The opinion of the court was delivered by: Charles P. Kocoras, Chief District Judge
The following matter is before the court on Defendant's, Jewel Food Stores, Inc. ("Jewel"), Motion to Dismiss Count IV of Plaintiff's, Jacqueline Susan Turner ("Turner"), complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below the Motion is denied.
Turner, a Caucasian female, is a United States citizen and a resident of Illinois. Jewel is a New York corporation, registered to do business in Illinois, that employed Turner as a cashier at its Homewood, Illinois facility from November 2, 1977 until terminating her on November 12, 2004. We assume the truth of the following facts for the purposes of this motion.
At all times relevant to the events described in her complaint, Turner was over the age of 40 and asserts she was meeting or exceeding Jewel's reasonable work expectations. She alleges that while so employed, she was subjected to terms and condition of employment not applied to younger, similarly situated, non-white employees. Specifically, she pleads: 1) having to work reduced hours; 2) being falsely targeted for discipline; 3) being treated less favorably than non-white, younger employees; 4) being denied transfers to other departments; and 5) being suspended for policy violations while non-white, younger employees were not suspended. Turner complained to supervising personnel regarding the above alleged acts of discrimination, but no corrective action was taken.
At all relevant times, Turner's employment was governed by a collective bargaining agreement ("CBA"). Turner contends that Jewel violated the CBA by reducing hours, denying promotions and/or department transfers, and scheduling employees who were covered by "older collective bargaining agreements" for less favorable shifts. She further suggests that she was terminated on account of her race and age and retaliated against for complaining of the alleged unlawful employment practices.
Turner filed a timely charge of discrimination with the Equal Employment Opportunity Commission, who mailed her a Notice of Right to Sue on August 23, 2005. On September 2, 2005, Turner filed a four count complaint alleging:
1) discrimination against her in violation of 42 U.S.C. § 1981 ("§ 1981"), Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; 2) disparate treatment in violation of § 1981, Title VII, and the ADEA; 3) retaliation in violation of Title VII and the ADEA; and 4) disparate impact in violation of the ADEA. Jewel now brings the instant Motion to Dismiss count IV of Turner's complaint.
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of a complaint. Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). In ruling on a motion to dismiss, a court must construe the allegations of the complaint in the light most favorable to the plaintiff, and all well-pleaded facts and allegations in the complaint must be accepted as true. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993).
The allegations of a complaint should not be dismissed for failure to state a claim "unless it appears beyond a 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, 78 S.Ct. 99 (1957). Further, in order to withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action.
Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). With these principles in mind, we turn to the instant Motion.
Jewel contends that Count IV should be dismissed because: 1) it is preempted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), and 2) Turner fails to ...