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Solomon v. Wardlaw Claim Service, LLC

United States District Court, N.D. Indiana, LaFayette Division

August 3, 2018

MARLO SOLOMON, Plaintiff,
v.
WARDLAW CLAIM SERVICE, LLC, Defendant.

          OPINION AND ORDER

          Andrew P. Rodovich United States Magistrate Judge

         This 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.

         Background

         The 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).

         Solomon 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.

         After 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.

         Solomon 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.

         Wardlaw 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.

         Wardlaw 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.

         Discussion

         Federal 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)).

         Federal 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).

         Federal 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.

         Solomon 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, ...


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