The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction, Background and Facts
Pending before the Court are two motions to dismiss (Docs. 6 & 21). Plaintiff filed responses to both motions (Docs. 26 & 27).*fn1 Based on the following, the Court GRANTS in part and DENIES in part both motions to dismiss.
Edgar Tate filed a seven-count complaint against Defendants Jo Gulley Ancell, Jeff Standerfer, Al Farmer, Eugene Davis, Lorie Humphrey, Kim Evans, Addus Home Health Care*fn2 , and the Department of Human Services, Division of Rehabilitation Services (Doc. 2). Count I is against all Defendants alleging discrimination based upon a disability in violation of the Americans with Disability Act ("ADA") 42 U.S.C. § 12101 et seq.; Count II is against all Defendants alleging discrete discrimination based upon national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981, and the Equal Protection Clause of the Fourteenth Amendment made actionable through 42 U.S.C. § 1983; Count III is against all Defendants alleging hostile work environment discrimination based upon national origin in violation of Title VII, 42 U.S.C. § 1981, and the Equal Protection Clause of the Fourteenth Amendment made actionable through 42 U.S.C. § 1983; Count IV, also against all Defendants, alleges retaliation for opposing sex discrimination in violation of Title VII, Section 1981 and the Fourteenth Amendment (made actionable by Section 1983); Count V is against all Defendants and alleges retaliation for opposing unlawful acts of nepotism in violation of state law and Public Policy; Count VI is against all Defendants alleging First Amendment retaliation for opposing sexual harassment and nepotism; and Count VII, again against all Defendants, alleges loss of consortium.
The following facts are taken from Tate's complaint. Tate, a Hispanic male with sleep apnea, began working as a Rehabilitation Counselor for the Department of Human Services, Division of Rehabilitaion Services ("DRS") in Anna, Illinois in February 1994.*fn3 Al Farmer was the supervisor at the Anna DRS office from January 2003 to December 2004. Jo Gulley Ancell is the supervisor for the Carbondale, Anna and SIU DRS offices and has been since January 2005. Jeff Standerfer is the Assistant Bureau Chief for DRS based in Springfield, Illinois. He was Farmer's immediate supervisor and now is Ancell's immediate supervisor. Eugene Davis was the personal assistant to the head of DHS for the State of Illinois, Carole Adams. Addus is an a private corporation based in Marion, Illinois that provides private support staff, by contract, to the DRS offices in Carbondale and Anna. Kim Evans was the branch manager at the Addus Marion office. Lorie Humphrey is employed by Addus as a contract worker in the DRS Anna office.
According to the complaint, Farmer sexually harassed several female employees at the Anna office. These employees were Veronica Johnson, Mary Sadler and Mary Rendelman. With Tate's support, one of the females filed a complaint against Farmer with the Equal Employment Opportunity Commission ("EEOC"). Thereafter, Farmer asked Davis to help him in regards to the sexual harassment claims. Davis then contacted Standerfer and requested that Farmer be "protected." Tate alleges that in retaliation, Farmer began making a series of arbitrary and capricious misconduct charges against him and the others. Farmer also fired Sadler and Rendleman, Tate's secretary of eight years.*fn4 Farmer retired in December 2004.
Thereafter, Standerfer appointed Ancell to replace Farmer. The complaint alleges that Ancell was hired because of her "willingness to continue the program of retaliating against those who had complained against Farmer." Ancell began taking job actions against Tate and the other employees. For instance, Ancell fired several employees and issued disciplinary proceedings against Tate and other employees. Tate also alleges that some of the contract workers hired by Evans were requested either by Ancell or Evans to inform on Tate and look for opportunities to charge him with misconduct. Tate further alleges that Ancell assigned Humphrey to work closely with Tate in reassessing HSP customers and that Ancell and Humphrey conspired to make false charges against Tate so that he would be subject to discipline. Tate also alleges that Ancell hired contract workers from Addus in violation of the DRS rules against nepotism. Specifically, Ancell hired Evan's sister, Sandy Kohler and her daughter Kasey Evans. In January 2007, Tate wrote a letter to the Executive Office of the Inspector General alleging that the hiring of Evan's relatives was unlawful.
Tate maintains that on various occasions that Ancell filed false charges against him, treated him differently than a person with a comparable position in another office, had other employees spy on him and humiliated him by comparing him unfavorably with an employee in another office who is white. Tate alleges that Defendants' actions (discipline, suspension and harassment) against him were because he has sleep apnea, he is Hispanic, and he spoke out about the sexual harassment and the nepotism.
II. Motion to Dismiss Standard
When ruling on a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court must look to the complaint to determine whether it satisfies the threshold pleading requirements under Federal Rule of Civil Procedure 8. Rule 8 states that a complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief. " FED. R.CIV.P.8(a)(2). In 2007, the Supreme Court held that Rule 8 requires that a complaint allege "enough facts to state a claim to relief that is plausible on its face" to survive a Rule 12(b)(6) motion. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). In other words, the Supreme Court explained it was "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief'" by providing "more than labels and conclusions," because "a formulaic recitation of the elements of a cause of action will not do ...." Id. at 1964-65 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). The Seventh Circuit has read the Bell Atlanticdecision to impose "two easy-to-clear hurdles":
First, the complaint must describe the claim in sufficient detail to give the defendant 'fair notice of what the ... claim is and the grounds upon which it rests.' Second, its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'; if they do not, the plaintiff pleads itself out of court.
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citations omitted).
In Tamayo v. Blagojevich, the Seventh Circuit emphasized that even though Bell Atlantic"retooled federal pleading standards" and "retired the oft-quoted Conley formulation," notice pleading is still all that is required. 526 F.3d 1074, 1083 (7th Cir. 2008). "A plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief." Id.; Accord Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir.2008)( "surviving a Rule 12(b)(6) motion requires more than labels and conclusions"; the allegations "must be enough to raise a right to relief above the speculative level").
In making this assessment, the District Court accepts as true all well-pled factual allegations and draws all reasonable inferences in plaintiff's favor. Tricontinental Industries, Inc., Ltd. v. Price WaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.), cert. denied, --- U.S. ----, 128 S.Ct. 357, 169 L.Ed.2d 34 (2007); Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006); Corcoran v. Chicago Park District, 875 F.2d 609, 611 (7th Cir. 1989).
Addus Defendants' motion to dismiss ADA and Title VII claims in Counts I, II, III and IV
First, the Addus Defendants move to dismiss Counts I, II, III and IV pertaining to the ADA and Title VII for failure to state a claim. In particular, the Addus Defendants argue that these claims against them "must be dismissed because (1) Plaintiff was employed by DRS, not the Addus Defendants, (2) Plaintiff has not identified any tangible adverse employment action taken by the Addus Defendants against Plaintiff; (3) Plaintiff did not exhaust his administrative remedies, and (4) any administrative charge of discrimination filed by Plaintiff now would be time-barred." (Doc. 7, p. 6)(footnote omitted). In response, Tate concedes the merits of his ADA and Title VII claims against these Defendants. Specifically, Tate responds: "Plaintiff acknowledges that he has not stated and, in fact, never intended to state a claim against the Addus Group for violations of Title VII or the ADA. Such claims may be filed only against DRS as an institution. Furthermore, the Plaintiff has determined, through additional research, that he does not have a legal basis at this time to make a claim for common law retaliation, under Illinois law, and he hereby requests the Court to withdraw that Count of his Complaint without prejudice." (Doc. 26. p. 6). Thus, the Court DISMISSES with prejudice Tate's ADA and Title VII claims against the Addus Defendants contained in Counts I, II, III and IV. Further, the Courtallows Tate to withdraw his Illinois common law claim for retaliation contained in Count V.
Section 1981 claims contained in Counts II, III, and IV
Section 1981 addresses racial discrimination in contractual relationships. As amended by the Civil Rights Act of 1991, the statute reads in part:
(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce ...