United States District Court, N.D. Illinois, Eastern Division
KENNETH E. SIMON, Plaintiff,
EFIE'S CANTEEN, d/b/a CHICAGO CUBS BAR & GRILL, DEMITRA ZERVAS, GEORGE ZERVAS, EFIE SPYROPOULOS, PETER SPYROPOULOS, and YOUNES ABUIRMEILEH, Defendants.
MEMORANDUM OPINION AND ORDER
I. SCHENKIER United States Magistrate Judge
Simon, a Jewish man, brought this suit pro se
against Efie's Canteen, d/b/a Chicago Cubs Bar &
Grill, alleging that it unlawfully terminated his employment
as a waiter because of his religion in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. Doc. 1. After some procedural hiccups, Simon
filed an amended complaint, adding as defendants Younes
Abuirmeileh, the restaurant's general manager; Demitra
Zervas and Efie Spyropoulos, its co-owners; and George Zervas
and Peter Spyropoulos, their husbands. Doc. 30. Simon then
amended his complaint a second time, Doc. 34, and a third,
Doc. 36. The third amended complaint alleges wrongful
termination and a hostile work environment on the basis of
religion, race, and national origin under Title VII and 42
U.S.C. § 1981. Ibid.
now move under Civil Rules 12(b)(6) and 12(f) to strike
Simon's first, second, and third amended complaints
and/or to dismiss all of his claims except his original Title
VII claim against Efie's. Doc. 42. Given Simon's
pro se status when he filed his amended
complaints-counsel appeared on his behalf after
Defendants' motion was fully briefed, Doc. 57-the absence
of material new factual allegations, and the early stage of
this litigation, Defendants' motion to strike is denied
and the third amended complaint will be deemed the operative
complaint. See Kaba v. Stepp, 458 F.3d 678, 687 (7th
Cir. 2006) (“It is, by now, axiomatic that district
courts have a special responsibility to construe pro
se complaints liberally and to allow ample opportunity
for amending the complaint when it appears that by so doing
the pro se litigant would be able to state a
meritorious claim.”) (internal quotation marks
omitted); Marshall v. Knight, 445 F.3d 965, 970 (7th
Cir. 2006) (holding that the pro se plaintiff
“should … have been allowed to add a retaliation
claim based on his allegations about the adverse treatment he
encountered after filing his original civil rights
complaint”). That said, because the complaint alleges
that Defendants discriminated against Simon because he is
Jewish, it presents only a religious discrimination claim
under Title VII and a race discrimination claim under §
1981; as Simon's newly retained counsel acknowledged at a
recent hearing, Doc. 61, he does not have a viable national
origin claim under either statute. See Shott v.
Katz, 829 F.3d 494, 497 (7th Cir. 2016) (“Jews are
among the ‘identifiable classes of persons' [§
1981] protects.”) (quoting Saint Francis Coll. v.
Al-Khazraji, 481 U.S. 603, 613 (1987)); Lapine v.
Edward Marshall Boehm, Inc., 1990 WL 43572, at *5 (N.D.
Ill. Mar. 28, 1990) (“[S]tating that one is Jewish
gives no indication of that individual's country of
origin. … Jews, like Catholics and Protestants, hail
from a variety of different countries.”).
these parameters set, and for the reasons stated below,
Defendants' motion to dismiss is granted in part and
denied in part.
resolving a Rule 12(b)(6) motion, the court assumes the truth
of the operative complaint's well-pleaded factual
allegations, though not its legal conclusions. See Zahn
v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th
Cir. 2016). The court must also consider “documents
attached to the complaint, documents that are critical to the
complaint and referred to in it, and information that is
subject to proper judicial notice, ” along with
additional facts set forth in Simon's brief opposing
dismissal, so long as those additional facts “are
consistent with the pleadings.” Phillips v.
Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20 (7th
Cir. 2013). The facts are set forth as favorably to Simon as
those materials allow. See Pierce v. Zoetis, Inc.,
818 F.3d 274, 277 (7th Cir. 2016). In setting forth those
facts at the pleading stage, the court does not vouch for
their accuracy. See Jay E. Hayden Found. v. First
Neighbor Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010).
is Jewish. Doc. 36 at p. 16, ¶¶ 66-67. In Summer
2014, he began working part-time as a waiter at Efie's
restaurant, which is located in O'Hare International
Airport. Id. at p. 6, ¶ 5. He transitioned
months later to a full-time position. Id. at p. 8,
¶ 15. After two brief hiatuses-one to pursue another
job, and the other health-related-Simon returned to full-time
work at the restaurant in August 2015. Id. at pp.
9-10, ¶¶ 21-24. Over the next three months, Simon
observed that Abuirmeileh, the general manager,
“ignore[d] and avoid[ed him] at all cost[s].”
Id. at p. 10, ¶ 28. Making his morning rounds,
Abuirmeileh would pointedly fail to greet Simon. Id.
at p. 10, ¶ 29. At other times, Abuirmeileh would
deliberately walk in the opposite direction so as not to
interact with Simon. Id. at p. 11, ¶ 30.
Abuirmeileh would regularly purchase coffee for other
coworkers, but never for Simon. Id. at p. 11, ¶
November 2015, Simon's airport badge-a prerequisite for
working at the restaurant- was up for renewal. Id.
at pp. 11-12, ¶¶ 40-43. “Doreen, ” a
manager at the restaurant, initially told Simon that he would
have to wait several weeks to complete the relevant
paperwork. Id. at p. 12, ¶ 42. Then, on
November 24, Doreen told Simon that he would have to speak
with George Zervas about the badge renewal. Id. at
p. 12, ¶ 45. Doreen also began to scrutinize the orders
Simon entered into the restaurant's computer system.
Id. at pp. 12-13, ¶ 46. Later that day, Simon
spoke to Zervas, who said he would have to speak to
Abuirmeileh about the badge issue. Id. at p. 13,
Simon reached Abuirmeileh by phone and asked for help in
renewing the badge, Abuirmeileh responded, “hell
no.” Id. at p. 14, ¶ 53. After
Abuirmeileh stated that he would not allow Simon to renew his
badge, Simon asked if Abuirmeileh was firing him, and
Abuirmeileh replied that Simon had a “bad
attitude.” Id. at p. 14, ¶¶ 54-55.
Abuirmeileh provided no explanation for his decision to fire
Simon, and said that he would not provide a termination
letter for unemployment compensation purposes. Id.
at p. 14, ¶¶ 56-58. Abuirmeileh ended the call by
stating that he “[didn't] need a Jew working for
[him].” Id. at p. 14, ¶ 59. Throughout
the course of his employment at the restaurant, Simon had
been an exemplary employee, with high sales and no record of
discipline. Id. at p. 11, ¶¶ 35-39.
Title VII Claims Against the Individual Defendants
Simon's counsel acknowledged at the hearing, Simon's
Title VII claims against the individual defendants must be
dismissed because the complaint alleges that only Efie's
employed him. Id. at pp. 8-9, ¶¶ 15, 22.
Title VII makes it an “unlawful employment practice for
an employer … to discharge any individual, or
otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1) (emphasis added). The statute thus
“authorizes suit only against [the
plaintiff's] employer. Individual people who are agents
of the employer cannot be sued as employers under Title
VII.” Passananti v. Cook Cnty., 689 F.3d 655,
662 n.4 (7th Cir. 2012); see also Robinson v.
Sappington, 351 F.3d 317, 332 n.9 (7th Cir. 2003)
(“It is only the employee's employer who may be
held liable under Title VII.”); Levitin v. Nw.
Cmty. Hosp., 64 F.Supp.3d 1107, 1123 (N.D. Ill. 2014)
(“If Levitin was not employed by NCH, her Title VII
claim fails.”). It follows that Simon's Title VII
claims against the individual defendants must be dismissed.
See Williams v. Banning, 72 F.3d 552, 555 (7th Cir.
1995) (“Because a supervisor does not, in his
individual capacity, fall within Title VII's definition
of employer, Williams can state no set of facts which would
enable her to recover under the statute.”). And because
the flaw in those claims could not be cured by repleading,
the dismissal is with prejudice. See Gonzalez-Koeneke v.
West, 791 F.3d 801, 807 (7th Cir. 2015) (“District
courts … have broad discretion to deny leave to amend
… where the amendment would be futile.”)
(internal quotation marks omitted); Bogie v.
Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013) (same).
Section 1981 Wrongful Termination Claim
“[t]he same requirements for proving discrimination
apply to claims under Title VII [and] § 1981, ”
Egonmwan v. Cook Cnty. Sheriff's Dep't, 602
F.3d 845, 850 n. 7 (7th Cir. 2010); see also Morgan v.
SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013) (same),
§ 1981 “provides for individual liability, ”
Zayadeen v. Abbott Molecular, Inc., 2013 WL 361726,
at *5 (N.D. Ill. Jan. 30, 2013) (citing cases). To state a
§ 1981 claim against the individual defendants, Simon
must allege that they “instituted a (specified) adverse
employment action against [him]” on the basis of his
being Jewish. Carlson v. CSX Transp., Inc., 758 F.3d
819, 827 (7th Cir. 2014) (internal quotation marks omitted);
see also Luevano v. Wal-Mart Stores, Inc., 722 F.3d
1014, 1028 (7th Cir. 2013) (same); FirstMerit Bank, N.A.
v. Ferrari, 71 F.Supp.3d 751, 755 (N.D. Ill. 2014)
(same). Having alleged that Abuirmeileh fired Simon because
he did not want “a Jew working for [him], ” Doc.
36 at p. 14, ¶ 59, the complaint states a plausible
§ 1981 wrongful termination claim against Abuirmeileh.
See Samovsky v. Nordstrom, Inc., 619 Fed.Appx. 547,
548 (7th Cir. 2015) (“‘I was turned down for a
job because of my race' is all a complaint has to
say.”) (quoting Tamayo v. Blagojevich, 526
F.3d 1074, 1084 (7th Cir. 2008)); Swanson v. Citibank,
N.A., 614 F.3d 400, 404-05 (7th Cir. 2010) (“A
plaintiff who believes that she has been passed over for a
promotion because of her sex will be able to plead that she
was employed by Company X, that a ...