Breidecker v. Garnett Wood Products Co., Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMES L. BRIEDECKER, )

)

Plaintiff, )

)

vs. ) Case No. 3:20-CV-253-MAB

)

GARNETT WOOD PRODUCTS, INC., )

BOB RISBY, and MARK GARNETT, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is currently before the Court on the motion to dismiss filed by

Defendants Garnett Wood Products Co., Inc., Bob Risby, and Mark Garnett (Doc. 22). For

the reasons explained below, it is granted in part and denied in part.

ALLEGATIONS

Garnett Wood Products (“GWP”) manufactures, sells, and brokers a variety of

wood products including pallets, skids, pallet components, boxes, crates, and other

specialty wood products. Plaintiff, a 49-year-old male, began working as a sales

representative in the pallet division for GWP in February 1996. Defendant Bob Risby,

who is Plaintiff’s maternal uncle, is a sales manager for GWP and served as Plaintiff’s

direct supervisor. Defendant Mark Garnett is the President and owner of GWP.

For Plaintiff’s entire career with GWP, he worked out of an office at his home in

Southern Illinois. During the approximately first 15 years of his employment with GWP,

Plaintiff built a client base in over ten states, including Illinois and Missouri, travelled to

these states, and was compensated for all of his expenses including home office, travel,

and business expenses.

In approximately 2017, Bob Risby’s son, Robert Risby, Jr., was hired by GWP as a

sale representative in the pallet division. Around this same time, Bob Risby began

accusing Plaintiff of being dyslexic and asserting that he was incapable of performing

daily work activities. Risby repeatedly threatened to hire an additional employee to assist

Plaintiff in doing his job and to deduct the costs of the additional employee from

Plaintiff’s compensation. Prior to this, neither Risby nor anyone else from GWP had ever

raised any performance issues with Plaintiff in his 20 years with the company. Bob Risby

continued to harass Plaintiff regarding his perceived dyslexia and repeatedly discussed

firing Plaintiff throughout 2017 and into 2018.

In 2018, Bob Risby informed Mark Garnett that Plaintiff wanted to quit and

continued to discuss Plaintiff’s separation from GWP. Plaintiff initially entertained these

discussions from Risby even though he did not want to leave his job because he believed

that Risby was looking to terminate Plaintiff and to replace him with his son Robert Risby,

Jr. Bob Risby told Mark Garnett that Plaintiff was going to quit Defendant effective

December 31, 2018. In early December 2018, Plaintiff reported Risby’s abuse and

harassment to Garnett. Plaintiff told Garnett that he thought Risby was discriminating

and harassing him and trying to terminate him in order to replace him with the younger

Robert Risby, Jr.

Mark Garnett undertook no investigation into Plaintiff’s assertions. Just prior to

Christmas in 2018, Garnett presented Plaintiff with a severance agreement that provided

Plaintiff would quit GWP and complete a release of any and all claims, including

employment related claims under federal and state law. Plaintiff refused to sign the

severance agreement. Garnett then presented Plaintiff with a second severance

agreement that provided Plaintiff was discharged from GWP, Plaintiff released all claims

against Defendant, and agreed to a non-compete clause. Plaintiff again refused to sign

the agreement. In response, Garnett emailed Plaintiff indicating that he hoped to receive

the accepted severance agreement by midnight of December 31, 2018, but in any event

Plaintiff’s employment was terminated as of midnight on December 31, 2018.

Plaintiff asserts discrimination and retaliation claims against GWP under the Age

Discrimination in Employment Act, the Americans with Disabilities, the Missouri

Human Rights Act, and the Illinois Human Rights Act (Counts 1 through 12). He asserts

claims against GWP under the Illinois Sales Representative Act and the Illinois Wage

Payment and Collection Act for unpaid compensation (Counts 13, 14). He asserted

common law claims for intentional and negligent infliction of emotional distress against

Risby and Garnett (Counts 15, 16), respondeat superior and retaliatory discharge against

GWP (Counts 17, 18).

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) addresses the legal sufficiency of the

plaintiff’s claim for relief, not the merits of the case or whether the plaintiff will ultimately

prevail. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014); Gibson v.

City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In reviewing a motion to dismiss, the

court accepts all well-pleaded facts as true and draws all reasonable inferences in the

plaintiff’s favor. E.g., Burger v. Cty. of Macon, 942 F.3d 372, 374 (7th Cir. 2019) (citation

omitted). To survive a motion to dismiss, the plaintiff must do more than simply recite

the elements of a claim in a conclusory fashion. Camasta, 761 F.3d at 736 (citing Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009)). The complaint must contain sufficient factual

information “to state a claim to relief that is plausible on its face,’” meaning the court can

reasonably infer that the defendant is liable for the alleged misconduct. Burger, 942 F.3d

at 374 (quoting Iqbal, 556 U.S. at 678); Camasta, 761 F.3d at 736 (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007)).

DISCUSSION

A. ADEA AND ADA CLAIMS (COUNT 1 THROUGH 4)

Defendants move to dismiss Plaintiff’s ADEA and ADA claims pursuant to Rule

12(b)(6) because Plaintiff failed to administratively exhaust those claims prior to filing

suit (Doc. 23, pp. 14–15). Specifically, Plaintiff was required to file a charge of

discrimination with the EEOC within 300 days of the discriminatory act. See 29 U.S.C. §

626(d)(1); 42 U.S.C. § 12117 (applying the 300–day statute of limitations listed in 42

U.S.C.2000e–5(e) to ADA claims); Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632,

637 (7th Cir. 2004) (citation omitted)). Defendants contend that Plaintiff did not file his

charge until December 2, 2019—336 days after he was terminated (Doc. 23, pp. 14–15).

Defendants’ argument, however, is premature.

The failure to file a timely charge with the EEOC is an affirmative defense that the

defendant bears the burden of proving. Laouini v. CLM Freight Lines, Inc., 586 F.3d 473,

475 (7th Cir. 2009). In general, courts should refrain from granting 12(b)(6) motions based

on affirmative defenses because a complaint “ordinarily need not anticipate and attempt

to plead around affirmative defenses.” Hyson USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935,

939 (7th Cir. 2016) (citations omitted); Brownmark Films, LLC v. Comedy Partners, 682 F.3d

687, 690 (7th Cir. 2012). Rule 12(b)(6) tests whether the complaint states a facially

plausible claim for relief, and “[t]he mere presence of a potential affirmative defense does

not render the claim for relief invalid.” Brownmark Films, 682 F.3d at 690. Furthermore,

affirmative defenses often turn on facts not before the court at the pleadings stage of the

proceedings. Brownmark Films, 682 F.3d at 690.

Rather than seeking dismissal under Rule 12(b)(6) based on an affirmative defense,

a defendant should first raise the defense in their answer and then move for judgment on

the pleadings under Rule 12(c). Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639,

645 (7th Cir. 2019); Brownmark Films, 682 F.3d at 690; Mosely v. Bd. of Educ. of City of Chicago,

434 F.3d 527, 533 (7th Cir. 2006). District courts nevertheless sometimes grant Rule

12(b)(6) motions on the basis of affirmative defenses when “the allegations of the

complaint . . . set forth everything necessary to satisfy the affirmative defense.” Hyson,

821 F.3d at 939.1 That is, “the factual allegations in the complaint unambiguously

1 The Seventh Circuit explained in Brownmark Films that “[t]hough district court have granted Rule

12(b)(6) motions on the basis of affirmative defenses and this court has affirmed those dismissals, we have

repeatedly cautioned that the proper heading for such motions is Rule 12(c), since an affirmative defense

is external to the complaint.” Brownmark Films, 682 F.3d at 690 n.1. Accord Mosely, 434 F.3d at 533 (noting

“parties and courts occasionally take short-cuts” and present arguments for dismissal on the basis of an

affirmative defense through a 12(b)(6) motion, even though the proper vehicle is a motion for judgment on

the pleadings under Rule 12(c)). See also Carr v. Tillery, 591 F.3d 909, 913 (7th Cir. 2010) (explaining district

judge “jumped the gun in dismissing case under Rule 12(b)(6)” because res judicata is an affirmative

defense and therefore “the defendant should raise it and then move for judgment on the pleadings

under Rule 12(c),” but error was “of no consequence” because the judge “had before him all he needed in

establish all the elements of the defense” and the plaintiff has “affirmatively plead[ed]

himself out of court.” Hyson, 821 F.3d at 939 (internal quotation marks and citations

omitted). Accord U.S. Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003) ("A

litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a

defense”) (parenthetical in original).

Here, all the complaint says is that Plaintiff received a right to sue letter from the

EEOC that was dated December 9, 2019, and he filed this lawsuit in a timely manner (Doc.

1, p. 2). Plaintiff did not plead anything more regarding the charge he filed with the EEOC

(see Doc. 1). Thus, nothing on the face of the complaint compels the conclusion that

Plaintiffs failed to file a timely charge with the EEOC and thus failed to exhaust his

administrative remedies prior to filing suit (see Doc. 1).

Defendants then submitted Plaintiff’s formal EEOC charge with their motion to

dismiss and asserted that the Court can consider this document in deciding the motion

(Doc. 23, p. 10 n.1; Doc. 23-2). The charge indicates that it was received by the EEOC on

December 2, 2019, which was 336 days after Plaintiff was terminated (Doc. 23-2).

Therefore, according to Defendants, Plaintiff’s charge was untimely (Doc. 23, p. 11). But

Plaintiff countered that he actually provided the EEOC with information sufficient to

constitute a charge much earlier than when the formal charge was received on December

2, 2019 (Doc. 28, pp. 4–5, 8–11). Specifically, he says he first contacted the EEOC in January

order to be able to rule on the defense”); Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (disregarding the

difference between a motion to dismiss under Rule 12(b)(6) and a motion for judgment on the pleadings

under Rule 12(c) because “the practical effect is the same” when the complaint sets forth all of the

information necessary to decide an affirmative defense).

2019, met with someone from the EEOC and provided all the necessary information in

March 2019, and remained in contact with and continued providing information to the

EEOC throughout the spring and summer of 2019. He communicated with the EEOC one

last time in October 2019, after which he received a letter dated October 31, 2019, stating

that “a document” previously submitted to the EEOC “constitutes a charge of

discrimination . . . [and the EEOC] notified the employer that you filed a charge” (Doc.

28-1). The EEOC also provided Plaintiff with a formal “EEOC Form 5, Charge of

discrimination” that summarized his claims based on the information he had provided

and instructed him to sign and return it within 30 days (Doc. 28-1). Plaintiff signed the

EEOC Form 5 on November 25, 2019 and the EEOC received it on December 2, 2019 (Doc.

23-1). It appears the EEOC Form 5 is the document Defendants provided and claim is

Plaintiff’s “charge.”

To the extent that there was an earlier submitted document that satisfied the

charge filing requirement as indicated by the EEOC, Defendants acknowledge that there

is no information as to what that document was or when it was submitted to the EEOC

(Doc. 32, p. 2). They argue this ambiguity should be held against Plaintiff, stating that

“[b]ecause Plaintiff failed to allege these facts, the Court has no basis to conclude that any

document was filed in a timely manner that would exhaust his administrative remedies

under the ADA or ADEA,” and therefore, his claims should be dismissed (Id. at pp. 2–3).

But as previously stated, Plaintiff had no obligation to allege facts negating an affirmative

defense in his complaint. And even if the Court considered the documents submitted by

the parties with their briefings on the motion to dismiss, it still would not have all of the

facts needed to resolve the issue of exhaustion.2

In sum, neither the allegations in the complaint nor the documents submitted by

the parties in their briefing on the motion to dismiss unambiguously establish that

Plaintiff failed to file a timely charge with the EEOC prior to filing suit. Plaintiff therefore

has not pleaded himself out of Court and the portion of Defendants’ motion to dismiss

pertaining to exhaustion of the ADEA and ADA claims must be denied.

B. CLAIMS UNDER THE ILLINOIS HUMAN RIGHTS ACT

Defendants argue that Plaintiff also failed to administratively exhaust his IHRA

claims prior to filing suit (Doc. 23, pp. 14–15). Under Illinois law, in order to file suit under

the IHRA, Plaintiff had to file a charge of discrimination with the Illinois Department of

Human Rights within 300 days of the last date of the alleged discrimination or retaliation

and receive a right-to-sue letter. 775 ILL. COMP. STAT. 5/7A-102(A). The IDHR has a work-

sharing agreement with the EEOC, whereby a charge filed with the EEOC is

automatically cross-filed with the IDHR. 775 Ill. Comp. Stat. 5/7A-102(A-1)(1); Carlson v.

Christian Bros. Servs., 840 F.3d 466, 467 (7th Cir. 2016).

Defendants once again contend that Plaintiff did not file his charge until December

2, 2019—336 days after he was terminated (Doc. 23, pp. 14–15). But as discussed in the

previous section, Plaintiff did not plead anything regarding the timing of his EEOC

2 Plaintiff further argues in the alternative that if his EEOC charge was untimely, equitable tolling applies

and saves his claim (Doc. 28, pp. 11–12). He also argues that Defendants’ discrimination and retaliation

continued past his termination date while he was applying for unemployment benefits (Doc. 28, pp. 12–

13). The Court declines to address these arguments.

charge, nor was he required to. And the materials currently on the record do not

unambiguously establish when Plaintiff’s EEOC charge was filed. Consequently, Plaintiff

has not pleaded himself out of Court and the portion of Defendants’ motion to dismiss

pertaining to the IHRA claims must be denied.

C. CLAIMS UNDER MISSOURI HUMAN RIGHTS ACT

Defendants argue that Plaintiff’s claims under the MHRA must be dismissed

because Plaintiff failed to administratively exhaust those claims prior to filing suit (Doc.

23, pp. 11–12). In order to file suit under the MHRA, Plaintiff had to file a charge of

discrimination with the Missouri Commission on Human Rights (“MCHR”) within 180

days of the last date of the alleged discrimination or retaliation and receive a right-to-sue

letter. Mo. REV. STAT. §§ 213.075(1), 213.111(1); Stuart v. Gen. Motors Corp., 217 F.3d 621,

630 (8th Cir. 2000). Like Illinois, the MCHR also has a work-sharing agreement with the

EEOC, whereby a charge filed with the EEOC is automatically cross-filed with the

commission. Mo. REV. STAT. § 213.075(2). Defendants’ argument that Plaintiff failed to

exhaust his MHRA claims is unavailing for the same reasons stated above with respect

to Plaintiff’s claims under the IHRA.

Defendants next argue that Plaintiff’s claims under the MHRA are not cognizable

because he did not identify any unlawful discriminatory practice that occurred in

Missouri (Doc. 23, pp. 12–13). In order to have an actionable claim under the MHRA, a

person must be aggrieved by or suffer an adverse impact from an allegedly unlawful

discriminatory practice. Tuttle v. Dobbs Tire & Auto Centers, Inc., 590 S.W.3d 307, 310 (Mo.

2019); State ex rel. Anheuser-Busch, LLC v. Moriarty, 589 S.W.3d 567, 571 (Mo. 2019). In

determining whether the MHRA is applicable, courts look to whether the adverse

impact—not the discriminatory practice or decisions—occurred in Missouri. Tuttle, 590

S.W. at 311–312; Moriarty, 589 S.W.3d at 571–72.

In Tuttle, the plaintiff sued his former employer Dobbs Tire and Auto Centers, Inc.,

where he had worked for approximately 28 years. Tuttle, 590 S.W. at 309. Dobbs is

headquartered in Missouri but had stores in both Missouri and Illinois. Id. The plaintiff

was the store manager of a Dobb’s Tire store in Shiloh, Illinois. Id. He alleged that he

became the target of discriminatory employment practices in 2015 because of his age. Id.

He timely filed a charge with the MCHR, was issued a right-to-sue notice, and filed suit

in St. Louis County Court claiming age discrimination and retaliation in violation of the

MHRA. Id. The Supreme Court of Missouri affirmed the dismissal of his claims, however,

because “the manner in which he was aggrieved [was] his loss of wages in Illinois,

benefits of his employment in Illinois, and mental anguish arising from his constructive

discharge from his Illinois job,” which meant the adverse impact from the alleged

discriminatory practices occurred in Illinois, not Missouri. Id. at 311. The fact that certain

discriminatory decisions may have occurred in Missouri did not matter because

“decisions are not actionable under the MHRA.” Id. at 312. “Adverse impacts from

discriminatory practices are actionable,” and those occurred in Illinois. Id.

In Moriarty, the plaintiff sued his former employer Anheuser-Busch, LLC, where

he worked for over 30 years. Moriarty, 589 S.W.3d at 568–69. The plaintiff was a retail

sales director over a sales territory that included Iowa, Minnesota, Nebraska, North

Dakota, and South Dakota. Id. at 568. He worked out of his home in Iowa when he was

not traveling throughout his sales territory. Id. His direct supervisor, secretary, and other

support staff were located in A-B’s regional sales office in St. Louis, Missouri. Id. The

plaintiff made monthly trips to the St. Louis office for meetings, reviews, and training. Id.

He alleged that he became the target of discriminatory employment practices in 2012

because of his age. Id. He timely filed a charge with the MCHR, was issued a right-to-sue

notice, and filed suit in St. Louis County Court claiming age discrimination and

retaliation in violation of the MHRA. Id. at 569. The Supreme Court of Missouri noted

that “[s]everal adverse impacts” arose from the alleged discriminatory decision-making

process, “including lower performance reviews in regards to his Iowa job, loss of wages

and employment benefits from his Iowa job, emotional distress because of actions taken

toward his Iowa job, and demotion from his Iowa job.” Id. at 571–72. Because the plaintiff

was aggrieved solely in Iowa, the MHRA did not provide him with any relief, regardless

of whether the alleged discriminatory decision-making process occurred in Missouri. Id.

at 572.

Here, Defendants argue that “[l]ike the plaintiff’s [sic] in Tuttle and Moriarty, all

adverse impacts arising from the alleged discriminatory conduct impacted Plaintiff in

Illinois” because Plaintiff is an Illinois resident and worked from his home in Southern

Illinois (Doc. 23, pp. 13–14). Plaintiff, however, contends that there is an unresolved issue

of fact as to where the adverse employment action transpired (Doc. 28, pp. 13–14). Two

of the points made by Plaintiff give the Court pause and may very well distinguish his

case from Tuttle and Moriarty. First, Plaintiff applied for and received Missouri

unemployment benefits (Doc. 23-1, pp. 3–4; Doc. 28, p. 14). Second, he sold products to

customers in approximately ten states, including Missouri (Doc. 28, pp. 13–14). These

allegations make it plausible that Plaintiff’s job was a Missouri job where he earned

Missouri wages.3 This is enough to state a claim and survive a Rule 12(b)(6) motion to

dismiss.

For these reasons, the portion of Defendants’ motion to dismiss pertaining to the

MHRA claims must be denied.

D. CLAIM UNDER THE ILLINOIS SALES REPRESENTATIVE ACT (COUNT 13)

Plaintiff alleges that GWP violated the Illinois Sales Representative Act (“ISRA”)

by not paying him all of the commissions he earned (Doc. 1, pp. 18–19). Defendants argue

that Plaintiff’s claim under the ISRA must be dismissed because he alleges throughout

the Complaint that he was an “employee” of GWP and “employees” are specifically

excluded from the protections of the ISRA (Doc. 23, pp. 15–16). Defendants’ argument is

unavailing.

The ISRA creates a cause of action for a principal's failure to pay “commissions

due at the time of termination of a contract between a sales representative and principal

. . . and commissions that become due after termination.” 820 ILL. COMP. STAT. 120/2. A

“sales representative” is defined as “a person who contracts with a principal to solicit

orders and who is compensated, in whole or in part, by commission, but shall not include

one who places orders or purchases for his own account for resale or one who qualifies

3 See, e.g., U.S. Dep’t of Labor, How Do I File for Unemployment?,

https://www.dol.gov/general/topic/unemployment-

insurance#:~:text=Generally%2C%20you%20should%20file%20your,your%20claim%20with%20other%20

states (last visited Jan. 5, 2021) (indicating that one generally files for unemployment “in the state where

[they] worked”)

as an employee of the principal pursuant to the Illinois Wage Payment and Collection

Act.” 820 ILL. COMP. STAT. 120/1(4).

Here, Plaintiff alleges that he is owed compensation for providing services during

his employment with GWP, be it commissions under the Illinois Sales Representative Act

(Count 13) or wages under the Illinois Wage Payment and Collection Act (Count 14) (Doc.

1, pp. 18–20). These claims are pleaded as alterative theories of relief as permitted by Rule

8(d). FED. R. CIV. P. 8(d); Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805 (1999) (“Our

ordinary Rules recognize that a person may not be sure in advance upon which legal

theory she will succeed, and so permit parties to ‘set forth two or more statements of a

claim or defense alternately or hypothetically,’ and to ‘state as many separate claims or

defenses as the party has regardless of consistency.’”) (citation omitted). Plaintiff’s

references to his “employment” throughout the complaint, (see Doc. 23, p. 15 citing Doc.

1, ¶¶1, 16, 17, 29, 38) do not somehow constitute binding admissions or legal conclusions

that he was an “employee” and therefore not covered by the ISRA, as Defendants

contend. Whether Plaintiff was a “sales representative” or an “employee” and whether

his compensation was characterized as sales commissions or wages are issues of fact that

cannot be resolved at the pleadings stage.

Accordingly, the portion of Defendants’ motion to dismiss regarding Plaintiff’s

claims under the ISRA is denied.

E. CLAIM UNDER THE ILLINOIS WAGE PAYMENT AND COLLECTION ACT (COUNT 14)

Plaintiff alleges that GWP violated the Illinois Wage Payment and Collection Act

(“IWPCA”) by not paying him all of the wages he earned during his employment (Doc.

1, pp. 19–20). Defendants argue that Plaintiff cannot bring a claim under the IWPCA

because (1) GWP is not an Illinois employer subject to the Act and (2) Plaintiff failed to

plead the elements of an IWPCA claim (Doc. 23, p. 16).

“The IWPCA provides employees with a cause of action against employers for the

timely and complete payment of earned wages.” Enger v. Chicago Carriage Cab Corp., 812

F.3d 565, 568 (7th Cir. 2016) (citing 820 ILL. COMP. STAT. 115/3). “[T]o state a claim under

the IWPCA, the drivers are required to demonstrate that they are owed compensation

from defendants pursuant to an employment agreement.” Enger, 812 F.3d at 568.

GWP contends that, as a Missouri company, it is not governed by the IWPCA

because it only applies to Illinois employers (Doc. 23, pp. 16–17). This contention must

fail. Illinois regulations “make clear that the Wage Act can apply to out-of-state

employers, where the work is performed in Illinois and the employer has ‘sufficient

contacts in the State.’” Watts v. ADDO Mgmt., L.L.C., 97 N.E.3d 75, 83 (Ill. App. Ct. 2018)

(citing 56 Ill. Adm. Code 300.440(c) (2014)). And Illinois courts “have previously held that

‘a corporation with no headquarters or physical presence in Illinois can still qualify as an

Illinois employer under the Wage Act,’ where the plaintiffs make allegations of sufficient

contacts with the state.” Watts, 97 N.E.3d at 83 (citing Elsener v. Brown, 996 N.E.2d 84, 99

(Ill. App. Ct. 2013)).

Here, Plaintiff alleges that GWP “[does] business in Illinois,” that he worked out

of an office in his home in Illinois, and that he sold wood pallets to customers in Illinois

(Doc. 1, pp. 2–3). Taking all well-pleaded facts as true and drawing all reasonable

inferences in Plaintiff’s favor, the Court concludes that Plaintiff has sufficiently alleged

GWP’s contacts with Illinois and in-state activity so as to survive a motion to dismiss. See

NPF Racing Stables, LLC v. Aguirre, No. 18 C 6216, 2020 WL 1322847, at *6 (N.D. Ill. Mar.

20, 2020) (refusing to dismiss IWPCA claims against an Indiana company where the ranch

the plaintiff worked at was in Illinois and therefore “the work relevant to [her] IWPCA

claim . . . occurred in Illinois, allowing her to invoke the IWPCA.”); Crisostomo v.

Schneider-Kidan, No. 16 C 6406, 2017 WL 2880893, at *7 (N.D. Ill. July 6, 2017) (refusing to

dismiss IWPCA claims against a corporation headquartered in Pennsylvania where the

corporation maintained an office in Illinois at which the plaintiff worked); McGreal v.

Semke, 836 F. Supp. 2d 735, 740 (N.D. Ill. 2011) (refusing to dismiss IWPCA claims against

a Missouri corporation headquartered in Missouri where the plaintiff alleged the

corporation maintained an office in Illinois, marketed its services in Illinois, and

conducted substantial business in Illinois); Watts, 97 N.E.3d at 84 (refusing to dismiss

IWPCA claims where the “plaintiffs were Illinois residents and . . . the work they

performed originated and ended in Illinois.”).

As for Defendants’ argument that Plaintiff failed to plead the elements of an

IWPCA claim, this argument also fails. According to Defendants, Plaintiff failed to plead

the elements of an IWPCA claim because he did not explicitly allege that he was owed

compensation “under an employment ‘contract or agreement’” (Doc. 23, pp. 17–18). This

is a technicality and it does not deprive Defendants of fair notice of the nature of

Plaintiff’s claim, which is all the federal pleading standards require. Indep. Tr. Corp. v.

Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012) (citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). Plaintiff alleged that approximately eight to ten years

after he began working at GWP, his compensation package was changed, eliminating an

annual salary and becoming 100% commission based plus expenses, health care coverage

and profit sharing (Doc. 1, p. 3). It can reasonably be inferred from this allegation that

Plaintiff and GWP had an employment contract or agreement. Burger v. Cty. of Macon, 942

F.3d 372, 374 (7th Cir. 2019) (in reviewing motion to dismiss, courts “accept the well-

pleaded facts in the complaint as true and draw all reasonable inferences in the plaintiff's

favor.”); Landers-Scelfo v. Corp. Office Sys., Inc., 827 N.E.2d 1051, 1059 (Ill App. Ct. (2005)

(holding an employment agreement for purposes of the IWPCA “requires only a

manifestation of mutual assent on the part of two or more persons; parties may enter into

an ‘agreement’ without the formalities and accompanying legal protections of

a contract.” (citing Zabinsky v. Gelber Group, Inc., 807 N.E.2d 666 (Ill. App. Ct. 2004))).

Accordingly, the portion of Defendants’ motion to dismiss arguing that Plaintiff’s

claims under the IWPCA must be dismissed is denied.

F. CLAIMS FOR NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Defendants argue these claims must be dismissed because they are preempted by

the Illinois Human Rights Act (Doc. 23, pp. 18–23). They further argue that the NIED

claim is preempted by the Illinois Workers’ Compensation Act (Id.). Finally, Defendants

argue that even if Plaintiff’s claims aren’t preempted, they should still be dismissed

because Plaintiff failed to plead extreme and outrageous conduct required to establish an

IIED claim and he failed to plead the elements of a NIED claim (Id.).

The Court begins by noting that preemption under the exclusivity provision of a

state statute is normally an affirmative defense. See, e.g., Baylay v. Etihad Airways P.J.S.C.,

881 F.3d 1032, 1039 (7th Cir. 2018). However, the Seventh Circuit has affirmed the

dismissal of preempted claims under Rule 12(b)(6) when the defense was conclusively

established by the complaint and/or concessions made by the plaintiff. Id. at 1040; see also

Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 934 (7th Cir. 2017); Krocka v. City of

Chicago, 203 F.3d 507, 516–17 (7th Cir. 2000).

The Illinois Workers’ Compensation Act provides the exclusive means by which

an employee can recover against an employer for accidental injuries sustained during the

course of employment. Baylay, 881 F.3d at 1038–39 (citing 820 Ill. Comp. Stat.

305/5(a), 305/11). Claims sounding in negligence, such as Plaintiff’s NIED claim, are

barred by the exclusivity provisions of the IWCA. “An employee’s claims of employer

negligence and willful and wanton conduct fall within the definition of ‘accidental.’”

Baylay, 881 F.3d at 1039 (citing Lannom v. Kosco, 634 N.E.2d 1097, 1100–01 (Ill. 1994). Accord

Arnold v. Janssen Pharmaceutica, Inc., 215 F.Supp.2d 951, 956 (N.D. Ill. 2002)). Accordingly,

the IWCA “abrogates employer liability for all common law negligence claims[.]” Baylay,

881 F.3d at 1039 (citing Walker v. Doctors Hosp., 110 F.Supp.2d 704, 714 (N.D. Ill. 2000)).

Consequently, Plaintiff’s NIED claim is barred by the exclusivity provisions of the IWCA

and must be dismissed. Having reached this conclusion, the Court need not address

whether this claim is also preempted by the IHRA or whether it is sufficiently pleaded.

As for Plaintiff’s IIED claim, the Court agrees with Defendants that this claim is

preempted by the IHRA. The IHRA prohibits employment discrimination based on,

amongst other things, age and mental disability. 775 ILL. COMP. STAT. § 5/1-102(A). It “is

the exclusive remedy for civil-rights violations.” Nischan v. Stratosphere Quality, LLC, 865

F.3d 922, 934 (7th Cir. 2017) (citing 775 ILCS 5/8-111(D)). Consequently, the IHRA

preempts common law tort claims that depend on and are “inextricably linked to a civil

rights violation such that there is no independent basis for the action apart from the

[IHRA] itself.” Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (Ill. 1997) (cited by Nischan, 865

F.3d at 934); see also Bannon v. Univ. of Chicago, 503 F.3d 623, 630 (7th Cir. 2007) (“If the

plaintiff’s allegations against the defendant implicate only a duty provided by the IHRA,

such as the duty of employers to refrain from discriminating against employees on the

basis of their race or national origin, then the plaintiff's claim is preempted.”) (citing

Naeem v. McKesson Drug Co., 444 F.3d 593, 604 (7th Cir. 2006)). However, when the

discrimination aspect of the case is “merely incidental” to what is otherwise an ordinary

common law tort claim, then the claim is not preempted. Naeem, 444 F.3d at 604 (quoting

Maksimovic, 687 N.E.2d at 23). “That is, if the conduct would be actionable even aside

from its character as a civil rights violation because the IHRA did not ‘furnish the legal

duty that the defendant was alleged to have breached,’ the IHRA does not preempt a

state law claim seeking recovery for it.” Krocka v. City of Chicago, 203 F.3d 507, 516 (7th

Cir. 2000) (quoting Maksimovic, 687 N.E.2d at 23). To determine whether a common law

claim is “inextricably linked” to a civil rights violation, courts ask whether the plaintiff

can prove the elements of the common law claim independent of the legal duty not to

discriminate against him. Naeem, 444 F.3d at 604. Nischan, 865 F.3d at 934 (“To determine

whether claims are ‘inextricably linked,’ we ask whether the plaintiff can establish ‘a basis

for imposing liability on defendants . . . without reference to the legal duties created by

the IHRA.’” (quoting Blount v. Stroud, 904 N.E.2d 1, 9 (Ill. 2009))).

Here, Plaintiff alleges that Bob Risby caused him emotional distress by harassing

him and criticizing his work based on a perceived disability and that Risby orchestrated

Plaintiff’s termination so that Risby’s son could have Plaintiff’s job (Doc. 1). The core

theory of Plaintiff’s IIED claim, as currently pleaded, is that he was the victim of disability

and age discrimination. It is therefore inextricably linked to the civil rights violation and

is barred by the exclusivity provisions of the IHRA.

In an effort to save his IIED claim, Plaintiff argues that it is possible to view the

allegations about Risby as being independent of any duty imposed by the IHRA (Doc. 28,

p. 18). For example, Plaintiff could be claiming that regardless of Risby’s motivation,

Risby’s hostile attitude towards him, denigration of his abilities and intelligence, and

efforts to push him out of the company caused him distress. Even if true, this type of

conduct is not the kind of “extreme and outrageous conduct” needed to support an IIED

claim. See Breneisen v. Motorola, Inc., 512 F.3d 972, 983 (7th Cir. 2008); Bannon v. Univ. of

Chicago, 503 F.3d 623, 630 (7th Cir. 2007) (citing Graham v. Commonwealth Edison Co., 742

N.E.2d 858, 867–68 (Ill. 2000)); Honaker v. Smith, 256 F.3d 477, 491 n.10 (7th Cir. 2001). But

see Naeem v. McKesson Drug Co., 444 F.3d 593, 605 (7th Cir. 2006) (affirming jury verdict

for plaintiff on IIED claim where plaintiff was pregnant and the evidence showed a

pattern of behavior by her employer of piling on extra work, creating impossible

deadlines, incessantly and publicly criticizing her work performance, and deliberately

sabotaging her access to files).

Consequently, Plaintiff’s claims for intentional infliction of emotional distress

must be dismissed because it is barred by the exclusivity provisions of the IHRA and fails

to allege extreme and outrageous conduct. It is possible, however, that Plaintiff may be

able to allege facts that qualify as extreme and outrageous and overcome the exclusivity

defense. Consequently, he will be given an opportunity to amend his complaint.

G. Respondeat Superior Claim (Count 17)

Plaintiff alleges a respondeat superior claim against GWP based on his claims for

IIED and NIED asserted against Garnett and Risby (Doc. 1). Because the underlying IIED

and NEID claims are being dismissed, the respondeat superior claim must also be

dismissed. The dismissal is without prejudice and can be reasserted if Plaintiff amends

his complaint to reallege the IIED claim.

H. Retaliatory Discharge Claim

Defendants argue this claim must be dismissed because it is preempted by the

Illinois Human Rights Act (Doc. 23, pp. 24–25). The Court agrees. Plaintiff alleges that he

was terminated in retaliation for reporting Bob Risby’s discrimination and harassment

(Doc. 1). This is identical to Plaintiff’s claim for retaliation under the IHRA and wholly

based on the purported civil rights violation. Because Plaintiff’s common law claim for

retaliatory termination and IHRA claim are one and the same, the common law claim is

barred by the exclusivity provision of the IHRA. The motion to dismiss as to Count 18 for

retaliatory discharge is granted. The dismissal is without prejudice because, again, it is

possible that Plaintiff may be able to allege facts to overcome the exclusivity defense.

Consequently, he will be given an opportunity to amend his complaint

CONCLUSION

The motion to dismiss (Doc. 22) is GRANTED IN PART and DENIED IN PART.

It is GRANTED as to Plaintiff’s claims of negligent infliction of emotional distress (Count

15). This claim is DISMISSED with prejudice. It is also GRANTED as to Plaintiff’s claims

of intentional infliction of emotional distress (Count 16), respondeat superior (Count 17),

and retaliatory discharge (Count 18). These claims are DISMISSED without prejudice

and Plaintiff is GRANTED leave to amend his complaint on or before February 1, 2021

to reassert these claims. If Plaintiff declines or fails to amend his complaint by the

deadline, the dismissal of these claims will be converted to a dismissal with prejudice.

The motion to dismiss is DENIED as to Plaintiff’s claims under the ADEA (Counts

1 and 2), the ADA (Counts 3 and 4), the Missouri Human Rights Act (Count 5 through

8), the Illinois Human Rights Act (Counts 9 through 12), the Illinois Sales Representative

Act (Count 13), and the Illinois Wage Payment and Collection Act (Count 14). This matter

will proceed on Counts 1 through 14.

IT IS SO ORDERED.

DATED: January 5, 2021

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge