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Fencl v. Heidrick

United States District Court, N.D. Illinois, Eastern Division

March 11, 2015

WENDY FENCL, Plaintiff,


CHARLES P. KOCORAS, District Judge.

This matter comes before the Court on the motion of Defendant Karleen Mussman ("Mussman") to dismiss Count II of Plaintiff Wendy Fencl's ("Fencl") complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). For the reasons set forth below, the motion to dismiss Count II is granted without prejudice. Fencl is given seven (7) days to amend her complaint consistent with this order.


For the purposes of the instant motion, the following well-pleaded allegations derived from Fencl's complaint are accepted as true. The Court draws all reasonable inferences in favor of Fencl. According to the allegations contained in the complaint, Fencl is fifty-five years old. She is a resident of Willowbrook, Illinois. Defendant Heidrick and Struggles International Inc. ("Heidrick") is an executive search firm that is incorporated in Delaware and does business in Chicago, Illinois. Mussman is a resident of Oak Park, Illinois. Fencl claims Mussman is in her forties. Heidrick employed Fencl around June 1, 2011 as an External Consultant. In 2012, Heidrick hired Fencl full-time as its Global Director of Talent Management. Fencl alleges that she earned consistent positive performance reviews during her employment with Heidrick.

In late April or May 2013, Heidrick hired Mussman, as its Senior Vice President of Human Resources. Around July 2013, Judy Braun ("Braun"), Vice President of Talent Development and Fencl's direct supervisor, separated from Heidrick. For approximately five months following Braun's departure, Hencl performed Braun's job responsibilities while Heidrick searched for a permanent replacement for Braun's role. Mussman would give Fencl compliments on her performance in Braun's role and thanked her for ensuring that the department continued to function smoothly.

During this time, on five separate occasions, Fencl asked Mussman, who was in charge of hiring Braun's replacement, to consider Fencl for promotion to the permanent Vice President of Talent Development position. In fact, prior to Mussman joining Heidrick, Fencl claims that Heidrick had identified Fencl as Braun's successor for this position in its formal succession plan. Despite Fencl's repeated requests, Mussman refused to consider her for the role. Instead, around December 2013, Mussman hired Jill Attkisson ("Attkisson") for the position, a woman fifteen years younger than Fencl. Fencl alleges that Attikisson had far less professional experiences and qualifications than her.

Soon thereafter, Fencl asked Mussman about why she was not considered for the promotion to Vice President of Talent Development. Mussman allegedly became angry and first responded by pretending not to know Fencl was interested in the position. Then, Mussman supposedly started to accuse Fencl of not being sufficiently "aggressive" in pursuing the position. Mussman subsequently required Fencl to train Attkisson for the role. On February 7, 2014, Mussman terminated Fencl's employment with Heidrick because Mussman was allegedly still upset with Fencl for questioning her hiring decision.

When terminating Fencl's employment, Mussman allegedly told Fencl that she had decided to take "the training department in a new direction" and that she was "eliminating" Fencl's position. However, Fencl claims that a month and a half prior to her termination, Heidrick had publically posted Fencl's Global Director of Talent Development position for hire. Fencl alleges that after her termination, Heidrick had not taken the training department in a new direction or changed any of the programs in place at the time of Fencl's employment.

On April 1, 2014, Fencl filed a charge with the Equal Employment Opportunity Commission (the "EEOC") alleging age discrimination in violation of the Age Discrimination in Employment Act (the "ADEA"). At the EEOC, Fencl alleges that Heidrick changed its story, and instead claimed to have terminated her for performance problems. On October 27, 2014, Fencl received her Notice of Right to Sue from the EEOC.

On November 13, 2014, Fencl filed a two-count complaint, asserting: one claim for age discrimination in violation of the ADEA against Heidrick (Count I); and a state law claim for intentional interference with employment/prospective economic advantage ("tortious interference") against Mussman (Count II).

On January 12, 2015, Mussman moved to dismiss Count II of Fencl's complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6).


I. Rule 12(b)(1)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the Court's subject matter jurisdiction. "The standard of review for a Rule 12(b)(1) motion to dismiss depends on the purpose of the motion." Bolden v. Wells Fargo Bank, N.A., 2014 WL 6461690, at *2 (N.D. Ill. Nov. 18, 2014) (citing Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009)). "If a defendant challenges the sufficiency of the allegations regarding subject matter jurisdiction (a facial challenge), the Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiffs favor." Bolden, 2014 WL 6461690, at *2 (citing United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003)). A factual challenge to the court's subject matter jurisdiction, on the other hand, is based on the assertion that "the complaint is formally sufficient but... there is in fact no subject matter jurisdiction." United Phosphorus, 322 F.3d at 946 (emphasis in original). When considering a factual challenge to the court's jurisdiction, "[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Evers v. Astrue, 536 F.3d 651, ...

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