United States District Court, N.D. Illinois, Eastern Division
June 18, 2004.
JOSEPH MUSTARI, Plaintiff,
NEW HOPE ACADEMY, DR. KATHIE BENSEN and DR. CAROLE HERBSTER, Defendants.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
This is an employment discrimination action, brought pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. ("Title VII"). Specifically, Plaintiff Joseph Mustari
alleges that Defendant New Hope Academy ("New Hope") violated
Title VII by subjecting him to a sexually hostile work
environment and retaliating against him for complaining about the
harassment (Counts 1 and 2). He also brings a claim of
Intentional Infliction of Emotional Distress ("IIED") under
Illinois law against all Defendants (Count 3). Defendants New
Hope and Dr. Kathie Benson ("Benson") move to dismiss Mustari's
Amended Complaint, pursuant to Federal Rule of Civil Procedure
12(b)(6) for Counts 1 and 2 and Rule 12(b)(1) for Count 3.
Counts 1 and 2: Title VII
The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of Mustari's Amended Complaint, not the merits of his
case. See Autry v. Northwest Premium Servs., 144 F.3d 1037,
1039 (7th Cir. 1998). Dismissal of the Title VII claims is
appropriate only if it appears beyond a doubt that he can prove no set of facts in support of his claims
that would entitle him to relief. GATX Leasing Corp. v. Nat'l
Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995). In
reviewing the sufficiency of Mustari's Amended Complaint, I must
draw all inferences and resolve all ambiguities in his favor and
assume that all well-pleaded facts are true. See Dimmig v.
Wahl, 983 F.2d 86, 87 (7th Cir. 1993).
New Hope argues that Mustari's Title VII claims fail under
Rule 12(b)(6) because it is not an "employer" under Title VII. Title
VII applies to any employer who "has fifteen or more employees
for each working day in each of twenty or more calendar weeks in
the current or preceding calendar year." 42 U.S.C. § 2000e(b);
see Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202 (1997).
Under Title VII, an "employee" is "an individual employed by an
employer." 42 U.S.C. § 2000e(f). The test for determining when an
individual is an employee is "whether the employer has an
employment relationship with the individual on the day in
question" generally called the "payroll method." Walters, 519
U.S. at 202. Because Mustari's allegations of discrimination
arose in 2001, the "current" and "preceding" years for purposes
of this analysis are 2000 and 2001. However, given that New Hope
was not open for even 20 weeks in 2000, 2001 is the only year at
In this case, the initial question in determining whether New
Hope employed the threshold number of employees to qualify for
coverage under Title VII is whether Defendants Drs. Benson and
Carole Herbster alleged part owners of New Hope can be
considered employees. New Hope argues that they were clearly not
employees for purposes of Title VII, and that by eliminating them
from the analysis, New Hope does not meet the threshold employee
requirement for Title VII. Mustari argues the opposite. In determining whether a shareholder-director is an employee or
employer, the following six factors are relevant:
1. Whether the organization can hire or fire the
individual or set the rules and regulations of the
2. Whether and, if so, to what extent the
organization supervises the individual's work;
3. Whether the individual reports to someone higher
in the organization;
4. Whether and, if so, to what extent the individual
is able to influence the organization;
5. Whether the parties intended that the individual
be an employee, as express in written agreements or
6. Whether the individual shares in the profits,
losses, and liabilities of the organization.
Clackamas Gastroenterology Assocs., P.C. v. Wells,
538 U.S. 440
, 449-50 (2003). However, these factors are not exhaustive,
and determining whether a shareholder-director is an employee or
an employer cannot be answered in every case by such a "shorthand
formula or magic phrase." Id. at 450 n. 10 (internal quotations
and citations omitted). In general, however, an "employer can
hire and fire employees, can assign tasks to employees and
supervise their performance, and can decide how the profits and
losses of the business are to be distributed." Id. at 450; see
also Walters, 519 U.S. at 212 ("We agree . . . that the ultimate
touchstone under § 2000e(b) is whether an employer has employment
relationships with 15 or more individuals for each working day in
20 or more weeks during the year in question."); Chavero v.
Local 241, Division of Amalgamated Transit Union, 787 F.2d 1154
1157 (7th Cir. 1986) (noting that directors who were salaried
employers and who maintained records, prepared financial
statements and managed the office could be employees); Grantham v. Beatrice Co., 776 F. Supp. 391,
403 (N.D. Ill. 1991); EEOC v. First Catholic Slovak Ladies
Assoc., 694 F.2d 1068, 1070 (6th Cir. 1982).
In support of its argument that New Hope does not meet the
definition of an "employer" under Title VII, New Hope attaches an
affidavit from Benson and other documents pertaining to New Hope.
"If matters outside the pleadings are presented by [a movant], a
District Court may either exclude those documents and continue
under Rule 12 or convert the Rule 12(b)(6) motion into a summary
judgment motion and proceed under Rule 56." Northwestern Corp.
v. Y.L.C. Co., No. 03 C 2408, 2003 U.S. Dist. LEXIS 17874, at *4
(N.D. Ill. Oct. 7, 2003); see also Marques v. FRB,
286 F.3d 1014, 1017 (7th Cir. 2002) (holding that a Rule 12(b)(6) motion
was converted into a motion for summary judgment when materials
outside the complaint were actually considered by the court). In
Northwestern, however, because the motion did not comply with
Rule 56 or the Local Rules of this Court concerning summary
judgment, the Court declined to convert the motion to dismiss
into a motion for summary judgment. 2003 U.S. Dist. LEXIS 17874,
at *4. I do so here as well, despite Mustari's assertion that the
motion "must be treated as a Motion for Summary Judgment." If New
Hope desires to move for summary judgment on the Title VII
claims, then it should do so in accordance with the Federal and
In treating New Hope's motion as a Rule 12(b)(6) motion to
dismiss, I must ignore external facts not found in Mustari's
Amended Complaint. See Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). It is well accepted that "[d]ocuments
that a defendant attaches to a Rule 12(b)(6) motion to dismiss
may only be considered if they are referred to in the plaintiff's
complaint and are central to the plaintiff's claim."
Northwestern, 2003 U.S. Dist. LEXIS 17874, at *3.
In his Amended Complaint, Mustari simply alleges that New Hope
is an "employer." In the absence of any other allegations in the
Amended Complaint for example, an allegation to the effect of
"New Hope employed no more than 14 employees in 2001" I must
accept this well-pleaded factual allegation as true. See
Dimmig, 983 F.2d at 87. Accordingly, dismissal of the Title VII
claims is inappropriate because it may be possible for Mustari to
prove that New Hope employed fifteen people for at least twenty
weeks in 2001. See GATX Leasing Corp., 64 F.3d at 1114.
Count 3: IIED
The Illinois Human Rights Act ("IHRA") provides that it is a
"civil rights violation for any employer, employee, agent or any
employer, employment agency or labor organization to engage in
sexual harassment."*fn2 775 ILCS 5/2-102(D). The IHRA
preempts all state law claims that seek "redress for a `civil
rights violation' within the meaning" of the statute. Geise v.
Phoenix Co. of Chicago, Inc., 639 N.E.2d 1273, 1276 (Ill. 1994).
However, this limitation does not preclude "the circuit court
from exercising jurisdiction over all tort claims related to
sexual harassment." Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (Ill.
1997) (emphasis in original). In order to plead a claim for IIED
in the employment context, a plaintiff must allege conduct that
is "actionable even aside from its character as a civil rights
violation." Stansberry v. Uhlich Children's Home, 264 F. Supp.2d 681,
690 (N.D. Ill. 2003) (quoting Krocka v. City of
Chicago, 203 F.3d 507, 516 (7th Cir. 2000)). In other words, if
the IHRA does not "`furnish  the legal duty that the defendant
was alleged to have breached,' there is no preemption." Id.
(quoting Maskimovic, 687 N.E.2d at 23). But where a tort claim
is "inextricably linked" to a civil rights violation, such that
no independent basis for the action exists apart from the IHRA,
the claim is preempted. See Geise, 639 N.E.2d at 1277; Welch
v. Ill. Supreme Court, 751 N.E.2d 1187, 1196 (Ill.App. Ct.
In this case, Mustari alleges that Defendants committed IIED
by: (1) "encouraging and pressuring Plaintiff to engage in
relations with Defendant Herbster's husband, thereby
substantially interfering with his employment and creating an
intimidating, hostile and offensive work environment;" and (2)
"willfully and wantonly retaliat[ing] against Plaintiff for
complaining about unwanted sexual advances." These allegations
solely allege conduct that is inextricably linked with Mustari's
sexual harassment and retaliation claims. Mustari's IIED claim is
therefore preempted by the IHRA.*fn3 See Stansberry,
264 F. Supp.2d at 690 (IIED claims barred by IHRA where they were
inextricably linked to Title claims); Harrington-Grant v. Loomis, Fargo & Co., No. 01 C 6344, 2002 WL 47152, at *5 (N.D.
Ill. Jan. 11, 2002) (IIED claims barred by IHRA where they were
inextricably linked to Title VII and FMLA claims).
For the reasons above, New Hope's and Benson's Motion to
Dismiss Plaintiff's Amended Complaint is DENIED as to Counts I
and II but GRANTED as to Count III.