UNIVERSITY, MICHAEL S. BROPHY, in his official capacity as Benedictine President;CHAD TREISCH, in his official capacity as Benedictine Executive Director of Facilities and Planning;MARCO MASINI, in his official capacity as Benedictine Vice President for Student Life; and HOPE KEBER,in her official capacity as Benedictine Counselling Center Director, Defendants.

Case No. 1:17-cv-03387

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

December 12, 2017

Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER

Defendants Benedictine University ("Benedictine"), Michael S. Brophy ("Brophy"), Chad Treisch ("Treisch"), Marco Masini ("Masini") and Hope Keber ("Keber", and together with Brophy, Treisch, and Masini, the "Individual Defendants") moved to dismiss Plaintiff Elliott Pepper's Second Amended Complaint¹ ("Amended Complaint") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)"). For the reasons set forth herein, the Court (1) grants the Individual Defendants' motion to dismiss with prejudice, (2) grants Defendant Benedictine's motion to dismiss as to Counts I and II with prejudice, and (3) denies Defendant Benedictine's motion to dismiss as to Count III.

RELEVANT FACTS

Plaintiff asserts claims under the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 ("Section 1981") and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII").²

Between July 2011 and June 2017, Plaintiff, who is African-American, worked at Benedictine as a National Media Coordinator and then as Associate Director of Media Relations. (Id. at ¶¶ 6, 7, 12.) Plaintiff alleges that the following incidents occurred at Benedictine over the course of several years.

First, in October of 2013, Defendant Keber came into his office "yelling and wagging her finger in his face" over an email Plaintiff sent to her manager. (Id. at ¶ 14.) Keber's "volatile behavior" continued, prompting Plaintiff to bring the matter to Defendant Masini's attention. (Id. at ¶¶ 15, 16.) Masini allegedly delayed meeting with Plaintiff and laughed about the incidents when he and Plaintiff eventually met in person. (Id. at ¶ 17.)

Plaintiff also alleges that in November 2015, Defendant Treisch "engaged in frequent, disruptive, loud tirades" that were directed at Plaintiff, other employees, and people speaking with Treisch on the phone. (Id. at ¶ 19.) According to Plaintiff, Treisch's behavior "created an uncomfortable, hostile work environment," and Plaintiff's complaints about such behavior "went unanswered." (Id. at ¶ 20.) On September 27, 2016, Defendant Treisch allegedly "harangued" Plaintiff and his colleagues with aggressive and vulgar language. (Id. at ¶ 24.) Plaintiff reported the incident to Defendant Brophy, among others, but did not receive what he thought to be anadequate response. (Id. at ¶ 26.) Following a subsequent incident with Treisch, Plaintiff submitted a complaint to management and received a response acknowledging that "'inappropriate behavior and violations of company policy took place.'" (Id. at ¶ 28.) Treisch purportedly retaliated against Plaintiff and others "by engaging in further lengthy, angry, threatening tirades." (Id. at ¶ 29.) Plaintiff also alleges that Treisch made vulgar comments on January 20, 2017 to Plaintiff and another employee. (Id. at ¶ 27.) Plaintiff speculates that if he had engaged in similar behavior to Treisch (who is white), Plaintiff likely would have been immediately terminated. (Id. at ¶ 32.)

Finally, on March 3, 2017, after witnessing an unidentified female staff member engage in "rude and condescending behavior" towards African- and Asian-American employees, Plaintiff reported the incident to Benedictine leadership and allegedly received no response. (Id. at ¶ 33.)

Plaintiff filed a claim with the Chicago office of the Equal Employment Opportunity Commission ("EEOC") on January 9, 2017 and received his Right to Sue on February 3, 2017. (Id. at ¶ 2.) On June 20, 2017, Benedictine terminated Plaintiff's employment, citing a need for a reduction in force. (Id. at ¶ 7.) Plaintiff alleges that Benedictine thereafter posted a position substantially similar to the one that Benedictine had purportedly eliminated. (Id. at ¶ 8.)

PROCEDURAL HISTORY

On May 4, 2017, Plaintiff filed his initial complaint against Defendants and the parties consented to proceed before this Court on June 19, 2017. (See Dkt. 1, 12.) Defendant Benedictine and the Individual Defendants filed motions to dismiss which were later withdrawn after the Court granted Plaintiff's oral motion to amend his complaint. (See Dkt. 15, 16, 28.) Plaintiff filed his Amended Complaint on September 5, 2017, seeking punitive damages inexcess of $15,000.00 and attorneys' fees.³ (Dkt. 29 at ¶¶ 5, 77.) Defendants once again moved to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). (See Dkt. 30, 31.)

LEGAL STANDARD

In evaluating a Rule 12(b)(6) motion to dismiss, the Court accepts the complaint's well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). A Rule 12(b)(6) motion "tests only the legal sufficiency of the complaint," not its merits. Hanley v. Green Tree Servicing, LLC, 934 F. Supp. 2d 977, 980 (N.D. Ill. 2013). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain "sufficient factual material, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S. at 570). Plausibility requires that the complaint plead facts sufficient for "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 556 U.S. at 678. The Federal Rules of Civil Procedure require a plaintiff to "plead claims rather than facts corresponding to the elements of a legal theory." Chapman v. Yellow Cab Coop., 875 F.3d 846, 848 (7th Cir. 2017) (emphasis in original). A complaint should therefore not be dismissed for failure to state a claim "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Embry-Hampton v. Chi. Pub.Sch., No. 05 C 6165, 2006 WL 1156103, at *1 (N.D. Ill. May 1, 2006). Although the Court must accept as true the complaint's factual allegations and draw reasonable inferences in favor of the plaintiff, the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).

ANALYSIS

1. Plaintiff's Claims Against the Individual Defendants

Defendants contend that Plaintiff's claims against the Individual Defendants should be dismissed because suits brought against employees in their official capacities are essentially brought against the employer. (Dkt. 32 at p. 5.) Plaintiff failed to address this point in his response and therefore waives any argument he may have asserted. See, e.g., Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (noting that "[f]ailure to respond to an argument . . . results in waiver").

The law is clear that "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also Embry-Hampton, 2006 WL 1156103, at *3 (dismissing § 1981 claim against individual defendant sued in his official capacity because it was redundant of the claim brought against his employer); Hamilton v. City of Chi., No. 93 C 3342, 1993 WL 535351, at *3 (N.D. Ill. Dec. 17, 1993) (dismissing Title VII claim against individual defendants because they were "redundant of the claims" brought against the City). Plaintiff's Amended Complaint expressly states that the Individual Defendants have been sued in their "official capacity." (Dkt. 29 at ¶ 10 (Brophy sued "in his official capacity as Benedictine President"); ¶ 11 (Masini sued "in his official capacity as Benedictine Vice President for Student Life"); ¶ 12 (Treisch sued "in his official capacity as Benedictine Executive Director of Facilities Management and Planning"); ¶ 13 (Keber sued "in her official capacity as Benedictine Counseling Center Director").) As Plaintiff's claims againstthe Individual Defendants are redundant of those brought against Benedictine, the Court grants the Individual Defendants' motion to dismiss with prejudice.⁴

2. Plaintiff's Title VII and Section 1981 Claims (Counts I and II)⁵

Title VII prohibits employers from allowing a hostile work environment based on an employee's "inclusion in a protected class, such as race, gender, or national origin." Aguilera v. Vill. of Hazel Crest, 234 F. Supp. 2d 840, 846 (N.D. Ill. 2002). To state a claim under Title VII on the basis of a hostile work environment, a plaintiff must establish that: "'(1) he was subject to unwelcome harassment; (2) the harassment was based on his race [or sex]; (3) the harassment was severe or pervasive so as to alter the conditions of the employee's work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability.'" Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 895-96 (7th Cir. 2016).

a.) Plaintiff Was Subject to Unwelcome Harassment

Plaintiff's allegations concerning Defendant Treisch alone, viewed in a light favorable to Plaintiff, establish that the first prong of the analysis has been satisfied.⁶ The common understanding of "harass" is "to create an unpleasant or hostile situation."⁷ Defendant Treisch's use of aggressive and crude language - at times directed towards Plaintiff - is enough to presumethat Plaintiff experienced unpleasant and uncomfortable situations. (Dkt. 29 at ¶¶ 19, 20, 24, 29.)

b.) Plaintiff Has Not Adequately Alleged That the Harassment Was Based on His Race or Sex

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