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Tritsis v. Bankfinancial Corp.

United States District Court, N.D. Illinois

September 21, 2016

MARY V. TRITSIS, Plaintiff,
v.
BANKFINANCIAL CORP., Defendant. v.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN, United States District Judge.

         Plaintiff, 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) [25]. 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 motion.

         Background

         Plaintiff's 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).

         Tritsis 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.

         Tritsis 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.

         Legal Standard

         A 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.

         Discussion

         Defendants 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.

         1. The Corporation

         The 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 Corporation.

         Defendants 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. Id.

         Here, 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 ...


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