Opinion
NA 01-170-C-B/S
November 28, 2001
ENTRY ON DEFENDANTS' MOTION TO DISMISS
I. Introduction.
This is a Title VII case in which the plaintiff, Tia J. Horton, alleges that she was the victim of retaliation at the hands of the Jackson County Board of Commissioners, the Jackson County Community Corrections Department, and the Jackson County Merit Board. She also alleges that the defendants intentionally caused her emotional distress, defamed her, and breached an agreement which she and the defendants had negotiated in settlement of an earlier employment discrimination case. The case is before us on a motion to dismiss on two narrow grounds. First, defendant Merit Board seeks to be dismissed from Count I, which alleges retaliation in employment, because it is not and has not been Ms. Horton's employer and is not, therefore, a proper defendant. Second, defendant Board of Commissioners seeks to be dismissed from Count IV, which alleges breach of contract because it was never a party to that agreement.
For the reasons that follow, we DENY defendant Merit Board's motion to dismiss as to Count I but GRANT defendant Board of Commissioners' motion to dismiss as to Count IV.
II. Analysis.
A. The Standard Under Rule 12(b)(6).
Plaintiff correctly observes that Rule 12(b)(6) motions are not to be granted lightly. The party moving to dismiss must show that "the pleadings themselves fail to provide a basis for any claim for relief under any set of facts." Owner-Operator Independent Drivers Assoc. v. Mayflower Transit, Inc., 161 F. Supp.2d 948 (S.D.Ind., Aug 23, 2001), quoting Ed Miniat, Inc. v. Globe Life Ins. Group Inc., 805 F.2d 732, 733 (7th Cir. 1986), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987). Dismissal is appropriate only if it appears to a certainty that the plaintiff cannot establish any set of facts which would entitle her to the relief sought. See Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1991). Accordingly, we treat all well-pleaded factual allegations as true and we construe all inferences that reasonably may be drawn from those facts in a light most favorable to the party opposing the motion. Szumny v. American General Finance, 246 F.3d 1065, 1067 (7th Cir. 2001); Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001).
B. Count I: Retaliation by Merit Board.
Ms. Horton alleges that the Merit Board retaliated against her for having filed an EEOC charge and an earlier complaint. The Merit Board claims that it could not have done so because it has never been Ms. Horton's employer and, in reality, it employs no one. The Merit Board's arguments are flawed in two respects. First, although it is clear enough on the record that the Merit Board did not employ Ms. Horton directly, the Merit Board offers no evidence to support the proposition that it employs no one (or even the narrower proposition that it is not an employer for purposes of Title VII). And there is nothing in the Indiana statutes it cites to preclude it from being an employer. The Merit Board simply states that it doesn't employ anyone. But lawyers' statements in a brief are not evidence. Burge v. Parish of St. Tammany, 187 F.3d 452, 465 (5th Cir., 1999); DiMa Corp. v. The Town of Hallie, Wi., 60 F. Supp.2d 918 (W.D.Wis., 1998).
More to the legal issue, the Merit Board's argument reveals its presupposition that only an "employer" of an employee may be held liable under Title VII for retaliating against that employee. It is, however, an open question in this Circuit whether an entity that does not employ an individual may be liable for discrimination or retaliation against that individual. In Alexander v. Rush North Shore Medical Center, 101 F.3d 487, 493, n. 2 (7th Cir. 1996), cert. denied, 522 U.S. 811, 118 S.Ct. 54, 139 L.Ed.2d 19 (1997) the Seventh Circuit expressly limited its holding and noted:
"We have no occasion to go further and determine if a Title VII plaintiff must always demonstrate that he is an employee of the defendant employer. Thus, we continue to leave open the question that went unanswered in Shrock, 810 F.2d at 660 — i.e., whether an employee of employer X may bring a Title VII action against employer Y when Y is not his employer, but merely someone whose discriminatory conduct interferes with his employment with employer X."
(emphasis original.) See, E.E.O.C. v. Foster Wheeler Const., Inc., 1999 WL 515524 (N.D.Ill. 1999), *4-*5; Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1244 (11th Cir. 1998), cert. denied, 528 U.S. 930, 120 S.Ct. 327, 145 L.Ed.2d 255 (1999).
The question of whether the Merit Board might have some influence or control over Ms. Horton's employment opportunities is an open one as a matter of fact. As a matter of law, it appears from Indiana Code § 36-8-10-11 that it might. See, e.g., Lake County Sheriff's Corrections Merit Bd. v. Peron, 756 N.E.2d 1025, 1028 (Ind.App. 2001). We venture no opinion at this early stage as to whether the nature of the Merit Board's influence or control (if any) is sufficient for liability to attach. In view of the Seventh Circuit's decision in Alexander and current state of the record, however, we cannot say as a matter of law that there is no set of facts under which Ms. Horton might prevail against the Merit Board for retaliation. Accordingly, we DENY the Merit Board's motion to dismiss as to Count I.
C. Count IV: Breach of Contract by The County Board of Commissioners.
It is undisputed on the record that neither the County Board of Commissioners nor any representative of them signed the written settlement agreement that issued from Ms. Horton's earlier lawsuit. Ms. Horton appended the Agreement to her complaint and it appears clear in its preamble that the parties to the agreement are "Jackson County Sheriff's Department, Jackson County Merit Board, and Jackson County Sheriff Herschel Baughman." Ms. Horton, Sheriff Baughman and representatives of the other two parties named in the Agreement executed it. The Agreement nowhere so much as hints that the Jackson County Board of Commissioners may be liable under its terms. We are not going to hold the Board of Commissioners liable for breach of a contract which they did not execute, absent circumstances that appear nowhere on the horizon of this case. As Judge Tinder observed in Implement Service, Inc. v. Tecumseh Products Co., 726 F. Supp. 1171 (S.D.Ind., 1989): It is basic law in Indiana that suits based on contract may be brought only against a party to the contract or against those in privity with the party. Evansville S.I. Traction Co. v. Evansville Belt Ry., 44 Ind. App. 155, 162-63, 87 N.E. 21, 23-24 (1909); and Gonzales v. Kil Nam Chun, 465 N.E.2d 727 (Ind.Ct.App. 1984). Normally the parties to a contract can be identified as a matter of law by the very terms of the contract, as long as there is no ambiguity. Sunman-Dearborn Community School Corp. v. Kral-Zepf-Freitag Assocs., 167 Ind. App. 339, 338 N.E.2d 707, 709 (1975).
We may consider the Agreement, which is the foundation for Ms. Horton's breach of contract claim, as part of the pleadings and thereby avoid converting this Rule 12(b)(6) matter into one for summary judgment. Rule 10(c) provides that "[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes." See, e.g., Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993).
There is no ambiguity here and Ms. Horton has given us no reason to think that her contract claim may be subject to the kind of extraordinary circumstances outlined by the Indiana Supreme Court in Winkler v. V.G. Reed Sons, Inc., 638 N.E.2d 1228, 1233 (Ind. 1994). Accordingly, we GRANT defendant Commission's motion to dismiss Count IV.
IV. Conclusion.
For the reasons elucidated, we cannot conclude as a matter of law that Ms. Horton has no cause of action against the Merit Board for retaliation. Accordingly, we DENY the Merit Board's motion to dismiss as to Count I. However, we conclude that the Jackson County Board of Commissioners is not a proper defendant as to plaintiff's breach of contract claim and that it is entitled to dismissal as a matter of law. Accordingly, we order that The Jackson County Board of Commissioners is dismissed as a defendant as to Count IV pursuant to Fed.R.Civ.P. 12(b)(6).
It is so ORDERED this day of January 2002.