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Zollicoffer v. Gold Standard Baking, Inc.

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

April 23, 2018

JAMES ZOLLICOFFER, ANTWOIN HUNT, and NORMAN GREEN, on behalf of themselves and similarly situated laborers, Plaintiffs,


          SARA L. ELLIS United States District Judge

         Plaintiffs James Zollicoffer, Antwoin Hunt, and Norman Green, individually and on behalf of other similarly situated job applicants, filed a sixth amended complaint (the “6AC”) against Defendants Gold Standard Baking, Inc. (“GSB”) and Personnel Staffing Group, LLC, doing business as Most Valuable Personnel (“MVP”), alleging race discrimination in violation of Title VII and 42 U.S.C. § 1981. Defendants jointly move to dismiss counts III through VI on the basis that Plaintiffs have not exhausted their administrative remedies and so cannot bring a claim under Title VII. GSB further brings a motion to dismiss counts I and II on the basis that Plaintiffs have not alleged a contractual relationship with them, which Defendants argue is necessary to maintain a claim under 42 U.S.C. § 1981. Because Plaintiffs acknowledge in their 6AC that they have not exhausted their administrative remedies, the Court grants Defendants' motion to dismiss counts III through VI with prejudice and strikes the class allegations brought under Title VII. However, Plaintiffs have adequately pleaded that GSB interfered with a potential contract to which Plaintiffs would have been party, satisfying the requirements of § 1981, and so the Court denies GSB's motion to dismiss counts I and II.


         GSB operates an industrial baking facility in Chicago, Illinois, and procures its employees by hiring them directly and through staffing agencies, including MVP. The majority of workers at GSB are Latino employees, and almost no African Americans are assigned to work there. MVP recruits low and moderately skilled laborers, with the majority of its advertisement conducted in Spanish-language media. When laborers seek an assignment through MVP, they make themselves available for referral to fill daily assignments at any of MVP's third-party client companies, including GSB.

         Beginning in 2009, the named Plaintiffs sought work assignments at MVP's client companies, including GSB, through MVP's Cicero office. Although they were qualified to work at GSB, they were repeatedly not selected to work at GSB. In refusing to assign Plaintiffs to GSB, MVP was complying with GSB's request not to assign African American workers to its facility. Plaintiffs also witnessed MVP pass over other qualified African Americans for assignments at MVP's client companies, including GSB, while other, similarly situated non-African Americans received assignments at GSB.

         On February 27, 2013, Brian Lucas, Aronzo Davis, and Torrence Vaughans filed the original complaint in this lawsuit. They amended it three times before the Court denied Defendants' motion to dismiss the third amended complaint. Since then, various combinations of the plaintiffs in this case have amended the complaint yet another three times, to change the factual allegations based on information learned in discovery, change the class definition, and swap out the original plaintiffs for the current ones. In the Fifth Amended Complaint, Norman Green replaced Torrence Vaughans as one of the named plaintiffs. In the 6AC, James Zollicoffer and Antwoin Hunt replaced Brian Lucas and Aronzo Davis as named plaintiffs. At this point, none of the original plaintiffs remain in the case, and, although the original plaintiffs filed EEOC charges regarding their claims in this action, none of the current named plaintiffs have done so.[2]


         A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.


         I. Defendants' Joint Motions to Dismiss Counts III - VI and Deny Class Certification

         Defendants argue that Plaintiffs' failure to bring EEOC charges related to their claims in the 6AC is fatal to their Title VII claims. They are correct.

         As a preliminary matter, the Court notes that while failure to exhaust is typically an affirmative defense plaintiffs do not need to address in their complaint, Plaintiffs have raised the issue themselves within the 6AC. Failure to exhaust administrative remedies is typically an affirmative defense, and “a plaintiff has no obligation to allege facts negating an affirmative defense.” Bibbs v. Sheriff of Cook County, No. 10 C 7382, 2011 WL 5509556, at *3 (N.D. Ill. Nov. 8, 2011) (internal quotation marks omitted). However, plaintiffs may plead themselves out of court-“[d]ismissal is appropriate in cases where it is clear from the face of the complaint that the plaintiff has failed to exhaust administrative remedies.” Id. This is precisely what Plaintiffs have done here. In the 6AC, they explicitly acknowledge that “Plaintiffs Zollicoffer, Hunt, and Norman Green have not filed charges with the EEOC.” Doc. 466 ¶ 10. In light of this, it is appropriate to address whether Plaintiffs' acknowledgement that none of them have personally exhausted their administrative remedies establishes an affirmative defense to counts III through VI that Plaintiffs cannot avoid.

         Plaintiffs also contend that Defendants waived their administrative exhaustion arguments when they did not raise them in response to Plaintiffs' motion to amend the fifth amended complaint. However, issues regarding administrative exhaustion may be brought under a Rule 12(b)(6) motion, Davis v. Potter, 301 F.Supp.2d 850, 855 (N.D. Ill. 2004), and Plaintiffs cite no support for their contention that Defendants waived this issue by not raising it in response to a motion to amend. The only decision that Plaintiffs cite in support of waiver is a case in which the plaintiffs submitted a motion to reconsider an order granting a motion to dismiss; in deciding the motion to reconsider, the court refused to consider arguments that the plaintiffs did not raise in their response to the motion to dismiss, holding that the plaintiffs forfeited those arguments. See County of McHenry v. Ins. Co. of the W., 438 F.3d 813, 817 (7th Cir. 2006). This decision is inapplicable here, where Defendants raised their failure to exhaust argument in their original motion to dismiss briefings. Defendants have not waived this issue.

         Thus, the Court turns to the substantive arguments regarding failure to exhaust administrative remedies. To bring a Title VII suit, a plaintiff must have filed a timely EEOC charge and received a right to sue letter. Allen v. City of Chicago, 828 F.Supp. 543, 555 (N.D. Ill. 1993). However, certain exceptions to this rule exist: known as the single-filing rule or “piggybacking, ” “[p]arties who have not filed charges with the EEOC may join as co-plaintiffs or as class members in a civil action with plaintiffs who have filed EEOC charges.” Byas v. Union Pac. R.R. Co., No. 06-cv-0475-MJR, 2007 WL 1021976, at *2 (S.D. Ill. Apr. 3, 2007); see also Anderson v. Montgomery Ward & Co., Inc., 852 F.2d 1008, 1017-18 (7th Cir. 1988) (“[P]laintiffs who have not timely filed a charge can rely on the timely charge of another plaintiff in a class action.”); Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1158 (7th Cir. 1999) (“[O]nce a Title VII class action is up and running the class members are not required to inundate the EEOC with what amount to meaningless requests for right to sue letters.”). There are limits to the single-filing rule: ...

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