The opinion of the court was delivered by: Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
The defendants, Antioch Rescue Squad ("ARS") and Metro Paramedic Services, Inc., move to dismiss the 22-count Second Amended Complaint against them. ARS alternately seeks summary judgment, insofar as its arguments rely on material outside the complaint. For the reasons that follow, the motions are granted in part and denied in part.
Sharon Volling, Julie Banser, and April Soulak are current and former members of the Antioch Rescue Squad, a private, non-profit provider of emergency medical and ambulance services in the Village of Antioch, Illinois. The squad is jointly operated and staffed by the two defendants. The plaintiffs' complaint alleges, in disturbing factual detail, that they were subjected to sexual harassment (including offensive, even potentially criminal, physical contact), a hostile work environment, sex discrimination, and retaliation at the hands of co-workers and supervisors. The federal claims are brought pursuant to 42 U.S.C. § 1983 (Counts I, II, VII, VIII, XIII, IV), and Title VII of the Civil Rights Act (Counts III, IV, IX, X, XV, VI). The plaintiffs also bring similar claims under the Illinois Human Rights Act (Counts V, VI, XI, XII, XVII, XVIII). Finally, the plaintiffs allege tort liability under Illinois common law for negligent retention (Counts XIX, XX) and negligent supervision (Counts XXI, XXII).
The defendants have moved to dismiss the Second Amended Complaint in its entirety. Their primary arguments are that they are not subject to claims under § 1983 because they are not state actors and that Title VII and the IHRA do not apply to them because they are not employers within the meaning of those statutes. With respect to the state-law tort claims, the defendants primarily argue preemption, and they also urge the Court to decline supplemental jurisdiction. The plaintiffs oppose the motions, arguing that their detailed complaint more than adequately sets forth sufficient facts to support their claims for relief, and that the defendants are raising substantive arguments not appropriate for resolution on the pleadings.
In addition to seeking dismissal, ARS also moved for summary judgment because it submitted evidence outside the pleadings: the affidavit of ARS Deputy Chief Brian DeKind. The affidavit attests to facts relevant to whether ARS is a state actor and whether it is an employer of the plaintiffs. Metro also supported its motion with an affidavit, but did not ask for the Court to treat its motion as one for summary judgment. During the briefing of the motions, the plaintiffs moved to strike both affidavits. The predecessor judge granted that motion (Dkt. # 48), and the defendants have not asked this Court to reconsider. Therefore, the affidavits will not be considered in support of either motion, and there is no need to treat ARS's motion as anything but a motion to dismiss. The scope of ARS's motion was further narrowed on October 23, 2012, when this Court entered judgment for plaintiffs Volling and Soulak against ARS pursuant to an offer of judgment. To the extent that ARS's pending motion targets these two plaintiffs, it is denied as moot. ARS's motion will be addressed only as it relates to plaintiff Banser.
A motion under Rule 12(b)(6) challenges a complaint's sufficiency to state a claim upon which relief may be granted. Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570
F.3d 811, 820 (7th Cir. 2009). In considering the defendants' Rule 12(b)(6) motions, the Court accepts as true all of the factual allegations in the complaint and draws all reasonable inferences in favor of the plaintiffs. Erickson v. Pardus, 551 U.S. 89 (2007); McGowan v. Hulick, 612 F.3d 636, 637 (7th Cir.2010). However, the Court does not accept as true allegations that are mere legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 679-80 (2009).
A federal complaint should be "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). But however short and plain, it must contain sufficient detail to "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. v. Twombly, 550 U.S. 544, 545 (2007). And it must have "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). The "required level of factual specificity rises with the complexity of the claim." McCauley v. City of Chicago, 671 F.3d 611, 616--17 (7th Cir. 2011) All told, the factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
A. Defendants as state actors
Metro and ARS each argue that all federal constitutional claims against them must be dismissed because they are not state actors and could not have taken any action "under color of state law." See 42 U.S.C. § 1983.
The same standard applies for determining whether a private party is a "state actor" for purposes of the Fourteenth Amendment, and whether that party acted "under color of state law" for purposes of §1983. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 929 (1982) (explaining that "it is clear that in a § 1983 action brought against a state official, the statutory requirement of action 'under color of state law' and the 'state action' requirement of the Fourteenth Amendment are identical"). That standard, however, is not a bright line that is easily applied and, as the plaintiffs observe, it often requires a fact-intensive inquiry. But not always. There have been many cases in which courts appropriately concluded, on motions, that there was no state action as a matter of law. See, e.g., London v. RBS Citizens, N.A., 600 F.3d 742 (7th Cir. 2010); Hallinan, 570 F.3d at 821; Gayman v. Principal Fin. Servs., Inc., 311 F.3d 851, 853 (7th Cir. 2002); Fries v. Helsper, 146 F.3d 452 (7th Cir. 1998). The plaintiffs are wrong, therefore, to argue that it is necessarily "inappropriate" to dismiss a complaint on this basis. The question is not whether the inquiry is fact intensive; it is whether the plaintiffs allege sufficient facts to make state action plausible.
It bears noting at the outset that this is not a case in which it is alleged that the state has effectively directed, controlled, or encouraged the actions of a private party. See Pl. Memorandum, Dkt. # 41 at 12-13 n.8 (acknowledging absence of allegations "that the state was involved in, coerced, or encouraged the constitutional tort"). In those cases, "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Wade v. Byles, 83 F.3d 902, 905 (7th Cir. 1996). Rather, here the defendants, though not officially denominated as such, are alleged to be de facto state actors. The question presented by the complaint, then, is "whether the allegedly unconstitutional conduct is fairly attributable to the State." Am. Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). In such a case, "state action may be found if, though only if, there is such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may be fairly treated as that of the State itself.'" Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). "[N]o one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government." Id. In short, "the criteria lack rigid simplicity." Id.
There are several ways that plaintiffs may prove that challenged conduct by putatively private defendants should be deemed to be conduct by the state, including theories that the plaintiffs refer to as the "public function test," the "joint action" or "government nexus" test, the "symbiotic relationship test," and the "totality of the circumstances/entwinement/delegation" tests. Memorandum, Dkt # 41 at 9-14; see generally Brentwood Academy, 531 U.S. at 291-92; Rodriguez v. Plymouth Ambulance Serv. 577 F.3d 816, 823-24 & nn.8-11 (7th Cir. 2009); Air Line Pilots Ass'n, Int'l. v. Dep't of Aviation of City of Chicago, 45 F.3d 1144, 1149 (7th Cir. 1995). The plaintiffs argue that their factual allegations set the table for them to establish (at the appropriate time) that ambulance and paramedic services are a traditional public function that has been delegated to the defendants; that the contract between ARS and the Village evinces their joint action to provide services; and that the mutuality of support and benefits under the arrangement shows a symbiotic relationship, or one of "pervasive entwinement" between the defendants. The complaint, however, fails to plausibly allege any facts suggesting the plaintiffs could satisfy the requirements of any of these tests.
1. The Public Function Test "That a private entity performs a function which serves the public does not make its acts [governmental] action." Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982). Under the "public function" theory, the private entity is deemed to be a state actor when it performs a role or function that has been "traditionally the exclusive prerogative" of the government. Id.; Jackson v. Metro. Edison Co., 419 U.S. 345, 353 (1974) (emphasis added). This is a very narrow category of functions. See Vickery v. Jones, 100 F.3d 1334, 1345 (7th Cir. 1996) (collecting cases). And here, the plaintiffs do not plausibly allege facts that could support a conclusion the provision of emergency medical and ambulance services has been traditionally an exclusively public function. There is no allegation that any unit of government ever provided ambulance services in Antioch; and even if one had, the government's later decision to delegate services to private entities does not in itself make the private entities state actors. See Spencer v. Lee, 864 F.2d 1376, 1379 (7th Cir. 1989) ("The scope of government is not fixed; deregulation does not create a host of state actors in the private sector, like the moraine that marks the farthest advance of a glacier."). Moreover, the Village of Antioch does not have a constitutional obligation to provide ambulance services. See Wade v. Byles, 83 F.3d 902, 906-907 (7th Cir. 1996) (explaining that private actor acts as arm of state when performing function that state is constitutionally obligated to provide). And state statutes plainly allow for the operation of private ambulance and medical services in Illinois. For example, the Municipal Code empowers local governments to operate ambulances or to contract for those services. See 65 ILCS 5/11-5-7.*fn1 Also telling is that Illinois law distinguishes between private and public ambulance services in the application of its statutory tort immunity. See Buell v. Oakland Fire Protection Dist. Bd., 605 N.E.2d 618, 622 (Ill. App. Ct. 1992). Although all ambulance services, public and private, are regulated by the state, even "extensive and detailed" regulation of an industry does not make that industry public. ...