ROBERT BOGIE v. PAWS CHICAGO - Discrimination, IIED, NIED, Contract Fraud

Sexual Discrimination complaints have become common with women naming men as the offenders, but this case put the shoe on the other foot, or in this case, PAW.

Plaintiff Robert Bogie alleged in his complaint that defendants PAWS Chicago and its employees Rochelle Michalek, Heather Newcomb, and Shannon Gillen, failed to hire him because he is a man. Bogie alleges sexual discrimination (Count I) and retaliation (Count II) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, "contract fraud" (Count III), intentional infliction of emotional distress (Count IV), and negligent infliction of emotional distress (Count V). 

 Bogie applied for a job as a Volunteer Manager at PAWS on April 1, 2011.  PAWS sent Bogie a rejection letter on April 5 stating that the reason for rejection was his lack of experience in volunteer management.   In August Bogie learned that the person hired for the open position  was a woman who also did not have experience in volunteer management. He then "made the defendants aware of the situation.  PAWS did not answer his objection, but simply told the woman it had hired to remove her resume from the internet and to "de-friend" Bogie on Facebook.

PAWS did not hire Bogie, and on November 1, 2011, he filed a complaint with the EEOC. Shortly thereafter, PAWS told Bogie that they would not hire him for several other "Animal Care positions" because he was not qualified. Bogie alleges that the defendants' attorney "outright lied" to the EEOC in its position statement. As a result of Bogie's complaint, PAWS forbade him to return to any of their locations as a volunteer.

Bogie then filed an internal complaint of discrimination with PAWS.  He agreed to "hold off on" filing with the EEOC in return for an employment interview with PAWS for a position as a part-time animal care technician.  Approximately one month later, Bogie received three interviews for a total of fifteen minutes with unspecified individuals who were part of PAWS's "management.

PAWS did not hire Bogie, and on November 1, 2011, he filed a complaint with the EEOC. (Id. ¶ 31.) Shortly thereafter, PAWS told Bogie that they would not hire him for several other "Animal Care positions" because he was not qualified. As a result of Bogie's complaint, PAWS forbade him to return to PAWS as a volunteer.

I. Title VII Claims of Discrimination (Count I) and Retaliation (Count II)

Defendants move to dismiss the Title VII claims  because a plaintiff cannot recover for a Title VII claim against a supervisor in her individual capacity. The defendants are correct in that employees, in their individual capacity, are not "employers" under Title VII, and thus are not susceptible to suit under Title VII. See Williams v. Banning, 72 F.3d 552, 553-54 (7th Cir. 1995); see alsoJacobeit v. Rich Tp. High Sch. Dist., 673 F. Supp. 2d 653, 659 (N.D. Ill. 2009) (Holderman, C.J.). Consequently, the court dismissed Counts I and II as to the three named defendants.

II. "Contract Fraud" (Count III)

Count III of Bogie's complaint alleges that the defendants are liable for "contract fraud." "Contract fraud" is not a recognized cause of action under state or federal law. 

The ambiguity of the contract as alleged prevents the court from ascertaining whether those facts constitute a breach of the agreement. See DiLorenzo, 807 N.E.2d at 678 (terms are too indefinite to be enforced when there is "no basis for deciding whether the agreement has been kept or broken"). Accordingly, Bogie's "contract fraud" claim in Count III is dismissed.

III. Intentional Infliction of Emotional Distress (Count IV) and Negligent Infliction of Emotional Distress (Count V)
The defendants argue that Count IV and V of Bogie's complaint should be dismissed because they are preempted by the Illinois Human Rights Act ("IHRA"), which gives the Illinois Human Rights Commission exclusive jurisdiction over civil rights violations. 775 ILCS 5/8-111(D) ("Except 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.").
The Court observed that Illinois does not provide a cause of action for emotional distress in the circumstances Bogie has alleged apart from the legal duty deriving from the IHRA to avoid discriminatory hiring. The court will thus dismiss Bogie's emotional distress claims in Counts IV and V because they are preempted by the IHRA.

IV. Other Potential Claims

Any § 1981 claims fail because sex-based discrimination is not actionable under § 1981. Runyon v. McCrary,427 U.S. 160, 167 (1976); St. Louis v. Alverno Coll., 744 F.2d 1314, 1317 (7th Cir.1984). The Court observed that any § 1983 claims must be dismissed because the defendants are not acting under the color of state law. See Lekas v. Briley, 405 F.3d 602, 606 (7th Cir. 2005).

For the reasons stated above, the defendants' motion to dismiss was granted. All counts against Michalek, Newcomb, and Gillen were dismissed, and Counts III, IV, and V against PAWS were also dismissed. Those remaining were Counts I and II against PAWS. Counsel for defendants encouraged  to confer with plaintiff pursuant to Rule 26(f) and jointly file a Form 52 on or before 12/4/12. 

ROBERT BOGIE, Plaintiff, v. PAWS CHICAGO, ROCHELLE MICHALEK, HEATHER NEWCOMB, and SHANNON GILLEN,[1] Defendants.
No. 12 C 5887.
United States District Court, N.D. Illinois, Eastern Division.
November 15, 2012.

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