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Tamayo v. Hamer

May 30, 2007


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant Governor Rod R. Blagojevich's ("Governor"), Defendant Alonzo Monk's ("Monk"), and Defendant Brian Hamer's ("Hamer") motion to dismiss Counts V and VI of the second amended complaint. This matter is also before the court on Defendant Illinois Department of Revenue's ("IDOR") motion to dismiss all claims brought against the IDOR. For the reasons stated below, we grant both motions to dismiss.


Plaintiff Jeannette P. Tamayo ("Tamayo") alleges that in October 1999 she began working for the Illinois Gaming Board ("IGB") as its Deputy Chief Counsel.

Tamayo claims that her job entailed representing the IGB in licensing investigations and enforcement matters, and preparing rules for the IGB. An Administrator was allegedly responsible for overseeing the day-to-day operations of the IGB and for maintaining the IGB records. According to Tamayo, in June 2003, the IGB Administrator resigned and Tamayo was appointed as the Interim Administrator. In January 2003, the Governor was sworn in. Tamayo contends that between January 2003 and May 22, 2006, the Governor utilized Monk, his Chief of Staff, and Hamer, the IDOR Director, to take control of the "operational, budgetary, and personnel decisions of the IGB." (SA Compl. Par. 23). According to Tamayo, while she served as the Interim Administrator, there was an ongoing feud between Tamayo on one side and the Governor, Hamer and Monk on the other side. Tamayo alleges that the feud involved a power struggle over the operational and personnel decisions of the IGB. Tamayo also contends she was entitled to receive a pay increase as the Interim Administrator, but due to her disagreements with Defendants, she did not receive her pay increase. On April 6, 2004, Tamayo allegedly filed a discrimination charge with the Equal Employment Opportunity Commission complaining about the lack of her salary increase and alleging discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d).

Tamayo further alleges that in March 2005, the Governor appointed a new IGB Chairman and new members to the IGB Board. After the new appointments, Tamayo alleges that she was excluded from meetings and was denied access to information that she needed in order to perform her job as the Interim Administrator. On November 4, 2005, the IGB members appointed another person as the Administrator. Tamayo claims that when she returned to her Deputy Chief Counsel position, she was given routine work assignments and was ostracized at work. For example, she claims that she was banned from IGB meetings, prohibited from attending staff meetings, and prohibited from working on licensing matters. Tamayo states that on May 22, 2006, she resigned from her employment.

Tamayo subsequently brought the instant action in June 2006 and initially appeared before another judge. In December 2006, Tamayo was given leave to file a second amended complaint and on May 16, 2007 this case was reassigned to the undersigned judge. Tamayo includes in her second amended complaint EPA discrimination claims brought against the IDOR and the IGB (Count I), EPA retaliation claims brought against the IDOR and the IGB (Count II), Title VII gender discrimination claims brought against the IDOR and IGB (Count III), Title VII retaliation claims brought against the IDOR and IGB (Count IV), equal protection claims brought pursuant to 42 U.S.C. § 1983 ("Section 1983") against the Governor, Hamer, and Monk in their individual capacities (Count V), and Section 1983 first amendment retaliation claims brought against the Governor, Hamer, and Monk in their individual capacities (Count VI). The IDOR moves to dismiss all claims brought against the IDOR. Also, the Governor, Hamer, and Monk (collectively referred to as "Individual Defendants") move to dismiss Counts V and VI.


In ruling on a motion to dismiss, brought pursuant to Federal Rule of Civil Procedure 12(b)(6) the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Illinois Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The allegations of a complaint should not be dismissed for a failure to state a claim "unless it appears beyond 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 (1957); See also Baker v. Kingsley, 387 F.3d 649, 664 (7th Cir. 2004)(stating that although the "plaintiffs' allegations provide[d] little detail. . . [the court could not] say at [that] early stage in the litigation that plaintiffs [could] prove no set of facts in support of their claim that would entitle them to relief"). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High School, 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). Under current notice pleading standard in federal courts a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that a "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later."). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carter, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "provide the defendant with at least minimal notice of the claim," Id., and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").


I. Claims Brought Against the IDOR

The IDOR argues that Tamayo is precluded from bringing an EPA claim or a Title VII claim against the IDOR since the IDOR was not the employer of Tamayo and Tamayo's own allegations in her second amended complaint reflect that fact. In general, an employee can only bring a Title VII claim or an EPA claim against the employee's employer. See 29 U.S.C. § 206(d)(1)(providing that "[n]o employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex"); 29 U.S.C. § 203(d)(defining term "Employer"); Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7th Cir. 1999)(stating that "[s]ince [the plaintiff] was not an employee . . . her Title VII . . . claim[] must fail"); Worth v. Tyer, 276 F.3d 249, 260 (7th Cir. 2001)(stating that the Seventh Circuit "no longer applies the 'integrated enterprise' test to Title VII claims"); E.E.O.C. v. State of Ill., 69 F.3d 167, 169 (7th Cir. 1995)(noting the possibility that a party could properly be named as a defendant in a Title VII case where "the defendant so far controlled the plaintiff's employment relationship that it was appropriate to regard the defendant as the de facto or indirect employer of the plaintiff, as where a hospital prevents a nurse from being employed by a hospitalized patient"); Hernandez v. Valet Parking Service, Inc., 2005 WL 2861054, at *5 (N.D. Ill. 2005)(stating that "Title VII specifically provide[s] for liability of an employer and make no provisos for other entities that relate to a plaintiff in an indirect manner" and that "Title VII . . .[is] clear in the limitations of [its] scope").

In the instant action, Tamayo specifically alleges in her second amended complaint that she was employed by the IGB. (SA Compl. Par. 13). Tamayo does not allege that the IDOR employed her at any point during the alleged misconduct. Neither does Tamayo include any facts in her second amended complaint that would indicate that the IDOR had control over her employment. Tamayo merely indicates that the IDOR had certain responsibilities regarding the processing of her salary increase. Tamayo in fact alleges that it was the Governor's Office rather than the IDOR that was preventing her salary increase. Tamayo contends, for example, that the "Governor's Office would not agree to pay [Tamayo] the salary set by the IGB. . . ." (SA Compl. Par. 41). In addition, Tamayo makes it clear in the many allegations concerning her independent decisions that were contrary to the alleged orders from the IDOR that she was not under the control of the IDOR. Tamayo also states that she "told Hamer that the IGB was an independent agency under the law and that she reported to the IGB and not Hamer, IDOR or the Governor's Office." (SA Compl. Par. 38). Tamayo further alleges that when she was finally removed from the Interim Administrator position, it was the IGB members that made the decision rather than any IDOR personnel. (SA Compl. Par. 64). Thus, the allegations clearly show that the IDOR was a separate entity from the IGB and that the IDOR could not be reasonably deemed to have control over Tamayo's employment or been her employer under Title VII or the EPA.

Tamayo argues that the IDOR improperly seeks to base its motion to dismiss on a defense. Tamayo argues that she is not required to plead the fact that the IDOR was her employer and thus, the IDOR's arguments are premature. While it may be true that a plaintiff need not anticipate all defenses in the complaint, it is also true that a "complaint can also allege too much" and "a plaintiff may unwittingly plead h[erself] out of court by alleging facts that preclude recovery." Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007). In the second amended complaint, Tamayo specifically states that the IGB was her employer. All of the facts included in the second amended complaint support the conclusion that the IGB was her sole employer. Tamayo also includes facts that show that the IDOR was a separate entity and could not control Tamayo in her role as the Interim Administrator for the IGB. Tamayo argues that she has alleged facts that show that the IDOR controlled her employment. Tamayo points, for example, to her allegation that Hamer threatened Tamayo with "dire personal consequences" if she did not comply with his alleged demands, (Ans. 4), but such an allegation does not indicate that Hamer had any authority over Tamayo in the capacity of Tamayo's employer. Tamayo makes it abundantly clear in her second amended complaint that the IDOR could at most interfere with her pay raise. There is no ...

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