Kouassi v. Western Illinois University et al

Filing 61

ORDER & OPINION entered by Judge Joe Billy McDade on 2/3/2015. IT IS THEREFORE ORDERED that the Court ADOPTS the Report and Recommendation of Magistrate Judge Hawley 54 in full. Thus, the Court DENIES Defendants Motion to Strike 48 , but GRANTS De fendants Motion to Dismiss Counts V, VI, VII, and VIII for failure to state a claim on which relief may be granted. The Third Amended Complaint is dismissed as to Defendants Rose McConnell and Susan Martinelli-Fernandez. Defendant Western Illinois University is directed to file an answer to the remaining Counts of the Third Amended Complaint.(RK, ilcd) Modified on 2/4/2015 to modify date order filed (RK, ilcd).

E-FILED

Wednesday, 04 February, 2015 08:15:57 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
GILLES K. KOUASSI,
Plaintiff,
v.
WESTERN ILLINOIS UNIVERSITY,
ROSE McCONNELL and SUSAN
MARTINELI-FERNANDEZ
Defendants.

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Case No. 13-cv-1265

ORDER & OPINION
This matter is before the Court on Defendants’ Motion to Strike (Doc. 48),
and Magistrate Judge Hawley’s Report & Recommendation (“R&R”) recommending
that the Defendants’ Motion to Strike be denied, but that Defendants’ alternative
request to dismiss Counts V, VI, VII, and VIII pursuant to Rule 12(b)(6) be granted.
(Doc. 54).
The parties were notified that failure to object to Judge Hawley’s December
22, 2014 R&R within fourteen days after service would constitute a waiver of any
objections. (Doc. 48 at 7) (citing 28 U.S.C. § 636(b)(1); Johnson v. Zema Sys. Corp.,
170 F.3d 734, 739 (7th Cir. 1999)). Objections to the R&R were due by January 8,
2015. Defendants filed no objection to the R&R, but Plaintiff filed an objection on
January 9, 2015. (Doc. 56).1 Defendants did not file a memorandum in response to

The Court notes that Plaintiff filed his objection one day late, but will exercise its
discretion and consider it. See Buggs v. Elgin, Joliet & E. Ry. Co., 852 F.2d 318, 322
(7th Cir. 1988)(explaining that a trial court has the discretion to accept late-filed
documents).
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Plaintiff’s objection, so this matter is ready for decision. For the reasons stated
below, the Court adopts Judge Hawley’s R&R. Counts V through VIII of Plaintiff’s
Third Amended Complaint are dismissed.
LEGAL STANDARDS
When a plaintiff files an Objection to an R&R, the Court reviews de novo
those portions of it to which a specific written objection has been made. Fed. R. Civ.
P. 72(b)(3). “The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Id.
District courts reviewing pro se complaints construe them liberally. See Kaba
v. Stepp, 458 F.3d 678, 687 (7th Cir. 2006). However, pro se plaintiffs remain the
masters of their own complaints. See Myles v. United States, 416 F.3d 551, 552 (7th
Cir. 2005). “District judges have no obligation to act as counsel or paralegal to pro se
litigants.” Id. (quoting Pliler v. Ford, 542 U.S. 225, 231 (2004)).
FACTUAL AND PROCEDURAL BACKGROUND
Judge Hawley’s R&R has laid out the necessary factual and procedural
background of the parties, Plaintiff’s claims, and the facts involved in the litigation.
(Doc. 54). Therefore, a familiarity with the case and the facts is presumed. The
Court will summarize below background that is pertinent to this decision.
Judge Hawley recommended that Counts V through VIII of Plaintiff’s Third
Amended Complaint be dismissed for failing to state a claim on which relief can be
granted. In these Counts, Plaintiff alleges that two of Western Illinois University’s
employees – Rose McConnell and Susan Martinelli-Fernandez – violated his Title

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VII rights. McConnell served as the Chair of Western Illinois University’s chemistry
department at all times relevant to the complaint. (Doc. 46 at 15). MartinelliFernandez served as the Dean of the College of Arts and Science at Western Illinois
University from 2009 until the time Plaintiff was terminated. (Id. at 18). In Count
V, Plaintiff alleges that McConnell discriminated against him on the basis of his
national origin, in violation of Title VII (Id. at 15), and in Count VI, he alleges that
Martinelli-Fernandez discriminated against him on the basis of his national origin
in violation of Title VII. (Id. at 18). In Count VII, he alleges that McConnell
retaliated against him in violation of Title VII (id. at 22), and in Count VIII he
alleges that Martinelli-Fernandez retaliated against him in violation of Title VII.
(Id. at 25).
DISCUSSION
Defendants moved to dismiss Counts V through VIII on the ground that
supervisors may not be held liable in their individual capacity under Title VII. (Doc.
49 at 4, citing Passananti v. Cook County, 689 F.3d 655, 677 (7th Cir. 2012);
Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995)). In the R&R, Judge Hawley
agreed and dismissed the Counts. (Doc. 54 at 5).
Plaintiff does not challenge Judge Hawley’s conclusion that supervisors may
not be held liable in their individual capacity under Title VII. Nor could he, as
Seventh Circuit case law is clear on that point. See, e.g., Passananti, 689 F.3d at
677; Williams, 72 F.3d at 555. Rather, Plaintiff argues that he stated additional
claims in Counts V through VIII, including claims “under 42 U.S.C. § 2000e-5, 42
U.S.C. § 1981 and/or 42 U.S.C. § 1988.” (Doc. 56 at 7). Plaintiff urges the Court to

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consider these allegations separately from his Title VII allegations, dismiss the
Title VII claims, and let Counts V-VIII “stand under other 42 USC violations.” (Id.).
Plaintiff’s objection to the R&R fails for a number of reasons. First, Plaintiff
waived his objection by not raising it before Judge Hawley. Second, the basis for
Plaintiff’s objection does not find support in his Third Amended Complaint.
Therefore, the Court will overrule Plaintiff’s objections and adopt Judge Hawley’s
recommended disposition. See Fed. R. Civ. P. 72(b)(3).
I. Waiver
In their Motion to Strike, Defendants specifically asked that the Court strike
or dismiss Counts V through VIII because “supervisors may not be held liable in
their individual capacity under Title VII.” (Doc. 49 at 5-6). Plaintiff responded by
challenging Defendants’ “selective interpretation of Title VII.” (Doc. 53 at 6). He
argued that a review of Title VII’s legislative history and amendments, along with
principles of agency law, make it clear that individual employees can be held liable
under Title VII. (Id.at 7). Therefore, he concluded that “a ground exist [sic] for
bringing claims under Title VII against the individual [Defendants].” (Id.). At no
point in his response did Plaintiff suggest that Counts V through VIII remained
viable on grounds other than Title VII. (See id.).
Plaintiff’s objection to the R&R, therefore, suffers from a deficiency: he never
presented the grounds upon which he relies to Judge Hawley for his consideration.
“[A]rguments not made before a magistrate judge are normally waived.” United
States v. Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000). If the Court were to consider
arguments that had not been presented to Judge Hawley, it “would undercut the

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rule that the findings in a magistrate judge’s report and recommendation are taken
as established unless the party files objections to them.” Id. Permitting a party to
save its arguments for objection would frustrate “[s]ystemic efficiencies” and reduce
the magistrate’s role “to that of a mere dress rehearsal.” Artuk, Inc. v. AKT Corp.,
No. 13 C 3811, 2014 WL 3895920, *5 (N.D. Ill. Aug. 7, 2014) (quoting PattersonLeitch Co. v. Mass. Wholesale Elec. Co., 840 F2d 985, 991 (1st Cir. 1988)).
The Court concludes that Plaintiff waived his objection to the R&R by failing
to raise the argument in his response to Defendants’ Motion to Strike.
II. Objection’s Merit
Even if the Court were to consider Plaintiff’s objection, the objection is
without merit.
Plaintiff argues that that Counts V through VIII all include other bases
beyond Title VII. In Count V, Plaintiff alleges that McConnell took actions against
him “based on his national origin” and therefore violated “Title VII, 42 U.S.C. §
2000e et seq.” (Doc. 46 at 17). He requests “attorney’s fees and costs and expert
witness’ fees pursuant to 42 U.S.C. § 2000e-5, and 42 U.S.C. § 1988.” (Id. at 18). In
Count VI, Plaintiff alleges that Martinelli-Fernandez took actions against him
“based on his national original” and therefore violated “Title VII, 42 U.S.C. § 2000e
et seq.” (Id. at 21). Again, he requests “attorney’s fees and costs and expert witness’
fees pursuant to 42 U.S.C. § 2000e-5, and 42 U.S.C. § 1988.” (Id.). In Count VII,
Plaintiff alleges a violation of “Title VII 42, U.S.C. § 1983b,” (id. at 22) and requests
“attorney’s fees and costs and expert witness’ fees pursuant to 42 U.S.C. § 2000e-5,
42 U.S.C. § 1981 and 42 U.S.C. § 1988.” (Id.at 23-24). Finally, in Count VIII,

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Plaintiff requests “attorney’s fees and costs and expert witness’ fees pursuant to 42
U.S.C. § 2000e-5, and 42 U.S.C. § 1988.” (Id.at 28).
Plaintiff’s citation of these statutory provisions cannot help him revive this
claim. First, Plaintiff’s objection reflects a misunderstanding of what the term “Title
VII” is, or to what it refers. Title VII is shorthand for “Title VII of the Civil Rights
Act of 1964, as amended.” It is codified in the United States Code at 42 U.S.C. §§
2000e to 2000e-17. Each of Plaintiff’s citations to 42 U.S.C. § 2000e-5 or 42 U.S.C. §
2000e et seq. is both a citation to a provision or provisions in Chapter 42 of the
United States Code and a citation to a provision of Title VII or to all of Title VII.
Therefore, it is inconsistent for Plaintiff to concede that he cannot state a claim
against supervisors in their individual capacity under Title VII but also argue that
he can state a claim against supervisors in their individual capacity under any
number of sections found in 42 U.S.C. §§ 2000e through 2000e-17. He cannot. See
Passananti, 689 F.3d at 677; Williams, 72 F.3d at 555.
Plaintiff’s citations to 42 U.S.C. § 1988 also do not provide him with any help.
Section 1988 does not provide plaintiffs with an independent cause of action. See 42
U.S.C. § 1988; Moor v. Alameda County, 411 U.S. 693, 702 (1973). Rather, § 1988 “is
intended to complement the various acts which do create federal causes of action for
the violation of federal rights.” Moor, 411 U.S. at 702. So, in 42 U.S.C. § 1988(a),
Congress provided a mechanism through which federal courts could look to common
law when fashioning a remedy for violations of civil rights laws. And, in 42 U.S.C.
§§ 1988(b) and (c), Congress provided a mechanism through which prevailing
parties in lawsuits brought pursuant to various civil rights statutes can recover

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attorney’s fees and expert fees. Because § 1988 does not provide an independent
cause of action, Plaintiff cannot rely upon it to argue that he has in fact stated a
claim on which relief can be granted.
Plaintiff’s citation to 42 U.S.C. § 1981 requires more discussion. In Count VII
of the Third Amended Complaint, Plaintiff requests attorney’s fees and expert costs
pursuant to 42 U.S.C. § 1981. Unlike § 1988, § 1981 does provide plaintiffs with a
cause of action. Section 1981 protects the right of all persons “to make and enforce
contracts” regardless of race. Unlike under Title VII, individual employees can be
held liable for race discrimination under § 1981. See Smith v. Bray, 681 F.3d 888,
832 (7th Cir. 2012). An individual can also “be liable under § 1981 for retaliatory
conduct that would expose her employer to liability under Title VII or § 1981.” Id. at
899.
In previous iterations of his complaint, Plaintiff sued both McConnell and
Martinelli-Fernandez under § 1981. (See Complaint, Doc. 1, at 7-11; First Amended
Complaint, Doc. 18, at 10-13; and Second Amended Complaint, Doc. 31, at 14-19).
However, in his Third Amended Complaint, Plaintiff abandoned his § 1981 claims
against the individual Defendants and chose to pursue his claims against the
individual Defendants pursuant to Title VII. The Court is unable to find that
Plaintiff has stated a § 1981 claim in Count VII, as Plaintiff has only invoked § 1981
as a basis for seeking attorney’s fees and expert costs. (See Third Amended
Complaint, Doc. 46, at 24-25).
Plaintiff cannot rely upon his previously filed complaints in order to salvage a
§ 1981 claim in his Third Amended Complaint. Plaintiff’s Third Amended

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Complaint is the governing document in this case. See Carver v. Condie, 169 F3d
469, 472 (7th Cir. 1999) (“Once the amended complaint was filed . . . it became the
governing document in the case and any allegations . . . not brought forward fell by
the wayside.”). This rule applies in pro se cases as well as in cases in which
plaintiffs are represented by counsel. In Anderson v. Donahoe, 699 F.3d 989 (7th
Cir. 2012), a United States Postal Services employee representing himself pro se
brought disability discrimination, reasonable accommodation, and retaliation
claims in his first complaint, but omitted both his disability discrimination and
reasonable accommodation claims in subsequent amended complaints. Id. at 997.
The Seventh Circuit concluded that the employee waived those claims because he
chose to omit them in later amended complaints, which became the case’s governing
documents. Id.
Plaintiff has been allowed to twice amend his complaint when he was
represented by counsel. Now before the Court is his third effort after terminating
his second attorney and choosing to proceed pro se. Plaintiff could have elected to
continue with his § 1981 claims against the individual defendants for
discrimination on the basis of race or color and retaliation, as pleaded in his earlier
complaints. Instead, he elected to pursue Title VII claims against both for
discrimination on the basis of national origin and retaliation. This is a strategic
choice that Plaintiff made as the master of his own complaint, and it backfired.
Although courts should construe pro se complaints broadly, courts need not
serve as counsel or paralegals and correct these sorts of mistakes. See Myles, 416
F.3d at 552. Rather than straining to conclude that Plaintiff stated a § 1981 claim

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for retaliation against McConnell when he requested attorney’s fees pursuant to §
1981, the Court concludes that Plaintiff waived his § 1981 claims by failing to
include them as part of his Third Amended Complaint. See Anderson, 699 F.3d at
997.
CONCLUSION
IT IS THEREFORE ORDERED that the Court ADOPTS the Report and
Recommendation of Magistrate Judge Hawley (Doc. 54) in full. Thus, the Court
DENIES Defendants’ Motion to Strike (Doc. 48), but GRANTS Defendants’ Motion
to Dismiss Counts V, VI, VII, and VIII for failure to state a claim on which relief
may be granted. The Third Amended Complaint is dismissed as to Defendants Rose
McConnell and Susan Martinelli-Fernandez. Defendant Western Illinois University
is directed to file an answer to the remaining Counts of the Third Amended
Complaint.

Entered this 3rd day of February, 2015.

s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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