United States District Court, N.D. Illinois
MARY V. TRITSIS, Plaintiff,
BANKFINANCIAL CORP., Defendant. v.
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN, United States District Judge.
Mary V. Tritsis, filed a two-count First Amended Complaint,
alleging gender discrimination and retaliation in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, as amended by the Civil Rights Act of 1991, 42
U.S.C § 1981a (“Title VII”) and the
Ledbetter Fair Pay Act, 42 U.S.C. § 2000e-5(e) .
Defendants, BankFinancial Corporation
(“Corporation”) and BankFinancial F.S.B.
(“Bank”) move to dismiss pursuant to Rule
12(b)(6) for failure to state a claim . For the reasons set
forth below, this Court grants in part and denies in part the
two-count First Amended Complaint alleges employment
discrimination and retaliation stemming from her employment
as a Senior Vice President with defendant Bank. The complaint
alleges that Tritsis began her employment around July 2003
and that she and the Bank have been parties to a written
employment agreement dated May 6, 2008, that has been amended
several times. The most recent amended to the employment
agreement extends through March 31, 2016, and is attached as
an exhibit to the complaint. (Dkt. 25-2, Exhibit 5).
alleges that during her employment, she and other female
executives were denied promotional opportunities, and Tritsis
was denied stock options, that were provided to similarly
situated male executives. Sometime in 2015, Tritsis learned
that her employment agreement would not be extended beyond
March 31, 2016. Tritsis notified Chief Executive Officer, F.
Morgan Gasior on August 31, 2015, that she believed the
refusal to extend her employment was retaliatory and gender
based. Bank offered to extend her employment agreement for an
additional year, if she released her claims against it.
filed a charge of discrimination against the Corporation on
December 14, 2015, with the EEOC and received a Right to Sue
letter. Tritsis filed the original complaint in this matter
naming only the Corporation as a defendant. This Court
granted the motion to dismiss the original complaint on June
30, 2016, finding that Tritsis did not adequately allege that
that the Corporation was an employer within the meaning of
Title VII and that the employment contract was between
Tritsis and the Bank, not the Corporation. Tritsis filed a
second EEOC charge on May 9, 2016, this one against the Bank,
and received the Right to Sue letter shortly thereafter. This
Court denied Tritsis leave to file her proposed Amended
Complaint, which was defective for the reasons stated in
Court on July 19, 2016, but granted Tritsis leave to file a
First Amended Complaint. Tritsis filed the instant First
Amended Complaint on July 21, 2016, naming both the
Corporation and the Bank as defendants.
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). When considering the 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. AnchorBank, FSB v.
Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
dismissal, the complaint must not only provide the defendant
with fair notice of a claim's basis, but must also be
facially plausible. Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007). “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.”
Iqbal, 556 U.S. at 678.
move to dismiss the complaint against the Corporation,
arguing that the Corporation is not an “employer”
within the meaning of Title VII because it lacks the minimum
number of employees and it is not a “joint
employer” with the Bank. Defendants move to dismiss the
complaint against the Bank because claims are untimely.
Court first considers whether Tritsis has adequately alleged
that the Corporation is her employer. Title VII defines
“employer” as: “a person engaged in an
industry affecting commerce who has fifteen or more employees
for each working day in each of twenty or more calendar weeks
in the current or preceding calendar year, and any agent of
such a person”. 42 U.S.C. § 2000e(b). An
“employee” is “an individual employed by an
employer”. 42. U.S.C. § 2000e(f). As this Court
previously found, the employment agreement attached to the
complaint is between plaintiff and the Bank, not the
argue that Tritsis has not alleged facts to support a
“joint employer” relationship. A “Title VII
plaintiff might have joint employers.”
Sklyarsky v. Means-Knaus Partners, LP, 777 F.3d 892,
895 (7th Cir. 2015) (emphasis in original). “[A]n
entity other than the actual employer may be considered a
‘joint employer' only if it exerted significant
control over the employee.” Whitaker v. Milwaukee
Cnty., Wis., 772 F.3d 802, 810 (7th Cir. 2014) (quoting
G. Heileman Brewing Co. v. NLRB, 879 F.2d 1526, 1530
(7th Cir. 1989) (emphasis and internal quotation marks
omitted)). “Factors to consider in determining joint
employer status are (1) supervision of employees'
day-today activities; (2) authority to hire or fire
employees; (3) promulgation of work rules and conditions of
employment; (4) issuance of work assignments; and (5)
issuance of operating instructions.” Whitaker,
772 F.3d at 810 (quoting DiMucci Constr. Co. v.
NLRB, 24 F.3d 949, 952 (7th Cir. 1994)). The Seventh
Circuit has also held that multiple entities may be
considered an employee's “employer” for the
purposes of Title VII liability where an affiliated
corporation “directed the discriminatory act, practice,
or policy of which the employee is complaining.”
Tamayo v. Blagojevich, 526 F.3d 1074, 1088 (7th Cir.
2008). The court in Tamayo explained that courts
must look to the “economic realities” of the
employment relationship as well as the degree of control.
Tritsis alleges that the Corporation exerted a significant
degree of control over her because the Corporation determined
her eligibility for stock options and the terms of the stock
option plan. Dkt. 25 at ¶¶ 35-36. The awarding of
stock options is also one of the alleged discriminatory acts.
Defendants rely on Clifford v. Patterson Companies,
Inc., No. 08 C 828, 2009 WL 3852447, at *9-10 (N.D. Ill.
Nov. 18, 2009)(Lefkow, J.), where the court found, albeit on
summary judgment, that the defendant was not a proper party
and should be dismissed because it was not a joint employer
despite issuing the plaintiff's paychecks, awarding him
company stock, and referring to him as an employee in its
stock agreement. In that case, the awarding of stock options
was only offered as evidence of a joint employer
relationship. By contrast, here, Tritsis is alleging that the
Corporation's stock options offer was itself ...