Peatry v. Bimbo Bakeries USA, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LISA PEATRY, individually, and on behalf of )

all others similarly situated, )

)

Plaintiff, )

) No. 19 C 2942

v. )

) Judge Sara L. Ellis

BIMBO BAKERIES USA, INC., )

)

Defendant. )

OPINION AND ORDER

Plaintiff Lisa Peatry, an employee of Defendant Bimbo Bakeries USA, Inc. (“Bimbo”),

filed this putative class action lawsuit alleging that Bimbo violated the Illinois Biometric

Information Privacy Act (“BIPA”), 740 Ill. Comp. Stat. 14/1 et seq., through its collection,

storage, and use of Peatry’s biometric information. Specifically, Peatry brings claims for

(1) Bimbo’s failure to institute, maintain, and adhere to a publicly available retention schedule in

violation of BIPA § 15(a); (2) Bimbo’s failure to obtain informed, written consent before

obtaining biometric information in violation of BIPA § 15(b); and (3) Bimbo’s disclosure of

biometric information before obtaining consent in violation of BIPA § 15(d). Bimbo moves to

dismiss the complaint, arguing that § 301 of the Labor Management Relations Act of 1947 (the

“LMRA”) and the National Labor Relations Act of 1935 (the “NLRA”) preempt Peatry’s

claims.1 Alternatively, Bimbo argues that Peatry has failed to state a BIPA claim and that the

Illinois Workers Compensation Act (the “IWCA”), 820 Ill. Comp. Stat. 305/1 et seq., bars her

1 Bimbo filed its motion under Federal Rule of Civil Procedure 12(b)(3) for improper venue.

Subsequently, the Seventh Circuit clarified that the Court should consider these preemption arguments

under Rule 12(b)(1) for lack of subject matter jurisdiction or as a motion for judgment on the pleadings

under Rule 12(c). Miller v. Sw. Airlines Co., 926 F.3d 898, 901 (7th Cir. 2019). Because Bimbo has not

yet filed an answer, the Court considers Bimbo’s preemption arguments under Rule 12(b)(1).

claims. The Court finds that § 301 of the LMRA preempts Peatry’s claims arising after May 8,

2018, when a collective bargaining agreement governing Peatry’s employment went into effect.

But Peatry may proceed on her pre-May 8, 2018 claims, which neither the NLRA or IWCA

preempt and sufficiently allege BIPA violations.

BACKGROUND2

Bimbo, a bakery product manufacturing company, uses a biometric timekeeping device,

provided by a third party, to track employees’ hours. Upon hiring an employee, Bimbo scans

their fingerprints and enrolls them in an employee database. Employees must then use their

fingerprints to clock in and clock out. Bimbo does not inform its employees that it discloses the

biometric information it collects to its third-party vendor and other third parties that host the

database. Bimbo also does not obtain written releases before collecting the fingerprints or

provide employees with a written, publicly available policy identifying a retention schedule and

guidelines for permanently destroying employees’ fingerprints.

Peatry worked for Bimbo as a machine operator at Bimbo’s facility at 1540 S. 54th

Avenue in Cicero, Illinois. Aryzta owned this facility until Bimbo acquired it on February 9,

2018. Bimbo entered into a collective bargaining agreement (“CBA”) with the Chemical and

Production Workers Union Local No. 30, AFL-CIO (the “Union”), which became effective May

8, 2018. Among other things, the CBA provides Bimbo with certain exclusive management

rights, including “to make and enforce reasonable plant rules of conduct and regulations not

inconsistent with the provisions” of the CBA, “to introduce new and improved methods,

materials, equipment or facilities,” and “to change or eliminate existing methods, materials,

2 The facts in the background section are taken from Peatry’s complaint and are presumed true for the

purpose of resolving the motion to dismiss pursuant to Rule 12(b)(6). See Virnich v. Vorwald, 664 F.3d

206, 212 (7th Cir. 2011). The Court also considers the additional materials submitted by Bimbo when

considering the motion to dismiss pursuant to Rule 12(b)(1). See Apex Digital, Inc. v. Sears, Roebuck &

Co., 572 F.3d 440, 443–44 (7th Cir. 2009).

equipment, or facilities.” Doc. 18-1 at 8. The CBA also sets forth negotiated wage tables.

Finally, as relevant here, the CBA includes a grievance procedure, requiring employees to pursue

“dispute[s] regarding the meaning and application of the terms of” the CBA in accordance with

that procedure. Id. at 12.

During her employment at the facility between September 2016 and February 2019,

Peatry scanned her fingerprints every time she clocked in and out of work as part of the facility’s

timekeeping method.3 Bimbo never informed her of the purposes or length of time for which

Bimbo collected, stored, used, and disseminated her biometric data. Bimbo also never informed

her of a biometric data retention policy or whether Bimbo would at some point permanently

delete her biometric data. Peatry never received or signed a written release authorizing the

collection, storage, use, and dissemination of her biometric data. She would not have provided

her biometric data if she knew that Bimbo would retain it for an indefinite period of time without

her consent. She also would not have agreed to the compensation she received had she known

that Bimbo would retain her biometric data indefinitely.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(1) challenges the Court’s subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). The party asserting jurisdiction has the burden of proof.

United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on

other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). The standard

of review for a Rule 12(b)(1) motion to dismiss depends on the purpose of the motion. Apex

Digital, 572 F.3d at 443–44. If a defendant challenges the sufficiency of the allegations

regarding subject matter jurisdiction (a facial challenge), the Court must accept all well-pleaded

3 Peatry’s complaint alleges that her employment ended in February 2019, while Bimbo’s representative

indicates that his review of the records reflects an end date of March 12, 2019. The end date of her

employment does not affect the pending motion to dismiss.

factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. See id.;

United Phosphorus, 322 F.3d at 946. If, however, the defendant denies or controverts the truth

of the jurisdictional allegations (a factual challenge), the Court may look beyond the pleadings

and view any competent proof submitted by the parties to determine if the plaintiff has

established jurisdiction by a preponderance of the evidence. See Apex Digital, 572 F.3d at 443–

44; Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006).

A 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 (2009);

see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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. at 678.

ANALYSIS

I. Section 301 Preemption

First, Bimbo argues that § 301 of the LMRA preempts Peatry’s claims arising after May

8, 2018, when the CBA between Bimbo and the Union went into effect. Section 301 preempts

“claims founded directly on rights created by collective-bargaining agreements, and also claims

‘substantially dependent on analysis of a collective-bargaining agreement.’” Caterpillar Inc. v.

Williams, 482 U.S. 386, 394 (1987) (quoting Elec. Workers v. Hechler, 481 U.S. 851, 859 n.3

(1987)). “If the resolution of a state law claim depends on the meaning of, or requires

interpretation of, a collective bargaining agreement, the application of state law is preempted and

federal labor law principles must be employed to resolve the dispute.” Atchley v. Heritage Cable

Vision Assocs., 101 F.3d 495, 499 (7th Cir. 1996); see also Crosby v. Cooper B-Line, Inc., 725

F.3d 795, 797 (7th Cir. 2013) (section 301 preemption “covers not only obvious disputes over

labor contracts, but also any claim masquerading as a state-law claim that nevertheless is deemed

‘really’ to be a claim under a labor contract”).

Bimbo argues that Peatry’s BIPA claims arising after May 8, 2018 require the Court to

interpret the CBA’s management rights provision, which gives Bimbo the right “to make and

enforce reasonable plant rules of conduct and regulations,” as well as “to introduce new and

improved methods, materials, equipment or facilities, or to change or eliminate existing methods,

materials, equipment or facilities.” Doc. 18-1 at 8. Bimbo claims that determining whether the

CBA authorized Bimbo to use the timekeeping system at issue requires consideration of the

scope of these management rights. See Brazinski v. Amoco Petroleum Additives Co., 6 F.3d

1176, 1179 (7th Cir. 1993) (privacy violation suit arose under § 301 because “the company has a

nonfrivolous argument that the surveillance of which the plaintiffs complain is authorized, albeit

implicitly, by the management-rights clause of the agreement, so that the plaintiffs’ claim that

the surveillance invaded their privacy cannot be resolved without an interpretation of the

agreement”). Bimbo also argues that Peatry’s allegations that Bimbo did not sufficiently

compensate her for the retention and use of her biometric data implicates the CBA’s wages

provision because the Court would have to consider whether the wage provision in the CBA

intended to compensate Peatry for the use of the timekeeping system. Because Peatry did not

submit any grievance or request for arbitration, Bimbo contends that Peatry failed to comply

with § 301’s procedural requirements and so the Court must dismiss those claims.

In Miller v. Southwest Airlines Co., the Seventh Circuit recently considered a similar

preemption argument under the Railway Labor Act (“RLA”), 45 U.S.C. § 181 et seq. 926 F.3d

898. In both of the cases consolidated before the Seventh Circuit, the plaintiffs alleged that the

defendants implemented biometric timekeeping systems without the plaintiffs’ consent, did not

publish protocols as required by BIPA, and improperly disclosed the plaintiffs’ biometric

information. Id. at 901. The defendants argued that the plaintiffs had consented to the use of

their biometric identifiers through the applicable collective bargaining agreements’ management

rights clauses. Id. The Seventh Circuit rejected the plaintiffs’ argument that their union could

not qualify as an “authorized agent” that could provide consent and receive notices for BIPA

purposes, noting that “[n]either the statutory text nor any decision by a state court suggests that

Illinois wants to exclude a collective-bargaining representative from the category of authorized

agents.” Id. at 903; see 740 Ill. Comp. Stat. 14/15(b), (d) (requiring entities collecting biometrics

to provide notice to and receive release from “the subject or the subject’s legally authorized

representative”). Therefore, Miller found that the RLA preempted the plaintiffs’ claims, which

involved “retention and destruction schedules for biometric data, and whether [the defendants]

may use third parties to implement timekeeping and identification systems,” as well as whether

the management rights clauses granted authority to the unions to consent to the collection and

use of biometric data. 926 F.3d at 903. Miller governs the Court’s resolution of the preemption

question raised here because the RLA preemption standard is “virtually identical to the pre-

emption standard the Court employs in cases involving § 301 of the LMRA.” Hawaiian

Airlines, Inc. v. Norris, 512 U.S. 246, 260 (1994). The facts are also almost identical here.

Therefore, under Miller, Peatry’s claims require interpretation of the CBA so that § 301 preempts

her post-May 8, 2018 claims. 926 F.3d at 903–04 (because dispute about collection and use of

biometric information required interpretation of CBA’s management rights and wage provisions,

the “state law is preempted to the extent that a state has tried to overrule the union’s choices on

behalf of the workers”).

Peatry ignores the Seventh Circuit’s Miller decision, despite the fact that the Seventh

Circuit issued Miller before Peatry filed her response. Instead, Peatry only addresses the

underlying district court decisions that the Seventh Circuit considered in Miller, attempting to

distinguish her claims from the facts there. Peatry contends that the plaintiffs in those cases

challenged the defendants’ “decision to implement and use a biometric timekeeping device” and

sought actual damages, while her claims involve statutory violations “stemming from [Bimbo’s]

failure to obtain consent prior to [its] collection, obtainment, use, storage and dissemination of

[Peatry’s] biometrics, as well as its failure to provide public retention and destruction

guidelines.” Doc. 34 at 5–7. But, having compared Peatry’s complaint to the complaints in

those cases, the Court observes no material differences where the plaintiffs in those cases alleged

the same statutory violations and only requested statutory damages as compensation for the

BIPA violations. See Miller v. Sw. Airlines Co., No. 18 C 86, Doc. 22 ¶¶ 72–81, Prayer for

Relief (N.D. Ill. April 2, 2018); Johnson v. United Airlines, Inc., No. 17 C 8858, Doc. 1-1 ¶¶ 46–

55, Prayer for Relief (N.D. Ill. Dec. 8, 2017).

In another attempt to avoid Miller, Peatry argues that BIPA provides her with non-

waivable rights that § 301 cannot preempt. Miller rejected Peatry’s contention that only she, and

not the Union, could consent to Bimbo’s use of her biometric information. 926 F.3d at 903. As

in Miller, the Union was Peatry’s “sole and exclusive bargaining agent with respect to rates of

pay, hours of work and other conditions of employment.” Doc. 18-1 at 8; see 29 U.S.C.

§§ 158(a)(5), 158(d), 159(a). And instead of excluding a union from acting on its members’

behalf with respect to their privacy rights under BIPA, BIPA explicitly allows “an authorized

agent” to receive notices and consent to the collection of biometric information. 740 Ill. Comp.

Stat. 14/15(b), (d); Miller, 926 F.3d at 903–04 (“That biometric information concerns workers’

privacy does not distinguish it from many other subjects, such as drug testing, that are routinely

covered by collective bargaining and on which unions give consent on behalf of the whole

bargaining unit.”).

More importantly, however, Peatry ignores that § 301 may even preempt a nonnegotiable

state remedy that “turns on the interpretation of a collective bargaining agreement.” Atchley, 101

F.3d at 501; Carter v. Tyson Foods, Inc., No. 3:08-CV-209, 2009 WL 4790761, at *8 (N.D. Ind.

Dec. 3, 2009) (“[E]ven non-negotiable statutory rights may be preempted if interpretation of a

collective bargaining agreement was required to resolve the statutory claims.” (citing Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 n.7 (1988))). Here, Peatry’s BIPA claims

require interpretation of the CBA, meaning that § 301 preempts her BIPA claims regardless of

whether the Court treats her rights under BIPA as nonnegotiable. See Atchley, 101 F.3d at 501.

And although the LMRA does not provide a separate vehicle for asserting claims like the RLA,

the CBA includes a grievance procedure through which Peatry arguably could have raised her

claims.

Because § 301 preempts Peatry’s post-May 8, 2018 claims, the Court must determine the

appropriate remedy. The Supreme Court has indicated that a preempted state law claim “must

either be treated as a § 301 claim, or dismissed as pre-empted by federal labor-contract law.”

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985). Employees must exhaust

administrative remedies before bringing suit in federal court unless certain exceptions apply. See

McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 616 (7th Cir. 2001). Peatry has not set

forth allegations to allow the Court to treat her claims as § 301 claims, and it appears she did not

properly exhaust her administrative remedies. Although Peatry may have an argument

concerning the futility of exhaustion or the unavailability of the grievance procedure, the Court

cannot make such determinations on the information before it. The Court therefore finds it

appropriate to dismiss Peatry’s post-May 8, 2018 claims without prejudice and allow Peatry to

evaluate how she wishes to proceed with respect to these preempted claims.

II. NLRA Preemption

Bimbo also argues that the NLRA preempts Peatry’s remaining pre-May 8, 2018 claims.

The Supreme Court has developed two NLRA preemption doctrines, known as Garmon

preemption and Machinists preemption. See San Diego Bldg. Trades Council v. Garmon, 359

U.S. 236 (1959); Lodge 76, Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Wis.

Emp’t Relations Comm’n, 427 U.S. 132 (1976). Garmon preemption “seeks to prevent conflicts

between state and local regulation and Congress’s integrated scheme of regulation embodied in

Section 7 and 8 of the NLRA” and ensures “the NLRB’s primary jurisdiction in cases involving”

those NLRA sections. 520 S. Mich. Ave. Assocs., Ltd. v. Shannon, 549 F.3d 1119, 1125 (7th Cir.

2008). Machinists preemption “forbids both the National Labor Relations Board (NLRB) and

States to regulate conduct that Congress intended ‘be unregulated [and] left to be controlled by

the free play of economic forces.’” Chamber of Commerce of U.S. v. Brown, 554 U.S. 60, 65

(2008) (quoting Machinists, 427 U.S. at 140); Cannon v. Edgar, 33 F.3d 880, 885 (7th Cir. 1994)

(“Machinists preemption prohibits state and municipal regulations of areas that Congress left to

the free play of economic forces.”).

As the Miller court recognized, and contrary to Peatry’s position, “how workers clock in

and out is a proper subject of negotiation between unions and employers—is, indeed, a

mandatory subject of bargaining.” Miller, 926 F.3d at 903; see 29 U.S.C. § 158(d). “Similarly,

the retention and destruction schedules for biometric data, and whether [employers] may use

third parties to implement timekeeping and identification systems, are topics for bargaining

between unions and management.” Id. But this does not automatically mean that the NLRA

preempts Peatry’s claims. 520 S. Mich. Ave., 549 F.3d at 1128 (“[A] state law is not preempted

by the NLRA merely because it regulates a mandatory subject of bargaining.”); Spoerle v. Kraft

Foods Glob., Inc., 527 F. Supp. 2d 860, 870–71 (W.D. Wis. 2007) (rejecting argument that “if

Congress requires employers to engage in collective bargaining on a particular matter, states are

powerless to impose any requirements that touch on any aspect of that matter”).

“[T]he NLRA is concerned primarily with establishing an equitable process for

bargaining, and not the substantive terms of bargaining.” 520 S. Mich. Ave., 549 F.3d at 1128.

Its preemptive reach does not extend to a state law that “establishes a minimum labor standard

that does not intrude upon the collective-bargaining process.” Fort Halifax Packing Co. v.

Coyne, 482 U.S. 1, 7 (1987); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 754–55 (1985)

(“No incompatibility exists, therefore, between federal rules designed to restore the equality of

bargaining power, and state or federal legislation that imposes minimal substantive requirements

on contract terms negotiated between parties to labor agreements, at least so long as the purpose

of the state legislation is not incompatible with these general goals of the NLRA.”). Although

Bimbo argues that Peatry’s claims interfere with and attempt to regulate an aspect of labor

relations, the Court disagrees and finds BIPA comparable to a state statute that establishes a

minimum labor standard with which all employers must comply. See Fort Halifax, 482 U.S. at

23 (state statute requiring employers to provide severance pay to certain employees not

preempted by the NLRA); Metro. Life Ins. Co., 471 U.S. at 755 (“Minimum state labor standards

affect union and nonunion employees equally, and neither encourage nor discourage the

collective-bargaining processes that are the subject of the NLRA.”). Nor has Bimbo sufficiently

explained how BIPA’s requirements are incompatible with the NLRA’s concerns “with

establishing an equitable process for determining terms and conditions of employment.” See

Metro. Life Ins. Co., 471 U.S. at 753, 758 (state insurance regulation “designed to implement the

Commonwealth’s policy on mental-health care” did not “limit the rights of self-organization or

collective bargaining protected by the NLRA”). Therefore, the Court cannot find that the NLRA

preempts Peatry’s pre-May 8, 2018 claims so as to require their dismissal.

III. Sufficiency of the Pleadings

Alternatively, Bimbo argues that Peatry has failed to state a BIPA claim because she has

not adequately pleaded negligence, recklessness, or intent. BIPA provides that a plaintiff may

recover statutory damages of $1,000 for negligent violations and $5,000 for intentional or

reckless violations. 740 Ill. Comp. Stat. 14/20(1)–(2). But the need to demonstrate negligence,

intentional action, or recklessness impacts a plaintiff’s recovery, not the underlying substantive

violation of BIPA. See Rosenbach v. Six Flags Entm’t Corp., 2019 IL 123186, ¶¶ 33, 36

(“[W]hen a private entity fails to comply with one of section 15’s requirements, that violation

constitutes an invasion, impairment, or denial of the statutory rights of any person or customer

whose biometric identifier or biometric information is subject to the breach. . . . The violation, in

itself, is sufficient to support the individual’s or customer’s statutory cause of action.”); Woodard

v. Dylan’s Candybar LLC, Doc. 46 at 9 (Ill. Cir. Ct. Cook Cty. Nov. 20, 2019) (BIPA’s inclusion

of states of mind serve as “standards of culpability for determining damages,” not as elements of

the violation).

Rule 8 does not require a plaintiff to plead damages with particularity and instead only

requires “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(3). Peatry has sufficiently

complied with this requirement. And even treating state of mind as an element of the violation,

by alleging that Bimbo has made no effort to comply with BIPA, Peatry has pleaded facts to

suggest Bimbo acted with negligence, recklessness, or intent. See Neals v. PAR Tech. Corp., ---

F. Supp. 3d ----, 2019 WL 6907995, at *3 (N.D. Ill. Dec. 18, 2019) (rejecting the defendant’s

argument that the plaintiff failed to include facts that would entitle her to statutory damages

because the rules do not require a plaintiff to prove her case at the pleading stage); Rogers v.

BNSF Ry. Co., No. 19 C 3083, 2019 WL 5635180, at *5 (N.D. Ill. Oct. 31, 2019) (“[T]he BIPA

took effect more than ten years ago, and if the allegations of his complaint are true—as the Court

must assume at this stage—BNSF has made no effort to comply with its requirements. This is

certainly enough, at the pleading stage, to make a claim of negligence or recklessness

plausible.”). But see Namuwonge v. Kronos, Inc., No. 1:19-cv-03239, 2019 WL 6253807, at *5

(N.D. Ill. Nov. 22, 2019) (“Namuwonge’s abstract statements regarding damages are insufficient

for the Court to infer that Kronos acted recklessly or intentionally.”); Rogers v. CSX Intermodal

Terminals, Inc., 409 F. Supp. 3d 612, 618 (N.D. Ill. 2019) (“Rogers’ conclusory statement of

CSX’s intent is insufficient to allow us to infer that CSX acted intentionally or recklessly and

does nothing to distinguish this case from every possible BIPA case where the defendant is

alleged to have failed to meet the strictures of Section 15.”).

IV. IWCA Preemption

Finally, Bimbo advances another preemption argument, contending that the IWCA

preempts Peatry’s BIPA claims. The IWCA provides the exclusive remedy for accidental

injuries that employees sustain in the course of their employment. 820 Ill. Comp. Stat. 305/5(a);

Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462 (1990). A plaintiff can avoid IWCA

preemption if she establishes “(1) that the injury was not accidental; (2) that the injury did not

arise from . . . her employment; (3) that the injury was not received during the course of

employment; or (4) that the injury was not compensable under the [IWCA].” Meerbrey, 139 Ill.

2d at 463. Peatry argues that she has not asserted a compensable injury.

“[W]hether an injury is compensable is related to whether the type of injury categorically

fits within the purview of the Act.” Folta v. Ferro Eng’g, 2015 IL 118070, ¶ 23. Peatry claims

that the IWCA only preempts claims for physical injuries or psychological injuries arising out of

physical injuries or stemming from a definite time and place, while Bimbo maintains that

Peatry’s injury should be considered a psychological one compensable under the IWCA. In

Treadwell v. Power Solutions International, Inc., a court in this district extensively addressed the

question presented here. --- F. Supp. 3d ----, 2019 WL 6838940, at *5–6 (N.D. Ill. Dec. 16,

2019). After reviewing the case law and noting that any other conclusion would be “a novel

development,” the court found that the IWCA does not preempt non-physical and non-

psychological injuries like those arising under BIPA. Id. A number of Illinois trial courts have

found similarly, concluding that the “loss of the ability to maintain privacy rights . . . is neither a

psychological nor physical injury and is not compensable under the Act.” McDonald v.

Symphony Bronzeville Park LLC, Doc. 34-5 at 4 (Ill. Cir. Ct. Cook Cty. June 17, 2019); see also

Woodard, Doc. 46 at 9–11; Robertson v. Hostmark Hosp., Doc. 34-1 at 4 (Ill. Cir. Ct. Cook Cty.

July 31, 2019); Fluker v. Glanbia Performance Nutrition, Inc., Doc. 34-4 at 4 Cll. Cir. Ct. Cook

Cty. July 11, 2019). The Court adopts the reasoning from Treadwell and agrees that, under the

current case law, the IWCA does not cover the injury Peatry alleges—the invasion of her privacy

rights. See Treadwell, 2019 WL 6838940, at *5—6. At this stage, the Court allows Peatry’s pre-

May 8, 2018 claims to proceed to discovery.

CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part Bimbo’s motion to

dismiss [17]. The Court dismisses Peatry’s post-May 8, 2018 claims without prejudice.

5 Oy

Dated: February 26, 2020

SARA L. ELLIS

United States District Judge

14