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Brian Davis v. Per Mar Security and Research Corp.

May 8, 2013

BRIAN DAVIS
v.
PER MAR SECURITY AND RESEARCH CORP.



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Philip G. Reinhard than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT:

For the reasons stated below, plaintiff's motion to remand [11] is denied. Defendant's motion to dismiss [6] is granted. The Count I claim for sex discrimination is dismissed without prejudice. The Count II claim for being subjected to an adverse employment action for unfounded accusation of sexual harassment is dismissed with prejudice. Plaintiff is granted until June 7, 2013 to file any amended complaint as to the Count I sex discrimination claim stating sufficient facts to make a plausible claim of sex discrimination. Plaintiff's motion [20] to stay designation of local counsel is denied as moot. The motion [12] to stay response is denied as moot. The motion [24] for leave to file the affidavit is granted. .

Plaintiff, Brian Davis, a citizen of Illinois, brought this action in state court against his former employer, defendant, Per Mar Security and Research Corp, an Iowa corporation with its principal place of business in Iowa. Defendant removed to this court premised on diversity of citizenship jurisdiction. 28 U.S.C. § 1332(a)(1). Plaintiff moves to remand [11] claiming the amount in controversy requirement is not met. Defendant opposes the remand and separately moves to dismiss [6]. Plaintiff also moves to stay his response to defendant's motion to dismiss[12], to stay designation of local counsel[20], and for leave to file the affidavit of Nile J. Williamson [24]. The motion [12] to stay response is denied as moot. Plaintiff has filed a response to the motion to dismiss. The motion [24] for leave to file the affidavit is granted.

"When removing a suit, the defendant as proponent of federal jurisdiction is entitled to present its own estimate of the stakes; it is not bound by the plaintiff's estimate." Back Doctors, Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011). "T]he estimate of the dispute's stakes advanced by the proponent of federal jurisdiction controls unless a recovery that large is legally impossible." Id. "[E]vents after the date of removal do not affect federal jurisdiction, and this means in particular that a declaration by the plaintiff following removal does not permit remand." Id.

Plaintiff made a post-removal averment that he "does not and will not seek damages exceeding $75,000, excepting only interest and costs." However, this declaration cannot be the basis for remand. Id. Plaintiff must show that an award in excess of the jurisdictional amount is legally impossible. Id. The complaint seeks damages "in excess of $50,000" plus reasonable attorney's fees and for other relief "including without limitation, reinstatement to his former position." The claims are advanced under the Illinois Human Rights Act and include prayers for damages for pain and suffering which, defendant alleges and plaintiff does not dispute, are not capped under Illinois law as well as claims for back wages. Plaintiff also claims attorney's fees. Plaintiff has not provided any basis for concluding it is legally impossible that the claims for back wages, reinstatement, pain and suffering, and attorney's fees will exceed $75,000. Plaintiff's motion to remand is denied. Plaintiff's motion [20] to stay designation of local counsel is denied as moot.

Defendant moves to dismiss plaintiff's claims for failure to state a claim upon which relief can be granted.

Fed. R. Civ. P. 12(b)(6). Plaintiff's complaint alleges gender discrimination in Count I and unfounded sexual harassment in employment in Count II both in violation of the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. ("Act"). Plaintiff was employed by defendant as a security guard. He was assigned by defendant to work at a hospital. During one of his shifts, after being alerted by Jim Lamb, the ER charge nurse, he found an individual masturbating in one of the emergency rooms. Plaintiff called the police who came and took custody of the individual.

On his next work shift, plaintiff told Lamb "I got to get this (nightly report) in there and I will probably have to tell Stacey McKenzie about the jerking off." McKenzie later reported to defendant that plaintiff actually stated "I am going in there to jack off for her." Plaintiff never made such a statement. Plaintiff was subsequently advised by defendant he was charged with sexual harassment of a hospital employee.

Plaintiff alleges defendant conducted "an incomplete, incompetent, and negligent investigation" and terminated him for sexual harassment of Stacey McKenzie. He alleges defendant accepted "as credible, a defamatory, inaccurate statement of Stacey McKenzie over the explanation given in writing of the incident by its employee, [plaintiff], a male." He alleges defendants actions were substantially motivated by his gender "in that defendant treated female persons differently than plaintiff and/or believed the allegations of Stacey McKenzie." This is his Count I gender discrimination claim. His Count II unfounded sexual harassment in employment claim is based on the same allegations.

Plaintiff argues that taking an adverse employment action based on unfounded sexual harassment charges is a violation of the Act. Defendant contends the Act does not create such a claim. Section 1-102 of the Act declares certain matters to be the public policy of Illinois. One of these is "[t]o protect citizens of this State against unfounded charges of unlawful discrimination, sexual harassment in employment, and sexual harassment in elementary, secondary, and higher education, and discrimination based on citizenship status in employment." 775 ILCS 5/1-102(H). Plaintiff relies on this statement of policy as a basis for his claim under the Act. However, the Act does not make an adverse employment action based on being falsely accused of sexual harassment actionable.

The Act provides an aggrieved party may bring an action for an alleged civil rights violation. 775 ILCS 5/10-102(A)(1). An "aggrieved party" is defined as a person "alleged or proved to have been injured by a civil rights violation." 775 ILCS 5/1-103(B). A civil rights violation is defined to include "and shall be limited to only those specific acts set forth in Sections 2-102 [and certain other provisions not relevant to plaintiff's claims here]. 775 ILCS 5/1-103(D). As relevant here, Section 2-102 provides "[i]t is a civil rights violation: (A) Employers. For any employer to . . . act with respect to . . . discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination." 775 ILCS 5/2-102(A). "'Unlawful discrimination' means discrimination against a person because of his or her race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, or unfavorable discharge from military service as those terms are defined in this Section." 775 ILCS 5/1-103(Q). Being falsely accused of sexual harassment is not within this statutory definition of unlawful discrimination and, therefore, is not an actionable civil rights violation under 775 ILCS 5/2-102(A).

Section 2-102(D) makes it a civil rights violation for "any employer, employee, agent of any employer, employment agency or labor organization to engage in sexual harassment." 775 ILCS 5/2-102(D). "Sexual harassment" is defined as "any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." 775 ILCS 5/2-101 (E). This definition does not include being falsely accused of sexual harassment. Plaintiff's claim is not actionable as a civil rights violation under 775 ILCS 5/2-102(D).

Plaintiff argues McKenzie's untruthful statements are themselves a form of sexual harassment and that defendant is liable for aiding or abetting a violation of the Act by McKenzie. The Act does make aiding or abetting a violation of the Act a civil rights violation. 775 ILCS 5/6-101(B) and 775 ILCS 5/1-103(D). However, as discussed above false accusations of sexual harassment are not a violation of the Act so ...


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