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Torres v. Merck Sharp & Dohme Corp.

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

June 8, 2017




         Antonio Torres has worked at Merck Sharp & Dohme as a customer representative since 2007. R. 44, First Am. Compl. at 2.[1] 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;[2] see also R. 38, Pl.'s Resp. Br.[3] 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).[4] For the reasons discussed below, Merck's motion to dismiss is denied.

         I. Background

         For 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.

         Torres 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.

         About a 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.

         Torres 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.

         Based 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.

         II. Standard

         Merck 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).

         Under 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 678-79.

         In 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).

         III. Analysis

         Count 5 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 ...

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