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United States District Court, N.D. Illinois

April 28, 2004.

York Corrugated

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. ยง 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 (citations omitted)
I find this reasoning to be persuasive and applicable to this case. Therefore, Defendant's Motion to Dismiss Plaintiff's retaliation claim is GRANTED.

  Defendant's Motion to Dismiss is GRANTED.


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