United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Gottschall United States District Judge
Jerry Gross (“Gross”) has filed a five-count
amended complaint (“AC”, ECF No. 21) alleging
various violations of federal civil rights statutes: Count I:
Race Discrimination-Failure to Promote; Count II: Race
Discrimination-Hostile Environment; Count III: Disability
Discrimination; Count IV: Age Discrimination; and Count V:
Retaliation. The defendants are The Peoples Gas Light and
Coke Company (“Peoples Gas”) and WEC Energy
Group, Inc. (“WEC”). Both defendants move jointly
to dismiss for lack of subject matter jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(1), arguing that
neither was Gross' employer, and Gross has not alleged
enough to entitle him to proceed on a joint employer theory.
For the reasons stated below, the court finds the allegations
against Peoples Gas sufficient at this point to allow Gross
to proceed on a joint employer theory as to that defendant.
With respect to WEC, however, the court finds the allegations
insufficient and grants WEC's motion to dismiss it as a
party defendant. The AC is dismissed, with leave to replead,
to the extent it asserts claims against WEC.
BACKGROUND FACTUAL ALLEGATIONS
corporate relationships involved are complicated by the
AC's lack of clarity but otherwise are fairly ordinary.
Gross became employed by Integrys Business Support LLC
(“IBS”) on June 4, 2012, in the position of
Safety Consultant in the Human Resources Department. AC
¶ 5. In 2015, WEC acquired Peoples Gas and Integrys
Energy Group (“Integrys Energy”) and, according
to paragraph 7 of the AC, “its subsidiaries,
including Peoples Gas and Integrys Business Support, LLC
(“IBS”).” (Emphasis added.) The meaning of
“its” here is mysterious. Does Gross mean that
Peoples Gas and IBS are or were subsidiaries of WEC or of
Integrys Energy? Confusing, but probably
Gross' description of the corporate history is confusing,
the important points are not complex and largely
uncontroverted by the parties. Gross was employed by IBS on
June 4, 2012. In 2015, WEC acquired IBS. IBS was renamed WBS
and IBS employees became WBS employees. Thus, it is agreed
that Gross was originally an employee of IBS and in 2015, due
to corporate acquisitions and name changes, he became an
employee of WBS. Beyond that, there is much controversy.
preliminary matter, although both parties appear to treat the
issue of whether Gross has adequately alleged his joint
employer theory as jurisdictional, the court does not agree.
In an analogous case, dealing with Title VII's
requirement that to be liable, an employer must have fifteen
or more employees, the Supreme Court ruled that there is
nothing in Title VII indicating that Congress intended to
make the employee-numerosity requirement jurisdictional.
Arbaugh v. Y & H Corp., 546 U.S. 500, 502
(2006). Similarly, courts treat the issue of whether a Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §
201 et seq., defendant is an employer or a joint
employer as an element of plaintiff's claim, not as a
jurisdictional requirement. Brown v. ABM Indus.,
Inc., No. 15 C 6729, 2015 WL 7731946, at *3 (N.D.
Ill.Dec. 1, 2015). And the Seventh Circuit recently treated
joint-employment questions under Title VII as merits issues,
reviewing the propriety of summary judgment, rather than as
jurisdictional matters. Nischan v. Stratosphere Quality,
LLC, 865 F.3d 922, 928-30 (7th Cir. 2017). The court
finds the analysis set forth in these cases applicable and
persuasive here. Whether Peoples Gas and WEC are liable as
Gross' employers is a merits question, not a
jurisdictional one. The court accordingly treats
defendants' motion as a Rule 12(b)(6) motion to dismiss
for failure to state a claim.
survive a [Rule 12(b)(6)] motion to dismiss, a complaint 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 Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. When deciding a Rule 12(b)(6)
motion, the court must “construe the complaint in the
‘light most favorable to the' plaintiff.”
Zahn v. N. Am. Power & Gas, LLC, 847 F.3d 875,
877 (7th Cir. 2017) (quoting Bell v. City of
Chicago, 835 F.3d 736, 738 (7th Cir. 2016)). The court
also assumes that all of the well-pleaded facts in the
complaint are true and draws reasonable inferences in the
plaintiff's favor. See Iqbal, 556 U.S. at 678;
Collins v. Vill. of Palatine, 875 F.3d 839,
842 (7th Cir. 2017) (citing McCauley v. City of
Chicago, 671 F.3d 611, 615-16 (7th Cir. 2011));
Tagami v. City of Chicago, 875 F.3d 375, 877 (7th
Cir. 2017) (citing United Cent. Bank v. Davenport Estate
LLC, 815 F.3d 315, 318 (7th Cir. 2016)).
Seventh Circuit, “a plaintiff can, under certain
limited circumstances, bring a [Title VII] claim against a
defendant who is not his direct employer.”
Nischan, 865 F.3d at 928 (quoting Love v. JP
Cullen & Sons, Inc., 779 F.3d 697, 701 (7th Cir.
2015)) (alteration omitted).A five-factor test applies to
claims of joint employment; under it, the first factor, the
“right to control and supervise . . . is the most
important.” Id. at 929 (citing Love,
779 F.3d at 703). The five factors follow:
(1) extent of the employer's control and supervision over
the worker, including directions on scheduling and
performance of work, (2) the kind of occupation and nature of
skill required, including whether skills are obtained in the
workplace, (3) responsibility for the costs of operation,
such as equipment, supplies, fees, licenses, workplace, and
maintenance of operations, (4) method and form of payment and
benefits, and (5) length of job commitment and/or
Id. (quoting Knight v. United Farm Bureau Mut.
Ins. Co., 950 F.2d 377, 378-79 (7th Cir. 1991))
(alterations and other citation omitted); see also
Dittmann v. ACS Human Servs. LLC, 210 F.Supp.3d 1047,
1053 (N.D. Ind. 2016) (stating in joint-employment case that
“the ADA define[s] employer as it is defined for
purposes of Title VII in section 2000e(b)” (citing 42
U.S.C. §§ 2000ff(2)(B), 12111(5))).
contains the following allegations which bear on Gross'