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June 15, 2004.

LAN CHI ROHALL, Plaintiff,

The opinion of the court was delivered by: AMY J. ST. EVE, District Judge


Plaintiff Lan Chi Rohall has filed a seven-count Complaint against the General Security Services Corporation ("GSSC"), Anthony Ferrantino, and Ernesto Cortina. Count I alleges that Defendants engaged in retaliation in violation of Title VII of the Civil Rights Act of 1964 ("the Act"). Count II alleges that Defendants engaged in racial discrimination in violation of the Act. Count III alleges that Defendants engaged in sex discrimination in violation of the Act. Count IV alleges that Defendants breached the implied covenant of good faith and fair dealing. The remaining three counts allege wrongful discharge, intentional infliction of emotional distress ("IIED"), and battery. Defendants seek to dismiss Counts I and IV of the Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) and Counts V, VI, and VII for lack of federal subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). For the reasons set forth below, Defendants' motion is granted in part and denied in part. BACKGROUND

Plaintiff Lan Chi Rohall is a Vietnamese-American woman who was an employee of GSSC. (R. 1-1, Compl., ¶¶ 16, 17, 48.) GSSC is a corporation organized and existing under the laws of the State of Minnesota, and maintains a place of business at 28 East Jackson Street in Chicago, Illinois. (Id., ¶ 5.) GSSC employed Rohall as a security guard from December 15, 2001 to May 20, 2003. (Id., ¶ 8.) Ferrantino, a resident of Illinois, worked as a security guard with Rohall during her assignment at 10 West Jackson. (Id., ¶¶ 6, 12.) Cortina is also a resident of Illinois. (Id. ¶ 7.)

  Rohall alleges that on or about the early morning of March 2, 2003, Ferrantino made derogatory comments regarding Rohall's gender and national origin after she failed to remember a security access code at a hallway door. (Id., ¶¶ 15, 16.) During the course of this altercation, Rohall claims she became concerned about her personal safety. (Id., ¶ 20.) Accordingly, she called Carey, the supervisor on duty at the facility. (Id.) Because Carey could not come immediately, Rohall allegedly called the FPO Control Office,*fn1 but that office did not have anyone on duty. (Id., ¶ 21, 22.) Rohall alleges that Carey arrived approximately 45 minutes later, and chastised Rohall for involving outsiders in the dispute. (Id., ¶ 23, 24.) Rohall contends that Ferrantino continued to make derogatory comments toward Rohall for hours after Carey left. (Id., ¶ 27.) During this time, Ferrantino swung his baton and injured Rohall's elbow. (Id., ¶ 35.) Later that day, Rohall filed a complaint with GSSC, recounting the incident. (Id., Ex. C.)

  On March 6, 2003, Rohall demanded a meeting with GSSC and her union president to discuss the March 2, 2003 incident. (Id., Ex. D.) Rohall alleges that during the meeting on March 14, 2003, Cortina threatened her and told her that GSSC would terminate her if she continued to complain. (Id., ¶ 33.) In addition to the threat, Rohall also alleges that Ferrantino and other GSSC employees pressured her to qualify on the firearms range ahead of her scheduled time in retaliation for her complaints. (Id. ¶¶ 36, 43(b).)

  On or about May 20, 2003, Rohall alleges that GSSC ordered her to take the qualification test on the firearms range. (Id., ¶ 37.) She claims that GSSC scheduled the test before her required time, and that GSSC had not given her the required 48 hours notice. (Id., ¶ 37.) She alleges that she failed the test due to her elbow injury and a lack of preparation. (Id., ¶ 38.) GSSC terminated Rohall because she did not qualify on the firearms range. (Id.)

  Rohall claims that GSSC retaliated against her when Cortina made his threats and when GSSC forced her to take the firearms qualification examination under adverse circumstances. (Id., ¶ 43.) Rohall claims that her termination amounts to national origin discrimination under Title VII because GSSC allowed American-born employees who failed the firearms test to retake the exam. (Id., ¶ 51.) Additionally, she alleges that GSSC harassed her and ignored her complaints because of her national origin in violation of Title VII. (Id., ¶¶ 52, 53.)

  Rohall next claims that GSSC discriminated against her on basis of sex because GSSC retained a male employee who repeatedly failed the same test. (Id., ¶ 59.) Further, Rohall alleges that GSSC violated the implied duty of good faith and fair dealing by terminating her. (Id., ¶¶ 67, 68.) She also contends that GSSC wrongfully discharged her when GSSC terminated her under discriminatory conditions. (Id., ¶ 74.) Rohall also claims that GSSC intentionally inflicted emotional distress in performing the actions that led to her dismissal. (Id., ¶ 77.) Lastly, Rohall claims that when Ferrantino caused his baton to forcefully strike Rohall's elbow, he committed a battery on her. (Id., ¶ 80.) On or about April 11, 2003, Rohall filed a sex and national origin discrimination charge against GSSC with the Equal Employment Opportunity Commission ("EEOC"). (Id., Ex. A.) In the charge, Rohall checked the "cause of discrimination" boxes for "sex," "national origin," and "retaliation." (Id.) On or about September 27, 2003, the EEOC issued Plaintiff a right to sue letter for Title VII. (Id., Ex. B.) On December 24, 2003, Plaintiff filed her complaint in this case. (R. 1-1. Compl.) Defendants now seek to dismiss the Counts I, IV, V, VI and VII of Plaintiff's complaint.


  A Rule 12(b)(6) motion tests the sufficiency of a complaint. It is not designed to resolve the case on the merits.*fn2 Petri v. Gatlin, 997 F. Supp. 956, 963 (N.D. Ill. 1997) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 294 (2d ed. 1990)). When determining whether to grant a 12(b)(6) motion to dismiss, a court must accept all factual allegations in the complaint as true. Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997). A court must also draw all reasonable inferences in the plaintiff's favor. Id. A complaint should be dismissed under Rule 12(b)(6) only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). A plaintiff cannot satisfy federal pleading requirements, however, merely by attaching bare legal conclusions to narrated facts, which fail to outline the basis of their claims. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). ANALYSIS

  I. Count I States a Claim for Retaliation under Title VII

  It is "unlawful employment practice for an employer to discriminate against an employee because [she] has opposed any practice made an unlawful employment practice" by Title VII. (42 U.S.C. § 2000e-3(a).) To establish a prima facie case of retaliation, a plaintiff must demonstrate: (1) that she engaged in statutorily protected expression, (2) that she suffered an adverse action by her employer, and (3) that there was a causal link between the protected expression and the adverse action. Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 885 (7th Cir. 1998). Defendants seek to dismiss Plaintiff's retaliation claim on the ground that she has failed to allege an adverse action by GSSC.

  First, Rohall contends that GSSC's threat of firing her is an actionable adverse action. (R. 14-1, Pl.'s Mem. Opp. Defs.' Mot. Dismiss at 5.) A threat alone, however, is not enough to create a claim for retaliation. Jenkins-Allen v. Powell Duffryn Terminals, 18 F. Supp.2d 885, 893 (D. Ill., 1998). Therefore, based on the allegations in the complaint, threatened termination does not give rise to a retaliation claim.*fn3

  Second, Rohall contends that when GSSC forced her to take the firearms qualification test prematurely, it committed an adverse action. 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). An adverse employment action is "a change in the terms and conditions of employment [that is] more disruptive than a mere inconvenience or an alteration of job responsibilities." Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). A court must consider the particular facts of each ...

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