The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Advocate Good Samaritan Hospital's (Advocate) motion to dismiss Counts VII-IX. For the reasons stated below, the partial motion to dismiss is granted.
Plaintiffs Javier Ayala (Ayala) and Juan Chavez (Chavez) allege that they are both of Hispanic decent. Ayala and Chavez were allegedly hired to work for Advocate as Public Safety Officers. Tim Boyle (Boyle), who is allegedly not of Hispanic descent, was allegedly the direct supervisor of Ayala and Chavez. Chavez and Ayala contend that they were subjected to harassment and discrimination based on their Hispanic ancestry. Plaintiffs allege that Boyle asked them to view a video on his computer at work that depicted Hispanic laborers in an insulting manner. Boyle also allegedly frequently used the term "beaner" to refer to Hispanics and made other demeaning comments about Hispanics. (Compl. Par. 21, 27). Boyle also allegedly made remarks that indicated a prejudice against Hispanics. For example, Boyle allegedly stated: "What do they call beaners in Arizona? Target practice!" (Compl. Par. 37). Ernest Vallardes (Vallardes) was allegedly the Public Safety Manager and was Boyle's direct supervisor. Vallardes allegedly constantly referred to Ayala and Chavez as the "burrito brothers." (Compl. Par. 30). In addition, according to Plaintiffs, Hispanic workers, such as Ayala and Chavez, were treated less favorably than non-Hispanic workers.
On August 21, 2009, Boyle allegedly found a small bag of marijuana in the back of Squad Car Number 15, which was allegedly shared by all the Public Safety Officers. Boyle allegedly then gave the marijuana to Vallardes. The next day, Ayala was allegedly called to Vallardes' office before his shift and was told he had to submit to a drug test. Vallardes allegedly stated that anyone who worked in the 48 hours preceding the discovery of the marijuana was required to submit to drug testing. Ayala allegedly refused to agree to drug testing, contending that he had not worked during the 48 hour period, and Ayala allegedly stated that he believed that he was being harassed. Vallardes allegedly then indicated that if Ayala refused to submit to testing, he would be fired.
Chavez allegedly subsequently entered Vallardes' office and was also told to submit to drug testing. Chavez allegedly likewise refused, contending that he did not work during the 48 hour period. Vallardes then allegedly screamed at Chavez, telling him that, if he did not agree to testing, he would be fired. Plaintiffs contend that non-Hispanic employees, such as Nate Penley, Larry Jablecki, and Russell Worthy, who worked during the 48 hour period, were not asked to submit to drug testing. Plaintiffs were allegedly fired because of their refusal to submit to drug testing and were allegedly replaced with two non-Hispanic employees. Plaintiffs include in their complaint claims alleging that they were subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Counts I-II), claims alleging that they were subjected to a hostile work environment in violation of 42 U.S.C. § 1981 (Section 1981) (Counts III-IV), Section 1981 retaliation claims (Counts V-VI), claims alleging harassment and termination based on ancestry in violation of the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101 et seq. (Counts VII-VIII), and intentional infliction of emotional distress (IIED) claims (Count IX). Advocate now moves to dismiss Counts VII-IX.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), a court must "accept as true all of the allegations contained in a complaint" and make reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(stating that the tenet is "inapplicable to legal conclusions"); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that contains factual allegations that are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).
Advocate argues that the IHRA claims (Counts VII-VIII) are barred because Plaintiffs have failed to comply with IHRA requirements and because the claims are untimely. Advocate also contends that the IIED claims (Count IX) are pre-empted by the IHRA.
Advocate argues that Plaintiffs cannot bring IHRA claims in this action because they are untimely and because Plaintiffs opted to pursue claims before the Illinois Human Rights Commission (IHRC). The IHRA provides in 775 ILCS 5/7A-102(D)(2) the following:
Upon review of the report, the Director shall determine whether there is substantial evidence that the alleged civil rights violation has been committed. The determination of substantial evidence is limited to determining the need for further consideration of the charge pursuant to this Act and includes, but is not limited to, findings of fact and conclusions, as well as the reasons for the determinations on all material issues. Substantial evidence is evidence which a reasonable mind accepts as sufficient ...