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Gross v. The Peoples Gas Light And Coke Co.

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

January 24, 2018

JERRY GROSS, Plaintiff,


          Joan B. Gottschall United States District Judge

         Plaintiff 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.


         The 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 inconsequential.[1]

         Although 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.


         As a 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.

         “To 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.'”[2] 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)).

         III. ANALYSIS

         In the 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 expectations.

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))).

         A. People's Gas

         The AC contains the following allegations which bear on Gross' joint ...

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