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Julia Van Vliet v. Cole Taylor Bank

January 18, 2011

JULIA VAN VLIET, PLAINTIFF,
v.
COLE TAYLOR BANK, AND TOM WALLACE, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Maria Valdez

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants' Motion to Dismiss Counts III and IV of the Complaint [hereinafter "Motion to Dismiss"] [Doc. No. 10]. Plaintiff's action arises under Title VII of the Civil Rights Act, 42 U.S.C. 2000 ("Title VII"), the Family Medical Leave Act of 1993, 29 U.S.C. 2601 ("FMLA"), and Illinois Common Law. On September 22, 2010, the parties consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, Defendants' Motion to Dismiss is GRANTED with leave to amend.

BACKGROUND

On May 25, 2010, Plaintiff Julia Van Vliet ("Vliet") filed a complaint against Defendant Cole Taylor Bank ("CTB") and Defendant Tom Wallace ("Wallace") in the Northern District of Illinois, Eastern Division. See Complaint at 1 [Doc. No. 1]. Plaintiff alleges that Defendant CTB verbally disciplined her, revoked her lending authority, issued a final written warning and terminated her employment with CTB on the basis of her pregnancy and as a result of her intention to take leave pursuant to the FMLA. See Id. at 4-7. Plaintiff brings three separate claims against CTB: pregnancy discrimination pursuant to Title VII of the Civil Rights Act (Count I); retaliation in violation of the FMLA (Count II); and discrimination in violation of the FMLA (Count III). See Id. Plaintiff also asserts a claim for defamation per se (Count IV) against both Defendants CTB and Wallace for statements Wallace made in the Plaintiff's final written warning. See Id. at 7-8.

In the present motion, Defendant CBT seeks to dismiss Count III of Plaintiff's Complaint (FMLA discrimination) as duplicative of Count II of Plaintiff's Complaint (FMLA retaliation). Defendants CBT and Wallace also seek to dismiss Count IV of Plaintiff's Complaint (Defamation), arguing that the Plaintiff's allegations are insufficient to state a claim for defamation per se or defamation per quod.

DISCUSSION

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of a complaint, not to decide the merits of a case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In determining whether to grant a Rule 12(b)(6) motion to dismiss, the Court accepts all well-pleaded allegations in the complaint as true, and draws all reasonable inferences in the light most favorable to the plaintiff. Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir. 2007). The complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. Rule 8(a)(2). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, "a plaintiff's obligation to provide the grounds for entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id. The Seventh Circuit has read the Twombly decision as imposing "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. Concerta Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (internal citations and quotations omitted). In determining what "plausibly" means, the Seventh Circuit has held that "the complaint must establish a nonnegligible probability that the claim is valid; but the probability need not be as great as such terms as 'preponderance of the evidence' connote." In re Text Messaging Antitrust Litigation, --- F.3d ----, 2010 WL 5367383, at *6 (7th Cir. Dec. 29, 2010).

Count III (Discrimination Claim under the FMLA)

Defendants seek to dismiss Count III of Plaintiff's Complaint (Discrimination under the FMLA) as duplicative of Count II (Retaliation under the FMLA). Defendants argue that courts have the authority to dismiss duplicative claims if they allege the same facts, the same injury, and have the same requirement of proof. See Defendants' Memorandum of Law in Support of Their Motion to Dismiss Counts III and IV of the Complaint [hereinafter "Defendants' Memorandum"] at 4 [Doc. No. 11]. In support of their claim that the two counts are duplicative, Defendants reference Beringer, a Northern District of Illinois case dismissing claims for negligence and breach of fiduciary duty. Beringer v. Standard Parking O'Hare Joint Venture, No. 07 C 5027, 2008 WL 4890501, at *4 (N.D. Ill. Nov. 12, 2008) ("As both counts involve the same operative facts, the same injury, and require proof of essentially the same elements, the court concludes that the two counts are duplicative"). Defendants argue that the instant case is analogous to Beringer as the Plaintiff's claims for retaliation and discrimination rely on the same operative facts and the same injury. Defendants' Memorandum at 3 [Doc. No. 11].

Beringer was a federal case involving duplicative state law claims. The issue here does not concern state law claims but the federal claims under the FMLA. Thus, the Court must determine whether the Beringer holding applies to potentially duplicative federal claims. As a starting point, it is a general principle that federal pleading standards apply even when the Court sits in diversity. Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2010). Additionally, the concept of dismissal based on duplicative lawsuits involving federal claims has been addressed by the Seventh Circuit and has been found to be a potential ground for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Norfleet v. Stroger, 297 Fed. Appx. 538, 540 (7th Cir. 2008) (suits may be duplicative and subject to dismissal if the parties, claims, facts and requested relief are substantially the same). Therefore, this Court finds that dismissal of a federal claim on the grounds that it is duplicative of another federal claim brought in the same lawsuit is proper under Rule 12(b)(6).*fn1

In determining whether Count III is duplicative of Count II the Court looks to whether the parties, claims, facts and requested relief are substantially the same. Norfleet v. Stroger, 297 Fed. Appx. 538, 540 (7th Cir. 2008). Under the FMLA there are two types of claims. The Act makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided," 29 U.S.C. § 2615(a)(1); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724-25 (2003); King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir.1999). These are the substantive rights under the Act. In addition to these substantive provisions, the FMLA makes it "unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter," 29 U.S.C. § 2615(a)(2), and makes it unlawful for any employer to "discharge" or "discriminate" against anyone for taking part in proceedings or inquiries under FMLA. Id. § 2615(b). The last provisions have been found to create a cause of action for retaliation. Kaufman v. Federal Exp. Corp, 426 F.3d 880, 884 (7th Cir. 2005) (citing 29 U.S.C. § 2615(a)(1), (2)). The difference is that the discrimination/retaliation type of claim requires proof of discriminatory or retaliatory intent, while the interference/entitlement type of claim requires only proof that the employer denied the employee her entitlements under the FMLA. Kaufman, 426 F.3d at 884-885 (collecting cases).

The substantive allegation in Plaintiff's Count II (Retaliation in violation of the FMLA) is as follows:

Defendant Cole Taylor knowingly, intentionally and willfully verbally disciplined Plaintiff, revoked her lending authority, issued her a final warning and, ultimately, terminated Plaintiff as a result of her intention to exercise her rights under the FMLA.

Complaint at ¶26 [Doc. No. 1].

The substantive allegation of Count III (Discrimination in violation of the ...


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