The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter is before the Court on Defendant Daniel W. Hynes' Motion to Dismiss (d/e 14).*fn1 Plaintiff Joseph A. Sottoriva, an employee of the Illinois Department of Human Rights (the Department), filed the pending three-count Complaint (d/e 1) against Rocco J. Claps, Director of the Department, and Daniel W. Hynes, Comptroller of the State of Illinois, after money was involuntarily withheld from his paychecks. Hynes asserts that the claims against him should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Motion to Dismiss is denied.
The following facts are taken from the allegations of the Complaint, which the Court must accept as true in analyzing the Comptroller's Motion to Dismiss. See Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996).
Plaintiff has been employed as a Human Rights Investigator II with the Department from 2003 to the present. Plaintiff is also a member of the United States Army Reserve. He was called into active duty from January 17, 2003, to August 17, 2004. Pursuant to Executive Order of the Governor of Illinois, any full-time employee of the State of Illinois, such as Plaintiff, who is mobilized to active duty "shall continue to receive his or her regular compensation as a State employee, plus any health insurance and other benefits he or she is currently receiving, minus the amount of his or her base pay for military activities." Complaint, Ex. 1, 2003-6 Executive Order on Compensation for Military Personnel, p.1.
Upon his return from active duty to the Department, Plaintiff was informed that the Department believed that he had been overpaid while on active duty and, further, that the Department intended to recoup the alleged overpayments. Plaintiff attempted to resolve this issue with the Department, but he was unable to reach an agreement as to the amount that he owes. A meeting was held on September 1, 2005, between Plaintiff and Chief Legal Counsel for the Department, Ray Luna. Department officials presented no evidence at the September 1, 2005, meeting and declined to provide an accounting for the amounts claimed, despite a specific request for an accounting from Plaintiff and his counsel. Instead, Luna demanded that Plaintiff accept one of three options, all of which included an agreement to repay $24,105.03. The options are outlined in a Memorandum dated August 30, 2005, which was presented to Plaintiff at the meeting. A copy of the Memorandum is attached as Complaint, Exhibit 2.
By letter dated September 6, 2005, Plaintiff, through counsel, again sought a proper accounting for the alleged overpayment. Luna responded by letter dated September 13, 2005. Complaint, Ex. 3. Luna informed Plaintiff's counsel that the Department was not in a "position to compromise, settle or negotiate the amount owed by Joe Sottoriva." Id. Luna informed Plaintiff's counsel that "payroll records for the amount owed and withheld have been provided to Joe on three other occasions." Id. Luna advised Plaintiff's counsel that because Plaintiff failed to choose one of the three repayment options presented at the meeting, the Department would be instituting involuntary withholding.
In late September 2005, the Department submitted an involuntary withholding claim to the Office of the Illinois Comptroller. The Office of the Comptroller sent Plaintiff written notice of the Department's claim dated September 26, 2005. Complaint, Ex. 4. The notice stated as follows:
THE HUMAN RIGHTS DEPT OF [sic] HAS ADVISED THE OFFICE OF THE COMPTROLLER THAT YOU OWE MONEY FOR SALARY OVERPAYMENT.
PURSUANT TO ILLINOIS LAW (15 ILCS 405/10.05-10.05A), THE COMPTROLLER IS REQUIRED TO WITHHOLD ALL ELIGIBLE PAYMENTS UNTIL THE CLAIM HAS BEEN SATISFIED. . . .
IF YOU HAVE ALREADY CONTACTED THE CLAIMING AGENCY AND STILL DO NOT AGREE WITH THE CLAIM, YOU MAY FILE A PROTEST BY WRITING THE OFFICE OF THE COMPTROLLER; . . . . THE PROTEST SHOULD CONTAIN A LETTER DESCRIBING YOUR REASONS FOR PROTEST AND ANY DOCUMENTS OR RECEIPTS THAT SUPPORT YOUR POSITION. . . . IF YOU DO NOT FILE A WRITTEN PROTEST WITHIN 30 DAYS FROM THE DATE OF THIS NOTICE, THE WITHHELD AMOUNT WILL BE SENT TO HUMAN RIGHTS DEPT OF [sic] AS PAYMENT ON THE CLAIM.
Id. Notices of withholding were issued to Plaintiff for each pay period from late September 2005 through January 2006.
After receiving each notice, Plaintiff, through counsel, filed a written protest with the Office of the Comptroller. A copy of the form protest is attached at Complaint, Exhibit 5. The Office of the Comptroller responded in writing, as set out in Complaint, Exhibit 6. The letter, dated October 19, 2005, states as follows:
Receipt of your letter of protest on behalf of Joseph Sottoriva is hereby acknowledged. Department of Human Rights (DHR) was forwarded copies of your protest along with any supporting documentation. DHR has been requested to provide documentation in support of its claim to both this office and you.
If DHR's response supports the debt, the protested monies will be released to the DHR within approximately 30 days. If you disagree with DHR's documented response, you must notify our office within those 30 days.
By letter dated January 9, 2006, the Office of the Comptroller notified the Plaintiff that, based on the documentation provided by the Department, the decision was made to release the money to the Department. Complaint, Ex. 7. The letter from the Office of the Comptroller relies on a December 2, 2005, letter from the Department. According to the Office of the Comptroller's letter, the Department's "letter clearly states the reason ...