states that Brown & Joseph employed her as an “independent contractor.” Currie further states “there
is no doubt Plaintiff, Carol Curric, was an independent contractor in her relationship with Defendant,
Brown & Joseph, Ltd.” Resp. at 6. Accordingly, we find that Currie has failed to meet her burden of
proof that we have jurisdiction over Counts I through V of her complaint under Title VII.

Currie has similarly failed to meet her burden of proof that we have jurisdiction over Counts I
through V ofher complaint under Section 1981, Section 1981 protects specific rights, including those
tights relating to contract formation and enforcement, against racial discrimination only, See Bratton
v, Roadway Package Sys., Inc., 77 F.3d 168, 177 (7th Cir. 1996); see also Anooya v. Hilton Hotels
Corp., 733 F.2d 48, 50 (7th Cir. 1984). Curric’s Amended Complaint does not allege that Defendants’
discriminated against her on account of her race. As Currie concedes, “{o]bviously, Plaintiff cannot
recover under §1981, as no racial discrimination has been alleged or plead in the First Amended Verified
Complaint.” Resp. at 6.

Currie nonetheless argues that she can recover under 42 U.S.C. §1981a (“Section 1981a”). We
disagree. Section 1981a provides in part:

Tn an action brought by a complaining party under section 706 or 717 of the Civil Rights

Act of 1964 (42 U.S.C. 2000e-5, 2000c-16) against a respondent who engaged in

unlawful intentional discrimination (not an employment practice that is unlawful

because of its disparate impact) prohibited under section 703, 704 or 717 of the Act (42

U.S.C. 2000c-2, 2000e-3, 2000e-16), and provided that the complaining party cannot

recover under section 1981 of this title, the complaining party may recover

compensatory and punitive damages . . . from the respondent.

Currie asserts that Congress’ “adoption of 42 U.S.C. §1981a has broadened the scope of §1981
to include actions of discrimination by employers of independent contractors based upon race, scx,
sexual harassment, religion and creating a hostile work environment as a result of such discrimination,

among other factors.” Resp. at 6, In support of her assertion, Currie cites only to the First Circuit’s

tuling in Danco v. Wal-Mart, 178 F.3d 8 (1st Cir. 1999). However, the Danco court merely held that


IL ANALYSIS

A, Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(1) is to decide the adequacy of the
complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). Federal Rule of Civil Procedure 12(b)(1) requires dismissal of claims over which the federal
court lacks subject matter jurisdiction. Jurisdiction is the “power to decide” and must be conferred upon
the federal court. In re Chicago, Rock Istand & Pacific R..R. Co., 794 F.2d 1182, 1188 (7th Cir, 1986),
In reviewing a motion to dismiss for lack of subject matter jurisdiction, the Court may look beyond the
complaint to other evidence submitted by the parties to determine whether subject matter jurisdiction
exists. See United Transp. Union v, Gateway Western Ry. Co., 78 F.3d 1208, 1210 (7th Cir, 1996). The
plaintiff faced with a 12(b)(1) motion to dismiss bears the burden of establishing that the jurisdictional
requirements have been met. See Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir.
1987).

B. Discussion

1 Counts 1 - V

Currie’s Amended Complaint asserts that we have jurisdiction over Counts I through V pursuant
to Title VII and Section 1981, We disagree. Title VII makes il unlawful for an employer “to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2. Tille VII's protections
do not extend to independent contractors. See Worth v. Tyer, 276 F.3d 249, 262 (7th Cir. 2001); see also
Ost v. West Suburban Travelers Limousine, Inc,, 88 F.3d 435, 440 (7th Cir. 1996); Knight v. United

Farm Bureau Mut. Ins, Co., 950 F.2d 377, 380 (7th Cir, 1991). Currie’s Amended Complaint clearly


independent contractors could bring hostile work environment claims based on racial discrimination
under Section 1981. See id. at 178 F.3d at 13-14. Danco did not alter the long-standing interpretation
that Section 1981 applies to racial discrimination only. To the contrary, the First Circuit explained that
Section 1981 “protects only certain specificd rights, including the right to make and enforce contracts,
and it protects them only against racial discrimination.” /d. at 13. Courts in this jurisdiction have
continued to similarly interpret Section 1981 since the Danco decision. See Riley v. VOP LLC, 244
F.Supp.2d 928, 936 (N.D. Ill. 2003); see also Johnson v, Fed. Express Corp., 2001 WL 725400, *6(N.D.
Ill. 2001); Robinson v. Sabis Education Systems, Inc., 1999 WL 414262, *11 (ND. Ul. 1999).

Section 198 1a does not provide an independent ground for relief on which Currie may rely. See
Wojciechowski v. Emergency Technical Serv. Corp., 1995 WL 603186, *2 (N.D, Ill. 1995). Rather, it
is a damages provision that permits the recovery of compensatory and punitive damages for intentional
violations of Title VII. See §198 la; see also E.E.0.C. v. Waffle House, Inc., 534 U.S. 279, 287, 122
S.Ct. 754, 760, 151 L.Ed.2d 755 (2002). The adoption of Section 198 1a was limited to the expansion
of compensatory remedics available under Title VIL. See Pollard v. E.1. DuPont de Nemours & Co., 532
U.S. 843, 852, 21 S.Ct. 1946, 1951, 150 L.Ed. 2d 62 (2001). In order to recover under Section 1981a,
Currie must have a valid claim under Title VIL However, as Currie herself admits, she does not have
a claim under Title VII because of her status as an independent contractor. In light of Curric’s failure
to establish that we have subject matter jurisdiction over her federal law claims, we dismiss Counts 1
through V of her Amended Complaint.

2. Counts VI - XXT
Currie’s Amended Complaint contends that we have supplemental jurisdiction over Counts VI

through XXI pursuant to 28 U.S.C. §1367(a). 28 U.S.C. §1367 states, in relevant part: (a) Except as

provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil



‘Minute Order Form (08/9)

So

United States District Court, Northern District of Minois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

in Ag;
Marvin Aspen than Assigned Judge

Mail AQ 450 form.

CASE NUMBER 02 C 6646 DATE 7/21/2003
CASE Carol Currie vs. Brown & Joseph, Lid., et al
TITLE
[[n the following box (a) indicate the patty filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefty the nature
MOTION: of the motion being presented. |
DOCKET ENTRY:
(1) ob Filed motion of [ use listing in “Motion” box above.]
Q) o Brief in support of motion due___.
(3) oOo Answer bricf to motion due, . Reply to answer brief duc____
(4) o Ruling/Hearing on _.setfor_ at _
(5) ag Status hearing[held/continucd to] [set for/re-set for] on set for at
(6) o Pretriat conference[held/continued to] [set for/re-set for] on setfor_ at.
(7) Oo Trial{set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continucd to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) Cl Local Rule 41.1 CUFRCP41(a)(1)_ OC) FRCP41(a)(2).
ao) @f [Other docket entry] | Enter Memorandum Opinion and Order: We grant defendants’ motion to
dismiss (12-1) Counts I through V for lack of subject matter jurisdiction and Counts VI through XXI for
lack of supplemental jurisdiction. The status hearing set for 10/2/03 is stricken.
(11) [For further detail see order attached to the original minute order,]
No notices required, advised in open court. Doeuitient
No notices required. Nugiber
umber of polices i ;
a | Notices mailed by judge's staff.

Notified counsel by telephone.

Dacketing to mail notices

Copy to judge/magistrate judge.

GL

JUL 22 208

dare dacksted

ALR0OS

courtroom
deputy’s
initials

Date/time reccived in
central Clerk's Office

mailing deputy intake



action of which the district courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article IIT of the United States
Constitution. (c) The district courts may decline to exercise supplemental jurisdiction over a claim
under subsection (a) if: (3) the district court has dismissed all claims over which it has original
jurisdiction. We exercise our discretion under 28 U.S.C. 1367(c), and dismiss without prejudice Counts
VI through XXI of Curric’s Amended Complaint.
Ill. CONCLUSION

For the foregoing reasons, we grant Defendants’ motion to dismiss Counts | through V for lack

of subject matter jurisdiction and Counts VI through XXI for lack of supplemental jurisdiction? It is

|
_

MARVIN E. ASPEN —
United States District Judge

so ordered.

Dated 2fatl od

*In light of our ruling regarding Defendants’ motion to dismiss Counts I through V for lack of
subject matter jurisdiction, we deny as moot Defendants' motion to dismiss Counts I and IIT for
failure to state a claim upon which relief may be granted.

6



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CAROL CURRIE, )
)
Plainuff, )
)
v. ) Case No. 02 C 6646
)
BROWN & JOSEPH, LTD., CHRIS )
CAPPUCCILLI, THOMAS MCGRATH, )
DAVID ARTRIP AND SUSAN CAPPUCCILLI, ) Re
) 3
Defendants. ) uL 2 2 2008
) JU

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff, Carol Currie, filed a twenty-one count Amended. Complaint against Defendants Brown
& Joseph, Ltd. (“Brown & Joseph”), Chris Cappuccilli, Thomas McGrath, David Atrip, and Susan
Cappuccilli (the “Individual Defendants”). The first five counts of Currie's Amended Complaint allege
violations of Title VII of the Civil Rights Act of 1964 (‘Title VII"), 42 U.S.C. §2000¢ er seq., and
Section 1981 of the Civil Rights Act of 1981 (“Section 1981"), 42 U.S.C. §1981, for discrimination
based on sex (Count I), discrimination based on sexual harassment (Count ID), religious discrimination
(Count ILD, hostile work environment (Count IV), and retaliation (Count V). Counts VJ through XXI
allege state law claims against Brown & Joseph as well as the Individual Defendants.' Presently before

us is Defendants’ motion to dismiss Counts J through V for lack of subject matter jurisdiction and Counts

‘Currie's sixteen state law claims include: assault (Counts VI and VII); breach of contract
(Count VIII); breach of the Ilinois Sales Representative Act, 820 ILCS §120/2 (Count IX);
accounting (Count X); conspiracy (Count XI); defamation (Counts XII and XI); invasion of privacy
(Counts XIV, XV, XVI, and XVIN, intentional infliction of emotional distress (Counts XVIL and
XIX); tort of outrage (Counts XX and XX1).



VI through XXI for lack of supplemental jurisdiction. For the reasons set forth below, we grant
Defendants’ motions.
L BACKGROUND

The following facts are taken from Plaintiff's complaint and are deemed true for the purposes
of this motion. See MCM Partners, Inc. v. Andrews-Bartlett & Assoc., Inc, , 62 F.3d 967, 972 (7th Cir.
1995). On May 24, 1999, Curtic entered into an agreement with Brown & Joseph, a commercial
collection agency and reccivable outsource company, to provide services to the company as an
independent contractor. Brown & Joseph employed Currie in that capacity from May 24, until it
discharged her on December 10, 2001. During the course of her employment, Chris Cappuccilli, an
agent of Brown & Joseph and Curric's manager, made comments to co-workers and clients about the size
of Currie's breasts, He also called Currie a “greedy Jew bitch,” a “greedy Jew whore,” and a “Democrat
looking for entitlements.” On one occasion, he told Currie that women in her line of work “do not make
the kind of moncy” she was earning at the time.

Although Currie told Chris Cappuccilli that she objected to his behavior, he continued to make
comments about her. After Currie had spoken to Cappuccilli regarding his statements, he atlemptcd to
force her into becoming a Brown & Joseph employee, rather than an independent contractor, without
the benefit of a written contract or other defined terms. When Currie refused employment, Chris
Cappuccilli told her to “pack her shit and go,” thereby terminating Curric’s employment as an
independent contractor. Currie filed a timely Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”). The EEOC issued Currie a Right to Sue Letter on June 24, 2002.
Curtic filed a complaint on September 18, 2002, which she amended on November 20, 2002.

Defendants filed their motion to dismiss on April 3, 2003.