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Jason Lee Nieman v. Grange Mutual Casualty Company

April 26, 2012

JASON LEE NIEMAN, PLAINTIFF,
v.
GRANGE MUTUAL CASUALTY COMPANY, INTEGRITY MUTUAL INSURANCE COMPANY AND CINDY HEINDEL, INDIVIDUALLY AND AS AN EXECUTIVE OFFICER OF INTEGRITY MUTUAL INSURANCE COMPANY; CRITERION EXECUTIVE SEARCH OF FLORIDA, INC.; MICHAEL ("MIKE") TINGLEY, INDIVIDUALLY AND AS AN OFFICER AND/OR EMPLOYEE OF CRITERION EXECUTIVE SEARCH, INC., DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge:

E-FILED

Friday, 27 April, 2012 09:25:28 AM

Clerk, U.S. District Court, ILCD

OPINION

Plaintiff Jason Lee Nieman has filed a Pro Se Complaint, wherein he asserts a number of claims pursuant to Title VII, 42 U.S.C. §§ 2000e et seq., the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981, and the Age Discrimination and Employment Act, 29 U.S.C. §§ 621 et seq. The Plaintiff has also asserted claims pursuant to the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq.. The Court now considers several Motions to Dismiss filed by the Defendants. Pending also are the Plaintiff's Motion for Sanctions and his Motion to Strike the Opposition of the Defendants to his Motion for Sanctions.

I. Motion of Integrity Mutual Insurance Company

Defendant Integrity Mutual Insurance Company ("Integrity") has moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Plaintiff's Complaint. Integrity contends that Plaintiff cannot state a plausible claim for age discrimination or retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), Title VII, 42 U.S.C. § 1981, or the Illinois Human Rights Act ("IHRA").

At this stage, the Court accepts as true all of the facts alleged by the Plaintiff and draws all reasonable inferences therefrom. See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). "[A] complaint must provide a short and plain statement of the claim showing that the pleader is entitled to relief, which is sufficient to provide the defendant with fair notice of the claim and its basis." Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011) (internal quotation marks omitted). Courts must consider whether the complaint states a "plausible" claim for relief. See id. The complaint must do more than assert a right to relief that is "speculative." See id. However, the claim need not be probable: "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." See Independent Trust Corp. v. Stewart Information Services Corp., 665 F.3d 930, 935 (7th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "To meet this plausibility standard, the complaint must supply 'enough fact to raise a reasonable expectation that discovery will reveal evidence' supporting the plaintiff's allegations." Id. The allegations of a pro se plaintiff are more liberally construed than are complaints which are drafted by lawyers. See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001).

Specifically, Integrity asserts that the claims it rejected the Plaintiff's employment action because of his age in violation of the ADEA (Count I) and the IHRA (Count VII) should be dismissed with prejudice because he cannot plead that Integrity actually knew his age when it rejected his application for employment. The Plaintiff does not plead that Integrity or Defendant Cindy Heindel, the Vice President of Human Resources, had actual knowledge of his age. Rather, the Complaint suggests that the Defendants were aware of the Plaintiff's age, based on the inclusion of the year he graduated from college (1989) on a business networking site. Integrity contends that Plaintiff never pled that it or Heindel actually reviewed his LinkedIn*fn1 profile, had knowledge of the date he graduated from college, or that Integrity actually determined the Plaintiff's age.

Although Integrity claims that Heindel could not have reviewed his LinkedIn profile, the Plaintiff alleges in his Response that during telephone interviews, Heindel did inquire about and confirm the year that Plaintiff and the candidate who was selected for the position each earned their degrees. According to the Complaint, the Plaintiff's interview was conducted in February 2010. It is not difficult to determine that someone who graduated from college in 1989 probably was over the age of 40 in 2010. Given the Plaintiff's pro se status, the Court concludes that this is enough to place Integrity on notice that he is subject to the protection of the laws against age discrimination. The Plaintiff has also alleged that the candidate selected for the position obtained his degree in 1994. A person who was 22 at that time would have been under 40 in 2010. At this stage, the pro se Plaintiff has also sufficiently alleged that employees outside the protected class were treated more favorably.

Integrity also alleges the Plaintiff's retaliation claims pursuant to Title VII (Count II), § 1981, and the IHRA should be dismissed because the Plaintiff does not allege: (1) that Integrity actually was aware of his "protected activity;" and (2) the nature of his "protected activity." In his Complaint, the Plaintiff alleges that around October 2009, he became aware that an internet search "would provide specific information as to the Plaintiff, the prior action, the Defendants, and the nature of this case," which the Plaintiff refers to as his "protected conduct." See Compl. ¶ 20.

The Plaintiff further alleges he "knows that it is highly common practice for employment recruiters, human resources professionals, hiring managers, and other related parties to 'Google' potential employees or job applicants." See Compl. ¶ 20.

Integrity contends that, based on this subjective assertion, the Plaintiff "presumes" every employer where he has applied for a job has learned of his protected conduct, "and in some cases would likely use it as an unlawful disqualification or discount factor as to his candidacy." See Compl. ¶ 20. Integrity further asserts that Plaintiff's Complaint references an exhibit which arguably suggests that Plaintiff filed a lawsuit against Nationwide Mutual Insurance Company. It contends that Plaintiff has not identified any "protected conduct" and that his conclusion that he engaged in such conduct is not enough to defeat a motion to dismiss.

The Plaintiff claims that although Integrity denies using the internet to research job applicants like him, it does not assert that it was not made aware of the alleged protected conduct by other means. The Plaintiff further suggests that Integrity's employment agent was somewhat aware of his previous protected conduct.

Integrity correctly argues that the allegations in the Plaintiff's Complaint which pertain to "protected conduct" are highly speculative. It appears that Plaintiff is alleging that any potential employer could possibly have learned of the Plaintiff's "protected conduct" by conducting an internet search and refused to hire him for that reason. It is unclear whether the Plaintiff has any basis for believing this other than a subjective belief. However, in considering a claim which the defendants argued made no sense and was based on "vague aspersions, conclusory statements, and supposed 'wrongful' conduct," the Seventh Circuit observed that those are matters to be considered at the summary judgment stage and not when ruling on a motion to dismiss. See Virnich v. Vorwald, 664 F.3d 206, 213 (7th Cir. 2011). This is particularly true given the Plaintiff's pro se status, The Court will Deny Integrity's Motion to dismiss the retaliation claims.

Additionally, Integrity contends that Plaintiff's claims it violated the IHRA (Counts VII and VIII) should be dismissed because Plaintiff failed to exhaust his administrative remedies under the IHRA and Integrity is not an employer under the IHRA.

Integrity asserts that Plaintiff's charge of discrimination, which is attached to the Complaint, was cross-filed with the EEOC and the Illinois Department of Human Rights. See Compl. ¶ 4. However, based on Exhibit A of the Complaint, Integrity alleges that Plaintiff's charge of discrimination was cross-filed with the Wisconsin Equal Rights Division because Integrity is a Wisconsin employer and Plaintiff was applying for a job in Wisconsin. Therefore, Integrity argues that Plaintiff cannot pursue claims under the IHRA because of his failure to exhaust remedies.

In response, the Plaintiff claims that Plaintiff filed the original charge with the Chicago, Illinois office of the EEOC. Subject to its own discretion, the EEOC chose to transfer the matter to the Milwaukee, WI office for investigation. The Plaintiff points to 775 ILCS 5/7A-102( A-1)(1), which provides in part, "If a charge is filed with the Equal Employment Opportunity Commission (EEOC) within 180 days after the date of the alleged civil rights action, the charge shall be deemed filed with the Department on the date filed with the EEOC." Based on this language, the Plaintiff contends the charge was automatically filed. The IHRA does not require that a charge actually be investigated by the Illinois Department of Human Rights.

The Court is unable at this time to conclude that Plaintiff's claims under the IHRA are deficient and subject to dismissal.

Based on the foregoing, Integrity's Motion to dismiss will be Denied.

II. Motion of Defendant Grange Mutual Casualty Company

In support of its Motion, Defendant Grange Mutual Casualty Company ("Grange") has adopted and incorporated by reference each of the arguments set forth in Integrity's Memorandum in support of its Motion to Dismiss. To the extent those arguments are incorporated, Grange's Motion is Denied for the same reasons.

Grange also asserts it should be dismissed with prejudice because the Plaintiff has not and cannot plead that Grange was his prospective employer. It cannot be liable for alleged employment discrimination by Integrity solely because the Plaintiff alleges that Grange is Integrity's owner and/or successor in interest. Each statute on which the Plaintiff relies requires that Grange act as the employer to have liability for employment-related decisions.

Grange contends that Plaintiff does not plead any facts tending to show that it was involved in Integrity's decision to reject the Plaintiff's employment application or that Grange otherwise acted as an "employer." It claims that Plaintiff alleges only that Grange is Integrity's owner and/or successor in interest and that one of its employees was involved in the EEOC investigation. See Compl. ΒΆΒΆ 8, 39. The allegation that Grange monitored and/or controlled ...


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