MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
I. Introduction and Background
Now before the Court is defendants' motion to dismiss under both Rule 12(b)(1) and Rule 12(b)(6) (Doc. 25). Defendants claim that the State of Illinois is not an employer under the Age Discrimination in Employment Act ("ADEA"); that plaintiffs have failed to state a claim under the ADEA or for retaliation; that plaintiffs' state law claims are barred by sovereign immunity; that plaintiffs' state law claims are preempted by the Illinois Human Rights Act; that the conspiracy claims are barred by the intra-corporate conspiracy doctrine and that the state law claims fail to state claims for relief. Plaintiffs oppose the motion (Docs. 27 & 28). Defendants also filed a supplemental brief arguing that plaintiffs' ADEA claims against the State of Illinois should be dismissed for failure to exhaust administrative remedies (Doc. 41). Plaintiffs responded to the supplement (Docs. 42 & 45). Based on the following, the Court grants in part and denies in part the motion to dismiss and denies as moot the supplement to the motion to dismiss.
After consolidation, plaintiffs Richard Pisoni, Darren Lindsey, Mark Cameron, Brian Clements, Brian Hosapple, and Steven Kerley filed an eighteen-count joint amended complaint against the State of Illinois, Illinois State Police ("ISP"), Greg Robinson, Joseph Kollins, Scott Koerner, Rob Haley, Lance Hinkle, Craig Demerat, and Charles Tolbert on October 25, 2012 (Doc. 23). The joint amended complaint contains claims of age discrimination, hostile work environment and retaliation pursuant to the ADEA, 29 U.S.C § 623(b); state law claims of intentional infliction of emotional distress and civil conspiracy. Specifically, Count I is an ADEA claim by Mark Cameron against the Illinois State Police and the State of Illinois; Count II is an ADEA claim by Brian Clements against the Illinois State Police and the State of Illinois; Count III is an ADEA claim by Brian Holsapple against the Illinois State Police and the State of Illinois; Count IV is an ADEA claim by Steven Kerley against the Illinois State Police and the State of Illinois; Count V is an ADEA claim by Richard Pisoni against the Illinois State Police; Count VI is an ADEA claim by Darren Lindsey against the Illinois State Police; Count VII is a claim for intentional infliction of emotional distress by Mark Cameron against the Illinois State Police and the State of Illinois; County VIII is a claim for intentional infliction of emotional distress by Brian Clements against the Illinois State Police and the State of Illinois; Count IX is a claim of intentional infliction of emotional distress by Brian Holsapple against the Illinois State Police and the State of Illinois; Count X is a claim for intentional infliction of emotional distress by Steven Kerley against the Illinois State Police and the State of Illinois; Count XI is a claim for intentional infliction of emotional distress by Richard Pisoni against the individual defendants; Count XII is a claim for intentional infliction of emotional distress by Darren Lindsey against the individual defendants; Count XIII is a claim for civil conspiracy by Mark Cameron against all defendants; Count XIV is a claim for civil conspiracy by Brian Clements against all defendants; Count XV is a claim for civil conspiracy by Brian Holsapple against all defendants; Count XVI is a claim for civil conspiracy by Steven Kerley against all defendants; Count XVII is a claim for civil conspiracy by Richard Pisoni against the individual defendants and Count XVIII is a claim for civil conspiracy by Darren Lindsey against all defendants.
Generally, the joint amended complaint alleges that plaintiffs are employees of the ISP who claim that defendants violated the ADEA by allowing plaintiffs to be subjected to a hostile work environment by forcing plaintiffs to transfer from the Southern Special Weapons and Tactics Team ("SWAT") and replacing plaintiffs with younger employers. Plaintiffs Hosapple and Kerley further allege that they were retaliated against for refusing to participate in the age discrimination. Specifically, plaintiffs allege that "[i]n late 2010 and early 2011, members of the chain of command for Plaintiffs, including but not limited to Greg Robinson, Joseph Kollins, Scott Koerner, Rob Haley, directed and encouraged members of the SWAT team to discriminate against employees over the age of 40 by encouraging them to isolate members of the team over the age of 40, harass members of the team over the age 40, and ignore direct commands from any superior officer over the age of 40." (Doc. 23. ¶ 37). Further, plaintiffs allege that defendants directed younger members of the SWAT team to mock, verbally attack, harass, criticize, isolate and ignore plaintiffs in a deliberate effort to create a hostile work environment and force them to leave the SWAT team. The joint amended complaint also alleges that defendants Robinson, Kollins, Hinkle, Demaret and Tolbert knowingly made false reports to plaintiffs' supervisors which called into question plaintiffs' work performance, which these defendants know to be false. Moreover, plaintiffs claim that after receiving right to sue letters from the EEOC, they were transferred from the SWAT team to patrol, causing them to suffer decreased wages and benefits.
As the motion and supplement are ripe, the Court turns to address the merits.
II. Motion to Dismiss Standard
The purpose of a Rule 12(b) motion to dismiss is not to decide the merits of the case. A Rule 12(b)(6) motion tests the sufficiency of the complaint, Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990), while a Rule 12(b)(1) motion tests whether the Court has subject matter jurisdiction. Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir. 1999). In reviewing a motion to dismiss under either rule, the Court takes as true all factual allegations in plaintiffs' complaint and draws all reasonable inferences in their favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007); Long, 182 F.3d at 554.
To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed.R.Civ.P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level, " assuming that all of the allegations in the complaint are true. E.E.O. C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true, * * * state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563.
Surviving a Rule 12(b)(1) motion to dismiss is more difficult. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003). Federal courts are courts of limited jurisdiction; "they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). Pursuant to 28 U.S.C. § 1331, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." The plaintiff bears the burden of establishing that a district court has proper jurisdiction of an action. Transit Express, 246 F.3d at 1023. A defendant arguing that the plaintiff has not met this burden with respect to an action may move for dismissal under Rule 12(b)(1). A challenge based on the Court's lack of subject matter jurisdiction is properly brought in a motion under Federal Rule of Civil Procedure 12(b)(1), rather than as a motion to dismiss under Rule 12(b)(6). See also Fed.R.Civ.P. 12(h)(3) (court must dismiss for lack of subject matter jurisdiction). Under Rule 12(b)(1), consideration of evidence extrinsic to the pleadings is appropriate. Hay v. Indiana State Bd. of Tax Commis, 312 F.3d 876, 879 (7th Cir. 2002) ("the district court had not only the right, but the duty to look beyond the allegations of the complaint to determine that it had jurisdiction to hear the landowners' claim"). With these principles in mind, the Court turns to the allegations of the joint amended complaint.
Employer under the ADEA
First, defendants argue that the State of Illinois is not an "employer" under the ADEA. Specifically, defendants maintain that ISP is the proper defendant in that it has the actual hiring and firing responsibility and not the State of Illinois. The Court agrees.
Title VII and the ADEA "use virtually the same definition of employer, '" and courts' interpretations of a definition in one statute are persuasive in interpreting the same definition in the other statute. Williams v. Banning, 72 F.3d 552, 553-54 (7th Cir. 1995); see also E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1280 (7th Cir.1995) (employer definitions under the ADEA and Title VI are "essentially interchangeable"). "Identification of an employer' under Title VII is a question of federal law." Carver v. Sheriff of ...