United States District Court, N.D. Illinois, Eastern Division
JAMES ZOLLICOFFER, ANTWOIN HUNT, and NORMAN GREEN, on behalf of themselves and similarly situated laborers, Plaintiffs,
GOLD STANDARD BAKING, INC., PERSONNEL STAFFING GROUP, LLC d/b/a MOST VALUABLE PERSONNEL d/b/a MVP, Defendants.
OPINION AND ORDER
L. ELLIS United States District Judge
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.
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.
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.
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
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.
Defendants' Joint Motions to Dismiss Counts III - VI and
Deny Class Certification
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.
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.
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.
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