Syed M. Alam v. Miller Brewing Comp

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2456
S YED M. A LAM ,
Plaintiff-Appellant,
v.
M ILLER B REWING C OMPANY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:10-cv-00512-RTR—Rudolph T. Randa, Judge.
A RGUED N OVEMBER 30, 2012—D ECIDED F EBRUARY 27, 2013
Before B AUER, R OVNER, and W ILLIAMS, Circuit Judges.
B AUER, Circuit Judge. Syed Alam brought suit against
Miller Brewing Company and MillerCoors LLC under
Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seq., alleging that MillerCoors, at
the direction of Miller Brewing, refused to do busi-
ness with him in retaliation for a discrimination suit
2 No. 11-2456
previously filed by Alam against Miller Brewing.1 The
district court dismissed the suit, concluding that Alam
had failed to sufficiently allege that MillerCoors was
Alam’s “employer” for purposes of Title VII and that
Alam had failed to exhaust administrative remedies
against Miller Brewing. We affirm.
I. BACKGROUND
In 2005, Alam filed an employment discrimination
lawsuit under Title VII against Miller Brewing, his former
employer. Alam and Miller Brewing settled the case in
2006. At some point thereafter, Alam, whose company
Alam & Company provides software and consulting
services to the brewing industry, approached MillerCoors
about developing a software prototype for MillerCoors
and its distributors. MillerCoors is a joint venture be-
tween Miller Brewing and Coors Brewing Company.
MillerCoors told Alam that if he developed the soft-
ware prototype, MillerCoors would give him an oppor-
tunity to make a sales presentation for the prototype
to MillerCoors executives.
After Alam spent over two months working to de-
velop the prototype and collaborating with MillerCoors
1
The initial suit also named Coors Brewing Company as a
defendant and Alam & Company LLC as a plaintiff. Alam does
not appeal the dismissal of Coors from the suit, and Alam &
Company did not appeal the district court’s ruling, so we
omit discussion of Coors and Alam & Company except as
pertinent to the remaining claims.
No. 11-2456 3
employees, however, MillerCoors indicated that it would
no longer consider working with Alam. Mike Pelto,
the Senior Director of IT and Vendor Management at
MillerCoors, told Alam that he would not work or meet
with Alam because of Alam’s prior lawsuit against
Miller Brewing. Pelto had previously worked as a
manager and member of the Executive Committee of
the IT Department at Miller Brewing and knew about
Alam’s lawsuit against Miller Brewing. MillerCoors
thereafter refused to allow Alam to pursue business
opportunities with MillerCoors.
On June 10, 2009, Alam received a letter from
counsel for MillerCoors that stated in part:
When you pressed him, Mr. Pelto also said that you
needed to talk to me, because he knew there had been
issues in the past, but he was not part of that and
I was the one with whom you needed to follow up. . . .
As I indicated during our conversation, MillerCoors
is not interested in engaging you or your company.
In addition to what Mr. Pelto explained to you about
our strategic sourcing model, MillerCoors has made
his decision based on the terms of Paragraph 8
of the settlement and release agreement dated
January 17, 2006 (the “Settlement Agreement[”]).
Paragraph 8 of the Settlement Agreement provides:
“I agree not to reapply for employment with or other-
wise work for or provide services to Miller Brewing
Company . . . or any of its parent, affiliates or subsid-
iaries.”
Alam received another letter from MillerCoors’ counsel
on June 29, 2009, which stated in part:
4 No. 11-2456
Miller Brewing Company paid you a substantial sum
to resolve the litigation and ensure that it and its
related entities would never have to deal with you
again. Obviously, a primary purpose of paragraph 8
of the Release was to ensure that no entity in which
Miller Brewing Company had an ownership interest
and thus from which Miller Brewing Company
derived profit or loss would ever have to risk dealing
with you as an employee or other form of service
provider.
Alam claimed, on information and belief, that these
letters were sent at the behest of Miller Brewing, and
that Miller Brewing directed MillerCoors to deny Alam
the opportunity to present the prototype he created to
executives at MillerCoors because of his previous dis-
crimination lawsuit against Miller Brewing.
Alam filed a charge of discrimination against MillerCoors
with the Equal Employment Opportunity Commis-
sion (“EEOC”) on December 5, 2009. After the EEOC
issued Alam a right-to-sue notice on March 22, 2010,
Alam initiated suit against Miller Brewing and
MillerCoors, alleging a retaliation claim under Title VII
and a state law claim for promissory estoppel.
Miller Brewing and MillerCoors filed a motion to
dismiss the complaint for failure to state a claim pursu-
ant to Federal Rule of Civil Procedure 12(b)(6), which
the district court granted on December 16, 2010. The
district court concluded that the complaint failed to
state a retaliation claim against MillerCoors because it
did not plausibly suggest that MillerCoors was Alam’s
No. 11-2456 5
“employer” for purposes of Title VII. As to Alam’s retali-
ation claim against Miller Brewing, the district court
concluded that it failed because Alam had not named
Miller Brewing in his EEOC charge nor sufficiently
alleged that this lapse could be excused pursuant to
Eggleston v. Chi. Journeyman Plumbers’ Local Union
No. 130, 657 F.2d 890, 905 (7th Cir. 1981) (permitting
Title VII claim to proceed against a defendant not
named in the plaintiff’s EEOC charge). The district
court permitted Alam to file an amended complaint,
which Alam did on January 12, 2011. After this filing,
Alam’s counsel withdrew and Alam proceeded pro se.
Miller Brewing and MillerCoors again moved to
dismiss the amended complaint under Rule 12(b)(6). On
May 26, 2011, the district court granted the motion as to
Alam’s federal claims, concluding that the amended
complaint did not cure the deficiencies identified in the
district court’s previous order. The district court also
relinquished jurisdiction over Alam’s state promissory
estoppel claim and entered final judgment. On June 13,
2011, Alam wrote a letter to the district court requesting
leave to file a second amended complaint. The district
court construed the letter as a motion under Federal
Rule of Civil Procedure 59(e) to alter or amend the judg-
ment and, on August 4, 2011, denied the motion. On
June 28, 2012, while Alam’s Rule 59(e) motion was still
pending, Alam filed a notice of appeal.2
2
Alam accordingly does not appeal the district court’s denial
of his motion under Rule 59(e). Fed. R. App. P. 4(a)(1); Ackerman
(continued...)
6 No. 11-2456
II. DISCUSSION
Alam contends that the district court erred in dis-
missing his complaint against Miller Brewing and
MillerCoors. We review de novo a dismissal under
Rule 12(b)(6) for failure to state a claim. Citadel Grp. Ltd.
v. Wash. Reg’l Med. Ctr., 692 F.3d 580, 591 (7th Cir. 2012).
To avoid dismissal, Alam’s complaint must contain
allegations that “ ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
In reviewing the sufficiency of a complaint under the
plausibility standard, we accept the well-pleaded facts
in the complaint as true, but we “need not accept as
true legal conclusions, or threadbare recitals of the ele-
ments of a cause of action, supported by mere con-
clusory statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th
Cir. 2009). The “[f]actual allegations must be enough to
raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555, 127 S.Ct. 1955. That is, the
complaint must contain “allegations plausibly suggesting
(not merely consistent with)” an entitlement to relief.
Id. at 557, 127 S.Ct. 1955. This does not impose a prob-
ability requirement on plaintiffs: “a well-pleaded com-
plaint may proceed even if it strikes a savvy judge that
2
(...continued)
v. Nw. Mut. Life Ins. Co., 172 F.3d 467, 468 (7th Cir. 1999)
(“The notice of appeal from the order dismissing their suit
could not bring up an order entered later.” (citations omitted)).
No. 11-2456 7
actual proof of those facts is improbable, and that a re-
covery is very remote and unlikely.” Id. at 556, 127 S.Ct.
1955 (citation omitted).
A. Dismissal of Miller Brewing
Alam first argues that the district court erred in dis-
missing his Title VII claim against Miller Brewing for
failure to exhaust administrative remedies. Prior to
filing suit under Title VII, a party must first file a
charge of discrimination with the EEOC, 42 U.S.C. § 2000e-
5(f)(1), and a party not named as the respondent in
the charge may not ordinarily be sued in a private civil
action under Title VII. Tamayo v. Blagojevich, 526 F.3d
1074, 1089 (7th Cir. 2008) (citing Olsen v. Marshall & Ilsley
Corp., 267 F.3d 597, 604 (7th Cir. 2001); Schnellbaecher v.
Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989)). This
requirement “gives the employer some warning of the
conduct about which the employee is aggrieved and
affords the EEOC and the employer an opportunity to
attempt conciliation without resort to the courts.” Ezell
v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005) (citation
omitted). With this two-fold purpose in mind, we have
recognized an exception to the rule that a party not
named in the EEOC charge is not subject to suit under
Title VII where the “unnamed party has been provided
with adequate notice of the charge, under circum-
stances where the party has been given the oppor-
tunity to participate in conciliation proceedings aimed
at voluntary compliance[.]” Eggleston, 657 F.2d at 905(citations omitted).
8 No. 11-2456
Alam does not dispute that he named only MillerCoors,
and not Miller Brewing, in his EEOC charge. He con-
tends, however, that his claims against Miller Brewing
should be allowed to proceed under the exception recog-
nized in Eggleston, and that the district court miscon-
strued the exception by requiring Alam to “prove” that
Miller Brewing had notice of the EEOC charge. But the
district court required no such “proof,” as that would
be inappropriate at the pleadings stage. Instead, the
district court properly interpreted our precedent to
require that Alam allege that Miller Brewing had notice
of the EEOC charge against it and an opportunity to
participate in conciliation proceedings. See Tamayo, 526
F.3d at 1089 (affirming dismissal of Title VII claim
under Rule 12(b)(6) against defendant not named in
EEOC charge where the complaint alleged that while
the defendant had notice that an EEOC charge had
been filed against someone, the complaint did not
allege that the defendant had notice that a charge “had
been filed against it”); Schnellbaecher, 887 F.2d at 127(affirming dismissal of Title VII claim against defendant
parent corporation where the parent corporation only
had notice of charges against the subsidiary corpora-
tion and did not have notice “of any charges against it,
nor did it have any opportunity to conciliate on its
own behalf”); Perkins v. Silverstein, 939 F.2d 463, 471 (7th
Cir. 1991) (dismissing complaint where plaintiff did not
“allege[ ] any facts which warrant an exception to the
general rule that a party not named in the EEOC charge
cannot be sued under Title VII” (citations omitted)).
Despite having the opportunity to file an amended
complaint after the district court indicated that Alam’s
No. 11-2456 9
original complaint did not “plausibly suggest that the
Eggleston exception applies here,” Alam failed to allege
any facts in the amended complaint regarding whether
Miller Brewing had notice of an EEOC charge or an
opportunity to participate in conciliation proceedings.
The amended complaint, like the initial complaint, al-
leges only that Alam’s EEOC charge named MillerCoors.
But as we have previously held, the fact that one entity
had notice of the charges against it is insufficient to
satisfy the Eggleston exception as to a related entity that
did not have notice of a charge against it or an oppor-
tunity to conciliate that charge. See Tamayo, 526 F.3d at
1089; Olsen, 267 F.3d at 604 (“Under the law of this
circuit, a parent organization not named in the plain-
tiff’s EEOC charge must be dismissed from the suit
unless the plaintiff can show that the parent had notice
of the claim against it, as opposed to its subsidiary,
and had an opportunity to conciliate on its own behalf.”
(citation omitted)).
Alam claims that he did not need to allege any facts
pertaining to the Eggleston exception because he alleged
that he “exhausted all of [his] administrative remedies
and h[as] satisfied all conditions precedent to bringing
this action.” See Fed. R. Civ. P. 9(c) (“In pleading condi-
tions precedent, it suffices to allege generally that all
conditions precedent have occurred or been per-
formed.”). But Alam specifically alleged that he submit-
ted an EEOC charge naming only MillerCoors, not Miller
Brewing. He therefore cannot rest on his allegation that
he “exhausted all of his administrative remedies” when
he admits he did not fulfill a prerequisite to main-
10 No. 11-2456
taining a Title VII action against Miller Brewing and,
instead, seeks to avail himself of the narrow exception
toTitle VII’s charge filing requirement that we have
recognized. Moreover, as we have noted, the district
court highlighted this deficiency in Alam’s initial com-
plaint and gave him an opportunity to plead additional
facts that plausibly suggested that the Eggleston excep-
tion applied here. But Alam did not add a single addi-
tional factual allegation pertinent to the Eggleston
exception in his amended complaint, so we conclude
that the district court properly dismissed Alam’s Title VII
claim against Miller Brewing for failure to exhaust ad-
ministrative remedies.
B. Dismissal of MillerCoors
Alam next argues that the district court erred in dis-
missing his claims against MillerCoors because
MillerCoors was not Alam’s “employer” for purposes of
Title VII. Title VII’s anti-retaliation provision makes it
“an unlawful employment practice for an employer to
discriminate against any of his employees or applicants
for employment . . . because he has opposed any practice
made an unlawful employment practice by this sub-
chapter.” 42 U.S.C. § 2000e-3(a). While individuals are
protected from retaliation by their former employers,
Ruedlinger v. Jarrett, 106 F.3d 212, 214 (7th Cir. 1997);
Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 (7th Cir.
1996); see generally Robinson v. Shell Oil Co., 519 U.S. 337(1997) (holding that a former employee may bring an
action under Title VII’s retaliation provision), and as
applicants for employment, 42 U.S.C. § 2000e-3(a), Alam
No. 11-2456 11
has not alleged that he applied for employment with
MillerCoors or that he was ever employed by MillerCoors.
Instead, as the district court concluded and as Alam
does not dispute, his prospective status in relation
to MillerCoors was that of an independent contractor,
which does not fall within the protections of Title VII.
Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 492
(7th Cir. 1996) (quoting Knight v. United Farm Bureau
Mut. Ins. Co., 950 F.2d 377, 380 (7th Cir. 1991)).3
The fact that Alam has not alleged a direct employment
relationship with MillerCoors is not fatal to his Title VII
claim against MillerCoors, however. We have recognized
that an entity affiliated with the employer or former
employer of a Title VII plaintiff may be named as a
3
In his pro se reply brief, Alam argues that “[d]efendants
mislabel [him] as an ‘independent contractor’ ” because he is
“not suing as an independent contractor, but as a former
employee who was unjustly led on and denied business op-
portunities” with MillerCoors. We do not view this as a chal-
lenge to the district court’s conclusion that Alam is suing
MillerCoors as an independent contractor—not as an “ap-
plicant for employment” with MillerCoors. Additionally, the
argument misses the distinction between Alam’s relationship
with Miller Brewing and his relationship with MillerCoors.
All parties agree that Miller Brewing is Alam’s former em-
ployer. His relationship with MillerCoors, however, was
as a vendor seeking, as Alam puts it, “business opportuni-
ties”—not employment—with MillerCoors. Additionally, as this
argument was first raised in Alam’s reply brief, it is waived.
See, e.g., United States v. Diaz, 533 F.3d 574, 577 (7th Cir. 2008).
12 No. 11-2456
Title VII defendant if it has forfeited its limited liability.
See Worth v. Tyer, 276 F.3d 249, 259-60 (7th Cir. 2001)
(discussing how an affiliated corporation can forfeit its
limited liability through “piercing the corporate veil,” if
it “takes actions for the express purpose of avoiding
liability under the discrimination laws,” or if it “directed
the discriminatory act, practice, or policy of which the
employee is complaining” (citation omitted)); Papa v.
Katy Indus., 166 F.3d 937, 941 (7th Cir. 1999) (“The
basic principle of affiliate liability is that an affiliate
forfeits its limited liability only if it acts to forfeit it—as
by failing to comply with statutory conditions of
corporate status, or misleading creditors of its affiliate,
or configuring the corporate group to defeat statutory
jurisdiction, or commanding the affiliate to violate the
right of one of the affiliate’s employees.”). An affiliate
may also be liable under Title VII through successor
liability. Id.The district court considered whether Alam could
maintain a claim against MillerCoors based on its rela-
tionship with Miller Brewing, his former employer,
but ultimately concluded that the amended complaint
failed to allege facts suggesting affiliate liability. Alam
does not challenge that conclusion on appeal. Instead,
he argues that the district court erred in concluding
that MillerCoors was not Alam’s “employer” for
purposes of Title VII because MillerCoors acted as
Miller Brewing’s “agent” in carrying out Miller Brewing’s
acts of retaliation. He relies upon the language in
Title VII that defines “employer” as “a person engaged
in an industry affecting commerce who has fifteen or
No. 11-2456 13
more employees . . . and any agent of such a person.”
42 U.S.C. § 2000e(b) (emphasis added). But Alam fails
to convince us that “agent” in 42 U.S.C. § 2000e(b) has a
broad enough reach to hold MillerCoors liable as an
“agent” of Miller Brewing for the conduct alleged here.
The cases he cites stand for the proposition that
Title VII plaintiffs may maintain a suit directly against
an entity acting as the agent of an employer, Carparts
Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New
England, Inc., 37 F.3d 12, 17 (1st Cir. 1994); Spirit v.
Teachers Ins. & Annuity Ass’n, 691 F.2d 1054, 1063 (2d
Cir. 1982), vacated and remanded on other grounds, 463
U.S. 1223, 103 S.Ct. 3565, 77 L.Ed.2d 1406 (1983); Nealey
v. Univ. Health Servs., Inc., 114 F. Supp. 2d 1358, 1367
(S.D. Ga. 2000), but only under certain circumstances,
and circumstances not alleged here.
Specifically, the cases cited by Alam recognize agency
liability where the agent “exercise[s] control over an
important aspect of [the plaintiff’s] employment,”
Carparts, 37 F.3d at 17 (citation omitted), where the agent
“significantly affects access of any individual to employ-
ment opportunities,” Spirit, 691 F.2d at 1063 (citation
omitted), or where “an employer delegates sufficient
control of some traditional rights over employees to a
third party.” Nealey, 114 F. Supp. 2d at 1367 (citation
omitted). Here, however, Alam runs into the same
problem he has with alleging a direct employment rela-
tionship with MillerCoors: he was pursuing a prospec-
tive business relationship with MillerCoors as an inde-
pendent contractor through Alam & Company, not em-
ployment with MillerCoors. Alam has thus not alleged
14 No. 11-2456
that MillerCoors prevented him from accessing “em-
ployment opportunities” or that MillerCoors con-
trolled any aspect of the only employment relation-
ship alleged in the amended complaint, his former em-
ployment with Miller Brewing. We thus conclude that
the district court appropriately dismissed Alam’s
federal claim against MillerCoors.
C. Section 1981 Claim
Alam’s final argument is that the district court erred
in dismissing his amended complaint against Miller
Brewing and MillerCoors because the amended com-
plaint states a claim for race discrimination under
42 U.S.C. § 1981. As Miller Brewing and MillerCoors
point out, however, Alam raises this argument for the
first time on appeal, which precludes us from con-
sidering it. See Economy Folding Box Corp. v. Anchor
Frozen Foods Corp., 515 F.3d 718, 720 (7th Cir. 2008) (“[I]t
is axiomatic that an issue not first presented to the
district court may not be raised before the appellate
court as a ground for reversal[.]” (citations and
internal quotation marks omitted)). Absent from Alam’s
complaint, amended complaint, and two responses to
the motions to dismiss in the district court is any
reference or argument regarding § 1981. And although
his appointed counsel on appeal points us to our prec-
edent requiring liberal construction of pro se pleadings,
e.g., Macon v. Lash, 458 F.2d 942, 949 (7th Cir. 1972), Alam’s
initial and amended complaints were prepared and
filed by counsel, and he was represented by counsel
No. 11-2456 15
during briefing on the first motion to dismiss. Accord-
ingly, we conclude that Alam has waived this argument
and the district court appropriately dismissed Alam’s
amended complaint against Miller Brewing and
MillerCoors.4
III. CONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.
4
Alam does not raise, and we do not find, any extraordinary
circumstances warranting reversal of the district court’s deci-
sion to relinquish supplemental jurisdiction over Alam’s state-
law claim. See Capeheart v. Terrell, 695 F.3d 681, 686 (7th Cir.
2012) (citation omitted).
2-27-13