United States District Court, N.D. Indiana, LaFayette Division
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
matter is before the court on the Motion to Dismiss Portions
of Plaintiff's Complaint [DE 19] filed by the defendant,
Wardlaw Claim Service, LLC, on February 28, 2018. Based on
the following reasons, the motion is GRANTED in part
and DENIED in part.
plaintiff, Marlo Solomon, filed her Complaint on November 30,
2017, alleging violations of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000-e et seq. Solomon
has brought claims under Title VII for race discrimination
and hostile work environment (Count I); sex discrimination
and hostile work environment (Count II); retaliation (Count
III); and Indiana statutory and state law claims for
blacklisting (Count IV) and intentional infliction of
emotional distress (Count V).
was an employee of the defendant, Wardlaw Claim Service, LLC.
Wardlaw is an independent insurance adjusting company located
in West Lafayette, Indiana. On March 9, 2016, Wardlaw
terminated Solomon's employment. Solomon has alleged that
while she was employed at Wardlaw she was discriminated
against due to her race and sex in violation of Title VII,
and she was retaliated against for reporting alleged sexual
harassment. Solomon represents that Wardlaw engaged in
harassment and discriminatory employment practices.
her termination from Wardlaw, Solomon began working for State
Farm Insurance in Duluth, Georgia. She was terminated from
State Farm on May 24, 2016. Solomon has alleged that Wardlaw
continued to retaliate against her by reporting to State Farm
that she was “terminated for not submitting and for
falsifying performance reports of employees who reported
her.” Therefore, Solomon contends that based on
Wardlaw's false report State Farm fired her and placed
her on the “Do not rehire” list.
filed two charges of discrimination against Wardlaw with the
United States Equal Employment Opportunity Commissioner. The
first charge of discrimination, Charge No. 461-2016-0092, was
filed on April 1, 2016. Solomon alleged discrimination based
on race, sex, and retaliation. Solomon filed a second charge
of discrimination, Charge No. 470-2017-00600, on February 13,
2017, alleging discrimination based on race, age, and
retaliation. The second charge stated that Solomon filed her
first charge of discrimination against Wardlaw on April 1,
2016 and that on May 24, 2016 she was terminated from State
Farm due to Wardlaw providing unfavorable references and
accusing her of committing fraud. Solomon represents that she
has received notices of right to sue letters on both charges.
has moved to dismiss portions of the Complaint under Federal
Rules of Civil Procedure 12(b)(1), (3), and (6). Wardlaw
asserts that the Northern District of Indiana is not the
proper venue for Solomon's retaliation claim (Count III)
predicated on the facts alleged in the second charge of
discrimination. Moreover, Wardlaw argues that Solomon has
failed to exhaust her administrative remedies. Wardlaw
contends that Solomon's second charge of discrimination
was not timely filed with the EEOC within 180 days of the
unlawful employment action.
also has moved to dismiss Solomon's blacklisting and
intentional infliction of emotional distress claims (Count IV
and V) pursuant to Rules 12(b)(1) and (3). Additionally,
Wardlaw has argued that Solomon's intentional infliction
of emotional distress claim should be dismissed pursuant to
Rule 12(b)(6) for failure to state a claim. Solomon filed a
response in opposition on March 13, 2018, and Wardlaw filed
its reply on March 15, 2018.
Rule of Civil Procedure 12(b)(1) requires a court to
dismiss a cause of action when the court lacks subject matter
jurisdiction. Federal courts have subject matter jurisdiction
in all civil actions arising under the Constitution, laws, or
treaties of the United States, in addition to cases between
citizens of different states where the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1331; 28 U.S.C. §
1332. The “district court must accept as true all
well-pleaded factual allegations, and draw reasonable
inferences in favor of the plaintiff.” Ezekiel v.
Michel, 66 F.3d 894, 897 (7th Cir. 1995). However, when
subject matter jurisdiction is not apparent on the face of
the complaint and is contested, the district court may
“properly look beyond the jurisdictional allegations of
the complaint and view whatever evidence has been submitted
on the issue to determine whether in fact subject matter
jurisdiction exists.” Evers v. Astrue, 536
F.3d 651, 656-57 (7th Cir. 2008). In all cases, the party
asserting federal jurisdiction has the burden of proof to
show that jurisdiction is proper. Travelers Prop. Cas. v.
Good, 689 F.3d 714, 722 (7th Cir. 2012) (citing
McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)).
Rule of Civil Procedure 12(b)(3) permits dismissal
of an action for improper venue. “Analysis of the Rule
12(b)(3) dismissal motion begins with the question of whether
venue is, in fact, improper in this district.”
Brantley v. Luxottica Retail North America, Inc.,
2014 WL 4370848, at *2 (S.D. Ill. Sept. 3, 2014) (emphasis in
original). In a civil action, venue is proper in, among other
places, “a judicial district in which a substantial
part of the events or omissions giving rise to the claim
occurred, or a substantial part of the property that is the
subject of the action is situated.” 28 U.S.C. §
1391(b)(2). The plaintiff bears the burden of establishing
that venue is proper. Marzano v. Proficio Mortg.
Ventures, LLC, 942 F.Supp.2d 781, 787 (N.D. Ill. 2013).
When ruling on a Rule 12(b)(3) motion to dismiss, the court
must take all allegations in the complaint as true, unless
contradicted by an affidavit, and can consider facts outside
the complaint. Nagel v. ADM Inv'r Servs., Inc.,
995 F.Supp. 837, 843 (N.D. Ill. 1998). When venue is
improper, the court “shall dismiss [the case], or if it
be in the interest of justice, transfer such case to any
district or division in which it could have been
brought.” See 28 U.S.C. § 1406(a).
Rule of Civil Procedure 12(b)(6) allows for a
complaint to be dismissed if it fails to “state a claim
upon which relief can be granted.” Allegations other
than those of fraud and mistake are governed by the pleading
standard outlined in Federal Rule of Civil Procedure 8(a)(2),
which requires a “short and plain statement” to
show that a pleader is entitled to relief. See Cincinnati
Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir.
2013). The Supreme Court clarified its interpretation of the
Rule 8(a)(2) pleading standard in a decision issued in May of
2009. While Rule 8(a)(2) does not require the pleading of
detailed allegations, it nevertheless demands something more
“than an un-adorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In order
to survive a Rule 12(b)(6) motion, a complaint “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); Cincinnati Life
Ins., 722 F.3d at 946 (“The primary purpose of
[Fed.R.Civ.P. 8 and 10(b)] is to give defendants fair notice
of the claims against them and the grounds supporting the
claims.”) (quoting Stanard v. Nygren, 658 F.3d
792, 797 (7th Cir. 2011)); Peele v. Clifford Burch,
722 F.3d 956, 959 (7th Cir. 2013) (explaining that one
sentence of facts combined with boilerplate language did not
satisfy the requirements of Rule 8); Joren v.
Napolitano, 633 F.3d. 1144, 1146 (7th Cir. 2011). This
pleading standard applies to all civil matters.
Iqbal, 556 U.S. at 684.
has alleged that Wardlaw violated her rights under Title VII,
which forbids employment discrimination against any
individual based on that individual's race, color,
religion, sex, or national origin. Burlington Northern
& Santa Fe Railroad Company v. White, 548 U.S. 53,
56, 126 S.Ct. 2405, 2408, 165 L.E.2d 345 (2006) (citing
Pub.L., 88352, 704, 78 Stat. 257, as amended, 42 U.S.C.
§ 2000e2(a)). Title VII's separate anti-retaliation
provision seeks to prevent harm to individuals based on what
they do, i.e., their conduct. Burlington N., 548
U.S. at 63, 126 S.Ct. at 2412. Unlawful retaliation in
violation of Title VII occurs when an employer takes actions
that discriminate against an employee because she has opposed
a practice that Title VII forbids, or testified, assisted, or
participated in a Title VII proceeding or investigation. 42
U.S.C. § 2000e-3(a); see also Hicks v. Forest
Preserve District of Cook County, ...