United States District Court, N.D. Illinois, Eastern Division
TROY YATES, MIKE WILLS, and OTHER SIMILARLY SITUATED INDIVIDUALS, Plaintiffs,
H&M INTERNATIONAL TRANSPORTATION, INC, DAVE TURBYFILL, and other UNNAMED PERSONS, Defendants.
MEMORANDUM OPINION & ORDER
M. DOW, JR. UNITED STATES DISTRICT JUDGE.
Troy Yates and Mike Wills, on behalf of themselves and all
other persons similarly situated, bring this putative
class-action against H&M International Transportation,
Inc. (“H&M”), Dave Turbyfill, and unknown
Officers and Directors of H&M for racial discrimination
under various sections of the Civil Rights Act of 1866,
specifically, 42 U.S.C. § 1981 (Count I), § 1985
(Count II), and § 1986 (Count III). Currently before the
court is H&M's partial motion to dismiss  Counts
II and III as well as its supplemental motion to dismiss 
Count I, both pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons explained below, the Court grants
both motions. Count I is dismissed with prejudice as to Yates
and Wills. Counts II and III are dismissed without prejudice.
Pursuant to the Seventh Circuit's instructions in
Matz v. Household Int'l Tax Reduction Inv. Plan,
774 F.3d 1141, 1144-45 (7th Cir. 2014), and Robinson v.
Sheriff of Cook Co., 167 F.3d 1155, 1157-58 (7th Cir.
1999), purported-class counsel is given until August 16, 2019
to file a motion to substitute plaintiffs as to Count I
and/or an amended complaint as to all counts consistent with
this opinion. The case is set for further status on August,
21, 2019 at 9:00 a.m.
and Wills are African-American men employed, or formerly
employed, by H&M. [1, ¶ 4.] H&M employed Yates
from 2015 to early 2016. [Id. ¶ 5.] Wills
joined H&M in September 2014 and continues to work there
today. [Id. ¶ 6.] Defendant Turbyfill is an
Assistant Terminal Manager for H&M. [Id. ¶
allege that H&M engaged in a “pay-to-play”
scheme-overseen by Turbyfill- in which H&M employees
offered jobs to African-American men in exchange for payments
of between $1, 000 and $2, 500. [Id. ¶¶
11, 16.] No. non-African-Americans were allegedly required to
pay to gain employment at H&M. [Id. ¶ 28.]
In fact, Plaintiffs allege, H&M has a history of such
schemes. For example, prior to the one overseen by Turbyfill,
a different H&M employee offered African-American men
jobs for cash and then fired those hired one day shy of their
ninetieth work day, thus preventing their union rights from
vesting. [Id. ¶¶ 11-13.]
regard to the current scheme, Plaintiffs allege that in
December 2014, Mr. Gartnez Lowe approached Yates and invited
him to apply for employment at H&M. [Id.
¶¶ 17, 18.] At that time, Lowe told Yates that
Turbyfill required a $1, 000 payment to get the job: a $500
deposit with his application and $500 at his start date.
[Id. ¶ 19.] Yates then submitted his
application and the $500 deposit to Lowe “one week
before Christmas 2014.” [Id. ¶ 20.] Yates
subsequently reported for work at H&M on January 6, 2015
without ever having had an interview. [Id. ¶
21.] Plaintiffs allege that other individuals applied with
Yates, but none of them either paid Lowe or were hired.
[Id. ¶ 22.] After Yates complained about this
practice, H&M allegedly fired him. [Id. ¶
23.] Yates subsequently filed a Charge of Discrimination with
the Equal Employment Opportunity that remains pending. See
allegedly suffered a similar experience. See generally .
In late summer 2014, an unnamed acquaintance of Turbyfill
approached Wills. [1, ¶ 24.] That individual informed
Wills that he could get Wills a job at H&M for $2, 000.
[Id. ¶ 25.] Wills paid the money along with his
application and H&M subsequently hired him on September
24, 2014. [Id. ¶ 27.]
initiated this lawsuit on August 31, 2018. See generally .
Plaintiffs assert that Defendants' alleged
“pay-to-play” scheme targeting African-Americans
violated federal antidiscrimination law, specifically 42
U.S.C. § 1981 (Count I). [1, ¶ 34.] Plaintiffs also
assert that H&M employees and unnamed non-employees
engaged in a conspiracy to deny African-American applicants
and employees equal rights under the law in violation of 42
U.S.C. § 1985 (Count II). [1, ¶ 39.] Finally,
Plaintiffs assert that the unnamed Officers and Directors of
H&M had knowledge of the alleged scheme perpetuated by
Turbyfill and that the unnamed H&M Officers and Directors
neglected to prevent this scheme from occurring in violation
of 42 U.S.C. § 1986 (Count III). [1, ¶¶ 44,
45.] In addition to their own claims, Plaintiffs seek to
represent a class of similarly situated African-American
H&M employees and applicants from August 2014 to present.
[Id. ¶ 30.]
brought its partial motion to dismiss  on November 2, 2018
seeking to dismiss Counts II and III on statute of
limitations grounds. See [9, at 3-5]. After reviewing
Plaintiffs' response to that motion, H&M requested
leave to file a supplemental motion to dismiss in its reply,
arguing that Plaintiff had demonstrated that Count I was
untimely as well. See [17, at 2]. Having granted that motion
, the parties have briefed that issue as well and the
Court now resolves both motions.
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 plan 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). Evaluating whether a claim is
sufficiently plausible to survive a motion to dismiss is
“a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” McCauley v. City of Chi., 671 F.3d
611, 616 (7th Cir. 2011) (quoting Iqbal, 556 U.S. at
argue the Court must dismiss Count I as untimely under the
applicable statute of limitations. Settled Seventh Circuit
law holds that a statute of limitations defense is an
affirmative defense that a complaint need not anticipate or
allege facts to defend against. U.S. Gypsum Co. v.
Indiana Gas Co., Inc. et al.,350 F.3d 623, 628 (7th
Cir. 2003); see also Barry Aviation, Inc. v. Land O'
Lakes Mun. Airport Comm'n.,377 F.3d 682, 688 (7th
Cir. 2004) (finding that the resolution of the statute of
limitations comes after the complaint stage). The exception
to this rule arises when the “allegations of the
complaint itself set forth everything necessary to satisfy
the affirmative defense.” Brooks v. Ross, 578
F.3d 574, 579 (7th Cir. 2009). In Brooks, for
example, the Seventh Circuit concluded that it was
appropriate to consider the statute of limitations at the
motion to dismiss stage because “the relevant dates
[we]re set forth unambiguously in the Complaint” and
because the plaintiff's one substantive response to the
defense was inapposite. Id. Here, while Plaintiffs
note that courts generally address statutes of ...