United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Diahann Grasty filed the consolidated suits against her former employer, Cambridge Integrated Services Group, Inc.; Cambridge's successor, Sedgwick Claims Management Services, Inc.; and Lawrence M. Adelman, the trustee to whom Cambridge assigned its remaining assets after selling its business to Sedgwick. The consolidated complaint purports to state a hostile work environment claim against Cambridge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., a Title VII successor liability claim against Sedgwick, and a claim for declaratory and injunctive relief against Adelman concerning Grasty's pending workers' compensation claim. Doc. 42 (all record citations are to the docket in 13 C 2522). These suits have had a long and tangled procedural history-involving, among other things, a transfer between districts, reassignments among judges of this District, dismissals, and reinstatements-the details of which are immaterial here.
As matters now stand, Cambridge and Sedgwick have moved to dismiss the claims against them under Federal Rule of Civil Procedure 12(b)(6), Docs. 48, 50, and Adelman has moved to dismiss the claim against him under Rule 12(b)(1) for lack of ripeness, Doc. 52. For the following reasons: (1) Cambridge's motion is denied; (2) Sedgwick's motion is denied; and (3) the claim against Adelman is severed under Rule 21, a new case is opened to encompass that claim, and Adelman's motion to dismiss on ripeness grounds is denied without prejudice to renewal if subject matter jurisdiction is found to otherwise lie over the new case.
Adelman's Rule 12(b)(1) motion accepts as true the facts alleged in the complaint, Doc. 52 at 3-5, so his challenge to subject matter jurisdiction is facial rather than factual. See Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009). On a facial challenge to subject matter jurisdiction, as on a Rule 12(b)(6) motion to dismiss, the court must accept as true the complaint's well-pleaded factual allegations, with all reasonable inferences drawn in the plaintiff's favor, but not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012); Apex Digital, 572 F.3d at 443-44; Patel v. City of Chicago, 383 F.3d 569, 572 (7th Cir. 2004). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, " along with additional facts set forth in Grasty's brief opposing dismissal, so long as those facts "are consistent with the pleadings." Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The facts are set forth as favorably to Grasty as permitted by these materials. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).
In October 2008, Grasty began working for Cambridge as a customer service agent in a call center. Doc. 42 at ¶ 7. Grasty let it be known that she is Buddhist. Id. at ¶ 9. Her co-workers, most of whom were Christians, began harassing her with comments like "This is the Lord's building, " "You are the devil, " and "We don't want you here." Id. at ¶¶ 11-12. Grasty reported the harassment to her supervisors, one of whom recommended that she seek other employment and some of whom joined in the harassment. Id. at ¶¶ 14-24. On one occasion, a female coworker pushed Grasty into a locker because of her religion. Id. at ¶ 25. The manager to whom Grasty complained asked the co-worker to apologize but did not discipline or reprimand her. Id. at ¶ 26. As a result of the harassment, Grasty experienced severe stress, anxiety and pain, and was diagnosed with more than one mild heart attack or anxiety attack. Id. at ¶¶ 27-28.
On November 28, 2010, one of Grasty's co-workers struck Grasty on the head because she was angry that a Buddhist had won an office lottery. Id. at ¶ 30. Grasty reported the incident to her supervisor, who told her to report it to a manager. Id. at ¶ 33. The assailant apologized, but Grasty told her manager that she was concerned about her personal safety. Id. at ¶ 39. When Grasty told her supervisor that she wanted to work in a safe environment and was still experiencing pain from the attack, the supervisor asked if she wanted the entire call center fired. Id. at ¶¶ 41-42. Grasty saw a doctor in December 2010 about the pain she was suffering due to that attack, and the doctor excused Grasty from work for several weeks. Id. at 44-45. Grasty filed a workers' compensation claim, which remains pending before the Illinois Workers' Compensation Commission ("IWCC"). Id. at ¶¶ 46-47.
On December 22, 2010, Grasty called the Equal Employment Opportunity Commission ("EEOC") to ask about filing a religious discrimination charge against Cambridge. Doc. 60-1 at 2(¶ 1), 5. The EEOC assigned transaction number XXXXXX-XXXXXX to the call. Id. at 2 (¶ 2), 5. The EEOC sent Grasty a blank intake questionnaire, which she completed and mailed to the EEOC's Chicago District Office on or about January 1, 2011. Id. at 2 (¶¶ 2-3), 5, 7-10; Doc. 42 at ¶ 48; Doc. 42-1 at 4-7. The questionnaire set forth her name and the name and address of her employer (Cambridge); indicated that the basis for her claim was religious discrimination; provided substantial detail about the alleged events underlying the claim; identified witnesses to those alleged events; stated her intent to file a charge of discrimination; and authorized the EEOC to look into her claims. Doc. 60-1 at 2 (¶ 4), 7-10. Shortly after thirty days had passed, Grasty called the EEOC for an update, and an EEOC employee told her that the EEOC had received the questionnaire and would contact her in the future. Id. at 2 (¶ 5). Shortly after that conversation, Grasty received a letter from the EEOC regarding the matter, though she cannot locate it now. Id. at 2 (¶ 6).
More than two years later, on August 15, 2013, Grasty visited the EEOC's Chicago District Office. Id. at 3 (¶ 7). An EEOC employee told her that the Chicago District Office has assigned Charge No. 846-2011-22173 to her charge of discrimination and that the charge had been dismissed on April 11, 2011. Ibid. Grasty's court-recruited attorney then contacted the Chicago District Office to request a right-to-sue letter, and the EEOC refused. Id. at 2 (¶¶ 8-9), 20-38. According to the EEOC, its records showed that Grasty called the EEOC on December 27, 2010; that the call was assigned Inquiry Number XXX-XXXX-XXXXX; that the inquiry was closed on April 3, 2011, because the EEOC had not received any written documentation from Grasty by that date; that "a search of all our records does not show receipt of any documentation prior to October 25, 2013 that can be considered a timely filing of a charge of discrimination under our laws"; and that, as a result, the EEOC would not re-open the inquiry. Id. at 32.
In the meantime, on or about May 31, 2011, Cambridge sold its business operations to Sedgwick and terminated Grasty's employment. Doc. 42 at ¶ 49. In September 2011, Cambridge assigned its remaining assets to Adelman as trustee under an Assignment for the Benefit of Creditors. Id. at ¶ 50. As trustee, Adelman assumed the duty of disposing of Cambridge's remaining assets. Id. at ¶ 51. Grasty filed a proof of claim with Adelman pertaining to her pending workers' compensation claim. Id. at ¶ 52; Doc. 60-1 at 40. On her proof of claim, Grasty attested that she was entitled to $1, 248, 000 of workers' compensation benefits for total disability. Doc. 62-1 at 2. The IWCC has not yet resolved Grasty's workers' compensation claim, and she has not received any workers' compensation benefits or any disbursements from Adelman. Doc. 42 at ¶¶ 47, 53.
In January 2013, Adelman sent a letter to Cambridge's creditors, including Grasty, reporting on the status of the Assignment for the Benefit of Creditors; the letter noted that an initial distribution was forthcoming and stated that "[i]n budgeting for the initial distribution, we have reserved funds for the unresolved litigation cases and claims, as well as anticipated future priority and administrative claims for expenses incurred over the remaining life of the trust." Doc. 60-1 at 42. Nonetheless, Adelman does not intend to disburse any funds to Grasty or to hold any funds in reserve in the event the IWCC awards her workers' compensation benefits. Doc. 42 at ¶ 54. On December 14, 2011, Adelman rejected (rather than held in abeyance) Grasty's claim. Doc. 62-1 at 12. Grasty does not challenge in this case the IWCC's handling of her workers' compensation action. Doc. 42 at ¶ 47 n.5.
Cambridge argues that Grasty's Title VII claim should be dismissed because she did not exhaust her administrative remedies before filing suit. Doc. 50 at 7-13. This is so, Cambridge contends, for two reasons: (1) Grasty never filed an administrative charge with the EEOC; and (2) the EEOC never issued ...