United States District Court, N.D. Illinois, Eastern Division
November 16, 2004.
PATRICIA WITT, Plaintiff,
COUNTY INSURANCE & FINANCIAL SERVICES, Defendant.
The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge
MEMORANDUM OPINION AND ORDER
On June 10, 2004, Patricia Witt ("Witt") filed a thirteen count
complaint against Country Insurance & Financial Services
("defendant")*fn1 alleging violations of Title VII of the
Civil Rights Act of 1964 ("Title VII"), the Family and Medical
Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., the
Americans with Disabilities Act of 1990 ("ADA"),
42 U.S.C. § 12201 et seq., and the Employment Retirement Income Security
Act of 1974 ("ERISA"), 29 U.S.C. § 1132 et seq., as well as
claims for breach of contract and intentional infliction of
emotional distress ("IIED"). All of plaintiff's claims are
related to her employment as a field claim representative for
defendant from January 2, 2001, until her termination on July 3,
Pursuant to Fed.R. Civ. P. 12(b)(1) and 12(b)(6), defendant
has filed a motion to dismiss three counts of plaintiff's
complaint: Count III (familial status discrimination in violation
of Title VII); Count XII (breach of contract); and Count XIII
(IIED). Defendant asserts that familial status discrimination is not a recognized claim under Title VII,
and that plaintiff's state law claims are preempted by the
Illinois Human Rights Act ("IHRA"), the Illinois Workers'
Compensation Act ("IWCA"), and/or ERISA. Defendant has also moved
to strike certain demands for relief and for a jury trial on
Count IX (retaliatory discharge in violation of the ADA) and
Count XI (retaliatory discharge in violation of ERISA). For the
reasons explained below, defendant's motion to dismiss is granted
as to Counts III, XII, and XIII. Defendant's motion to strike
plaintiff's jury demand and request for compensatory and punitive
damages under plaintiff's ADA retaliation claim is granted. The
parties agree that defendant's motion to strike plaintiff's jury
demand and request for relief under her ERISA retaliation claim
For the purposes of a motion to dismiss, the court accepts all
well-pleaded allegations as true and draws all reasonable
inferences in favor of the plaintiff. Travel All Over the World,
Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th
Plaintiff was employed by defendant from January 2, 2001,
through July 3, 2003, as a field claim representative in the
Grayslake, Illinois office. Defendant provided plaintiff a
benefits package throughout her employment that included health
insurance, life insurance, long-term disability, and a
In March 2001, plaintiff took an unpaid eight-week leave of
absence under the FMLA when her three and a half year old
daughter was diagnosed with cancer. Plaintiff returned from this
leave of absence in May 2001. Plaintiff alleges that immediately
after she returned to work she was treated differently from
similarly situated male counterparts, including when she was
refused a promotion and an allegedly less-qualified man was
promoted. In December 2001, plaintiff informed defendant that she was
pregnant, and in January 2002, plaintiff informed defendant that
she would take twelve weeks of maternity leave. Plaintiff alleges
that after announcing her pregnancy and her intention to take
maternity leave, she was treated differently than similarly
situated non-pregnant employees. Plaintiff claims that: (1) she
was refused a promotion, and defendant hired a less-qualified man
from outside of the company; (2) her work product and/or
assignments were taken away from her and reassigned to male
employees; (3) she was subjected to a pattern of sexual
harassment by supervisors and other employees; (4) she was
subjected to threats that defendant would take away her company
car during her maternity leave; and (5) she was subjected to
threats that she would lose her job and/or be demoted during her
maternity leave if she took twelve weeks of leave.
Plaintiff claims that she complained to defendant's agents
about the alleged discriminatory conduct of defendant's
supervisors and employees. Plaintiff asserts that defendant
failed to respond properly, and that she was subjected to
retaliatory discrimination after making her complaints, including
inappropriate comments and threats to take away her company car.
On June 3, 2002, plaintiff began her FMLA maternity leave.
Defendant approved the leave to continue through August 28, 2002.
On August 25, 2002, plaintiff was diagnosed with cancer.
Plaintiff returned from maternity leave on August 28, 2002. At
some point prior to September 18, 2002, plaintiff was ordered by
her physician to undergo chemotherapy for treatment. Plaintiff
notified defendant of her doctor's orders and her disability, and
requested medical leave. On September 18, 2002, plaintiff went on
medical leave. Plaintiff claims that defendant took away plaintiff's company car on September 18,
2002, allegedly in violation of company policy.
On or about February 18, 2003, plaintiff returned to work from
her medical leave. On or about February 21, 2003, plaintiff was
advised that her position would be eliminated sometime between
June 1, 2003, and December 31, 2003. Plaintiff was terminated on
July 3, 2003.
Plaintiff claims she was the only claims representative from
the Grayslake office who was terminated, and that other less
qualified, non-pregnant, non-disabled, and male employees were
not terminated. Plaintiff asserts that the conduct of defendant's
supervisors, employees and agents created a hostile work
environment. Plaintiff also alleges that she made numerous
complaints to defendant's management regarding the discriminatory
and retaliatory conduct of defendant's employees, supervisors,
and agents up to and until July 3, 2003.
Plaintiff timely filed a charge of discrimination with the
Equal Employment Opportunity Commission ("EEOC") against
defendant, and received a right-to-sue letter from the EEOC dated
March 16, 2004.
Defendant has moved to dismiss Count III pursuant to
Fed.R.Civ. P. 12(b)(6) for failure to state a claim upon which relief
can be granted. In ruling on a motion to dismiss for failure to
state a claim, the court accepts the allegations of the complaint
as true and views the facts in the light most favorable to the
plaintiff. Travel All Over the World, 73 F.3d at 1428. A
complaint should not be dismissed for failure to state a claim
unless there is no doubt that the plaintiff cannot prove a set of
facts that would entitled her to relief based on her claim.
Pressalite Corp. v. Matsushita Electric Corp. of America, 2003
WL 1811530, at *2 (N.D.Ill. Apr. 4, 2003). Defendant has moved to dismiss Count XII and Count XIII
pursuant to Fed.R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction. Plaintiff bears the burden to establish that the
jurisdictional requirements exist. Newman v. Hansen & Hempel
Co., 2002 WL 31455990, at *2 (N.D.Ill. Nov. 1, 2002).
I. Familial status discrimination in violation of Title VII
In Count III of her complaint, plaintiff alleges that certain
"adverse employment actions were taken against her because of her
familial and/or pregnancy status" in violation of Title
VII.*fn2 Defendant argues that no independent cause of
action for "familial discrimination" exists under Title VII,
citing Cleaves v. City of Chicago, 68 F.Supp.2d 963, 967
(N.D.Ill. 1999) (quoting Coleman v. B-G Maintenance Management
of Colorado, Inc., 108 F.3d 1199, 1204 (10th Cir. 1997))
("Title VII prohibits employers from treating married women
differently than married men, but it does not protect marital
status alone."). Plaintiff concedes that defendant correctly
stated the rule expressed in Cleaves.*fn3 In an attempt to
save her claim, plaintiff asserts that she "is not arguing that
she was treated differently because she was married."*fn4
Plaintiff fails, however, to demonstrate another basis for her familial status claim, but
rather merely repeats her sex and pregnancy allegations under a
Title VII prohibits discrimination based upon "race, color,
religion, sex or national origin." 42 U.S.C § 2000e-2(a).
Discrimination based on marriage is not forbidden by the language
of Title VII. See, e.g., Whitmore v. Bd. of Educ. of DeKalb
Comm. Sch. Dist. No. 428, 1992 WL 70339, at *6 (N.D.Ill. Mar.
18, 1992). Title VII does, however, prohibit discrimination on
the basis of marriage plus gender. Phillips v. Martin Marietta
Corp., 400 U.S. 542, 544 (1971) (distinct hiring policies for
woman and men, each having pre-school-age children, may violate
Title VII); Sprogis v. United Air Lines, 444 F.2d 1194, 1198
(7th Cir. 1971) (a no-marriage rule directed against only
female flight attendants is sex discrimination in violation of
Title VII.); Stern v. Cintas Corp., 319 F. Supp. 2d 841, 858
(N.D.Ill. 2004) ("Under Title VII, an employer may not treat
mothers and mothers-to-be differently from fathers and
fathers-to-be.").*fn5 "Gender plus" claims are really a
sub-category of gender discrimination claims, and a plaintiff
must allege discrimination, harassment or retaliation based on
her gender plus her familial status, not merely familial status
alone. See Stern 319 F. Supp. 2d at 858.
Plaintiff states that "[d]iscrimination based upon
marital/family status may be cognizable as sex discrimination
where there is a disparate impact upon the sexes." Plaintiff does
not, however, point to employees of defendant who were fathers or
married and were treated differently than plaintiff. Absent
allegations of a disparate impact upon men and women, Count III
does not state an independent cause of action under Title VII,
and merely repeats her claims of pregnancy and sex discrimination
from Count I and Count II. Accordingly, defendant's motion to
dismiss Count III is granted.
II. IIED (Count XIII)
Count XIII of plaintiff's complaint states an IIED claim.
Defendant asserts that Count XIII should be dismissed pursuant to
Fed.R. Civ. P. 12(b)(6), arguing that the court lacks
jurisdiction over this claim because it is preempted by the
Illinois Human Rights Act ("IHRA"), 775 ILCS § 5/1-101 et seq.,
and the Illinois Workers' Compensation Act ("IWCA"),
820 ILCS 305/1 et seq.
The IHRA preempts all state law claims seeking redress for a
`civil rights violation' within the meaning of that statute.
Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir. 2000),
quoting Geise v. Phoenix Co. of Chicago, Inc., 159 Ill.2d 507
(Ill. 1994). See also 775 ILCS 5/8-111(C) ("Except as
otherwise provided by law, no court of this state shall have
jurisdiction over the subject of an alleged civil rights
violation other than set forth in this Act."). The IHRA
prohibits, inter alia, employment discrimination based on a
person's sex and sexual harassment in the workplace. See
775 ILCS § 5/1-102(A); 775 ILCS § 5/1-102(B).
The Illinois Supreme Court held in Maksimovic v. Tsogalis,
177 Ill.2d 511, 517 (Ill. 1997), that the IHRA preempts claims
that are "inextricably linked" to a civil rights violation.
Because the plaintiff in Maksimovic alleged the elements of the
torts, "without reference to legal duties created by the [IHRA],
[the plaintiff] established a basis for imposing liability on the defendants independent of the [IHRA]." Id. Courts in this
district have "routinely dismissed Illinois state tort claims
particularly IIED claims for lack of jurisdiction when brought
in connection with allegations of a civil rights violation."
Dardai v. Cook County, 1999 WL 46906, at *9 (N.D. Ill. Jan. 28,
1999); quoting Ratley v. Aurora, 1998 WL 30697, at *3
(N.D.Ill. Jan. 22, 1998) (citations and quotations omitted);
see also Johnson v. Chicago Bd. of Educ., 2002 WL 1769976,
at *5 (N.D.Ill. Aug. 1, 2002); Westphal v. City of Chicago,
8 F. Supp. 2d. 809, 812 (N.D.Ill. 1998); Silk v. City of Chicago,
1997 WL 790598, at *17 (N.D.Ill. Dec. 17, 1997).
Pursuant to the seminal holdings in Geise and
Maksimovic,*fn6 when deciding whether a claim is
preempted, courts must look at the essence of the claims in order
to determine whether the tort claim at issue is, in reality, a
claim of discriminatory acts covered by the IHRA. Silk, 1997 WL
790598, at *16. "In other words, there must still exist a
foundation for the emotional distress claims even if the
defendants' conduct was not discriminatory." Westphal, 8 F. 2d.
at 812. The question in the instant case is whether the alleged
elements of plaintiff's IIED claim reference the legal duties
created by the IHRA, or whether plaintiff's IIED claim could
exist independent of her discrimination claims.
Plaintiff claims that she was harmed by defendant's conduct
toward her, including denying her a promotion, reassigning her
work projects to other employees, threatening to and ultimately taking away her company car while she was on maternity
leave, harassing her, and terminating her.*fn7 These
incidents, standing alone, do not support an IIED claim.*fn8
Rather, these actions are inextricably linked to plaintiff's
discrimination and retaliation claims because they were "extreme
and outrageous" (if at all) only to the extent that they were
motivated by gender-based or pregnancy-based animus. See
Krocka, 203 F.3d at 517 (affirming the trial court's dismissal
of an IIED claim because it was "inextricably linked to [the
plaintiff's] disability discrimination claim because [the
comments] were only offensive to the extent that they referred to
[the plaintiff's] disability."); Watanabe v. Loyola Univ. of
Chicago, 2000 WL 876983, at *6 (N.D.Ill. July 3, 2000) ("Because
plaintiff would be unable to establish her [IIED] claim absent
her claims of discrimination, this claim is preempted by the
Plaintiff's state tort claim is merely a recasting of the acts
of discrimination, harassment, and retaliation preemptively
covered by the IHRA. See Johnson, 2002 WL 1769976, at *5. To
the extent that plaintiff states a claim for IIED, the court
lacks jurisdiction over such a claim because it is preempted by
the IHRA. Because plaintiff's claim is preempted by the IIED, the
court need not reach defendant's alternative argument that the
claim is preempted by the exclusivity provisions of the IWCA. Accordingly, defendant's
motion to dismiss Count XIII is granted.
III. Breach of contract (Count XII)
In Count XII of her complaint, plaintiff alleges that defendant
breached its contract with her by, inter alia, discriminating
against her based on her sex, denying her reasonable
accommodation as required by the ADA, and denying plaintiff's
participation in defendant's employee welfare and benefits
program. Defendant argues that plaintiff's breach of contract
claim is barred by the IHRA and ERISA, and should be dismissed
pursuant to Rule 12(b)(1).
As discussed above, the IHRA preempts common law claims that
are "inextricably linked" to a civil rights violation. See
Maksimovic, 177 Ill.2d at 517. Courts have routinely found that
breach of contract claims are preempted by the IHRA. See
Ellman v. Woodstock #200 Sch. Dist., 2001 WL 218958, at *10
(N.D.Ill. Feb. 26, 2001); Wootten v. Fortune Brands, Inc.; 1999
WL 705763, at *2-3 (N.D.Ill. Aug. 27, 1999); Isaacson v. Keck,
Mahin & Cate, 1993 WL 68079, at *7-8 (N.D.Ill. Mar. 10, 1993).
Like an IIED claim, a breach of contract claim is preempted when
"there is no independent basis for the action apart from the
[IHRA] itself." Ellman, 2001 WL 218958 at *10. That is, when
the breach of contract claim amounts to nothing more than an
alleged breach of an alleged promise to uphold the laws against
discrimination. Wootten, 1999 WL 705763 at *3.
The specific allegations incorporated into plaintiff's breach
of contract claim are the same core allegations that support her
claims of sex discrimination, disability discrimination, and
retaliation. The central allegations of these claims are clearly
covered by the IHRA and are thus preempted. Issacson, 1993 WL
68079 at *8. The "IHRA preempts any state law claims in which the plaintiff must prove discriminatory motive or impact."
Seehawer v. Magnecraft Elec. Co., 714 F. Supp. 910, 914
(N.D.Ill. 1989). Plaintiff does not allege an employment contract
or other agreement that contains additional terms. It appears,
therefore, that her breach of claim is premised on a general
contract by defendant not to discriminate against its employees.
Like plaintiff's IIED claim, her breach of contract claim is
inextricably linked to violations of the IHRA because without the
IHRA there is no breach of contract claim. See Ellman, 2001
WL 218958 at *10; Wootten, 1999 WL 705763 at *2-3, Issacson,
1993 WL 68079 at *8.
Plaintiff also alleges in her complaint that defendant breached
its contract with her by denying plaintiff's participation in
defendant's welfare and benefits program which, it is undisputed,
was an ERISA plan. Defendant assets that this portion of
plaintiff's breach of contract claim is therefore preempted by
ERISA. ERISA preempts "any and all State laws insofar as they now
may or hereafter relate to any employee benefit plan."
29 U.S.C. § 1144(a). In so providing, Congress "blotted out (almost) all
state law on the subject of [employee benefit plans], so a
complaint about [such plans] rests on federal law no matter what
label its author attaches." Bartholet v. Reishauer A.G.,
953 F.2d 1073, 1075 (7th Cir. 1992).
Plaintiff's allegation in Count XII that defendant breached its
contract with her by terminating her, which in turn terminated
her employee benefits, is redundant of plaintiff's ERISA
retaliation claim in Count XI. As such, the claim is preempted by
ERISA. 29 U.S.C. § 1144(a); Rice v. Panchal, 65 F.3d 637, 644
(7th Cir. 1995) (complete preemption of state law claims "is
required where a state law claim cannot be resolved without an
interpretation of the contract governed by federal law"); see
also Miller v. Taylor Insulation Co., 39 F.3d 755 (7th
Cir. 1994) (plaintiff's claim to recover on written promise by
his former employer to provide coverage under the company's medical reimbursement plan was
preempted by ERISA). This court has held that even claims that an
individual contract promises more employee benefits than an
existing ERISA relate to the plan and are preempted by ERISA."
Welles v. Brach & Brock Confections, Inc., 2000 WL 420738, at
*2 (N.D.Ill. Apr. 12, 2000), aff'd, 14 Fed.Appx. 668, 2001 WL
823887 (7th Cir. July 18, 2001).
The portions of plaintiff's breach of contract claim that
relate to defendant's alleged discrimination, harassment, and
retaliation are preempted by the IHRA. The portion of Count XII
that alleges that defendant breached its contract by denying
plaintiff's participation in defendant's employee welfare and
benefits program is redundant of Count XI and is preempted by
ERISA. Accordingly, defendant's motion to dismiss is granted as
to Count XII.
IV. Motion to strike
Defendant has moved to strike: (1) plaintiff's demands for
compensatory and punitive damages and for a jury trial on
plaintiff's claim of retaliatory discharge under the ADA; and (2)
plaintiff's demands for relief other than equitable relief for
unpaid benefits and for a jury trial on plaintiff's ERISA
retaliation claim. For the reasons stated below, defendant's
motion to strike is granted as to plaintiff's ADA claim. The
parties agree that defendant's motion to strike is moot as to
plaintiff's ERISA claim.
The Seventh Circuit recently held in a case of first
impression, Kramer v. Banc of America Securities, 355 F.3d 961
(7th Cir. 2004), cert. denied 124 S. Ct. 2876 (June 21,
2004), that the ADA does not allow a plaintiff to recover
compensatory or punitive damages for ADA retaliation claims.
Kramer further held that because the plaintiff was not entitled
to recover compensatory or punitive damages on her ADA claim, she
also had no statutory or constitutional right to a jury trial. Id. at 967-68. Plaintiff cannot, and
does not, dispute that this is the holding of Kramer. Rather,
plaintiff suggests that the court should disregard the Seventh
Circuit's opinion. Plaintiff then devotes almost eight pages of
her brief to disagreeing with the reasoning of Kramer.
Plaintiff should have spared herself, and the court, the time.
The court is bound by the Seventh Circuit's holding in Kramer,
which unambiguously bars plaintiff's jury demand and requests for
relief under her ADA claim. Accordingly, defendant's motion to
strike plaintiff's demand for a jury trial and her request for
compensatory and punitive damages on her ADA retaliation count is
In her response, plaintiff withdraws her demand for a jury
trial under ERISA. Plaintiff also withdraws the all of her
prayers for relief under her ERISA claim, except for: (1) lost
employee benefits; and (2) attorney fees and costs. Defendant
concedes in its reply that contractual remedies under ERISA may
include lost benefits, and that plaintiff may be entitled in
certain circumstances to recover attorneys' fees and costs under
ERISA. Accordingly, defendant's motion to strike plaintiff's jury
demand and prayer for relief under her ERISA claim is denied as
As explained above, defendant's motion to dismiss is granted
with respect to Counts III, XII, and XIII. Defendant's motion to
strike plaintiff's jury demand and prayer for compensatory and
punitive damages under her ADA retaliation claim is granted.
Defendant's motion to strike plaintiff's jury demand and prayer
for relief under her ERISA claim is denied. This matter is set
for a report on status on November 24, 2004, at 9:00 a.m.