Wrenn v. Exelon Generation, LLC

MALLORY WRENN, Plaintiff, v. EXELON GENERATION, LLC, Defendant.

No. 18 C 2524

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

November 22, 2019

Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER

Mallory Wrenn alleges that her former employer, Exelon Generation, LLC, discriminated against her based on: (1) her sex in violation of Title VII of the Civil Rights Act (Count I); and (2) her disability in violation of the Americans with Disabilities Act (Count III).¹ Defendant has moved to dismiss Count I for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 49.² That motion is denied.

Legal Standard

A Rule 12(b)(6) motion challenges the "sufficiency of the complaint." Berger v. Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with "fair notice" ofthe claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "'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.'" Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

Background

I. Wrenn Alleges a Co-Worker Stalked Her

Wrenn is a woman who worked for Exelon as a nuclear equipment operator at a nuclear power plant. R. 38 ¶ 7. John Zura is a man who also works for Exelon as a nuclear equipment operator at the same plant as Wrenn. Id. ¶ 8. Wrenn alleges that in February and March of 2017, Zura began texting Wrenn that he was attracted to her. Id. ¶ 9. Zura also "followed" and "liked" Wrenn on social media. Id. Wrenn contends that she told Zura multiple times that she was not interested and to leave her alone. Id. Undaunted, Zura approached Wrenn in the plant's parking lot and toldher: "I know I am making you uncomfortable, but I've been crazy about you for years." Id. Wrenn again told Zura to keep away from her, and Zura said he would. Id. Nevertheless, on March 8, 2017, Zura visited Wrenn's home to give her a bag of gifts, including wine and stuffed animals. Id.

Wrenn reported Zura's behavior to her union steward on March 10, 2017 because she was "extremely anxious and frightened by Zura's behavior." Id. ¶ 10. The union steward told Wrenn the union would try to handle the situation before involving Exelon's human resources department by telling Zura to leave Wrenn alone and moving him off of her crew. Id. But that same day, Zura approached Wrenn in the parking lot and asked if she was alright. Id. ¶ 11. Wrenn yelled at Zura to leave her alone. Id. ¶ 11. Five days later, the union steward told Wrenn that he reported the situation to human resources.

Through the rest of March and April, Wrenn had ongoing discussions with the union and the human resources department about her desire that she and Zura not work on the same crew. When Zura was again on Wrenn's crew on April 7, 2017, she sent an email to human resources asking why they were continuing to be assigned together. Id. ¶¶ 18-19. Human resources told Wrenn that they had not finished their investigation of her allegations and that they did not believe Exelon could move Zura because of his seniority. Id. Nevertheless, human resources told Wrenn to submit a written request that Zura be moved off her crew. Id.

On April 24, 2017, Wrenn sought a restraining order against Zura in Illinois state court. Id. ¶ 22. After a hearing on June 5, 2017, the court granted the request, ordering Zura to stay 200 feet away from Wrenn at all times. Id. ¶ 27-28.

II. Wrenn's Mental Health

Four days before seeking the restraining order in April, Wrenn's physician referred her for mental health treatment for her "stress and anxiety occasioned by Zura's stalking and [Exelon's] failure to take any decisive action." Id. ¶ 20. Then around May 18, 2017, Wrenn was diagnosed with Post-Traumatic Stress Disorder ("PTSD") and placed on anti-anxiety medication. Id. ¶ 24.

Wrenn's employment is subject to "fitness for duty" requirements provided in the United States Nuclear Regulatory Commission ("NRC") regulations. Id. ¶ 52. In accordance with these regulations, Exelon made a mandatory referral to its Employee Assistance Program ("EAP") regarding Wrenn's PTSD diagnosis. Id. ¶ 25. As a result, Wrenn "was put on FMLA leave and later short-term disability and would not be permitted to work until August 2017." Id. ¶ 26.

Wrenn also alleges that Exelon was required by the NRC regulations to report the restraining order against Zura. Id. ¶ 54 (citing 10 C.F.R. § 73.56(g) (requiring reporting of "any legal action(s) . . . that requires a court appearance")). Wrenn alleges on "information and belief" that Exelon did not report Zura in accordance with the regulations. Id. Whether or not Exelon followed the regulations with regard to Zura, Exelon did not place him on leave or fire him.

III. Wrenn's Return from Leave and Termination

When Wrenn returned to work, she was told that it was not possible to prevent Zura from ever being at the plant when Wrenn was there. Id. ¶ 35. Wrenn objected, but she was only assured that there would be "very limited time that [Wrenn] and [Zura] will work together and cross paths," and that Exelon did not think that Zura would "risk a violation." Id. ¶ 36. Wrenn was also warned to maintain her "fitness for duty," and to "work on that" with her doctors. Id. ¶ 37.

On September 14, 2017, Wrenn noticed that she was scheduled to work on the same extended 12-hour shift as Zura on September 26, 2017. Id. ¶ 38. (The shift was extended for a certain procedure taking place at the plant. Id.) Wrenn complained to Exelon's "employee concerns program" and to her supervisors, but no action was taken to separate Wrenn and Zura. Id. ¶ 38.

On September 26, 2017, Zura participated in a meeting by speaker phone with Wrenn present. Id. ¶ 39. Wrenn became very upset. She alleges that "while Zura was not physically present in the room . . . . [h]earing Zura's voice in the room and realizing that he was somewhere on site—but not having any idea where—rendered [her] panicked and dumbfounded." Id. She alleges that she immediately "expressed her fear of Zura and her inability to focus on her work when Zura was present on site." Id. ¶ 40. Apparently, discussion immediately ensued among Wrenn and various Exelon officials about how Wrenn's and Zura's work schedules might be adjusted. Id. But Wrenn was told that the collective bargaining agreement "did not allow for Zurato be forced to the night shift," as Wrenn requested. Id. Wrenn's complaint describes the ultimate resolution of that meeting as follows:

[Wrenn] excused herself from that meeting and went to the bathroom. [The union steward] escorted her to see Exelon nurses Carol Pifken and Evan Davis. [Wrenn's] blood pressure and pulse were elevated, her heart was racing, she could not breathe and her hands were very sweaty. [Wrenn] explained her PTSD and her reaction to hearing Zura. Pifken acknowledged that hearing Zura's voice probably made [Wrenn] feel like he was right there. Davis went to call [Wrenn's] counselor, while Pifken told [Wrenn] she wasn't in any shape to be at work and sent her home. Davis returned and told Mallory that they were administratively "zeroing" her badge until there was "a plan." Mallory has been certified off work since that day.

Id. ¶ 41.

Analysis

In order "to prevent dismissal under Rule 12(b)(6), a complaint alleging sex discrimination need only aver that the employer instituted a (specified) adverse employment action against the plaintiff on the basis of her sex." Tate v. SCR Med. Transp., 809 F.3d 343, 346 (7th Cir. 2015); Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). Here, Wrenn alleges that Exelon failed to adequately address Zura's conduct towards her, which caused her emotional and physical distress, which Exelon then failed to properly accommodate, which then led to investigation of Wrenn's emotional and mental state, and eventually her termination for failure to maintain a security clearance under NRC regulations. Of course, termination and the steps taken to accomplish it are unquestionably adverse actions. Wrenn alleges that Exelon took these actions, rather than actions more favorable to her and possibly lessfavorable to Zura, because she is a woman and Zura is a man. That is all Wrenn needs to allege at the pleading stage to state a claim for sex discrimination in violation of Title VII.

Exelon's arguments to the contrary all rest on authority that a plaintiff fired for failure to satisfy security clearance regulations is barred from bringing a discrimination lawsuit, because security clearance determinations are within the sole discretion of the Executive Branch. See Whitney v. Carter, 628 Fed. App'x 446, 447 (7th Cir. 2016) ("Under Egan, we cannot review [the plaintiff's] employment-discrimination claim. Doing so would violate the requirement of judicial deference to the broad discretion of an agency that bears responsibility for the protection of classified information committed to its...