The opinion of the court was delivered by: JAMES ZAGEL, District Judge
On March 7, 2003, Plaintiff Kenneth Neuffer filed a two-count complaint
against Defendant York Corrugated Container Company alleging violations
of the Americans with Disabilities Act, 42 U.S.C. § 12101. On April 4,
2003, in connection with its Answer and Affirmative Defenses, Defendant
filed a two-count counterclaim against Plaintiff alleging breach of
fiduciary duty and negligence. In October of 2003, the Court dismissed
Defendant's negligence claim. In late January 2004, Plaintiff filed a
charge with the Equal Employment Opportunity Commission alleging that
Defendant retaliated against him by filing its Counterclaims. Plaintiff
immediately requested a right-to-sue letter and amended its complaint to
include the retaliation claim.
The Defendant now moves to dismiss Plaintiff's retaliation claim
pursuant to Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6)
is proper where it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim, which would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing a motion to
dismiss, the court must construe all allegations in the complaint in the
light most favorable to the plaintiff and accept all well-pleaded facts
and allegations as true. Bontkowski v. First Nat'l Bank, 998 F.2d 459,
461 (7th Cir. 1993).
One element an employee must prove to establish a prima facie case of
retaliation is that he suffered a materially adverse employment action.
Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002). The
Seventh Circuit has stated "not everything that makes an employee unhappy
is an actionable adverse action." Smart v. Ball State Univ., 89 F.3d 437,
441 (7th Cir. 1996). While an adverse employment action does not have to
include a loss of monetary benefits, Collins v. Illinois, 830 F.2d 692,
703 (7th Cir. 1987), the change must have a drastic effect on the
employee's future opportunities. Herrnreiter v. Chi. Hous. Auth.,
315 F.3d 742, 744 (7th Cir. 2002).
The Defendant argues that Plaintiff's retaliation claim should be
dismissed because the filing of a counterclaim does not constitute an
adverse employment action. Plaintiff, on the other hand, argues that a
counterclaim should be treated like the filing of a lawsuit, which could
constitute an adverse employment action. Steffes v. Stepan Co.,
144 F.3d 1070, 1075 (7th Cir. 1998). However, there seems to be a general
hesitation on the part of courts in this Circuit to find litigation and
actions taken therein to be adverse employment actions. In Steffes, the
Seventh Circuit stated that "it will be the rare case in which conduct
occurring within the scope of litigation constitutes retaliation." Id.
In EEOC v. K & J Management Inc., No. 99 C 8116, 2000 U.S. Dist. LEXIS
8012 at *13 (N.D. Ill. June 7, 200), the court addressed this issue and
found that the filing of counterclaims could not, except in rare cases,
serve as a basis for a retaliation claim. Relying on Steffes, 144 F.3d 1070
and Harmar v. United Airlines, No 95 C 7665, 1996 U.S. Dist. LEXIS 5346
(N.D. Ill. April 17, 1996) (finding that filing of affirmative defenses
could not serve as the basis of a retaliation claim), the court reasoned
that a "counterclaim is unlikely to chill plaintiffs' exercise of their
right to challenge discrimination under Title VII" as "plaintiffs have
already made their charges with the EEOC and initiated a lawsuit against
their employer." EEOC v. K&J Mgmt. Inc., 2000 U.S. Dist. LEXIS 8012 at
*10-11. Specifically, the court stated:
The difference between the initiation of a lawsuit and
the filing of a counterclaim is not insignificant.
Raising a counterclaim does not cause the plaintiff to
incur the expense of hiring attorneys to respond to a
lawsuit since plaintiff is generally already
represented in the suit, which he brought. Id. at *10
I find this reasoning to be persuasive and applicable to this case.
Therefore, Defendant's Motion to Dismiss Plaintiff's retaliation claim is
Defendant's Motion to Dismiss is GRANTED.
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