Hutchens v. Devasiachen

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOYCE HUTCHENS,

Plaintiff,

Case No. 1:24-cv-00490

v.

Judge Mary M. Rowland

RUBIYA DEVASIACHEN, DAVID

FLORES, AND THE NATIONAL

FOUNDATION FOR THE CENTERS

FOR DISEASE CONTROL AND

PREVENTION, INC.

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Joyce Hutchens sued Rubiya Devasiachen (“Devasiachen”), David Flores

(“Flores”), and the National Foundation for the Centers for Disease Control and

Prevention, Inc. (“the Foundation,” collectively “Defendants”), alleging intentional

interference with contractual relations, tortious interference with prospective

economic advantage, civil conspiracy, and intentional infliction of emotional distress,

and violations of the Age Discrimination in Employment Act ("ADEA"), Civil Rights

Act of 1866 (“Section 1981”), Title VII of the Civil Rights Act of 1964 ("Title VII"), and

the Illinois Whistleblower Act ("IWA"). For the reasons stated herein, Defendants’

motion to dismiss Plaintiff’s Second Amended Complaint pursuant to Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6) [32] is granted in part and denied in part.

I. Background

The following factual allegations taken from Hutchens’s Second Amended

Complaint [26] are accepted as true for the purposes of the motion to dismiss. See Lax

v. Mayorkas, 20 F.4th 1178, 1181 (7th Cir. 2021). Hutchens is a Black woman, [26] ¶

30, who was sixty-seven years old during the relevant period, [26-1] at 11.1

Hutchens’s professional career spans five decades, and her work history includes

being a teacher and school administrator, corporate administrator, training and

consulting professional, entrepreneur, public speaker, nationally recognized author,

and communications professional. [26] ¶ 108. Between December 21, 2021 and April

30, 2022, Hutchens applied for nine positions with the Foundation. [26] ¶ 36.

Although Hutchens was highly qualified for each of the positions, the Foundation

offered Hutchens an entry-level position as a COVID-19 School Liaison ("School

Liaison") with the Illinois Workforce Vaccine Project, and offered non-Black, less

qualified people the other eight positions that were not entry level. [26] ¶¶ 37, 193-

94. The School Liaison position was a temporary, grant-funded position with an end

date of July 31, 2022. [26] ¶ 38.

The Foundation partnered with the Illinois Department of Public Health

("IDPH") and SHIELD Illinois (“SHIELD”) on the Illinois Workforce Vaccine Project

which involved administering SHIELD’s innovative saliva-based PCR test,

covidSHIELD, to all Illinois public school districts. [26] ¶¶ 34-35. The Chicago Board

1 In her complaint, Hutchens incorporates by reference her Office of Federal Contract

Compliance complaint, [26-1] at 1-7, and the charges of discrimination that she filed on

August 3, 2022, [26-1] at 10-11, and November 30, 2022, [26-1] at 15-16. “It is well-settled in

this circuit that documents attached to a motion to dismiss are considered part of the

pleadings if they are referred to in the plaintiff's complaint and are central to his claim.”

Mueller v. Apple Leisure Corp., 880 F.3d 890, 895 (7th Cir. 2018) (cleaned up).

of Education was one of the school districts that partnered with SHIELD and the

Foundation to provide COVID-19 testing to charter schools under its jurisdiction. [26]

¶ 173. Hutchens accepted the School Liaison position and began working on February

7, 2022. [26] ¶ 37. In a meeting that took place in May 2022, an IDPH employee who

served as Program Manager for the Illinois Workforce Vaccine Project informed the

team that employees who had work performance issues might not have their

employment extended after July 31, 2022. [26] ¶ 56. Hutchens believed the

Foundation would extend her employment because her work performance was

excellent. [26] ¶ 57. Flores, who served as the Chicago and Los Angeles regional

coordinator for the Foundation, told the Illinois Workforce Vaccine Project team that

the people based in Chicago had “nothing to worry about” when it came to

employment extensions. [26] ¶¶ 33, 58.

On May 27, 2022, Hutchens received an email from Flores informing her that

her employment would end at the close of business on July 31, 2022, and that the

decision to terminate Hutchens's employment with the Foundation was not based on

her performance. [26] ¶ 59. In a conversation with Flores on June 1, 2022, Flores told

Hutchens that the Foundation was not extending her employment because of a

funding issue. [26] ¶ 63. Hutchens asked Flores why the Foundation was extending

her coworkers’ employment contracts, including those who had performance,

attendance, and tardiness issues, but not extending Hutchens’s employment contract

despite Hutchens having no work performance issues, stellar attendance and

punctuality, the most work experience on her team, the most (or only) school-related

work experience, the highest level of education, and the only experience teaching even

though teaching was a qualification for the School Liaison position. [26] ¶¶ 64-65.

Hutchens alleges that Flores could not provide a direct explanation. [26] ¶ 65. After

Hutchens’s contract ended, the similarly situated younger, non-Black School Liaisons

who remained employed by the Foundation transitioned to become SHIELD

employees. ¶1, 168.

On June 3, 2022, Hutchens told Helen Tovar (“Tovar”), the Foundation’s

General Counsel for Compliance, that she had concerns that the Foundation violated

federal and state age discrimination laws by not extending her contract. [26] ¶ 85.

Two months later, Tovar reported that the Foundation’s investigation revealed that

there were a number of reasons why Hutchens's employment was not extended,

including that Hutchens was tardy to her assignments and made a request to not be

assigned to areas outside a certain radius as a result of transportation issues. [26] ¶¶

101-02. After receiving her personnel file from the Foundation, Hutchens reviewed

the file and did not find any information related to tardiness, transportation radius

issues, or work performance issues. [26] ¶ 88. Hutchens alleges that the purported

reasons her employment contract was not extended were false, [26] ¶ 127, and that

the Foundation did not extend her employment and took other adverse employment

actions against her because of her age, [26] ¶¶122, 177-82, and her race, [26] ¶¶ 184-

89.

Hutchens also alleges that the Foundation created a document called

“Hutchens Joyce Application” and placed it in her personnel file after she was hired

and before the Foundation decided not to extend her employment. [26] ¶¶ 154, 171.

The document contained a link to the website for Hutchens’s nonprofit organization.

[26] ¶ 158. Hutchens’s website discussed Hutchens v. Chicago Board of Education et

al., 1:09-cv-07931(N.D. Ill.), a lawsuit that Hutchens filed that alleged race

discrimination and violations of Section 1983 against the Chicago Board of Education.

[26] ¶ 158-59. The case ultimately settled. [26] ¶ 159. Hutchens alleges that after the

Foundation discovered her involvement in Hutchens v. Chicago Board of Education,

the Foundation retaliated against her by not extending her employment contract

because of the business relationship between the Foundation, SHIELD, and the

Chicago Board of Education. [26] ¶¶ 173, 204-07.

On July 7, 2022, Hutchens filed with the Office of Federal Contract Compliance

("OFCCP") charges of age and race discrimination and retaliation against the

Foundation. [26] ¶ 5. On August 3, 2022, Hutchens timely filed a charge of

discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC").

[26] ¶ 11. Hutchens filed another charge of discrimination with the EEOC on

November 30, 2022. [26] ¶ 19. On December 14, 2023, the EEOC issued Hutchens

notices of her right to sue that were related to her charges. [26] ¶ 24. Hutchens filed

this action on July 1, 2024.

Defendants move to dismiss all of Hutchens’s claims based on Rule 12(b)(1)

and 12(b)(6). [32].

Standard

A facial challenge to subject matter jurisdiction under Rule 12(b)(1) contests

whether the allegations, taken as true, support standing. Choice v. Kohn L. Firm,

S.C., 77 F.4th 636, 638 (7th Cir. 2023). A court deciding a Rule 12(b)(1) motion takes

well-pleaded factual allegations as true and draws reasonable inferences in the

plaintiff's favor. Id.

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a claim, not the

merits of the case. Gunn v. Cont'l Cas. Co., 968 F.3d 802, 806 (7th Cir. 2020). “To

survive a motion to dismiss under Rule 12(b)(6), the complaint must provide enough

factual information to state a claim to relief that is plausible on its face and raise a

right to relief above the speculative level.” Haywood v. Massage Envy Franchising,

LLC, 887 F.3d 329, 333 (7th Cir. 2018) (quoting Camasta v. Jos. A. Bank Clothiers,

Inc., 761 F.3d 732, 736 (7th Cir. 2014)); see also Fed. R. Civ. P. 8(a)(2) (requiring a

complaint to contain a “short and plain statement of the claim showing that the

pleader is entitled to relief”). A court deciding a Rule 12(b)(6) motion “construe[s] the

complaint in the light most favorable to the plaintiff, accept[s] all well-pleaded facts

as true, and draw[s] all reasonable inferences in the plaintiff’s favor.” Lax, 20 F.4th

at 1181.

II. Analysis

Defendants advance several arguments for why each count in Hutchens’s

Second Amended Complaint should be dismissed. The Court will address them in

turn.

A. Hutchens’s ADEA and Section 1981 claims can proceed in the

alternative.

Under the Supreme Court’s decision in Comcast Corp. v. Nat'l Ass'n of Afr.

Am.-Owned Media, to prevail on a Section 1981 claim a plaintiff must initially plead

and ultimately prove that, but for race, she would not have suffered the loss of a

legally protected right. 140 S. Ct. 1009, 1019 (2020). To prevail on an age-

discrimination claim, a plaintiff must prove that her age was the but-for cause of the

challenged job action. See Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2352 (2009).

Defendants argue that Hutchens cannot state a claim under the ADEA or Section

1981 because she alleged discrimination based on both age and race and therefore

cannot establish that either was the but-for cause of the alleged adverse employment

actions. [33] at 5-6. In support of their argument, Defendants state that Hutchens’s

Second Amended Complaint “contradicts itself and in two consecutive paragraphs

alleges [that] her race was the ‘but for’ cause of the alleged violation [and] that ‘age

discrimination and retaliation also were contributing factors.’” [33] at 5-6 (citing [26]

¶¶ 189-190). In response, Hutchens argues that there can be multiple but-for causes

of discrimination and parties are permitted to plead in the alternative. [35] at 7-9.

While Comcast establishes a but-for causation standard for Section 1981

claims, it does not address whether a plaintiff can plead multiple but-for causes. See

Walton v. Medtronic USA, Inc., No. 22-CV-50 (PJS/JFD), 2023 WL 3144320, at *4 (D.

Minn. Apr. 28, 2023). Lower courts within this Circuit and outside of this Circuit

disagree on whether a “but-for” causation standard can be plausibly pled for purposes

of Rule 12(b)(6) where a plaintiff has alleged multiple forms of discrimination.

Compare Arora v. Nav Consulting Inc., No. 21 C 4443, 2022 WL 7426211, at *2-3

(N.D. Ill. Oct. 13, 2022) (dismissing a Section 1981 claim where plaintiff alleged

discrimination because of his race, ethnicity, national origin, and citizenship status),

and Adetoro v. King Abdullah Acad., 585 F. Supp. 3d 78, 83 (D.D.C. 2020) (dismissing

a Section 1981 claim where plaintiff offered a “buffet of reasons” other than race that

plausibly caused or contributed to their termination), with Peaster v. McDonald's

Corp., No. 22 CV 7037, 2023 WL 5387573, at *4 (N.D. Ill. Aug. 22, 2023) (“[The

Comcast] causation standard is not necessarily inconsistent with pleading that an

adverse employment action had two but-for causes. . . .” (citing Bostock v. Clayton

County, 140 S. Ct. 1731, 1739 (2020))), and Newman v. Amazon.com, Inc., No. 21-CV-

531 (DLF), 2022 WL 971297, at *7 (D.D.C. Mar. 31, 2022) (“[Plaintiff] has not failed

to plead but-for causation because, elsewhere in her complaint, she alleges that she

was discriminated against based on race and sex.”).

The court in Walton v. Medtronic USA, Inc., No. 22-CV-50 (PJS/JFD), 2023 WL

3144320 (D. Minn. Apr. 28, 2023) held that “pleading multiple, bundled theories of

discrimination does not prevent a plaintiff from pleading that racial discrimination

was the but-for cause of their termination as required by 42 U.S.C. § 1981.” Walton,

2023 WL 3144320, at *8. In support of its finding, the court stated that the language

in Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) limiting Bostock’s holding to Title

VII does not preclude courts from adopting Bostock’s conclusion that events often

have multiple but-for causes. Id. at *7. Importantly, the court also stated that even if

it had found that plaintiff could not plead multiple, bundled theories of discrimination

in support of his Section 1981 claim, it would still grant plaintiff leave to amend his

complaint because the Federal Rules of Civil Procedure allow for alternative and

inconsistent pleading. Id.

Here, Hutchens alleges that the Foundation did not extend her employment

because of her age and treated her differently than similarly situated employees

because of her age. [26] ¶¶ 122, 177-82. Hutchens also alleges that the Foundation

did not extend her employment, paid her a lower salary, did not consider her for non-

entry level roles, and treated her differently than similarly situated employees

because of her race. [26] ¶¶ 184-89.

The Walton court’s reasoning behind allowing a plaintiff to plead multiple,

bundled theories of discrimination in support of a Section 1981 claim is persuasive.

The Court will allow Hutchens’s ADEA and Section 1981 claims to proceed because

Hutchens is permitted to plead her ADEA and Section 1981 claims in the alternative.

See United Fire & Cas. Co. v. Prate Roofing & Installations, LLC, 7 F.4th 573, 584–

85 (7th Cir. 2021) (“[A]lternative pleading is both permitted and routine.”); Douglas

v. Alfasigma USA, Inc., No. 19-CV-2272, 2021 WL 2473790, at *14 (N.D. Ill. June 17,

2021) (“At the pleading stage, a plaintiff does not have to pick a horse. A plaintiff can

offer different theories in the alternative.” (citing Fed. R. Civ. P. 8(d)(2))); DiBenedetto

v. AT&T Servs., Inc., No. 1:21-CV-4527-MHC-RDC, 2022 WL 1682420, at *5 (N.D.

Ga. May 19, 2022) (“[T]he liberal pleading standard under Federal Rule of Civil

Procedure 8(d) allows a plaintiff to assert multiple inconsistent claims. [E]ven

if [p]laintiff's [ADEA and Section 1981] claims are at odds, that is no reason to dismiss

them before discovery.” (emphasis in the original)). The Court will not dismiss

Hutchens’s ADEA and Section 1981 claims and require her to replead them because

to do so would likely prove extraordinarily difficult given that Hutchens is proceeding

pro se. See Otis v. Demarasse, 886 F.3d 639, 644 (7th Cir. 2018) (“We therefore have

long recognized that pro se litigants must be afforded leniency on procedural

matters.” (internal citation omitted)). Hutchens’s repeated allegations that race

discrimination and age discrimination independently caused her to experience

adverse employment actions informs the Court that she intended to allege the

theories in the alternative if she could not plead them together. The Court denies

Defendants’ motion to dismiss the ADEA (Count I) and Section 1981 (Count II) claims

and allows those claims to proceed in the alternative.

B. Hutchens exhausted her administrative remedies for her

Title VII claims.

Before bringing a Title VII claim, a plaintiff must first exhaust her

administrative remedies by filing charges with the EEOC and receiving a right to sue

letter. Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992). After doing so,

a plaintiff filing suit in federal court may bring only those claims that were included

in her EEOC charge, or that are like or reasonably related to the allegations of the

charge and growing out of such allegations. Geldon v. S. Milwaukee Sch. Dist., 414

F.3d 817, 819 (7th Cir. 2005). “[B]ecause most EEOC charges are completed by

laypersons rather than by lawyers, a Title VII plaintiff need not allege in an EEOC

charge each and every fact that combines to form the basis of each claim in her

complaint.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994) (citing

Taylor v. Western & Southern Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir.1992)). At

minimum, the EEOC charge and the complaint must “describe the same conduct and

implicate the same individuals.” Id. at 501.

Defendants argue that Hutchens’s Title VII claims for race discrimination and

retaliation should be dismissed because Hutchens has failed to exhaust her

administrative remedies. [33] at 7-8. Specifically, Defendants argue that Hutchens

failed to include in her EEOC charges many of the details that she included in her

Second Amended Complaint. [33] at 7-8. However, that Hutchens included more

information in her Second Amended Complaint than she did in her EEOC charges

and OFCCP complaint does not mean that she failed to exhaust her administrative

remedies. See Fairley v. McDonald's Corp., No. 20-CV-02273, 2021 WL 3054804, at

*10 (N.D. Ill. July 20, 2021). “A federal complaint may include facts stemming from

allegations in the charge that were not included in the charge and the [c]ourt may

consider allegations relating to individuals not named in the charge for purposes of

evaluating claims brought against parties who were named in the charge.” Id.

(emphasis in the original) (internal citations omitted).

Hutchens’s EEOC charges identified the following instances of race

discrimination and retaliation that are at the core of her Title VII claims against the

Foundation: 1) despite applying for eight other positions that aligned more with her

education and work experience, the Foundation only offered Hutchens an entry-level

position, 2) the Foundation did not extend her employment contract but extended the

contracts of similarly situated, underperforming employees, and 3) the Foundation,

IDPH, and SHIELD stopped giving Hutchens work assignments and refused to allow

her to attend federally funded training in retaliation for her engaging in two protected

activities—participating in the Hutchens v. Chicago Board of Education litigation

and filing an internal complaint of discrimination. [26-1] at 16. Defendants do not

dispute that Hutchens’s OFCCP complaint can also be considered alongside her

EEOC charges when determining whether Hutchens exhausted her administrative

remedies. [37] at 5-6. In her OFCCP complaint, Hutchens stated that the Foundation

did not extend her employment contract in retaliation for her participation in the

Hutchens v. Chicago Board of Education litigation, indicated various ways she was

treated differently than similarly situated employees, and named some of the

similarly situated employees. [26-1] at 5-6. Hutchens provided more than enough

information to exhaust her administrative remedies for her Title VII claims. The

Court denies Defendants’ motion to dismiss Hutchens’s Title VII Race Discrimination

claim (Count III). Next, the Court will address Defendants’ additional argument for

dismissing the Title VII Retaliation claim.

C. Hutchens’s allegations in support of her Title VII Retaliation

claim are sufficient at this stage.

Pleading a retaliation claim under Title VII requires the plaintiff to “allege

that she engaged in statutorily protected activity and was subjected to adverse

employment action as a result of that activity.” Luevano v. Wal–Mart Stores, Inc., 722

F.3d 1014, 1029 (7th Cir. 2013). The “inference of causation weakens as the time

between the protected expression and the adverse action increases, and then

additional proof of a causal nexus is necessary.” Carlson v. CSX Transp., Inc., 758

F.3d 819, 828 (7th Cir. 2014) (quoting Oest v. Illinois Dep't of Corrections, 240 F.3d

605, 616 (7th Cir. 2001)).

Defendants argue that Hutchens failed to allege a causal nexus between the

Hutchens v. Board of Chicago lawsuit and the Foundation not extending her

employment contract because the lawsuit occurred thirteen years before the

Foundation decided not to extend her contract, [37] at 6-7, and Hutchens’s allegations

suggest that the Foundation hired her with knowledge of the lawsuit, [33] at 8-9. In

addition, Defendants state that “[t]he courts have concluded that one year between

filing an alleged ‘adverse action’ is ‘too distant for the inference of retaliation to

stretch,’ let alone thirteen years” and cite a string of motion for summary judgment

cases. [37] at 6-7.

Hutchens does not simply allege that she engaged in a protected activity and

thirteen years later experienced an adverse action. She alleges that the Foundation

hired her without knowing about the Hutchens v. Chicago Board of Education

lawsuit, someone at the Foundation looked her up and discovered the lawsuit, and,

because of the Foundation and SHIELD’s partnership with the Chicago Board of

Education, the Foundation decided not to extend her employment contract while

extending almost every other School Liaison’s employment contract. [26] ¶¶ 151-52,

168-69, 171-74, 204-05, 207. Her allegations are adequate at this stage to state a

retaliation claim under Title VII.2 The Court denies Defendants' motion to dismiss

the Title VII Retaliation claim (Count IV).

2 Defendants also argue that Hutchens failed to allege that she was retaliated against for

her internal complaint. [33] at 9. The Court agrees with Defendants that Hutchens being

D. All of Hutchens’s common law claims are either insufficiently

pled or preempted by the Illinois Human Rights Act.

The Illinois Human Rights Act provides that “[e]xcept as otherwise provided

by law, no court of this state shall have jurisdiction over the subject of an alleged civil

rights violation other than as set forth in this Act.” 775 ILCS 5/8–111(D). The IHRA

preempts state law claims that are, in essence, claims that seek redress for civil rights

violations within the meaning of the IHRA. Geise v. Phoenix Co. of Chi., Inc., 159

Ill.2d 507, 516 (1994). The court must determine “whether the tort claim is

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, 177 Ill.2d 511,

517 (1997). “The distinction between claims that are preempted and claims that are

not preempted turns on the legal duty that the defendant allegedly breached; that is,

if the conduct would be actionable even aside from its character as a civil rights

violation . . . the IHRA does not preempt a state law claim seeking recovery for it.”

Naeem v. McKesson Drug Co., 444 F.3d 593, 604 (7th Cir. 2006) (citing Krocka v. City

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

Defendants argue that Hutchens’s state law claims—intentional interference

with contractual relations (Count V), tortious interference with prospective economic

advantage (Count VI), civil conspiracy (Count VII), intentional infliction of emotional

distress (Count VIII), and a violation of IWA (Count IX)—are preempted by

denied the opportunity to attend a training or being given fewer work assignments does not

constitute adverse employment actions for purposes of Title VII. However, the Title VII

Retaliation claim is allowed to proceed as to the Defendants’ failure to extend Hutchens’s

contract.

the IHRA and therefore should be dismissed under Rule 12(b)(1) because each of

those claims are premised on her allegations of age and race discrimination, and are

thus inextricably linked to a civil rights violation such that there is no independent

basis for the action apart from the IHRA itself. [33] at 9-11. Hutchens argues that

her state law claims are not preempted because she brought her race discrimination

and retaliation claims under both Title VII and Section 1981, and Section 1981 is not

among the enumerated acts defined as civil rights violations in the IHRA (775 Ill.

Comp. Stat 5/1-103(D)). [35] at 13-14. The Court was unable to find support for

Hutchens’s argument in the cases that she cited or in the cases the Court found in its

own search.3

The Court agrees that Counts V-IX are pre-empted by the IHRA. Counts V-IX

rely on the same allegations of civil rights violations that support Counts I-IV. The

proper inquiry is whether Hutchens can prove the elements of her state law claims

independent of legal duties furnished by the IHRA, not whether the facts that support

Hutchens’s state law claims could also have supported a discrimination claim. Naeem,

444 F.3d at 604. Here, Hutchens’s state law claims cannot be established without

relying on duties imposed by the IHRA. For instance, the facts in Hutchens’s Second

Amended Complaint, without reliance on the duties imposed by the IHRA, don't rise

to the level of extreme and outrageous conduct necessary to support an intentional

3 The two cases that Hutchens cited in her response—Blount v. Stroud, 232 Ill.2d 302

(2009) and Hernandez v. Partners Warehouse Supplier Servs., LLC, 890 F. Supp. 2d 951 (N.D.

Ill. 2012)—state that the IHRA did not destroy state courts' jurisdiction to hear Section 1981

claims because a violation of Section 1981 was not among the enumerated acts defined as

“civil rights violations” in the IHRA.

infliction of emotional distress claim. See Aleman v. McDonald's Corp., No. 20-CV-

6925, 2021 WL 3418857, at *7 (N.D. Ill. Aug. 5, 2021) (quoting Naeem, 444 F.3d at

605-06 (observing that courts hesitate to find intentional infliction of emotional

distress in the workplace because, if everyday job stresses resulting from discipline,

personality conflicts, job transfers or even terminations could give rise to a cause of

action for intentional infliction of emotional distress, nearly every employee would

have a cause of action)). The Court accordingly grants Defendants’ motion to dismiss

Counts V-IX.

Hutchens’s allegations in support of her IWA claim are closest to establishing

a state law claim without relying on duties imposed by the IHRA. See Blount v.

Stroud, 904 N.E.2d 1, 9 (Ill. 2009) (“[P]laintiff here established a basis for imposing

liability on defendants independent of the [IHRA], i.e., without reference to the legal

duties created by the [IHRA].”). Hutchens alleges that she “specifically reported in

[her OFCCP] Charge that she had not worked for several weeks, but she still was

being paid her full salary.” [26] ¶ 253. As a result, Hutchens appears to suggest that

she was retaliated against for disclosing information about the Foundation’s

improper pay practices. This Court agrees with Defendants’ argument that Hutchens

fails to state a claim under the IWA. [33] at 13-14. The allegations involving

retaliation in the Second Amended Complaint only focus on retaliation related to civil

rights violations not retaliation for improper pay practices. [33] at 13-14. For these

additional reasons, the Court dismisses the IWA claim (Count IX).4

III. Hutchens’s request to amend her complaint is denied.

In her response to Defendants’ motion to dismiss, Hutchens asks the Court to

grant her leave to amend her Second Amended Complaint to cure deficiencies. [35] at

15. Most relevant, Hutchens states that, if allowed to replead, she will bring the state

law claims “without resorting to the statutory rights and obligations under the IHRA

and incorporating said claims by reference to the preceding civil rights violations.”

[35] at 15. The Court denies Hutchens’s request because this would be her third time

amending her complaint and, based on her thorough allegations in her forty-six page

Second Amended Complaint, it is unlikely that she would succeed at avoiding

preemption even if she is given another opportunity to plead the state law claims.

IV. Conclusion

For the stated reasons, the Court GRANTS in part Defendants’ motion to dismiss

[32]. Counts V-IX are dismissed with prejudice. The Court DENIES Defendants’

motion to dismiss with respect to Counts I-IV.

4 The Court does not address Defendants’ additional arguments for why Hutchens’s state

law claims should be dismissed because those claims are dismissed on other grounds. [33]

at 11-14.

ENTER:

Dated: March 4, 2025 Mug [Vi bh L/

MARY M. ROWLAND

United States District Judge

18