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Volling v. Kurtz Paramedic Services, Inc.

United States Court of Appeals, Seventh Circuit

October 19, 2016

Shannon Volling and Allen Springer, Plaintiffs-Appellants,
Kurtz Paramedic Services, Inc., Defendant-Appellee.

          Argued September 15, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14-cv-4423 - Sharon Johnson Coleman, Judge.

          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 companies wrongfully refused to hire them as emergency medical technicians ("EMTs") because of plaintiffs' earlier complaints alleging sexual harassment against ARS and Metro Paramedic 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 reverse, in part.

         I. Background

         A. Factual Background

         Plaintiffs Shannon Volling and Allen Springer worked as EMTs for Metro and its contractor, defendant ARS. ARS provided 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 ambulance 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, alleging 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 Services Act. Volling alleged a panoply of illegal behavior including 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 Public Health, sparking an investigation, fines, and EMT license suspensions. Through June 2012, Volling continued to pursue her federal lawsuit, raise her concerns at ARS meetings, and attend Village of Antioch public meetings addressing ARS issues.

         In late 2011, Springer filed a supporting declaration in Vol-ling's lawsuit against ARS and Metro. He also aided the Illinois Department of Public Health's investigation into ARS. Finally, Springer, like Volling, voiced his concerns at both ARS and Village of Antioch meetings.

         Plaintiffs alleged that ARS began acting against them immediately after they filed the lawsuit and declaration. Volling claimed ARS reduced her work hours and threatened to terminate her employment. Similarly, Springer claimed ARS disciplined him for talking about Volling's lawsuit and denigrating 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 began 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 contract. Kurtz then asked ARS for the former Metro EMTs' contact information to schedule interviews.[2] Neither Volling nor Springer received application instructions, applied, or interviewed for a Kurtz EMT position. Ultimately, within one day, 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, 775Ill.Comp.Stat. 5/1-101, et seq. ("IHRA") and the Illinois Whis-tleblower Act, 740Ill.Comp.Stat. 174/1, et seq. ("IWA"). ARS settled with plaintiffs. Kurtz moved to dismiss plaintiffs' complaint.

         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 ...

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