Shannon Volling v. Kurtz Paramedic Services, Inc. ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3572
SHANNON VOLLING and ALLEN SPRINGER,
Plaintiffs-Appellants,
v.
KURTZ PARAMEDIC SERVICES, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14-cv-4423 — Sharon Johnson Coleman, Judge.
____________________
ARGUED SEPTEMBER 15, 2016 — DECIDED OCTOBER 19, 2016
____________________
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Plaintiffs Shannon Volling and Allen
Springer brought federal and state retaliation claims against
Antioch Rescue Squad (“ARS”) and its subcontractor, Kurtz
Paramedic Services, Inc. (“Kurtz”). Plaintiffs allege the com-
panies wrongfully refused to hire them as emergency medical
technicians (“EMTs”) because of plaintiffs’ earlier complaints
alleging sexual harassment against ARS and Metro Paramedic
2 No. 15-3572
Services, Inc. (“Metro”). 1 Plaintiffs settled with ARS, and
Kurtz moved to dismiss plaintiffs’ claim. The district court
dismissed the case with prejudice. We affirm, in part, and re-
verse, in part.
I. Background
A. Factual Background
Plaintiffs Shannon Volling and Allen Springer worked as
EMTs for Metro and its contractor, defendant ARS. ARS pro-
vided emergency medical services and ambulance transport
to the Village of Antioch and surrounding areas using a two-
tiered employment structure. For daytime, weekday shifts,
ARS used paid EMTs through subcontracts with private am-
bulance companies. For evening and weekend shifts, ARS
used unpaid EMT volunteers. Volling began working for ARS
as an unpaid, evening and weekend EMT in May 2008. Later,
in March 2010, she transitioned to paid, weekday shifts under
ARS and Metro. Springer began working for ARS and Metro
in 2009.
In April 2011, Volling filed charges against ARS and Metro
with the Equal Employment Opportunity Commission, alleg-
ing sexual harassment, discrimination, and retaliation. Later,
in July 2011, Volling filed a complaint in the Northern District
of Illinois against ARS and Metro, alleging sex discrimination
and misconduct in violation of the Emergency Medical Ser-
vices Act. Volling alleged a panoply of illegal behavior includ-
ing sexual harassment, physical and sexual abuse of patients,
and on-duty alcohol and drug abuse. On October 26, 2011,
Volling reported this misconduct to the Illinois Department of
1 Metro is not a party to the present case.
No. 15-3572 3
Public Health, sparking an investigation, fines, and EMT li-
cense suspensions. Through June 2012, Volling continued to
pursue her federal lawsuit, raise her concerns at ARS meet-
ings, and attend Village of Antioch public meetings address-
ing ARS issues.
In late 2011, Springer filed a supporting declaration in Vol-
ling’s lawsuit against ARS and Metro. He also aided the Illi-
nois Department of Public Health’s investigation into ARS. Fi-
nally, Springer, like Volling, voiced his concerns at both ARS
and Village of Antioch meetings.
Plaintiffs alleged that ARS began acting against them im-
mediately after they filed the lawsuit and declaration. Volling
claimed ARS reduced her work hours and threatened to ter-
minate her employment. Similarly, Springer claimed ARS dis-
ciplined him for talking about Volling’s lawsuit and denigrat-
ing ARS management.
The alleged retaliation at issue in this case started on June
15, 2012. ARS terminated its subcontract with Metro and all
eight daytime, weekday Metro EMTs. On the same day, ARS
replaced Metro with defendant Kurtz. The next day, Kurtz be-
gan exclusively hiring former Metro EMTs. Kurtz did not
publicize its EMT vacancies or inform plaintiffs about them.
ARS instructed every former Metro EMT—except plaintiffs—
on how to apply for employment under the new Kurtz con-
tract. Kurtz then asked ARS for the former Metro EMTs’ con-
tact information to schedule interviews. 2 Neither Volling nor
Springer received application instructions, applied, or inter-
viewed for a Kurtz EMT position. Ultimately, within one day,
2 The record does not reflect whether ARS delivered plaintiffs’ contact
information to Kurtz.
4 No. 15-3572
ARS and Kurtz allegedly “jointly” rehired every other Metro
EMT except Volling and Springer.
B. Procedural Background
In June 2014, plaintiffs filed suit against ARS and Kurtz,
bringing federal and state retaliation claims. First, plaintiffs
alleged ARS and Kurtz acted against them for engaging in
protected activity, in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e–3(a) (“Title VII”). Second, they
said defendants violated the Illinois Human Rights Act, 775
Ill. Comp. Stat. 5/1-101, et seq. (“IHRA”) and the Illinois Whis-
tleblower Act, 740 Ill. Comp. Stat. 174/1, et seq. (“IWA”). ARS
settled with plaintiffs. Kurtz moved to dismiss plaintiffs’ com-
plaint.
On March 9, 2015, the district court granted Kurtz’s motion
to dismiss. The court found plaintiffs had failed to exhaust
their administrative remedies as required under Title VII and
the IHRA. The district court also concluded that, regardless,
plaintiffs had failed to adequately state a claim for relief, as
they did not apply for employment with Kurtz. Plaintiffs
moved for reconsideration and for leave to file an amended
complaint. On July 10, 2015, the district court granted the lat-
ter request.
On July 31, 2015, plaintiffs filed an amended complaint
with additional details, alleging the same violations. Kurtz
again moved to dismiss plaintiffs’ complaint. This time, the
district court dismissed plaintiffs’ case with prejudice. The
court first found plaintiffs had failed to establish an adverse
employment action under Title VII and the IHRA, as they did
not apply for employment with Kurtz. Further, the court held
that plaintiffs failed to adequately link their protected activity
No. 15-3572 5
against ARS and Metro to any adverse employment action.
Finally, the district court dismissed plaintiffs’ IWA claims be-
cause they were never Kurtz’s employees and were outside
the statute’s scope.
Plaintiffs now appeal.
II. Discussion
We review de novo a district court’s grant of a Federal Rule
of Civil Procedure 12(b)(6) motion to dismiss. Roberts v. City
of Chi., 817 F.3d 561, 564 (7th Cir. 2016) (citation omitted). “In
construing the complaint, we accept all well-pleaded facts as
true and draw reasonable inferences in the plaintiffs’ favor.”
Id. (citation omitted). To survive a motion to dismiss, the com-
plaint must “state a claim to relief that is plausible on its face.”
Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the rea-
sonable inference that the defendant is liable for the miscon-
duct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A. Title VII and the Illinois Human Rights Act
“Title VII prohibits various ‘unlawful employment prac-
tices’ involving discrimination on the basis of ‘race, color, re-
ligion, sex or national origin.’” E.E.O.C. v. CVS Pharmacy, Inc.,
809 F.3d 335, 339 (7th Cir. 2015) (quoting 42 U.S.C. §§ 2000e–
2, 2000e–3). Title VII also prohibits discriminating against an
employee “because [she] has made a charge, testified, as-
sisted, or participated in any manner in an investigation, pro-
ceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–
3(a). Retaliation is also “a cognizable claim under … the
IHRA.” Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d
6 No. 15-3572
866, 887 (7th Cir. 2016) (citing 775 Ill. Comp. Stat. 5/6-101). Il-
linois courts apply the federal Title VII framework to IHRA
claims. See Rabé v. United Air Lines, Inc., 971 F. Supp. 2d 807,
821 (N.D. Ill. 2013) (citing Zaderaka v. Ill. Human Rights
Comm’n., 545 N.E.2d 684, 687 (Ill. 1989)). To succeed on a Title
VII retaliation claim, plaintiffs must “present evidence of (1)
a statutorily protected activity; (2) a materially adverse action
taken by the employer; and (3) a causal connection between
the two.” Turner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir.
2010) (citation omitted).
In the case at hand, it is undisputed that plaintiffs engaged
in protected activity. The dispute, therefore, revolves around
the final two elements.
1. Materially Adverse Employment Action
Plaintiffs allege Kurtz refused to hire them in retaliation
for their engaging in protected activity against ARS and
Metro. In the “failure to hire” context, a plaintiff satisfies the
materially adverse employment action requirement by show-
ing she “(1) … engaged in a statutorily protected activity; (2)
… applied and had the technical qualifications required for
the … position; (3) … was not hired for the position; and (4) a
similarly situated individual who did not [engage in statuto-
rily protected activity] was hired for the position.” Cichon v.
Exelon Generation Co., LLC, 401 F.3d 803, 812 (7th Cir. 2005). It
is undisputed that plaintiffs engaged in protected activity,
were qualified for the job, were not hired, and that others who
did not engage in protected activity were hired. What the par-
ties dispute is whether plaintiffs’ failure to apply to the new
Kurtz positions is fatal to their retaliation claims.
No. 15-3572 7
We conclude plaintiffs adequately pled an adverse em-
ployment action against Kurtz despite not applying for the
EMT positions. “[T]he Supreme Court made clear in McDon-
nell Douglas that the prima facie [Title VII] case is not inflexible
… ” Hague v. Thompson Distrib. Co., 436 F.3d 816, 821 (7th Cir.
2006). “The facts necessarily will vary in Title VII cases, and
the … prima facie proof required from [employees] is not nec-
essarily applicable in every respect to differing factual situa-
tions.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13
(1973); see also Int’l. Bhd. of Teamsters v. United States, 431 U.S.
324, 358 (1977) (Title VII plaintiffs need only initially “create
an inference that an employment decision was based on [an
illegal] discriminatory criterion”); Ortiz v. Werner Enters., Inc.,
— F.3d —, No. 15-2574, 2016 WL 4411434, at *5 (7th Cir. Aug.
19, 2016) (observing that “all evidence belongs in a single pile
and must be evaluated as a whole” rather than separated ar-
tificially between direct and indirect methods of proof). As
such, “[t]he expression ‘prime facie case’ in Title VII litigation
popularly refers to a common, but not exclusive, method of
establishing a triable issue of intentional discrimination.”
Loyd v. Phillips Bros., Inc., 25 F.3d 518, 522 (7th Cir. 1994) (cita-
tion omitted).
In light of this flexibility, we have previously relaxed the
application requirement in certain circumstances. See id.; see
also Int’l. Bhd. of Teamsters, 431 U.S. at 365 (“The effects of and
the injuries suffered from discriminatory employment prac-
tices are not always confined to those who were expressly de-
nied a requested employment opportunity.”). The district
court correctly highlighted the “failure to promote” context as
one example. See Loyd, 25 F.3d at 523 (no application necessary
when an employer “does not solicit and await applications
8 No. 15-3572
but hands out promotions on its own initiative in a nonselec-
tive, serial fashion”). Another such circumstance, however,
exists when “an employer ordinarily entertains applications
for a certain type of job but a plaintiff is deterred from apply-
ing by the very discriminatory practices he is protesting.” Id.The Supreme Court has recognized that requiring applica-
tions in this context could effectively bar “victims of the most
entrenched forms of discrimination” from Title VII relief. Int’l.
Bhd. of Teamsters, 431 U.S. at 367. Employees, for example, may
be dissuaded from applying “by the manner in which [the
employer] publicizes vacancies [or] his recruitment tech-
niques.” Id. at 365.
In cases such as this, the employer’s “manner” of publica-
tion may involve the discriminatory absence of publication. Si-
lently preventing protected class members from applying, ra-
ther than explicitly deterring them, is harder to detect and
prevent. In either case, the prospective employee suffers an
adverse employment action despite not applying. Here, by al-
legedly informing only the former Metro EMTs who had not
engaged in protected activity of the open positions, Kurtz dis-
criminated against plaintiffs. Thus, plaintiffs’ failure to apply
stemmed from the very discriminatory practice they com-
plain of, and their failure to apply need not bar their retalia-
tion claims. See Loyd, 25 F.3d at 523.
Our decision in Babrocky v. Jewel Food Co. is instructive. 773
F.2d 857 (7th Cir. 1985). There, female employees filed a Title
VII sexual discrimination claim against both their employer
and union for exclusively filling “meat-cutter” positions with
men and “meat-packing” positions with women. Jewel relied
on union referrals to fill these positions. The district court dis-
missed the plaintiffs’ claims, in part because the women did
No. 15-3572 9
not apply for meat-cutting positions. We disagreed and re-
versed in part, holding that the district court had applied “the
McDonnell Douglas framework too literally when it rejected
the balance of plaintiffs’ claims” in the absence of formal ap-
plications. Id. at 867. We noted, “[n]o notices of vacancies were
ever posted, nor had the Union ever recommended any of its
women members for these positions. Consequently, the plain-
tiffs were never informed of the vacancies for which they
could apply.” Id.The same potential for discriminatory lack of notice pre-
sents itself here. Kurtz had EMT openings and relied exclu-
sively on ARS for referrals. The two companies allegedly
“jointly” refused to inform plaintiffs of the new EMT posi-
tions, while informing all other former Metro EMTs who had
not engaged in protected activity. No application is necessary
in such circumstances.
Kurtz argues Loyd is inapplicable, as plaintiffs complained
of sexual harassment against ARS and Metro, not Kurtz. It was
not Kurtz, it concludes, that deterred plaintiffs from applying.
Kurtz, however, focuses on the wrong claim of discrimina-
tion. While plaintiffs originally alleged sexual harassment
against ARS and Metro, they now allege retaliatory discrimi-
nation against ARS and Kurtz. It is this second instance of dis-
crimination, plaintiffs allege, that kept them from applying.
Again, although Loyd identified discrimination that “deters”
applicants from applying, logic dictates that discrimination
preventing applicants from applying also constitutes an ad-
verse employment action. Thus, Loyd applies. It is sufficient
for plaintiffs to plead that, absent Kurtz’s retaliatory discrim-
ination, they would have sought the position. See Fischer v.
Avanade, Inc., 519 F.3d 393, 402 n.2 (7th Cir. 2008) (citing Loyd,
10 No. 15-3572
25 F.3d at 523). They did just that. As a result, Plaintiffs ade-
quately pled an adverse employment action despite not ap-
plying for Kurtz employment.
2. Causal Connection
Next, the district court concluded that plaintiffs failed to
allege a causal connection between Kurtz’s adverse employ-
ment action and their protected activity. Likewise, Kurtz
holds itself out as a completely separate, new subcontractor
under ARS with no previous relationship to plaintiffs. Kurtz
suggests, and the district court agreed, that plaintiffs’ allega-
tions tend to state a claim against ARS, and ARS only.
It is true that a formal application can satisfy the causality
requirement. “But, of course, it is not true that the causal gap
can never be bridged by something short of the formal sub-
mission of an application.” Loyd, 25 F.3d at 523. Rather, inher-
ent in the logic of Loyd is the requisite causal connection: An
application is unnecessary when a plaintiff can show she
would have applied had it not been for the complained-of dis-
criminatory practices. See id. (citations omitted).
Here, plaintiffs contend Kurtz’s alleged retaliatory dis-
crimination—purposefully failing to inform plaintiffs of the
new hiring process—caused plaintiffs’ failure to apply. Under
the complaint, plaintiffs engaged in protected activity, and
Kurtz was allegedly aware of this activity as ARS and Kurtz
jointly retaliated against plaintiffs for this activity by inten-
tionally excluding them from the EMT application process.
Accordingly, plaintiffs adequately pled a causal connection
No. 15-3572 11
between an adverse employment action and their protected
activity. 3
Both the district court and Kurtz question why Kurtz
would be motivated to retaliate against plaintiffs’ protected
activity against ARS and Metro. Both, however, overlook the
fact that “no one may follow the rule ‘we do not employ any-
one who has ever made a Title VII charge against a prior em-
ployer.’” Flowers v. Columbia Coll. Chi., 397 F.3d 532, 533 (7th
Cir. 2005) (citation and quotation marks omitted). Indeed,
“[n]o employer may retaliate against someone who makes or
supports a charge of discrimination against any employer.” Id.
at 534. Thus, regardless of Kurtz’s motive behind its alleged
retaliation, plaintiffs successfully pled a Title VII discrimina-
tion claim against it. 4
Accordingly, we reverse the district court’s opinion re-
garding plaintiffs’ Title VII and IHRA claims and remand for
further proceedings. Plaintiffs adequately pled both an ad-
verse employment action and a causal link between that ac-
tion and their protected activity.
B. The Illinois Whistleblower Act
Next, plaintiffs allege Kurtz violated the IWA. The district
court, however, correctly dismissed this claim.
3 Plaintiffs also allege they presented sufficient circumstantial evi-
dence illustrating a causal connection between their protected activity and
Kurtz’s adverse employment action. We find no need to turn to circum-
stantial evidence in light of the above allegations.
4 Plaintiffs also borrow from labor law and argue ARS and Kurtz are
“joint employers,” attempting to impute to Kurtz ARS’s retaliatory motive
and knowledge. We do not address ARS and Kurtz’s employment rela-
tionship, as it is irrelevant at this stage of the litigation.
12 No. 15-3572
Plaintiffs first argue the district court erroneously retained
pendent jurisdiction over their remaining state law claims af-
ter dismissing their Title VII claim. The district judge, how-
ever, “is given broad power in determining … whether it is
appropriate to retain jurisdiction over the state law claims.”
Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 728
(7th Cir. 1998). “Pendent jurisdiction is a power which the dis-
trict court, in the exercise of its sound discretion, may choose
to grant … .” Id. As such, the district court did not abuse its
power in retaining jurisdiction over plaintiffs’ state IWA
claim.
The district court also correctly dismissed the IWA claim.
The IWA provides that “[a]n employer may not retaliate
against an employee for refusing to participate in an activity
that would result in a violation of a State or federal law, rule,
or regulation.” 740 Ill. Comp. Stat. 174/20. It defines “em-
ployee” as “any individual who is employed on a full-time,
part-time, or contractual basis by an employer.” 740 Ill. Comp.
Stat. 174/5. Plaintiffs say the IWA should be read to include
“prospective employees,” pointing to Title VII and the IHRA.
The plain language of the statute, however, does not warrant
such a reading. Moreover, plaintiffs’ reliance on other statutes
is unpersuasive. Unlike in the Title VII and IHRA contexts de-
tailed above, plaintiffs do not cite here to any cases illustrating
flexibility in the requisite employment relationship for pur-
poses of the IWA. As such, this case falls outside the statute’s
scope. We agree with the district court that plaintiffs’ IWA
claims cannot proceed because plaintiffs were never Kurtz
employees.
No. 15-3572 13
C. Circuit Rule 36
Finally, plaintiffs move for this Court to assign the case to
a new district judge pursuant to Circuit Rule 36. This Court
has invoked Circuit Rule 36 “to avoid the operation of bias or
mindset which seems likely to have developed from consid-
eration and decision of motions to dismiss or … the like.”
CMFG Life Ins. V. RBS Sec., Inc., 799 F.3d 729, 750 (7th Cir. 2015)
(quoting Cange v. Stotler & Co., 913 F.2d 1204, 1208 (7th Cir.
1990)). We see no indication of bias and are confident that
upon remand the district court will consider the issues fairly.
As such, we see no reason to reassign the case, and deny the
request.
III. Conclusion
For the foregoing reasons, we AFFIRM, in part, and
REVERSE, in part, the judgment of the district court and
REMAND for further proceedings.