Opinion
Case No. 02 C 9256
November 18, 2003
ORDER
Plaintiff Susan Moennich brings this action against her former employer Metropolitan Pier and Exposition Authority ("MPEA") alleging: employment discrimination based on MPEA's failure to promote Moennich, 42 U.S.C. § 2000e, et seq. (Count I); employment discrimination based on sex, 42 U.S.C. § 2000e, et seq. (Count II); a violation of the Equal Pay Act (Count III); retaliation under 42 U.S.C. § 2000e, et seq. (Count IV); a violation of 42 U.S.C. § 1983 (Count V); and a violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2611, et seq. (Count VI). MPEA has moved to dismiss Counts I, II, IV, V, and VI under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. As described below, MPEA's motion to dismiss is granted in part and denied in part.
Background
Moennich was employed for over ten years by FOCUS One, a division of MPEA. Moennich's last position held with FOCUS One was assistant director, which she held for over four years. Moennich satisfactorily performed her duties in this position. In September 2001, Harry Walder, Moennich's supervisor and a director of FOCUS One, notified MPEA of his intention to accept another position within MPEA. MPEA did not advertise the opening and did not allow Moenmch to apply or interview for the position vacated by Walder. The position was ultimately awarded to a man.
In addition, Moennich alleges that she was paid less than male employees who were her subordinates at FOCUS One. When Moennich inquired about why she was not considered for the director's position and about the salaries and benefits of male subordinates, MPEA responded to these inquiries "begrudgingly and in a manner that caused Moennich to be the subject of harassment and retaliation. . . ." (Compl. ¶ 9.) On November 4, 2001, MPEA terminated Moennich's employment, under the pretext that Moennich's job had ended. Moennich alleges that her job was actually terminated because she inquired about the director's position and the pay of her subordinates, because she objected to the information she received, and because she was female.
Analysis
MPEA argues that Counts I, II, IV, V, and VI should be dismissed under Fed. R, Civ. P, 12(b)(6) for failure to state a claim upon which relief can be granted. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Under the notice pleading standard of federal courts, a complaint need only give a "short and plain statement showing the plaintiff is entitled to relief, the purpose of which is to give the defendant notice of the claims [brought against it] and the grounds they rest upon." Thompson v. Ill. Dep't of Prof I Regulation, 300 F.3d 750, 753 (7th Cir. 2002) (citing Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993)). Moreover, when evaluating a motion to dismiss under Rule 12(b)(6), courts must accept the well-pled allegations of a complaint as true and construe any ambiguities in favor of the plaintiff. Thompson, 300 F.3d at 753.
Count I
"[I]n the context of establishing a sex discrimination case in a failure-to-promote case, the plaintiff must show that (1) she is a member of a protected class; (2) she applied for and was qualified for the position sought; (3) she was rejected for the position; and (4) someone not in the protected class was given the position who had similar or lesser qualifications." Kielczynski v. Vill. of LaGrange, Ill., 122 F. Supp.2d 932, 944 (N.D. Ill. 2000) (citing Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995)). MPEA argues that Moennich failed to allege elements (2) and (3) — Moennich did not apply for the director position and, therefore, she could not have been rejected for the position. While acknowledging that an expression of interest can qualify as a constructive application for a position, MPEA further argues that Moennich cannot show constructive application because she fails to allege that she expressed an interest in applying for the position. However, "a technical application is not necessary when defendant's conduct effectively prevented plaintiff from applying." Kamberos v. GTE Automatic Elec., Inc., 603 F.2d 598, 602 n. 4 (7th Cir. 1979). Here, Moennich alleges that MPEA did not allow Moennich to apply or interview for the position, This allegation is sufficient to survive MPEA's motion to dismiss.
Finally, MPEA points to Moennich's EEOC charge, which states that Moennich resigned her position on September 4, 2001. According to MPEA, because this was the same day that Walder resigned, Moennich could not have expressed an interest in the position or been prevented from applying for the position. However, MPEA fails to acknowledge that Moennich's EEOC charge goes on to state, "In late September, I rescinded my resignation and resumed by duties with FOCUS One . . . I intended my revocation of my resignation duty permanent [sic] and to resume full-time employment." Further, Moennich's complaint states that she was not terminated by MPEA until November 4, 2001. These two allegations taken together indicate that Moennich was employed at MPEA from late September until November 4, 2001. Because Moennich was employed by MPEA post-September 4, 2001, MPEA's argument is unpersuasive. MPEA's motion to dismiss Count I is denied.
Counts II, IV, V, and VI
MPEA argues that Counts II, IV, V, and VI should be dismissed because Moennich resigned and was not terminated. MPEA again points to Moennich's EEOC complaint which states that she "resigned my position on or about September 4, 2001." MPEA argues that the court cannot acknowledge Plaintiffs attempt to "unilaterally rescind her resignation." At this stage in the proceeding, the court cannot resolve a factual dispute over whether Moennich attempted to unilaterally rescind her resignation. Instead, the court must take all allegations in the complaint as true and resolve any ambiguities in favor of Moennich. As explained above, Moennich's EEOC charge and her complaint, taken together, indicate that Moennich was employed by MPEA from late September until November 4, 2001. Moennich, therefore, has alleged that she suffered an adverse work action by being terminated on November 4, 2001. Therefore, MPEA's motion to dismiss Counts n, IV, V, and VI is denied.
MPEA also argues that Count VI for an alleged violation of FMLA should be dismissed because "the right to reinstatement is not absolute." (Del Motion to Dismiss, 10). While MPEA is correct that the right to reinstatement is not absolute after leave under FMLA, this fact alone (with no other information) is insufficient to support a motion to dismiss. Otherwise, no employee could state a claim for a violation of FMLA when terminated during FMLA leave.
Count V
MPEA argues that Count V, alleging a violation of 42 U.S.C. § 1983, should be dismissed because Moennich failed to allege that "she experienced a deprivation of a constitutional right caused by governmental officers acting in accordance with a municipal policy or custom." While there is no heightened pleading standard for a § 1983 claim, Moennich's complaint still must set forth sufficient allegations to place defendant on notice of the claims against it. Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001) (citing McCormick v. City of Chicago, 230 F.3d 319, 323-24 (7th Cir. 2000)). A municipality cannot be held liable under § 1983 based on respondeat superior. Id. (citing Monell v. Dep't of Social Serv., 436 U.S. 658, 690 (1978)). Therefore, a plaintiff must claim that the plaintiffs deprivation of rights was caused "either by (1) the enforcement of an express policy of the [municipality], (2) a widespread practice that is so permanent and well settled as to constitute a custom or usage with the force of law, or (3) a person with final policymaking authority." Id. (citing McCormick, 230 F.3d at 324), However, the plaintiff's complaint can contain conclusory allegations to satisfy the liberal notice pleading requirement, and a "smattering of phrases like `highest policymaking officers' and `widespread custom'" is generally sufficient to survive a motion to dismiss. McCormick, 230 F.3d at 324.
In the instant case, nothing in Moennich's complaint can be construed to allege an express policy or a widespread practice. Moennich only relies on MPEA's conduct toward Moennich, and she does not allege that MPEA engaged in a pattern of conduct with respect to other female employees. Further, Moennich does not identify a policymaker responsible for her alleged deprivation of constitutional rights. Based on these deficiencies, Moennich's § 1983 claim fails. MPEA's motion to dismiss Count V is granted.