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Ross v. Uchicago Argonne, LLC

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

August 5, 2019

JIMMY ROSS Plaintiff,
UCHICAGO ARGONNE, LLC, Fire Chief GEORGE HYLAND, Individually and in his Official Capacity, and Fireman RICHARD KARA, Individually and in his Official Capacity, Defendants.



         On December 10, 2018, the Court issued a Memorandum Opinion and Order [ECF No. 30] granting Defendants' Motions to Dismiss [ECF No. 12, 16] without prejudice. The Court, however, gave Plaintiff Jimmy Ross ("Plaintiff oruRoss") leave to file an amended complaint if he wanted to do so. [ECF No. 30], Ross timely filed his amended complaint on January 25, 2019. [ECF No. 31]. This case is now before the Court on Defendants' Motion to Dismiss Plaintiffs First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). [ECF No. 37]. For the reasons discussed below, Defendants' Motion to Dismiss is granted with prejudice as to all counts.


         Plaintiffs First Amended Complaint contains the same nine counts as his Initial Complaint. In Counts I and V, Ross alleges that Defendants engaged in racial discrimination and subjected him to a hostile work environment in violation of Title VII and the Illinois Human Rights Act ("IHRA"). In Counts II and VI, Ross alleges the Defendants retaliated against him for filing internal complaints and memoranda about the discrimination in violation of Title VII and the IHRA. In Counts III and VII, Ross alleges that Defendants engaged in age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and the IHRA. In Count IV, Ross brings a claim of intentional infliction of emotional distress against Defendant Richard Kara C'Kara") claiming a violation of Illinois common law. In Count VIII, Ross brings a claim of negligent retention against Defendant UChicago Argonne, LLC ("Argonne") for retaining Kara as its employee in violation of Illinois common law. Finally, in Count IX, Ross brings a claim against Argonne under the theory of respondeat superior.

         The below facts reflect the standard of review under Federal Rule of Civil Procedure 12(b)(6), which requires the Court to construe the complaint in the light most favorable to Plaintiff. The Court gives Plaintiff the benefit of accepting all well-pleaded facts as true, as well as all reasonable inferences that can be drawn in Plaintiffs favor from those alleged facts.

         Plaintiff Ross is an African-American male born in 1954. Fie has been a firefighter in the Argonne Fire Department since 1997. In 2010, he was promoted to fill the position of one of three Battalion Chiefs. Out of 26 employees, Ross is the only African-American employee at the Argonne Fire Department.

         Ross began to experience issues with another firefighter, Defendant Kara, about three years after being promoted to Battalion Chief. In 2013, Kara made racial comments towards Ross and hung a black-faced puppet in Ross' locker. Ross reported the incident to the Argonne human resources department, resulting in Kara being suspended for five shifts and placed on probation for two years. The chief of the Argonne Fire Department at the time of the incident, Chief Patterson, subsequently assured Ross that Kara would no longer work on the same shift as him. Ross considered the matter handled at the time.

         On April 1, 2016, Chief Patterson retired and was replaced by Defendant George Hyland ('"Chief Hyland"). About a year later, on February 10, 2017, Kara traded onto Ross' shift for the first time since the 2013 incident. While on Ross' shift, Kara said to Ross, "let the games begin," which Ross believed was a reference to the incident that occurred in 2013. Ross informed Chief Hyland of this comment. On March 14, 2017, Chief Hyland communicated to Ross that he supported Ross' decision to deny Kara's trade onto his shift. In an email directed to both Ross and Kara, Chief Hyland stated he had looked at the paperwork from the incident in 2013 and supported Ross' decision to deny the recent trade given the seriousness of the 2013 incident. However, Ross believes that Chief Hyland simultaneously encouraged Kara to submit a grievance about Ross denying Kara's shift change request and to continue to trade onto Ross' shifts.

         Around the same time as Kara's comment to 'let the games begin" in March of 2017, Ross placed an order for Maltese Crosses for all the firefighters' uniforms. Kara accused Ross of failing to order a Maltese Cross for him, though Ross indicated that none of the firefighters had received the crosses. On or about March 29, 2017, Ross emailed Chief Hyland and expressed concern about Kara's conduct. Ross stated that "Kara has and will make my work a hostile work environment" and told Chief Hyland that he "would like to see this behavior stopped." Ross emphasized that Chief Patterson had previously promised Ross that Kara would not work a trade onto his shift and asked that Chief Hyland maintain that state of affairs.

         However, Chief Hyland did not accommodate Ross' requests not to work with Kara. Instead, Ross was made to interact with Kara with increasing frequency over the next several months. On or about May 2, 2017, Ross was working an overnight shift when Kara decided to sleep at the station after holding overtime for another firefighter. Ross felt threatened and uneasy by Kara's presence, and did not sleep as a result. On June 3rd, June 29th, and August 10th, Kara again worked on Ross' shift, several of which were overnight and resulted in Ross losing sleep.

         On August 10, 2017, Chief Hyland told Ross he would be written up for insubordination and unsatisfactory job performance if Ross denied any more of Kara's trade requests. On August 15, 2017, Ross nevertheless denied Kara*s request to trade onto his shift. Chief Hyland then informed Ross that his "subjective desire to avoid working with Firefighter Kara is not a sufficient operational reason to deny a shift trade request" and cautioned him that "[i]n the future, you are not authorized to deny trade requests unless there is a legitimate operational reason for the denial. If you deny any further shift trade requests without sufficient operational justification in the future, I will consider it to be insubordination and unsatisfactory job performance." Kara subsequently worked overnight on Ross' shift on September 16th and September 18th, causing Ross to lose two more nights of sleep for fear of what Kara might do to him.

         After Chief Hyland warned Ross to stop denying Kara's trades, Ross' and Chief Hyland's relationship began to deteriorate. For example, on November 8, 2017, Chief Hyland gave Ross a performance appraisal that included comments Ross found insulting, such as a recommendation that "as part of [Ross'] current pursuit of a degree, purchase and read one book on grammar to help keep your correspondence error-free." On December 8, 2017, Chief Hyland verbally reprimanded Ross for emailing, rather than calling, him about a particular issue, which Ross believed was unwarranted given the frequency with which other battalion chiefs send similar emails. On January 24, 2018, Chief Hyland also failed to notify Ross of a meeting with other battalion chiefs, resulting in Ross being excluded from the meeting. A few months later, on April 5, 2018, Chief Hyland sent an email to Ross suggesting he needed further training to address errors in his time entries, though no other battalion chiefs received similar criticism. Chief Hyland further removed Ross' responsibility for personnel lockers, firefighter's clothing, and gear, even though other battalion chiefs were responsible for these tasks. On several occasions, Chief Hyland told Ross that he should just retire, Ross believed condescending comments from Chief Hyland eroded the respect other department members had for him and impacted his ability to supervise. Ross ultimately documented his concerns about his relationship with Chief Hyland in an email to Kim Madekich, an employee at Argonne, and indicated that he believed he was being treated differently than other battalion chiefs because of his race.

         As a result of the events at Argonne, Ross lost about 120 hours of sick time, as well as numerous hours of sleep on the nights Kara worked his shifts. Ross has also been diagnosed with hypertension and insomnia, both of which require medication, as well as anxiety.


         Defendants' have renewed their Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) and challenge the sufficiency, not the merits, of Plaintiff s amended complaint. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.3d 1510, 1520 (7th Cir. 1990). The Court is governed by the same standard as in its previous opinion, in that the Court accepts as true all well-pleaded facts in Plaintiffs complaint and draws all reasonable inferences from those facts in Plaintiffs favor. Anchor Bank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011); Kiliingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007).

         To survive a motion to dismiss, the complaint must contain a short and plain statement of the claim that provides the defendant with fair notice of what the claim is. FED.R.CIV.P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bel! All. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The claim for relief must be plausible on its face, which occurs "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. Plausibility, however, demands more than mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. Rather, the factual allegations in the complaint must be sufficient to raise the possibility of relief above a "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. Therefore, 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.

         I. Counts I and V: Hostile Work Environment and Racial Discrimination

         A. Hostile Work Environment

         Under Title VII, an employer may not discriminate based on "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). In order to prevail on a Title VII claim for a racially hostile work environment, a plaintiff must show that "he is a member of a class protected by the statute," that "he has been subjected to a hostile work environment," and that he was subjected to this hostile work environment "on account of [his] membership in the protected class." Abrego v. Wilkie,907 F.3d 1004, 1012 (7th Cir. 2018), quoting Morgan v. SVT, LLC,724 F.3d 990, 995 (7th Cir. 2013). In order for the environment to be actionably hostile, a plaintiff must demonstrate that "(1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive working environment that seriously affected his ...

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