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Parks v. Speedy Title & Appraisal Review Services

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

July 11, 2018

LISA PARKS, Plaintiff,



         Plaintiff Lisa Parks has sued Defendants Speedy Title & Appraisal Review Services, Karie Magedoff, and Anthony Greer for various violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), Title VI of the Civil Rights Act of 1964 (“Title VI”), Section 1981 of the Civil Rights Act of 1866 (“Section 1981”), the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), the Illinois Minimum Wage Law, 820 ILCS 105/4a (“IMWL”), the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”), the Illinois Whistleblower Act, 740 ILCS 174/1 et seq. (“IWA”), the New Jersey Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-1 et seq. (“CEPA”), the Employee Retirement Income Security Act of 1974 (“ERISA”), Appraiser Independence Requirements, and the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Currently before the Court is Defendants' motion [99] to dismiss Plaintiff's Amended Complaint and, in the alternative, for a more definite statement, and Defendants' motion to strike certain exhibits from Plaintiff's Amended Complaint. For the reasons stated below, Defendants' motion to dismiss [99] is granted. Plaintiff's Amended Complaint is dismissed without prejudice. Plaintiff is given until August 17, 2018 to file a second amended complaint consistent with this opinion, if Plaintiff believes that she can overcome the deficiencies identified below. This case is set for further status hearing on August 22, 2018 at 9:00 a.m.

         I. Background [1]

         Plaintiff Lisa Parks (“Plaintiff) began working for Defendant Speedy Title & Appraisal Review Services (“STARS”) in June 2012 as a real estate review appraiser. [96, at 3.][2]Defendant Anthony Greer served as Plaintiffs direct supervisor beginning in January 2013. [Id] Defendant Karie Magedoff was the Director of Human Resources at STARS during Plaintiffs employment. [Id] Defendants Greer and Magedoff worked out of STARS' office in Mount Laurel, New Jersey, while Plaintiff telecommuted from Chicago, Illinois. [Id]

         According to Plaintiff, when she began working at STARS, she was a good employee who received good evaluations along with Quality of Excellence Awards in 2012 and 2013. [Id., at 3, 6.] Plaintiff also alleges that she was well-qualified for the position based on her prior work experience and advanced education. [Id., at 2.] However, Plaintiff alleges that at some point during her tenure at STARS, her superiors (particularly Defendant Greer) began to harass her in various ways or to otherwise contribute to a hostile and unfair work environment that forced her to eventually resign her position as an appraiser in 2015.

         According to Plaintiff, soon after she was hired in 2012, Defendant Greer threatened to give her more difficult assignments than other employees. Plaintiff thereafter received more assignments than other appraisers. [96, ¶¶ 18-21.] Plaintiff further alleges that Defendant Greer sent Plaintiff unnecessary copies of work-related e-mails to her personal e-mail account, which made her feel unsafe; did not refer to her awards in a professional manner; completed work for other employees but not for Plaintiff; and disciplined her for errors that were non-critical or not her fault. [Id., ¶¶ 14, 24, 31, 40.] Defendant Greer also allegedly disciplined Plaintiff more frequently and more severely than other employees, and over time her performance evaluations stopped being as positive as they had initially been when she began her job at STARS. [Id., ¶ 15.] Plaintiff alleges that another supervisor, Andrew Reisser, once threatened her in a meeting along with Defendant Greer and “spoke in a voice louder than normal” to her. [Id., ¶ 4.] Plaintiff makes other general allegations of verbal threats and disciplinary actions by STARS employees, but does not specify what those threats were or who (besides Reisser and Greer) made such threats. [Id., at 6-7.]

         In 2014, Plaintiff received two corrective actions (one in August and one in December). [Id., ¶¶ 6-9.] These corrective actions seem to be related to technical issues that Plaintiff faced in performing her job responsibilities. As a telecommuter, Plaintiff faced many technical difficulties in completing her work on the STARS system, affecting her work output. These technical issues were not properly addressed, however, and she was reprimanded in these corrective actions for not completing her work despite Defendant Greer's knowledge of these technical issues she encountered throughout her tenure. [Id., ¶¶ 26-27, 33, 51.] While technical support employees would call Plaintiff in an attempt to address and fix these issues, they would often call her near or during her lunch hour. [Id., ¶ 14.]

         The August 2014 corrective action that she received via email stated that Plaintiff was no longer eligible for merit increases, promotions, or transfers. [Id., ¶ 7.] Plaintiff was also denied a raise during her 2014 performance review after she received these two corrective actions. [Id., ¶¶ 15, 34.] According to Plaintiff, these corrective actions were retaliatory and part of the harassment that she faced at STARS.

         Plaintiff makes various other allegations regarding her salary and benefits while she was employed as an appraiser at STARS. STARS paid Plaintiff less than her male “and possibly female” counterparts, despite her advanced experience and education. [Id., ¶ 38.] Although other employees received overtime pay, Plaintiff was denied such overtime. [Id., ¶¶ 38-39.] Plaintiff also had to work additional hours without pay in order to remain employed at STARS. [Id., ¶ 32.] According to Plaintiff, she would have qualified for a better benefits plan and higher company contributions with a better salary. [Id., ¶ 53.] Plaintiff was also issued an insurance policy by STARS, but STARS could not properly explain this policy to her. [Id., ¶ 52.]

         Plaintiff describes various other conditions of her employment that contributed to the hostile and threatening environment she faced while employed at STARS. Plaintiff maintains that she was not given a balanced workload as she was promised, and that at times she was given more assignments than other appraisers. [Id., ¶¶ 18, 21.] Additionally, STARS managers continually insisted that she was an underwriter, rather than an appraiser, [id., ¶¶ 2-5, 10-11, 29]; STARS took excessive deductions from her paycheck and lost one of her paychecks in 2015, [id., at 2, ¶ 13]; Plaintiff often faced confusion about whether or not she needed to travel to New Jersey for training opportunities, and for one such training trip she was not reimbursed as quickly for her travel expenses as other employees, [id., ¶¶ 25, 35-37]; and Plaintiff was forced to get a second internet contract at her home in order to work, although other employees were allowed to use their regular internet contract, [id., ¶¶ 40-41].

         Plaintiff reported at least some of these events to Defendant Magedoff in December 2014 and February 2015, including Defendant's Greer's treatment of her. [Id., ¶¶ 16, 23.] Defendant Magedoff failed to discipline Defendant Greer appropriately, nor did she speak to Plaintiff about how to cope with the treatment she had received. [Id., ¶ 57.] Plaintiff claims that she also made reports to the Illinois Department of Financial and Professional Regulations (“IDFPR”), the Illinois Department of Labor, and the New Jersey Board of Real Estate Appraisers, although she does not describe the timing or the contents of these reports. [Id., at 5.] Plaintiff does allege that she spoke extensively with a representative of the IDFPR. The exact content of these conversations is unclear, but it seems that Plaintiff spoke to this representative about proper methods of recordkeeping and STARS's failure to follow these methods. [Id., ¶¶ 1-6.] According to Plaintiff, she discussed contacting the IDFPR with her STARS supervisor Andy Reisser in July 2014. [Id., ¶ 2.] Plaintiff also started the process of filing a complaint with the EEOC in December 2014, after receiving her second corrective action. [Id., ¶ 9.] Plaintiff wrote to the EEOC again after Greer spoke to her in a “very unprofessional” manner in March 2015. [Id., ¶ 31.] Based on the sum total of these events and the hostility that Plaintiff felt at her job, Plaintiff resigned from STARS on March 23, 2015. [Id., ¶ 35.]

         Plaintiff alleges that she is a member of a protected class because she is female and African American. [Id., at 4.] She notes that she was the only African American employee in her department in 2014. [Id., at 7.] According to Plaintiff, at least some of the disciplinary actions that she faced at STARS were motivated by her membership in these protected classes, as well as by her complaints about STARS both internally and to the IDFPR. [Id., at 6-7.] Other such actions were, according to the Amended Complaint, “retaliatory” or otherwise related to the corrective actions that she had received. [Id., ¶¶ 15, 34, 51.] Plaintiff had no choice but to leave her position after this treatment became increasingly hostile and an IDFPR representative suggested to her that she resign. [Id., at 7.]

         Plaintiff filed the instant lawsuit against Defendants in February 2016 after receiving a Notice of Right to Sue letter from the EEOC in December 2015. Defendants moved to dismiss the complaint, [see 29], and the Court struck this motion without prejudice after granting Plaintiff's oral motion for leave to file an amended complaint [34]. Plaintiff filed her Amended Complaint in August 2017. [See 96.] In the Amended Complaint, Plaintiff brings claims for wrongful termination in violation of Title VII (Count I); discrimination in violation of Title VII and Title VI (Count II); retaliation in violation of Title VII (Count III); violation of FLSA (Count IV); violation of Section 1981 (Count V); violations of the IMWL and the EPA (Count VI); violation of the IWA (Count VII); violation of the CEPA (Count VIII); violation of ERISA (Count IX); violations of appraiser independence requirements (Count X); and violations of the Dodd-Frank Act (Count XI). Defendants again moved to dismiss the complaint or, in the alternative, for a more definite statement. [See 99.] Defendants also moved to strike Exhibits G and I from Plaintiff's Amended Complaint. [See id.] This motion is currently before the Court.

         II. Legal Standard

         To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or a ‘formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Dismissal for failure to state a claim under Rule 12(b)(6) is proper “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiff's well-pleaded factual allegations and draws all reasonable inferences in Plaintiff's favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011). Pleadings filed by pro se litigants must be “liberally construe[d]” and are not held to the same stringent pleading standards as those filed by trained lawyers. Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir. 2017).

         III. Analysis

         Defendants have moved to dismiss Plaintiff's complaint in its entirety pursuant to Rule 12(b)(6). To the extent that Plaintiff has stated a valid claim, Defendants move for a more definite statement on those valid claims, setting forth the basis for each Defendant's liability and the facts supporting them. Defendants have also moved to strike Exhibit G and Exhibit I from the Amended Complaint. Because the Court concludes that Plaintiff has not stated a valid claim in her Amended Complaint, the Court need not address Defendants' motions for a more definite statement and to strike.

         A. Title VII and Section 1981 Wrongful Termination and Discrimination Claims (Counts I, II, and V)

         Counts I and II of Plaintiffs Amended Complaint bring claims under Title VII[3] for discrimination on the basis of race, color, and sex, and Count V brings a claim under Section 1981[4] for discrimination on the basis of race. Because the analysis for discrimination claims under Title VII is identical to the analysis for discrimination claims under Section 1981, the Court will consider these claims together. See Smith v. Chi. Transit Auth, 806 F.3d 900, 904 (7th Cir. 2015).

         1.Race and Gender Discrimination (Counts II and V)

         To state a Title VII discrimination claim under a disparate treatment theory, a plaintiff must adequately allege that she suffered an adverse employment action that was motivated by discriminatory animus. See Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016); Porter v. City of Chi., 700 F.3d 944, 954 (7th Cir. 2012). “[A] materially adverse employment action is one which visits upon a plaintiff “a significant change in employment status.” Boss, 816 F.3d at 917 (citation omitted). Such changes can involve the employee's current wealth, career prospects, or unbearable changes to job conditions that amount to constructive discharge. See id; Alexander v. Casino Queen, Inc., 739 F.3d 972, 980 (7th Cir. 2014); Bell v. E.P.A., 232 F.3d 546, 555 (7th Cir. 2000) (“For an employment action to be actionable, it must be a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'” (citation omitted)). The Seventh Circuit has defined adverse employment actions “quite broadly” but has explained that the action must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Porter, 700 F.3d at 954 (citation and internal quotation marks omitted). “[N]ot everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that an employee did not like would form the basis of a discrimination suit.” Id. (citation and internal quotation marks omitted); see also Thompson v. Mem'l Hosp. of Carbondale, 625 F.3d 394, 406 (7th Cir. 2010) (“The idea behind requiring proof of an adverse employment action is simply that a statute which forbids employment discrimination is not intended to reach every bigoted act or gesture that a worker might encounter in the workplace.” (citation and internal quotation marks omitted)).

         Defendants argue that Plaintiff's discrimination claims must be dismissed because Plaintiff has failed to allege that she was subjected to an adverse employment action. According to Defendants, Plaintiff's Amended Complaint only contains allegations of “ordinary workplace grievances” and “petty slights” without any tangible job consequences. [See 100, at 4-6.]

         The Court agrees with Defendants that Plaintiff's Title VII discrimination claim in Count II and Section 1981 discrimination claim in Count V both must be dismissed. The Amended Complaint largely focuses on petty workplace slights that do not represent “significant negative alteration[s] in the workplace.” Adam v. Obama for Am., 210 F.Supp.3d 979, 988 (N.D. Ill. 2016). Many of Plaintiff's allegations focus on the two corrective actions that she received in 2014. These two corrective actions, without any other tangible consequences, do not constitute adverse employer actions for Title VII purposes. See Jones v. Res-Care, Inc., 613 F.3d 665, 671 (7th Cir. 2010). And Plaintiff has not alleged that she suffered any kind of tangible job consequence in relation to these corrective actions.

         The majority of the conduct by Defendant Greer and other STARS employees alleged in Plaintiff's Amended Complaint is exceedingly ordinary and brought no tangible consequences to Plaintiff's wealth or career prospects. For example, Plaintiff alleges that her supervisor Andrew Reisser sent her an email in July 2014 after the two had a meeting in which Reisser “spoke in a voice louder than normal” at her and insisted she was an underwriter not an appraiser. The email read, “It may have misspoken during out conversation. It is Advisory Opinions not FAQs.” [96, ¶¶ 4-5.] This meeting and this email may have made Plaintiff uncomfortable or upset, but Plaintiff does not allege that anyone at STARS took any action against her in connection with this interaction. See Breneisen v. Motorola, Inc., 512 F.3d 972, 982 (7th Cir. 2008) (supervisor's comment about plaintiff's absences might have been offensive to the plaintiff, but did not amount to a materially adverse employment action). Similarly, Defendant Greer's isolated comments and discipline of Plaintiff, Plaintiff's unbalanced workload, Plaintiff's displeasure with technical support and the insistence that she was an underwriter rather than an appraiser all represent the kind of “petty” complaints that are not considered materially adverse for purposes of Title VII liability. See Williams v. Univ. of Chi. Med. Ctr., 2014 WL 4724378, at *6 (N.D. Ill. Sept. 23, 2014) (comments during a staff meeting about Plaintiff's certifications and whether she was competent to perform her job were not materially adverse employment actions); Gilhooly v. UBS Sec., LLC, 772 F.Supp.2d 914, 917-18 (N.D. Ill. 2011) (allegations that plaintiff was blamed for mistakes that did not exist or were made by others did not plausibly plead a materially adverse employment action); Adam, 210 F.Supp.3d at 988 (allegations that plaintiff was screamed at and grabbed by other employees did not state a claim for discrimination because, while impolite, these actions did not change plaintiff's wealth or career prospects and therefore were not materially adverse).

         Plaintiff does allege that she was not eligible for a merit pay increase or promotion after her first corrective action in August 2014, and that she was denied a raise during her 2014 performance review. [96, ¶¶ 7, 15, 34.] A denial of a wage increase may be an adverse employment action under Title VII. See Barricks v. Eli Lilly & Co., 481 F.3d 556, 559 (7th Cir. 2007) (“[T]he denial of a raise-as opposed to missing out on something more transient, like a bonus-qualifies as an adverse employment action.”); Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004) (the denial of a raise may be a materially adverse employment action “if a raise would have been an expected element of the employee's salary and its denial cuts the salary in real terms”); Hunt v. City of Markham, Ill., 219 F.3d 649, 654 (7th Cir. 2000) (the denial of a raise may be an adverse employment action for purposes of federal anti-discrimination laws); see also Paxon v. Cty. of Cook, Ill., 2002 WL 1968561, at *4 (N.D. Ill. Aug. 23, 2002) (allegations that plaintiff was denied opportunity for promotion and advancement sufficiently alleged a materially adverse ...

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