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Akins-Brakefield v. Philip Environmental Services Corp.

March 17, 2010

STAVENA AKINS-BRAKEFIELD, PLAINTIFF,
v.
PHILIP ENVIRONMENTAL SERVICES CORPORATION, PSC INDUSTRIAL OUTSOURCING, LP, PHILIP SERVICES CORPORATION, PHILIP HOLDINGS, LLC AND PSC, LLC DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM & ORDER

I. Introduction

Before the Court is a Motion to Dismiss Counts I, III, V, VI, VII, VIII, IX and X of Plaintiff's Second Amended Complaint (Doc. 73), filed by defendant Philip Environmental Services Corporation ("PESC") (now known as "PSC Industrial Outsourcing, LP"), pursuant to FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) and 12(b)(6). Plaintiff Stavena Akins-Brakefield has filed an opposing Response (Doc. 95), to which PESC has replied (Doc. 99), allowing the Court to address the issues presented.

Essentially, this is an employment discrimination case. Plaintiff, a female, was employed as a Geologist/Environmental Scientist from July 2004 through March 21, 2007, when her employer terminated her at-will employment. Plaintiff alleges that Defendants,*fn1 collectively, were her employer, or joint employer, or in the alternative acquired or assumed the interests of her employer (Doc. 70 - 2d Am. Comp., ¶ 4). The remainder of her factual allegations are recounted below:

Plaintiff was sexually harassed by her male co-workers on multiple occasions in 2004 and 2005, including being grabbed in the crotch in March 2005 and later being grabbed on her buttocks in April 2006 (Id. at ¶¶ 12, 13 & 18). Plaintiff verbally complained of sexual harassment to her employer's Human Resources ("HR") specialist in March 2005 (Id. at ¶ 14). Plaintiff believes her employer's investigation into her complaint was inadequate (Id. at ¶ 15). In June 2006, Plaintiff made another complaint to the HR specialist regarding the April 2006 incident where a co-worker grabbed her buttocks, as well as conveyed her belief that her employer was discriminating against her because of her sex (Id. at ¶ 19). Again, she believes the investigation into her June 2006 complaint was inadequate (Id. at ¶ 20). However, Plaintiff claims that two of her similarly situated male co-workers were given higher raises than she received*fn2 and were also promoted, sometime in the summer or early fall 2006 (Id. at 21). Plaintiff again voiced her complaint of sexual discrimination to a project manager in September 2006 (Id. at ¶ 22).

In October 2006, Plaintiff requested to take leave pursuant to the Family and Medical Leave Act ("FMLA"), as a result of stress induced from being sexually harassed by her co-workers as well as discriminated against by her employer, based on her sex (Id. at ¶ 23). Plaintiff also contacted the corporate HR department to complain that the HR specialist had failed to adequately investigate her prior two verbal complaints of harassment and discrimination. She then reasserted her complaints to the corporate HR representative (Id. at ¶ 24). Plaintiff was told that the corporate HR department would wait until Plaintiff returned from her FMLA leave to inquire into the prior investigations regarding her harassment and discrimination claims made to the HR specialist (Id.). Due to Plaintiff's complaints that her male co-workers were receiving higher raises, in December 2006 she was given an additional pay raise, to be made retroactive to her last performance review date. Yet, Plaintiff believes this "correctional" pay raise was still not as much as similarly situated male employees received (Id. at ¶ 25).

Plaintiff returned back to work from her FMLA leave on January 8, 2007 (Id. at ¶ 26). The HR specialist told Plaintiff that she should "move forward and that if she could not put the past behind her, she could leave and the Company would give her 12 weeks severance pay" (Id. at ¶ 27). Plaintiff refused to leave her job (Id.). However, she believes she was thereafter shunned by certain co-workers and that several project managers refused to use her on projects (Id. at ¶ 28).

In late February 2007, Plaintiff contacted the corporate HR department to again inquire as to whether it was following up on HR specialist's investigations into her complaints regarding sexual harassment and employment discrimination. The HR department representative told her that she could file a complaint with the Equal Employment Opportunity Commission ("EEOC") (Id. at ¶ 29). On March 19, 2007, Plaintiff sent her completed Intake Questionnaire to the EEOC, claiming sex discrimination and retaliation by her employer (Id.at ¶ 30). On March 21, 2007, four hours after Plaintiff informed the HR corporate department of her EEOC complaint, she was fired (Id. at ¶ 31).

Plaintiff's Second Amended Complaint (Doc. 70) brings ten counts against all Defendants:

Count I - Discrimination under Title VII

Count II - Discrimination under the Equal Pay Act ("EPA")

Count III - Retaliation under Title VII

Count IV - Retaliation under the EPA

Count V – Assault

Count VI – Battery

Count VII - Negligent Supervision Count

VIII - Willful Violation of the FMLA

Count IX - Discrimination under the Illinois Human Rights Act ("IHRA")

Count X - Retaliation under the IHRA For the reasons discussed herein, the Court finds reason to grant in part and deny in part PESC's Motion to Dismiss (Doc. 73).

II. Legal Standard

A. Rule 12(b)(1)

FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) allows a party to raise as a defense a federal court's lack of subject matter jurisdiction over a plaintiff's claims. FED.R.CIV.P.12(b)(1). When a defendant makes this challenge, the plaintiff bears the burden of establishing jurisdiction. The Court must "accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff." St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007) (citation omitted). Yet, if necessary, the Court may also look beyond the ...


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