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MIMS v. GENERAL SECURITY SERVICES CORPORATION

United States District Court, N.D. Illinois, Eastern Division


June 16, 2004.

JANET C. MIMS, Plaintiff,
v.
GENERAL SECURITY SERVICES CORPORATION, a Minnesota Corporation, and INDEPENDENT SECURITY AND POLICE UNION, INC., Defendants.

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

ORDER

Until September 2003, Plaintiff Janet C. Mims was employed by Defendant General Security Services Corp. ("GSSC"), a private contractor in the business of providing security services, including security at certain federal facilities in Chicago, Illinois. In this lawsuit, Plaintiff sues GSSC and Defendant Independent Security and Police Union ("ISPU") union, for taking action against Plaintiff after she complained of security breaches at the U.S. Customs building lobby. She alleges retaliation in violation of Title VII (Count I); sex discrimination in violation of Title VII (Count II); breach of the implied covenant of good faith and fair dealing (Count III); wrongful discharge (Count IV); intentional infliction of emotional distress (Count V); and violation of the Labor Management Relations Act (Count VI).

Defendant GSSC moved to dismiss all five counts against it. In an oral ruling, the court granted that motion in part on May 6, 2004. ISPU now seeks dismissal of the duty of fair representation claim asserted in Count VI. For the reasons that follow, ISPU's motion is denied. On its own motion, the court has reconsidered GSSC's motion, as well, and hereby amends its earlier ruling on that motion, as more fully addressed below. DISCUSSION

  Standards for Dismissal Under Rule 12

  When reviewing a motion to dismiss under Rule 12(b)(6), the court merely looks at the sufficiency of the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002); Autry v. Northwest Premium Services, Inc., 144 F.3d 1037, 1039 (7th Cir. 1998); it does not decide whether the plaintiff has a winning claim. Herdrich v. Pegram, 154 F.3d 362, 369 (7th Cir. 1998); see also McCormick v. City of Chicago, 230 F.3d 319, 323-26 (7th Cir. 2000) (analyzing Leatherman v. Tarrant County, 507 U.S. 163 (1993) and reversing the Rule 12(b)(6) dismissal of claims based on §§ 1981 & 1983); Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) ("Complaints need not plead law or match facts to every element of a legal theory. . . ."). Thus, "[a] complaint should not be dismissed for failure to a state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts to support his claim which would entitle him to relief." Smith v. Cash Store Mgmt., Inc., 195 F.3d 325, 327 (7th Cir. 1999) (citations and internal quotation marks omitted). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims . . . Rule 12(b)(6) should be employed only when the complaint does not present a legal claim." Id. "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz, 534 U.S. at 512. All well-pleaded facts are accepted as true, and all reasonable inferences are drawn in favor of the plaintiff. See, e.g., Jackson v. E.J. Brach Corp., 176 F.3d 971, 977-78 (7th Cir. 1999).

  GSSC's Motion to Dismiss

  With respect to Count I, GSSC correctly argued that the claims presented there were not mentioned in Plaintiff's charge of discrimination, filed with EEOC. From this court's review, it appears that Plaintiff's underlying EEOC charge referred only to sex discrimination and to harassment she claims to have suffered after she broke up a romantic relationship with a co-worker. No mention of these circumstances, which might well support a traditional claim of retaliation under Title VII, appears in her complaint filed with this court, however; instead, Count I refers only to retaliation for Plaintiff's alleged "whistle-blowing" activities.

  Plaintiff invokes Title VII in Count I, and in this court's earlier ruling, the court denied GSSC's motion to dismiss this Title VII claim. On reconsideration, the court concludes that Title VII is not implicated by Plaintiff's "whistle-blower" allegations. Illinois law recognizes a cause of action for retaliatory discharge — that is, for retaliation in violation of clearly mandated public policy. Miller v. State of Illinois, 681 F. Supp. 538, 547 (N.D.Ill. 1988). Moreover, Illinois case law recognizes that public policy may be found in federal law, and that a "whistle-blowing" case may support a finding of contravention of clearly mandated public policy where the employee is dismissed for reporting illegal or wrongful activities on the part of her fellow employees or her employer. See Russ v. Pension Consultants Co., 182 Ill. App.3d 769, 775, 538 N.E.2d 693, 696 (1st Dist. 1989). It is well recognized that a claim need not specify the specific correct legal theory to withstand a Rule 12(b)(6) motion. Further, the requirement under Title VII that any claim be presented first by way of a charge to the EEOC does not bar Plaintiff from proceeding with a state law tort claim, so Plaintiff's purported failure to exhaust administrative remedies does not support dismissal.*fn1 The court thus concludes that Count I adequately states a claim under the notice-pleading standards of the Federal Rules.*fn2

  Count II, alleging sex discrimination, is subject to the charge-filing requirement. Plaintiff's underlying EEOC charge does contain a checkmark in the box for "sex discrimination," but says nothing at all about the claim she asserts in her complaint in this court: that males but not females were permitted to keep their belongings in Room 100. Instead, the charge explains that Plaintiff was subject to harassment and hostile work environment after she broke off a relationship with a co-worker and complained of sex discrimination — classic allegations of sexual harassment and retaliation, not of disparate treatment on the basis of sex. As the Seventh Circuit explained in Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497 (7th Cir. 1994), "a claim of sex discrimination in an EEOC charge and a claim of sex discrimination in a complaint are not alike or reasonably related just because they both assert forms of sex discrimination." Id. at 501. The court's earlier ruling on Count II is withdrawn and GSSC's motion to dismiss Count II is granted.*fn3

  Count III of Plaintiff's complaint alleges breach of the implied covenant of good faith and fair dealing. As several courts have observed, Illinois law does not recognize such a claim in an at-will employment setting. The Seventh Circuit explained that an employment-at-will relationship "gives the employer the right to terminate the employment at any time. Therefore, it is incongruous to imply a covenant [the implied covenant of good faith and fair dealing] which restricts that right." LaScola v. U.S. Sprint Communications, 946 F.2d 559, 565 (7th Cir. 1991), citing Harrison v. Sears, Roebuck & Co., 189 Ill. App.3d 980, 993, 546 N.E.2d 248, 256 (4th Dist. 1989). Neither side here has explained whether Plaintiff's union membership either alters the analysis or requires a determination that this claim is preempted. Plaintiff has conceded, however, that Count III is subject to dismissal. The motion to dismiss Count III is therefore granted. GSSC argues that Count IV (for wrongful discharge) and Count V (for intentional infliction of emotional distress) are preempted by the Illinois Human Rights Act, 775 ILCS 5/8-111(C). In its earlier oral ruling, the court agreed and dismissed both counts. With respect to Count V, the court stands by that ruling: Where state common law claims are inextricably linked to allegations of discrimination, the claims must be construed as charging a civil rights violation under the Illinois Human Rights Act. Plaintiff's allegations of intentional infliction of emotional distress here appear to relate to Defendant's alleged retaliation and sexual harassment. Maksimovic v. Tsogalis, 177 Ill.2d 511, 687 N.E.2d 21 (1997), on which Plaintiff relies, effectively confirms this analysis: the plaintiff in that case had claims of physical harm, including assault, battery, and false imprisonment, in addition to her claim of sexual harassment in the workplace. Plaintiff's complaint and underlying charge in this case make no mention of physical contact or of any other independent tort. Count V is therefore dismissed.

  On reconsideration, the court reaches a different conclusion with respect to the wrongful discharge claim in Count IV. To the extent that claim is based upon her assertion that her employer retaliated against her for her efforts to enforce public policy, such a claim may not be preempted by the Human Rights Act. As the complaint currently reads, any such claim would appear to be duplicative of Count I. Assuming that Plaintiff is able to amend Count I to state a claim of retaliation consistent with the allegations of her underlying charge, however, the retaliatory discharge claim will stand With respect to Count IV, therefore, the court withdraws its earlier ruling and denies the motion to dismiss that count.

  ISPU's Motion to Dismiss

  Count VI of Plaintiff's complaint states a "hybrid" claim under section 310 of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185. In such a claim, the plaintiff asserts that her employer breached the collective bargaining agreement and the defendant union breached its duty of fair representation to plaintiff. Plaintiff Mims alleges that, over several months following September 11, 2001, she observed and objected to security breaches at federal buildings to which she was assigned. In August 2003, she filed grievances protesting her supervisor's instructions regarding the time for opening the federal building at 536 South Clark Street in Chicago, instructions that she believed were in contravention of standing written orders. Union officials directed Plaintiff to obtain a copy of those orders in support of her grievance; when she attempted to comply with this direction, GSSC officers threatened her with criminal charges coerced her to accept a three-day suspension for copying federal documents and ultimately discharged her. Plaintiff alleges that her union representative advised her to sign "the documentation." GSSC terminated Plaintiff on September 5, 2003, and Defendant ISPU declined to appeal or challenge the termination.

  A union breaches its duty of fair representation only if its actions are arbitrary, discriminatory, or in bad faith. Neal v. Newspaper Holdings, Inc., 349 F.3d 363 (7th Cir. 2003). Defendant ISPU argues that Plaintiff is unable to make such a showing here. In this court's view, however, the argument is premature. Neal was decided on summary judgment; here, only the allegations of the Plaintiff's complaint are before the court, and these must be construed in the light most favorable to her. Plaintiff has alleged that union officers instructed her to make a copy of a document and then failed to challenge her termination for engaging in that very conduct. Viewed in the light most favorable to Plaintiff, those allegations are sufficient to establish that the union acted arbitrarily. ISPU argues, alternatively, that the collective bargaining agreement denies Plaintiff any recourse where, as in this case, it was federal officials who required that she be terminated. Such an argument might well prevail on summary judgment, but the court is not prepared to dismiss Count VI on motion. Without a factual record, the court is unable to accept the notion that making a copy of a federal notice is a violation of work rules, let alone criminal conduct, as suggested in ISPU's submissions. In any event, the allegations of the complaint are sufficient to create the inference that Plaintiff's termination was in fact motivated by her efforts to call attention to lax enforcement of security regulations at various Chicago facilities. There may be any number of legitimate reasons for ISPU's decision not to challenge that termination, but they require consideration of matters beyond the four corners of Plaintiff's complaint.

  ISPU's motion to dismiss Count VI is denied.

  CONCLUSION

  The court withdraws its earlier ruling on Defendant GSSC's motion to dismiss. That motion is granted in part and denied in part without prejudice to the filing of an amended complaint within 21 days. Should Plaintiff elect to amend her complaint, the court expects she may be able to state a claim of retaliation in violation of Title VII, consistent with the allegations in her underlying charge of discrimination; and, in addition, a claim of retaliatory discharge under Illinois law. GSSC will be directed to answer any amended complaint within 21 days after its filing. Defendant ISPU's motion to dismiss Count VI [Doc. No. 17-1] is denied, and ISPU is directed to answer that count within 21 days from this ruling.


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