The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Plaintiffs are people of Cuban origin who worked in Defendant Walmart's warehouse. Plaintiffs claim Defendant made adverse employment decisions against them and a class of similarly situated Cuban workers based on national origin, race and ethnicity in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq, and the Civil Rights Act of 1866 ("§ 1981"), as amended, 42 U.S.C. §§ 1981 and 1981(A). Plaintiffs bring nine counts against Defendant. Counts I through III claim discrimination against a class of Cuban warehouse workers employed by Defendant, as well as against Plaintiffs individually. Counts I and II allege discrimination based on race, national origin and ethnicity in violation of Title VII under disparate impact and disparate treatment theories, respectively. Count III alleges disparate treatment based on race in violation of § 1981. Counts IV through IX claim disparate treatment based on national origin and retaliation against Plaintiffs Bobirt Miranda ("Miranda"), Eusebio Calzada ("Calzada") and Rolando Padron ("Padron") as individuals in violation of Title
VII. Defendant moves to dismiss Plaintiffs' class action claims in their entirety and Plaintiffs' ndividual claims to the extent they are time barred. For the following reasons, Defendant's motion is granted in part.
Plaintiffs Miranda and Calzada worked in Defendant's warehouse from July 2000 to November 2006, and Plaintiff Padron worked in Defendant's warehouse from August 2001 to November 2006. On November 30, 2006, Plaintiffs filed pro se charges against Defendant with the Equal Employment Opportunity Commission ("EEOC"). Each Plaintiff's nearly identical charges alleged national origin discrimination and retaliation in violation of Title VII. Plaintiffs charged that from about January 1, 2006, until their discharge in November 2006, Defendant subjected Plaintiffs, who are Cuban, to different terms and conditions of employment than similarly situated employees who were not Cuban. According to the charges, Defendant allegedly gave Plaintiffs a variable schedule, denied Plaintiffs "make-up days" and paid Plaintiffs lower wages because of their national origin. Plaintiffs charged that they complained about national origin discrimination multiple times, in retaliation for which Defendant discharged Plaintiffs. On April 12, 2010, the EEOC found reasonable cause to believe that Defendant violated Title VII by discriminating against Plaintiffs and a class of employees because of their national origin. The EEOC issued a Notice of Right to Sue on July 20, 2010.
Plaintiffs filed their complaint on October 16, 2010. Plaintiffs allege that they are Cuban and have dark-colored hair, eyes and skin and are members of a racial minority. Plaintiffs claim that Defendant intentionally paid them and a class of Cuban warehouse employees lower wages than similarly situated warehouse employees who are not Cuban because of Plaintiffs' national origin, race and ethnicity. According to Plaintiffs, Defendant's conduct caused Plaintiffs and putative class members injuries, including lost wages, lost benefits, and physical and emotional harm. Plaintiffs alternatively claim that Defendant's facially neutral compensation policy had a disparate impact on Cuban warehouse employees, including Plaintiffs, which deprived them of equal employment and otherwise adversely affected them. Additionally, Plaintiffs contend that Defendant imposed upon them variable schedules, denied them make-up days, and generally treated them worse than employees who are not Cuban.
Plaintiffs claim that they first reported Defendant's discriminatory practices to Store Manager Brad Wilson ("Wilson") in 2005. Over the following year, Plaintiffs contend that they complained of discrimination at least five more times to Wilson, District Manager "Skip" Turner, and human resources department employee Angel Gomez. Plaintiffs allege that Defendant nevertheless continued to discriminate against them.
Finally, Plaintiffs claim that they were qualified employees who performed their responsibilities competently. Yet, Plaintiffs allege that Defendant retaliated against them after they reported Defendant's discriminatory practices. According to Plaintiffs, Defendant escalated its discriminatory treatment of Plaintiffs and ultimately terminated their employment.
Motions to dismiss challenge the sufficiency of a complaint, not its merits. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). For the purpose of ruling on a motion to dismiss, a court must treat all of the facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Caldwell v. City of Elwood, 959 F.2d 670, 671 (7th Cir. 1992). To survive a motion to dismiss, a plaintiff must allege facts sufficient to state a claim for relief that is facially plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 2007). A claim for relief is plausible if the well-pleaded facts allow a court to "infer more than the mere possibility of misconduct." Ashcroft v. Iqbal, - - - U.S. - - - -, - - -, 129 S. Ct. 1937, 1950, 173 L. Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are not sufficient to state a claim. Id. at 1949. Rather, legal conclusions "must be supported by factual allegations" that "plausibly give rise to an entitlement to relief." Id. at 1950.
A. Counts I-III Do Not Meet Pleading Standards.
Counts I through III consist of "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements" of the kind held insufficient in Iqbal. Iqbal, 129 S.
Ct. at 1949. Plaintiffs do not dispute that their allegations have scant factual foundation. Instead, they question the weight of Twombly's authority and make public policy arguments in favor of allowing discovery on Counts I through III. For the following reasons, I reject those arguments.
Plaintiffs rely on In re Text Messaging Antitrust Litig., 630 F.3d 622 (7th Cir. 2010), to argue that federal pleading standards are uncertain in the wake of Twombly and Iqbal. Dicta in In re Text Messaging does characterize Twombly's "scope" as "unsettled" and federal pleading standards as "in ferment." 630 F.3d at 626-27. However, the court made those statements in the context of explaining why clarifying the application of Twombly's pleading standard was a controlling question of law that justified granting an interlocutory appeal. See, id. Far from questioning Twombly's validity, however, the court recognized Twombly's effect by explaining the purpose of the new pleading standard, id. at 625-26, and attempting to sharpen the distinction Twombly drew between the "probability" and "plausibility" of a claim, id. at 629.
Plaintiffs also contend that In re Text Messaging supports denying dismissal of their class action claims because it recognizes that circumstantial evidence can be sufficient to state a claim under the Twombly standard. See, id. at 629. There, the plaintiff made factual allegations that could support an inference of price fixing by the defendants, such as that the defendants belonged to a common trade association, were members of a "leadership council" formed to encourage cooperation, and increased their prices when costs fell instead of cutting prices. Id. at 628. The court found that those allegations were circumstantial evidence of price fixing, which was sufficient to support a claim notwithstanding the absence of direct, "smoking gun" evidence. Id. at 628-29.
Here, however, Plaintiffs allege few facts that similarly could be circumstantial evidence that Defendant discriminated against them. For instance, Plaintiffs do not allege their rate of pay or that of similarly situated employees who are not Cuban. Further, Plaintiffs do not allege any specific instances of adverse actions that Defendant took against Plaintiffs. For example, Plaintiffs claim that Defendant subjected them to irregular scheduling and denied them make-up days, but Plaintiffs do not allege who took such actions on Defendant's behalf, when, how or under what circumstances. Additionally, Plaintiffs do not describe in their complaint a specific, facially-neutral policy that has a disparate impact on people of Cuban origin who work for Defendant. Although Plaintiffs refer to a "compensation policy" and in their response allege that this policy gives local supervisors discretion over decisions affecting employees, Plaintiffs do not allege facts showing a disparate impact on a class of workers of Cuban origin. Instead, Plaintiffs make conclusory allegations that Defendant took adverse actions and implemented policies that had a disparate impact against them and other workers of Cuban origin. In contrast to In re Text Messaging, Plaintiffs allege almost no facts that circumstantially support their assertions under a disparate treatment or impact theory.
Plaintiffs contend that the EEOC's finding of cause to believe that Defendant violated Title VII is sufficient circumstantial evidence to support their claims. Plaintiffs cite no authority for this proposition, and I have not found any cases that directly address it. However, "judicial proceedings under Title VII do not 'review' the determinations of the EEOC but are de novo proceedings." Flowers v. Local No. 6, Laborers Intern. Union of N. Am. (AFL-CIO), 431 F.2d 205, 208 (7th Cir. 1970). The "ultimate decision whether the claim is real or fanciful must be for the courts." Id. Therefore, the EEOC's finding of cause receives no deference. Significantly, I note that EEOC findings of cause are not findings of fact but the EEOC's opinion as to what the evidence showed. I also ...