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CHISHOLM v. FOOTHILL CAPITAL CORP.

September 27, 1996

TERRI CHISHOLM, Plaintiff,
v.
FOOTHILL CAPITAL CORPORATION, NORWEST CORPORATION, SCOTT DIEHL, and MICHAEL SADILEK in their individual and official capacities, Defendants.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff, Terri Chisholm ("Chisholm"), has filed an eight count complaint against Defendants, Foothill Capital Corporation ("Foothill"), Norwest Corporation ("Norwest"), Scott Diehl ("Diehl), and Michael Sadilek ("Sadilek"), alleging that she was discriminated against because of her sex and was retaliated against for reporting such discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1), and the Equal Pay Act, 29 U.S.C. § 206(d), and was defamed by defendants in violation of Illinois state law. Defendants bring this motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. For the reasons set forth below, this court grants in part and denies in part defendants' motion.

 FACTS

 Plaintiff alleges the following facts, which, for purposes of defendants' Rule 12(b)(6) motion, are assumed to be true. Plaintiff began working for Foothill in October 1989 as a credit underwriter. Throughout her employment with Foothill, plaintiff received various promotions, and it appears from the record that, at the time plaintiff resigned from Foothill, she was a vice-president in marketing. In June 1994, plaintiff was transferred to Chicago, to open a new Foothill Office. During this time, Foothill also hired Sadilek to work in the Chicago office as a vice-president in marketing. Both plaintiff and Sadilek reported to Diehl.

 Both before and after her transfer to Chicago, plaintiff claims to have been subjected to discriminatory treatment on the basis of her gender. Specifically, plaintiff alleges that: (1) she was denied business and income-producing opportunities available to her male peers, who were, for example, assigned to "house accounts" and given referral sources; (2) she was excluded from networking opportunities presented to her male peers, invitations to golf outings and business dinners; (3) she was placed in a smaller office than Sadilek, despite her seniority; (4) she was subjected to a campaign by Sadilek to ruin her career, in which Sadilek made derogatory comments about plaintiff to plaintiff's co-workers and prospective clients; (5) she received reduced earnings because she was denied the same business and mentoring opportunities available to her male colleagues.

 Plaintiff reported some of these discriminatory incidents to Diehl and to the vice-president of human resources at Foothill and Norwest. Despite her complaints, neither Foothill nor Norwest took remedial action. Instead, plaintiff claims that she suffered retaliation in the form of additional discriminatory acts and derogatory comments and, because of such conduct, decided to resign.

 As part of the discriminatory treatment she received, plaintiff alleges that she was defamed by Sadilek. According to plaintiff, Sadilek told a business associate that plaintiff was "double dealing" between Foothill and the company for which plaintiff's husband is the managing director.

 Plaintiff also claims that defendants intended to inflict severe emotional distress on plaintiff through their discriminatory acts, and that she suffered severe emotional distress as a result of such conduct. Finally, plaintiff contends that she was constructively discharged and lost wages and other benefits.

 Plaintiff filed a timely charge of discrimination and unlawful retaliation with the Equal Employment Opportunity Commission ("EEOC"). The EEOC has issued plaintiff a Notice of Right to Sue, and plaintiff now brings the following claims: Count I against Foothill and Norwest for sex discrimination in violation of Title VII; Count II against Foothill and Norwest for sex discrimination in the payment of wages in violation of the Equal Pay Act and Title VII; Count III against Foothill and Norwest for retaliation in violation of Title VII; Count IV against all defendants for retaliation in violation of the Fair Labor Standards Act; Count V against Foothill, Norwest, and Sadilek for defamation per se; Count VI against Foothill, Norwest, and Sadilek for false light; Count VII against Foothill, Norwest, and Sadilek for publication of private facts; and Count VIII against all defendants for intentional infliction of emotional distress. Defendants have moved to dismiss all counts against all defendants.

 DISCUSSION

 I. STANDARD

 Under Rule 12(b)(6), a court may dismiss a case "for failure to state a claim upon which relief may be granted." Fed.R.Civ.P. 12(b)(6). The motion is based on the sufficiency of the complaint, not the merits of the case. Triad Assocs., Inc. v. Chicago Housing Authority, 892 F.2d 583, 586 (7th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129 (1990). All well-pleaded facts will be taken as true, and all inferences are made in favor of the plaintiff. Montgomery Ward v. Warehouse Mail Order, Office, Technical and Professional Employees Union, 911 F. Supp. 1094, 1099 (N.D. Ill. 1995). Dismissal is proper only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 A Rule 12(b)(6) motion should be read in the context of Rule 8(a)'s liberal pleading requirements. EEOC v. Home by Hemphill, Inc., 1995 U.S. Dist. LEXIS 17217, 1995 WL 683502, at *1 (N.D. Ill. Nov. 16, 1995). Because the Rules mandate only notice pleading, they do not require that a complaint state facts sufficient to constitute a cause of action. Fed.R.Civ.P. 8(a)(2). Rather, a complaint need only make a short and plain statement of the claim showing that the pleader is entitled to relief. Id. Accordingly, in ruling on a motion to dismiss, the court must determine "'whether relief is possible under any set of facts that could be established consistent with the allegations' in the complaint." First Nat'l Bank of Chicago v. Estate Fund F, 842 F. Supp. 311, 316 (N.D. Ill. 1994) (quoting Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992). The court, however, is not obliged to accept mere conclusory allegations, without any supporting facts, as true. See Tamari v. Bache & Co. (Lebanon) S.A.L., 565 F.2d 1194, 1199 (7th Cir. 1977), cert. denied, 435 U.S. 905, 55 L. Ed. 2d 495, 98 S. Ct. 1450 (1978).

 II. NORWEST CORPORATION

 Although Foothill, not Norwest, was plaintiff's immediate employer, plaintiff has named Norwest in all counts of her complaint, arguing that Norwest is an "employer" under Title VII or, alternatively, that Foothill and Norwest should be considered a "single employer" in this lawsuit. She states that, on "information and belief," the two corporations have: (1) interrelated operations; (2) common ownership and/or financial control; (3) common management; and (4) centralized control of labor relations. See Rogers v. Sugar Tree Products, 7 F.3d 577, 582 (7th Cir. 1993) (listing above four requirements for two entities to be considered a single employer under Age Discrimination in Employment Act); Lynam v. Foot First Podiatry Centers, P.C., 919 F. Supp. 1141, 1145 n.3 (N.D. Ill. 1996) (noting that Rogers criteria for single-employer liability is applicable to Title VII claims).

 Allegations based on "information and belief" are usually sufficient to meet Rule 8 pleading requirements. See Hall v. Carlson, 1985 WL 2412, at *1 (N.D. Ill. Aug. 28, 1985). Unlike Rule 9, which is applicable to claims of fraud, Rule 8 has no requirement that the circumstances of the allegation be pleaded with particularity. Id. (citing 5 Wright & Miller, Federal Practice and Procedure: Civil § 1224, at 155, 157 (1969)); Fed.R.Civ.P. 8(a); Fed.R.Civ.P. 9(b). Moreover, even in fraud cases, there is an exception to the particularity requirement when the facts on which the allegations are based ...


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