Kacprowski, Brasch fails to meet Title VII's definition of an “employer” and therefore must be
dismissed as a defendant.

Kacprowski argues that Brasch is functioning as the “alter ego” of the companies and
therefore can be held liable as an employer. See Janopolous v. Harvey L. Walner & Associates,
Lid., 835 F. Supp. 459, 461 (N.D. Ill. 1993). This argument fails, however, because the Seventh
Circuit held in AIC that there is “no good reason why it should make any difference for our
[liability] analysis whether [individual defendant/sole shareholder] was [corporate defendant’s]
alter ego . . . as to [the sole shareholder’s] individual capacity liability, it does not matter even if
[hJe was [his entity’s] alter ego.” AIC, 55 F.3d at 1282. For these reasons, Brasch is entitled to
summary judgment on Counts 1- 3.

B. AM’s liability as an employer

Title VI defines an employer as a “person engaged in an industry affecting commerce
who has fifteen or more employees for each working day in each of twenty or more calendar
weeks in the current or preceding calendar year, and any agent of such a person . . ”A2US.C.§
2000e(b). The purpose of the “fifteen or more employees” requirement is to exempt small
employers from the sometimes difficult task of mastering the complexities and procedures of the
anti-discrimination laws. Papa v. Katy Industries, Inc., 166 F.3d 940 (7" Cir. 1999).

AM has shown, and it is undisputed, that it did not employ fifteen or more people in each
of twenty or more calendar weeks in 2000 or 1999. It is not an “employer” within the meaning
of Title VII.

In an attempt to show that AM qualifies as an employer under Title VII, Kacprowski
relies on an “integrated enterprise” theory. Under that theory, legally separate corporations or

4


CONCLUSION
For the reasons stated above, the Court grants defendants’ motion to dismiss or for partial
summary judgment [Docket Items 7-1, 7-2]. Summary judgment is entered in favor of

defendants Brasch and AM on Counts 1 - 3. Count 4 is dismissed as to all defendants.

IO VLSI LUO

MATTHEW F. KENNELLY
United States District Judge

Date: June 19, 2001


light most favorable to the plaintiff, drawing all reasonable inferences in his favor and accepting
as true the complaint’s well-pleaded facts. Sneed v. Rybicki, 146 F.3d 478, 480 (7" Cir. 1998).
Under Rule 56(c), summary judgment may be granted only if there are no genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is considered
“genuine” if a reasonable trier of fact could find in favor of the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether or not a genuine issue of
material fact exists, we must view the facts in a light favorable to Kacprowski, the non-moving
party in this case, drawing all reasonable inferences in his favor. Celotex, 477 US. at 322.
I. Title VII claims

A. Brasch’s individual liability as an employer

An individual “who [does] not otherwise meet [Title VII’s] statutory definition of
‘employer’ cannot be liable.” EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1282 (7"
Cir. 1995). In AIC, plaintiff brought suit against AIC and its sole shareholder for violation of the
American Disabilities Act. Even though the owner had operated AIC on a day-to-day basis and
fired the plaintiff, the Seventh Circuit concluded that she was not an employer within the
meaning of the law. Id. at 1279. The court noted that “where the individual owns all or a
significant share of the employing entity, he will be disciplined directly by the financial loss he
must absorb, whether or not there is individual liability.” /d. at 1282 n.8.

Brasch’s situation is no different. He owned ARHC and AM, he was involved in the day-
to-day operation of both companies, and he fired the plaintiff. Nevertheless, because there is no

evidence — and indeed no real claim, see Pltf. Resp. 2-3 — that Brasch personally employed


individuals may be viewed as a single unit when they are so interrelated as to make it difficult to
determine where one ends and the other begins. Lynam v. Foot First Podiatry Centers, P.C., 919
F. Supp. 1141, 1145 (ND. Ill. 1996). However, the “integrated enterprise” theory for defining
an “employer” under Title VII was rejected by the Seventh Circuit because it is unduly vague
and does not adequately protect small employers. Papa, 166 F.3d at 942.' For these reasons,
and because AM relied on material outside of the complaint, summary judgment on Counts | - 3
is entered in favor of AM.

The Court denies Kacprowski’s request for more time to investigate the affidavits relied
on by AM. In view of the Seventh Circuit’s rejection of the “integrated employer” theory, and
Kacprowski’s inability to so much as suggest that AM ever had fifteen employees, additional
time would do him no good. “Remote possibilities do not warrant subjecting the parties and the
judiciary to proceedings almost certain to be futile.” DF Activities Corp. v. Brown, 851 F.2d 920,
922 (7" Cir. 1988).

I. Retaliatory discharge claim

The Illinois Human Rights Act provides a remedy to an employee discharged in
retaliation for opposing “that which he or she reasonably and in good faith believes to be
unlawful discrimination [or] sexual harassment in employment . . .” 775 ILCS 5/6-101(A). The

Act also states that “except as otherwise provided by law, no court of this state shall have

' In Papa, the court indicated that an affiliate of the employer might be held liable
under Title VII in three types of situations: when the evidence shows that “‘veil-piercing”
is appropriate under traditional standards; when a company has split itself up into small
parts to evade responsibility under Title VII or similar laws; and when a parent
corporation actually directed the challenged discriminatory practice or act. Papa, 166
F.3d at 941-42. Kacprowski makes no claim, and provides no evidence, that any of these
situations exists here.

5


Minute Order Form (06/97)
y

United States District Court, Northern District of Illinois

Nameotsigned Judge | Matthew F. Kennelly | Suu fe

CASE NUMBER 00 C 7884 DATE 6/19/2001
CASE Kacprowski vs. Advanced Reproductive
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) Qa Answer brief to motion due___. Reply to answer briefdue__.

(4) oO Ruling/Hearingon__—_ssetfor__at

(5) im Status hearing[held/continued to] [set for/re-set for]on____setfor___at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on___ssetfor__—at__—

(7) Q Trial{set for/re-set for] on__at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto__at

(9) oOo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OGeneral Rule 21 CIFRCP41(a)(1) OO FRCP41(a)(2).

ao) [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons set forth on the

attached order, the Court grants defendants’ motion to dismiss or for partial summary judgment (7-1, 7-2).
Summary judgment is entered in favor of defendants Brasch and AM on Counts 1-3. Count 4 is dismissed
as to all defendants.

di) {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

i ired.
No notices required, number of notices

UN 22 206f

date docketed

Notices mailed by judge’s staff.

Notified counsel by telephone.

vw | Docketing to mail notices.

docketing deputy inicals

/¢

Mail AO 450 form. &

Copy to judge/magistrate judge

FILe
courtroom date mailed notice
OR deputy’s oid
initials

yu2t et BS

Date/time received in
central Clerk's Office mailing deputy initials



jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.”
775 ILCS 5/8-111 (C).

The Illinois Human Rights Act preempts common law claims when those common law
claims are “inextricably linked” to a discrimination claim. See, e.g., Utomi v. Cook County, No.
98 C 3722, 1999 U.S. Dist. LEXIS 15449, at 16 (N.D. Ill. Sept. 22, 1999) (citing cases).
Similarly, common law claims are preempted if they are rooted in legal obligations and
prohibitions that exist only under the IHRA. See, e.g., Bartoli v. Applebee's Restaurant, No. 00
C5954, 2001 U.S. Dist. LEXIS 314, at 3 (N.D. Ill. Jan. 11, 2001) (citing cases). Kacprowski
argues that his common law retaliatory discharge claim is neither “inextricably linked” to his
claim of discrimination nor rooted in JHRA provisions. Rather, he says, it is based on his
opposition to violations of his employer’s internal rules. Cplt. { 39; Pitf. Resp. at 7.

In his attempt to avoid preemption, Kacprowski has put his claim outside the bounds of
what is needed to establish a viable retaliatory discharge claim. A claim of retaliatory discharge
requires proof (1) that the plaintiff has been discharged; (2) in retaliation for his activities; and
(3) that the discharge violates a clear mandate of public policy. E.g., Howard y. Zack Co., 264
Ill. App. 3d 1012, 1021-22, 637 N.B.2d 1183, 1190 (1994). Kacprowski’s claim as he
characterizes it does not fulfill the third prong of this test: reporting behavior that violates
company policy is not a matter that “strike[s] at the heart of a citizen’s social rights, duties, and
responsibilities.” Palmateer v. International Harvester Co., 85 Ill. 2d 124, 128, 421 N.E. 2d 876
(1981). The only Illinois public policy potentially implicated here is that found within the
Illinois Human Rights Act. Thus, Kacprowski’s claim either fails to state a claim under Illinois

law, or it is preempted by the IHRA.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ANDREW J. KACPROWSKI, ) ;
) dUN 2
Plaintiff, )
v. ) Case No. 00 C 7884
)
ADVANCED REPRODUCTIVE )
HEALTH CENTER, INC., ADVANCED )
MANAGEMENT, L.L.C., and DR. JOEL )
BRASCH, ) Ny
x Me 9
) "8 am
Defendants. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiff Andrew J. Kacprowski alleges that he was employed as chief operating officer
by defendants Advanced Reproductive Health Center, Inc. (ARHC), Advanced Management
(AM), and Dr. Joel Brasch from January 1997 to May 12, 2000. He claims that the defendants
had a custom and practice of sexual harassment and retaliation, as well as discrimination based
on religion and national origin. On May 9, 2000, a female employee brought to Kacprowski’s
attention a pornographic website that appeared on her laptop computer, which had been
borrowed by her supervisor, Dr. Brasch, the owner of ARHC and AM. When Kacprowski
confronted Brasch about the discovery on May 10, he says, Brasch became angry and belligerent.
Kacprowski confronted Brasch on May 11 regarding other pornographic websites that
Kacprowski had discovered had been purchased via Brasch’s credit card, and he says he warned
Brasch about sexual harassment in the workplace. Kacprowski alleges that on May 12, Brasch /7

1


fired him and the female employee who had complained about the website. At the time of

termination, Kacprowski says, Dr. Brasch asked him if he really believed Brasch would allow a
non-Jew/German to own the company. (Kacprowski was to have had an opportunity for earned
ownership of the company.) Kacprowski alleges that he was replaced with a Jewish employee.

In June 2000, Kacprowski filed a charge of discrimination with the Equal Employment
Opportunity Commission and the Illinois Department of Human Rights; he named only ARHC
as the employer who had discriminated against him. After receiving notice of his right to sue,
Kacprowski brought claims against ARHC, AM, and Brasch under Title VII for discrimination
based on religion, discrimination based on national origin, and retaliation for opposing sexual
harassment (Counts 1 - 3). In Count 4, he accuses the defendants of retaliatory discharge in
violation of Illinois common law.

AM and Brasch have moved to dismiss Counts 1 - 3 for failure to state a claim on which
relief may be granted, or in the alternative for summary judgment. Among other things, Brasch
contends that he cannot be held individually liable under Title VII because he did not personally
employ Kacprowski, and AM argues that it is not liable for the Title VII violations because it
does not conform to Title VII’s definition of an “employer.” ARHC, AM, and Brasch have
moved to dismiss Kacprowski’s claim of retaliatory discharge, arguing that it is preempted by the
Illinois Human Rights Act.

Discussion

A motion to dismiss a complaint under Rule 12(b)(6) may be granted only if it appears
beyond doubt that the plaintiff cannot prove facts consistent with his complaint that would entitle
him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court reads the complaint the

2