United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
JOAN H. LEFKOW, District Judge.
Plaintiff Sillierine Bennett filed suit against her former employer, Community and Economic Development Association of Cook County, Inc. ("CEDA"), alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (Count I), and retaliatory discharge under Illinois common law. (Count II). CEDA has moved to dismiss Count II and the first paragraph of Bennett's complaint under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, CEDA's motion is granted.
Bennett, born on February 9, 1950, is a former employee of CEDA, a private, not-for-profit corporation. (Dkt. 10-2 ("Compl.") ¶ 11.) She worked in multiple positions at CEDA from 1971 until 1983 and, in January 1989, CEDA rehired her as a housing coordinator at its Ford Heights facility. ( Id. ¶¶ 6-7.) In addition to working at CEDA, Bennett served as the mayor of Ford Heights, Illinois, for several years during the 1990s and 2000s and ran for mayor again in 2009. ( Id. ¶¶ 9-10.) In April 2009, CEDA directed Bennett to take a two-week unpaid leave of absence because she was working on her campaign. ( Id. ¶ 13.) During and after her 2009 campaign, Bennett began to receive poor performance reviews. These actions were intended to retaliate for her political activity. ( Id. ¶¶ 13-14.)
On January 3, 2011, CEDA eliminated Bennett's position but allowed her to apply for other open positions for which she was qualified. ( Id. ¶ 15.) Shortly thereafter, Bennett applied for the position of central intake specialist. ( Id. ¶¶ 16-18.) Although Bennett had previously held a similar position with CEDA, she did not receive the job. ( Id. ¶¶ 17, 20.) Instead, CEDA hired an individual under the age of forty. ( Id. ) Bennett asserts that she was fired and not rehired because of her age and her previous political activity.
Bennett filed a charge with the State of Illinois Department of Human Rights and was issued a right-to-sue letter on August 28, 2012. ( Id. ¶ 4.) She timely filed a pro se civil action against CEDA in the Circuit Court of Cook County, Illinois. ( Id. ¶ 5.) Bennett later retained an attorney who filed an amended complaint on her behalf. (Dkt. 17 ¶ 9.) CEDA removed Bennett's action from Illinois state court to this court and moved to dismiss Count II and the first paragraph of the amended complaint. (Dkt. 10.)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also establish that the requested relief is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations in the complaint must be "enough to raise a right of relief above the speculative level." Twombly, 550 U.S. at 555. At the same time, the plaintiff need not plead legal theories. Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). Rather, it is the facts that count.
I. Count II - Retaliation
CEDA has moved to dismiss Count II of Bennett's complaint on two bases. First, it argues that Bennett cannot claim retaliation under Illinois law for any adverse employment events other than termination. Second, it argues that Bennett's claim of termination in retaliation for her political activities should be dismissed as a matter of law because it did violate any clear public policy, as is required to maintain a retaliatory discharge claim under Illinois law.
A. Employment Actions Other Than Termination
In addition to terminating her employment for her political participation, Bennett alleges that CEDA retaliated against her by downgrading her performance evaluations, ordering her to take a two-week unpaid leave of absence, and failing to rehire her for the open position for which she applied. These are not cognizable claims under Illinois law, as the Illinois Supreme Court has repeatedly voiced its reluctance to expand the retaliatory discharge tort beyond situations of actual discharge. See Metzger v. DaRosa, 805 N.E.2d 1165, 1173, 209 Ill.2d 30, 282 Ill.Dec. 148 (2004) ("[T]his court has consistently sought to restrict the common law tort of retaliatory discharge" and has " never recognized a common law tort for any injury short of actual discharge.") (emphasis in original) (citations omitted); Zimmerman v. Buchheit of Sparta, Inc., 645 N.E.2d 877, 882, 164 Ill.2d 29, 206 Ill.Dec. 625 (1994) (refusing to expand tort of retaliatory discharge "to circumstances in which an employee suffers a loss of employment status or income or both, but is not terminated from her employment altogether"); see also Bush v. Commonwealth Edison Co., 778 F.Supp. 1436, 1447-48 (N.D. Ill. 1991) ...