United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. CHANG UNITED STATES DISTRICT JUDGE.
Torres has worked at Merck Sharp & Dohme as a customer
representative since 2007. R. 44, First Am. Compl. at
Torres alleges that Merck took away career opportunities
after finding out that he has rheumatoid arthritis and then
took further retaliatory action once Torres filed a complaint
with the Equal Employment Opportunity Commission (EEOC).
Id. at 4-5, 17-18. Torres contends that either his
disability or race or national origin was a motivating factor
in Merck's actions. Id. at 4. Along with the
substantive discrimination claims, he also alleges that the
company violated the Illinois Whistleblower Act, 740 ILCS
174/1 et seq., by retaliating against him when he
complained about the discrimination. First Am. Compl. at
17-19; see also R. 38, Pl.'s Resp.
Merck now moves to dismiss the state whistleblower claim
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
arguing that that claim is preempted by the Illinois Human
Rights Act, 775 ILCS 5/1-101 et seq. R. 6,
Def's. Mot. to Dismiss; see also R. 7,
Def.'s Br.; R. 41, Def.'s Resp. to Mot. for Leave
(construed as Defendant's reply to the motion to dismiss,
R. 43, Minute Entry, Jan. 12, 2017). For the reasons discussed
below, Merck's motion to dismiss is denied.
purposes of this motion, the Court accepts as true the
allegations in the First Amended Complaint. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Torres, a resident of
Illinois, started working for Merck, a New Jersey
corporation, in 2007. First Am. Compl. at 2. Torres served as
a Senior Customer Representative for the company, assigned to
the Lake Michigan West region (mostly in Cook County,
Illinois). Id. From June 2014 to late January 2015,
Torres promoted the sale of Januvia, one of Merck's drug
products, and saw significant regional success in his role.
Id. at 3. From February 2015 to July 2015, Torres
promoted Belsomra, a sleep aid. Id.
has rheumatoid arthritis, a disability that can lead to
difficulty in walking and performing other physical tasks, as
well as fatigue, fever, and joint stiffness. First Am. Compl.
at 2. From March 23 to April 10 of 2015, Torres was ill and
had to take sick leave from work. Id. at 3. About a
week after he returned, Torres told his immediate supervisor,
Chris Swanson, that he (Torres) had been diagnosed with
rheumatoid arthritis. Id. Torres needed to miss
another day because of illness on April 29, 2015, after which
Swanson told him not to let it happen again. Id.
month later, on May 21, Swanson allegedly congratulated
Torres on his “excellent performance” and then
went on to ask what medications Torres was taking for his
rheumatoid arthritis. First Am. Compl. at 4. Word of
Torres' condition seemed to spread, because a week after
that, Merck's Regional Director Rob Church asked Torres
if he had rheumatoid arthritis. Id. When Torres
responded to Church that he did have the ailment, Church
allegedly told Torres that, starting July 1, 2015, Torres
could no longer sell Belsomra. Id. Torres says this
was a “demot[ion], ” and as a result he has
received “fewer duties, responsibilities, and sales
expectations, less job security and is more susceptible for
layoff or job elimination than his previous position.”
Id. Torres' complaint also alleges an instance
of racial or national origin discrimination: in February of
2015, Torres' supervisor Jerry Lubben asked Torres, a
Mexican, “why Mexicans do not enjoy getting up early in
the morning.” Id. at 3.
filed charges of disability, race, national origin, and color
discrimination with the EEOC on July 21, 2015. First Am.
Compl. at 5. He maintains that Merck then falsely lowered his
2015 performance rating (which was released in March 2016),
putting him in the bottom 5th to 10th percentile of
employees, despite his previously acknowledged strong job
performance. Id. at 4. Torres argues that this
reduction of his work score, which he believes was based on
either disability, race, or national origin discrimination
(or associated retaliation), has also damaged his long term
career prospects and caused other types of suffering.
Id. at 4-5.
on these allegations, Torres brought ten counts against Merck
in the First Amended Complaint: (i) two American with
Disabilities Act violations, specifically, for the initial
demotion (Count 1) and the other for the subsequent false
performance rating (Count 7), First Am. Compl. at 1-9, 24-27;
(ii) two Title VII race discrimination counts, for demotion
(Count 2) and false ratings (Count 8), id. at 9-11,
27-30; (iii) race discrimination counts for demotion and
false ratings under 42 U.S.C. § 1981 (Counts 3 and 9),
id. at 11-14, 30-32; (iv) two Title VII national
origin discrimination counts, for demotion and false ratings,
(Counts 4 and 10), id. at 14-16, 33-36; (v) an
Illinois Whistleblower Act violation for retaliation (Count
5), 740 ILCS 174/1 et seq., id. at 17-19;
and (vi) a Title VII retaliation claim (Count 6),
id. at 20-23. Merck now moves to dismiss Count 5,
the Illinois whistleblower claim, for lack of subject matter
jurisdiction and failure to state a claim. See
Def.'s Mot. to Dismiss; Def.'s Br.
brings its motion under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Rule 12(b)(1) motions test whether the
Court has subject-matter jurisdiction, Hallinan v.
Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d
811, 820 (7th Cir. 2009); Long v. Shorebank Dev.
Corp., 182 F.3d 548, 554 (7th Cir. 1999), while Rule
12(b)(6) motions test the sufficiency of a complaint,
Hallinan, 570 F.3d at 820; Gibson v. City of
Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). When
reviewing a motion to dismiss under either rule, the Court
accepts as true all factual allegations in the complaint and
draws all reasonable inferences in the plaintiff's favor.
Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614,
618 (7th Cir. 2007).
Rule 8(a)(2), a complaint generally need only include
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). The complaint must “give the defendant fair
notice of what the ... claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (alteration in original) (internal quotation
marks and citation omitted). These allegations “must be
enough to raise a right to relief above the speculative
level, ” id., and must “contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face, '”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). The allegations entitled
to the assumption of truth are those that are factual, rather
than mere legal conclusions. Iqbal, 556 U.S. at
assessing a Rule 12(b)(1) motion, the plaintiff bears the
burden of establishing subject matter jurisdiction. Ctr.
for Dermatology & Skin Cancer, Ltd. v. Burwell, 770
F.3d 586, 588-89 (7th Cir. 2014). “When ruling on a
motion to dismiss for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1), the district
court must accept as true all well-pleaded factual
allegations, and draw reasonable inferences in favor of the
plaintiff.” Ezekiel v. Michel, 66 F.3d 894,
897 (7th Cir. 1995). “[A] factual challenge lies where
the complaint is formally sufficient but the contention is
that there is in fact no subject matter jurisdiction.
… [W]hen considering a motion that launches a factual
attack against jurisdiction, the 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.” Apex Digital, Inc. v. Sears, Roebuck &
Co., 572 F.3d 440, 444 (7th Cir. 2009) (internal
quotation marks omitted).
alleges that Merck violated the Illinois Whistleblower Act by
retaliating against Torres for filing a discrimination
complaint with the EEOC. First Am. Compl. at 17-19. In
response, Merck contends that this claim must be dismissed
because it “is preempted by the Illinois Human Rights