September 15, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14-cv-4423 -
Sharon Johnson Coleman, Judge.
Flaum, Manion, and Hamilton, Circuit Judges.
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"). 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.
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.
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
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.
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
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. 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.
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.
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 ...