The opinion of the court was delivered by: Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion by defendants CME Group*fn1 , Chicago Mercantile Exchange, Inc. ("CME") and the Chicago Board of Trade ("CBOT") (collectively "CME Group") to dismiss the plaintiff Courtney Holladay's complaint for sexual harassment, gender discrimination, retaliation, and related State claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the following reasons, CME Group's motion is granted without prejudice.
In January 2008, Mark Downs owner and president of MWD Trading, Inc. ("MWD Trading") hired Holladay as a clerk. Downs leased a membership with CME Group, giving him access to CME Group's trading floor as well as trading privileges. As a clerk for Downs, Holladay also had access to CME's trading floor.
Holladay alleges that from January 2008 until her termination in November of 2010, Downs subjected her to "verbal sexual abuse and sexual harassment and sexually offensive bodily contacts." (Am. Compl. ¶ 30) Holladay contends that her hours and salary were reduced because of her refusal of Downs' sexual advances and because of her gender. She was eventually terminated on November 8, 2010. (Compl. ¶ 57). Holladay further claims that all defendants were aware of Downs' conduct, but failed to take corrective action.
Consequently, Holladay filed charges of discrimination with the Equal Employment Opportunities Commission ("EEOC") and the Illinois Department of Human Rights ("IDHR"). Upon receiving her right to sue letter from the EEOC in connection with her charges, Holladay filed this action against Mr. Downs, MWD Trading, and CME Group under Title VII and the Illinois Human Rights Act. Holladay also alleges non-enforcement of trade rules pursuant to the Commodity Exchange Act ("CEA"). Lastly, Holladay alleges the state claims of assault and battery and the intentional infliction of emotional distress against all defendants. CME Group now moves to dismiss all claims against them for failure to state a claim upon which relief may be granted.
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted. Christensen v. County of Boone, 483 F.3d 454, 458 (7th Cir. 2007). A complaint need only provide "a short and plain statement of the claim" showing that the plaintiff is entitled to relief and sufficient to provide the defendant with fair notice of the claim and its basis. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). In order to withstand a motion to dismiss under 12(b)(6), the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint need not set forth "detailed factual allegations," but it must contain facts that "raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
As an initial matter, CME Group seeks to bar any new allegations in Holladay's response brief that were not originally included in her complaint, citing the Seventh Circuit's holding "that a complaint may not be amended by the briefs in opposition to a motion to dismiss." Carr Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984). Since that decision, the Seventh Circuit has held that new factual allegations can be raised for the first time in a brief, if the new allegations are consistent with the complaint. Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439 (7th Cir. 1994).
Holladay's new factual allegations all serve to supplement statements originally made in her complaint. Each underlying claim in Holladay's response brief remains the same as those presented in the complaint. Thus, the Court will give full weight to Holladay's response brief including the newly alleged facts that support her original claims against the CME Group. See also Milazzo v. O'Connell, 925 F.Supp.1101, 1340 (N.D. Ill. 1996).
Turning to the sufficiency of the complaint, CME Group contends that counts IIII should be dismissed for failure to plead that an employment relationship existed between Holladay and the CME Group. 775 ILCS 5/2-102(A), (D); See Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002). Counts I-III of the complaint are each brought against the CME Group under both Title VII and the IHRA.
To determine whether a plaintiff has established an employer-employee relationship, courts look to the following factors: (1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations. Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 497, 492 (7th Cir. 1997). Typically, the extent of the employer's control is the most important factor. Id.
CME Group argues that other than conclusory statements, Holladay has not pleaded any facts from which the Court can infer an employer-employee relationship existed between Holladay and CME Group. For an employer-employee relationship to exist, the employer must have "the right to control and direct the work of an individual, not only as to the result to be ...