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Ayoubi v. Basilone

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

November 28, 2016

FIRAS M. AYOUBI, Plaintiff,
v.
JOE BASILONE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Hon. Amy J. St. Eve, Judge

         Plaintiff, Firas M. Ayoubi, a detainee at Cook County Jail, brought this pro se civil rights action pursuant to 42 U.S.C. §§ 1981, 1983. Presently before the Court is Defendant Samantha Yakush's (named as Samantha Hancock in the Third Amended Complaint) motion to dismiss, Defendant Danielle McGaughy's (named Daniele Henry in the Third Amended Complaint) motion to dismiss, and pro se Defendant Joe Basilone's request for dismissal.

         Background

         On January 22, 2014, Plaintiff filed his original complaint.[1] In his original complaint, Plaintiff alleged that on July 27, 2011, he was working at the Target Mobile store inside the Target store in Rosemont, Illinois. Target Mobile was a subsidiary of RadioShack. While on a break outside the store, Plaintiff noticed a person grab a bicycle and ride off. An older man then told Plaintiff that his bike had been stolen, after which Plaintiff called the police. Rosemont Police Officers Fiorito, Nichols, and two other unknown officers, responded to the call and took Plaintiff's witness statement. For an unknown reason, the police officers eventually demanded Plaintiff's identification, and ran Plaintiff's name through the Law Enforcement Agencies Data System (“LEADS”) computer terminal in the officers' squad car. Plaintiff believes this was wrong because he was a witness to a crime, not a suspect. The LEADS search revealed that Plaintiff had a prior conviction of indecent solicitation of a minor in 2007. Thereafter, the Rosemont police officers decided to disclose the prior conviction to the Target Asset Protection Manager (identified in the Complaint by title and Target Employee 1). According to Plaintiff, the police officer who reported Plaintiff's prior conviction also added false details, calling Plaintiff a “rapist” and a “threat to the community and Target customers.” Plaintiff does not disclose the exact details of his convictions in his Complaint, but claims that these comments were slanderous because he never had any physical contact with the victim. Plaintiff further complains about the police officers' harassment, asserting that he disclosed his conviction when applying for the job at Target. After the police officers related Plaintiff's prior conviction, along with the additional false statements, Target (and RadioShack) terminated Plaintiff's employment.

         Including only those individuals relevant to the current motions, Plaintiff named the following individuals as Defendants in his original Complaint: Chief Executive Officer of Target Corporation Gregg Steinhafel; Head of Human Resources for Target Corporation John J. Mulligan; Asset Protection Manager of the Rosemont Store as “Target Employee 1;” Chief Executive Officer of RadioShack Corporation Joe Magnacca; Head of Human Resources for RadioShack Corporation Telvin P. Jeffries; and District Manager for North Chicagoland of RadioShack Corporation Joe Basilone.

         Plaintiff's original Complaint sought monetary relief for the alleged wrongful disclosure of his prior conviction information and his employment termination. Specifically, Plaintiff brought claims under 42 U.S.C. § 1983 (Count I), 42 U.S.C. § 1981 (Count II), 42 U.S.C. § 1982 (Count III), Title VII, 42 U.S.C. § 2000e, et seq., (Count IV), Intentional Infliction of Emotional Distress (“IIED”) (Count V), the Federal Privacy Act (Count VI), Unlawful Disclosure of Eyewitness Information (Count VII), the Illinois Uniform Conviction Information Act (Count VIII), the Illinois Criminal Identification Act (Count IX), Defamation of Character, Libel, and Slander (Count X), Wrongful Termination (Count XI), the Federal Victim and Witness Protection Act (Count XII), and Obstruction of Justice (Count XIII).

         On June 12, 2014, the Court conducted an initial review of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A. The Court dismissed Count I with prejudice because the applicable statute of limitations barred Plaintiff's claims brought pursuant to Section 1983. The Court dismissed Plaintiff's Title VII religious discrimination claim and § 1981 race discrimination claim as alleged in Counts II and IV without prejudice for failure to sufficiently plead each claim and granted Plaintiff leave to amend these allegations. In addition, the Court dismissed Count III with prejudice because he had not alleged discrimination in the context of the sale or rental of property. The Court dismissed Plaintiff's IIED claim, Count V, with prejudice because it was untimely. Counts VI, VII, VIII, XI, XII and XIII were dismissed with prejudice for failure to state a claim. Finally, the Court dismissed Count X with prejudice as untimely.

         On July 25, 2014, the Court received Plaintiff's Amended Complaint, dated July 2014. In his Amended Complaint, Plaintiff repeated his allegations related to his termination of employment. On December 11, 2014, the Court permitted Plaintiff to proceed with his Section 1981 employment discrimination claim against the individuals involved in the alleged discrimination. These Defendants included the asset manager (identified as Target Employee 1), store manager (identified at Target Employee 2), Human Resource Directors John Mulligan, Telvin Jeffries, and District Manager Joe Basillone. Defendants Target Corporation, RadioShack Corporation, Gregg Steinhafel, Chief Executive Officer of the Target Corporation, and Joe Magnacca, Chief Executive Officer of RadioShack were dismissed. The Court also informed Plaintiff that he must name the asset manager and store manager if he wished to pursue claims against them. Further, the Court instructed him that if he did not know their names, he should name them as John Does in an amended complaint.

         Defendant John Mulligan was served and on February 3, 2015, the Court put in place a briefing schedule on Mulligan's expected motion to dismiss. In addition, the Court dismissed without prejudice Defendants Target Employee 1 and Target Employee 2 because Plaintiff failed to comply with the Court's December 11, 2014, Order as to these Defendants. On March 30, 2015, the Court issued a show cause order due to Plaintiff not responding to Mulligan's motion to dismiss. On May 7, 2015, the Court dismissed the show cause order based on Plaintiff's averment that he had not received a copy of Mulligan's motion nor the court order setting a briefing schedule.

         On May 29, 2015, the Court received Plaintiff's Second Amended Complaint. The Second Amended Complaint did not name Mulligan as a party. The allegations in the Second Amended Complaint remained unchanged as to the other Defendants.

         On July 20, 2015, the Court recruited counsel for Plaintiff solely for the purpose of assisting Plaintiff in identifying and serving the proper Defendants. On October 21, 2015, the Court dismissed Defendant Jeffries without objection. On December 21, 2015, Plaintiff was given until January 21, 2016, to submit a third amended complaint. On January 12, 2016, Plaintiff was granted an extension of time to submit his third amended complaint. On March 1, 2016, Plaintiff's Third Amended Complaint was received.

         In his Third Amended Complaint, Plaintiff alleges that he was working at Target Mobile, a subsidiary of RadioShack, contracted by Target to conduct wireless contract sales in Target stores.

         While standing outside his job taking a break in Rosemont, Illinois on July 27, 2011, Plaintiff observed someone stealing a bicycle and he called the police. The responding officers were unprofessional and harassed Plaintiff. The police also searched LEADS for information on Plaintiff. LEADS revealed that Plaintiff had a prior conviction for indecent solicitation. The police then informed the Target Asset Protection Manager (Samantha Yakush) that Plaintiff was a “predator child rapist” and a “Muslim Arab.” The Asset Protection Manager (Yakush) made derogatory comments about Plaintiff, and with the store manager, contacted “Corporate.” According to Plaintiff, a witness heard the Asset Protection Manager (Yakush) tell “H.R” that an “Arab Islamic convicted rapist” was working by the “babies section.” Target's Head of Human Resources (still an unidentified Defendant) then contacted RadioShack's Head of Human Resources (Marvin Fisher) to discuss Plaintiff's conviction (with false enhancements provided by the police) and specifically of Plaintiff's race and religion. Subsequently, RadioShack Human Resources (Fisher) told Joe Basilone to fire Plaintiff. Joe Basilone told Plaintiff that “Corporate” decided to terminate his employment because he “was not only a sex offender” but also an “Arab Muslim working in a store managed by white people.” Basillone also allegedly told Plaintiff that “Target's CEO is old school and conservative . . . We don't want to mess up relationships with Target.” Plaintiff alleges that Target employees contacted “H.R. of Target” solely for the purpose of getting him fired because of his race.

         On March 3, 2016, Plaintiff was allowed to proceed on his Section 1981 employment discrimination claim in his Third Amended Complaint against RadioShack District Manager Joseph Basilone, RadioShack Regional Human Resource Director Marvin Fisher, Asset Manager Samantha Yakush, and Target Human Resources Executive Team Leader Danielle McGaughy. ...


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