The opinion of the court was delivered by: David Herndon, Chief Judge United States District Court
Now before the Court are Defendants' motions to dismiss second amended complaint (Docs. 47 & 49). Plaintiff opposes the motion (Docs. 60, 68 & 81). Based on the following, the Court grants in part and denies in part Defendants' motions.*fn1
On December 4, 2009, Julie Brandenburg filed a Second Amended Complaint against her former employers Earl L. Henderson Trucking Co., LLC ("Henderson"), Premium Transportation Staffing, Inc. ("Premium Transportation"), and Premium Enterprises, Inc. ("Premium Enterprises") (Doc. 38).*fn2 The Second Amended Complaint alleges that Defendants discriminated against her based on her gender and retaliated against her for opposing such discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e, et seq. (Count I) and in violation of the Illinois Human Rights Act, 775 ILCS 5-101, et seq. (Count II). Brandenburg claims that in late May or early June 2007, Defendants denied her the position of Safety Director because of her gender and then assigned her the duties of the Safety Director without pay of employees in director positions because of her gender. She also claims that in December 2007, Defendants constructively discharged her from her employment.
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). The Supreme Court held that Rule 8 requires a complaint to 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, 570 (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 555-56 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.' Ashcroft v. Iqbal, --- U.S.---, --- 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557).
Recently, in Iqbal, the Supreme Court made clear that the federal pleading standard under Rule 8 as discussed in its Twombly opinion applies "for all civil actions." Id. at ---, 129 S.Ct. at 1953. Iqbal identified the "two working principles" underlying the decision in Twombly: (1) "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice;" and (2) "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at ---,129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555-56).In short, a court should only assume to be true a complaint's well-pleaded factual allegations, and not its mere legal conclusions, when determining whether such allegations plausibly give rise to relief. Id. at ---, 129 S.Ct. at 1950.
First, Defendant Henderson argues that Count I should be dismissed for lack of jurisdiction as Plaintiff did not file her complaint within ninety days of receiving the right to sue letter as required by 42 U.S.C. § 2000e-5. Henderson claims that Brandenburg did not have a valid right to sue letter prior to filing the instant action, thus, the Court should dismiss Count I. Brandenburg responds that the requirements are not jurisdictional rather the requirements are akin to conditions precedent. Further, Brandenburg argues that she cured any defect when she filed her First Amended Complaint after the EEOC issued the second notice of right to sue.
The Seventh Circuit has held that the requirement that a plaintiff have filed EEOC charges before suit is not intended to erect an elaborate pleading requirement or to allow form to prevail over substance. Cable v. Ivy Tech State College, 200 F.3d 467, 477 (7th Cir. 1999). The Supreme Court has also observed more generally that procedural technicalities should not be used to bar a Title VII claim. Zipes v. Trans World Airlines, 455 U.S. 385, 397-98 (1982). Thus, dismissal is not warranted if it appears otherwise that the required conditions were fulfilled.
Here, Henderson does not claim to have been prejudiced by the failure of the notice of right to sue at the time the suit was originally filed. Because it appears that Brandenburg did fulfill her condition precedent, the Court finds that dismissal on this ground is not proper. Thus, the Court denies the motion based on this argument.
Next all three Defendants move to dismiss Count I arguing that Brandenburg failed to allege sufficient facts to support a claim of constructive discharge. Specifically, Defendants argue that Brandenburg does not allege that her working conditions were so intolerable that a reasonable person in her position would have be compelled to resign, nor has she alleged that her work environment was hostile. Brandenburg contends that she has alleged sufficient facts to support a claim of constructive discharge.
Constructive discharge occurs when a plaintiff shows that he was forced to resign because his working conditions, from the standpoint of a reasonable employee, had become unbearable. Fischer v. Avande, Inc. 519 F.3d 393, 408-09 (7th Cir. 2008) (quoting Equal Employment Opportunity Comm'n v. Univ. of Chicago Hosps., 276 F.3d 326, 331 (7th Cir. 2002)). Constructive discharge can take two different forms. Id. at 409. Under the first approach, the plaintiff must demonstrate a discriminatory work environment even more egregious than the high standard for a hostile work environment. Id. Under the second approach, when an employer acts in a manner that communicates to a reasonable employee that he will be terminated, and then the plaintiff resigns, the employer's conduct may amount ...