Makeda-Phillips v. Illinois Secretary of State
Filing
26
OPINION: Defendants' Motion to Dismiss 22 is GRANTED IN PART and DENIED IN PART. Plaintiff has stated a plausible § 1983 race discrimination claim against Defendants Westnedge and Caskey, as well as Defendant White in his official capac ity for prospective injunctive relief only. Plaintiff has also stated a claim against her employer, Illinois Secretary of State Jesse White, under the Americans with Disabilities Act (ADA). The § 1983 race discrimination claim against Defendan t White in his individual capacity is DISMISSED WITHOUT PREJUDICE and with leave to replead. The claim for damages against Defendant White in his official capacity is DISMISSED WIT H PREJUDICE. The claims against Defendants Westnedge and Caskey und er the ADA are DISMISSED WITH PREJUDICE. Finally, Plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE, with leave to replead. Plaintiff is granted until February 24, 2014 to file a Third Amended Complaint if she so desires. If she do es not do so, the Court will assume that she intends to stand on her Second Amended Complaint. If Plaintiff files a Third Amended Complaint, Defendants shall answer or otherwise plead on or before March 10, 2014. If Plaintiff does not file a Third Amended Complaint, Defendants shall file an Answer to the Second Amended Complaint on or before March 10, 2014. Entered by Judge Sue E. Myerscough on 2/10/2014.(ME, ilcd)
E-FILED
Monday, 10 February, 2014 11:12:29 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MARION MAKEDA-PHILLIPS,
Plaintiff,
v.
ILLINOIS SECRETARY OF STATE,
JESSE WHITE, DENISE
WESTNEDGE, and MISTY CASKEY,
Defendants.
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No. 12-3312
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Motion to Dismiss (d/e 22) filed
by Defendants Illinois Secretary of State Jesse White, Denise Westnedge,
and Misty Caskey. The Motion to Dismiss is GRANTED IN PART and
DENIED IN PART. Plaintiff Marion Makeda-Phillips has stated a plausible
race discrimination claim pursuant to 42 U.S.C. § 1983 against Defendants
Westnedge and Caskey. Plaintiff has also stated a plausible § 1983 race
discrimination claim against Defendant White in his official capacity for
prospective injunctive relief only. In addition, Plaintiff has stated a claim
against her employer, Illinois Secretary of State Jesse White, under the
Americans with Disabilities Act (ADA). The § 1983 race discrimination
claim against Defendant White in his individual capacity is DISMISSED
WITHOUT PREJUDICE and with leave to replead while the claim for
damages against Defendant White in his official capacity is DISMISSED
WITH PREJUDICE. The claims against Defendants Westnedge and Caskey
under the ADA are DISMISSED WITH PREJUDICE. Finally, Plaintiff’s
state law claims are DISMISSED WITHOUT PREJUDICE, with leave to
replead.
I. BACKGROUND
In November 2012, Plaintiff, proceeding pro se, filed a Complaint
against Illinois Secretary of State Jesse White alleging discrimination on
the basis of disability. In September 2013, Plaintiff filed an Amended
Complaint adding Westnedge and Caskey as Defendants but only alleging a
racial discrimination and harassment claim.
By way of a Text Order, this Court advised Plaintiff that an amended
complaint supersedes the original complaint. See September 20, 2013 Text
Order. Therefore, Plaintiff was directed to either file an Amended
Complaint containing all of her claims against all of the Defendants or
advise the Court that she intended to proceed only on the Amended
Complaint. Id.
Page 2 of 24
In September 2013, Plaintiff filed a Second Amended Complaint
against all of the Defendants alleging race and disability discrimination.
See d/e 9. Plaintiff also attached numerous documents to her Second
Amended Complaint. Much of the following information is taken from the
attachments to the Second Amended Complaint.
In June 1998, Plaintiff was hired into the Office of Secretary of State,
Department of Public Information. See d/e 9-4, p. 4. In December 2009,
Plaintiff was transferred, at her request, to Administrative Hearings
Support Services in Springfield, Illinois. Id. Plaintiff worked as an
Operations Associate. See d/e 9-1, p. 7.
Defendant Westnedge was Plaintiff’s supervisor. Id. at 5. Defendant
Caskey was the acting supervisor when Westnedge was on a leave of
absence from June 2010 to November 2010. Id.
Defendants Westnedge and Caskey were unhappy with the speed at
which Plaintiff worked, particularly with respect to processing the mail.
Plaintiff was suspended at least twice for allegedly failing to complete her
job duties. Plaintiff believes that Westnedge and Caskey contributed to
Plaintiff’s inability to complete certain of her tasks by assigning her other
tasks that took her away from her daily duties. See d/e 9-4 p. 1-2.
Page 3 of 24
According to Plaintiff, Westnedge and Caskey treated Plaintiff in this
manner because of her race. See d/e 9-4, p. 7. Non-African-American
employees were treated differently. See d/e 9-4, p. 7. Plaintiff identifies
two non-African-American employees who were not required to process all
of the mail, received help with processing the mail, and were not disciplined
for failing to process all of the mail each day. See d/e 9-4, p. 7.
Plaintiff also alleges she was discriminated against on the basis of a
disability. Plaintiff’s doctor diagnosed Plaintiff with acute stress disorder
and requested that Plaintiff be transferred to a different department with a
different supervisor so that Plaintiff would not have a stroke, heart attack,
and/or nervous breakdown. See d/e 9-6, p. 10.
Plaintiff requested accommodations for her alleged disability four
times. See Compl. IV., p. 6, ¶ 4 (d/e 9). On March 8, 2011, Plaintiff
requested a transfer to a different department. Id. Plaintiff alleges other
co-workers received transfers. In September 2012, Plaintiff sought a
transfer to an Operations Associate position in Cook County. See d/e 9-6,
p. 8. In October 2012, Plaintiff’s employer denied her request for a
reasonable accommodation in the form of a transfer. See d/e 9-6, p. 10.
In August 2012, Plaintiff filed a Charge of Discrimination with the
Equal Employment Opportunity Commission (EEOC) alleging disability
Page 4 of 24
discrimination. See d/e 9-6, p. 3. On September 2, 2012, the EEOC sent
Plaintiff a right-to-sue letter. See d/e 9-6, p. 4.
Documents attached to the Second Amended Complaint reflect that
Plaintiff was approved for a non-service disability leave on January 3, 2013
with a return-to-work date of May 21, 2013. See d/e 9-6, p. 21. However,
Plaintiff’s request to proceed in forma pauperis filed in October 2013
reflects that she is currently unemployed. See Application to Proceed In
Forma Pauperis (d/e 15).
In the Second Amended Complaint, Plaintiff seeks back pay; an order
that the Secretary of State place Plaintiff in a different department;
compensatory and punitive damages; an injunction against any further
discrimination; an order that the Secretary of State reasonably
accommodate Plaintiff by putting her in a better employment opportunity;
fees, litigation expenses and costs of the action; and such further relief as
may be just and proper. Plaintiff also requests a bench trial.
Defendants filed a Motion to Dismiss asserting that Plaintiff failed to
state a claim for race and disability discrimination. Defendant White also
argues that the racial discrimination claim against him in his official
capacity must be dismissed because the Secretary of State’s office is not a
Page 5 of 24
person within the meaning of 42 U.S.C. § 1983 and because the claim for
damages is barred by the Eleventh Amendment and sovereign immunity.
II. JURISDICTION AND VENUE
This Court has subject matter jurisdiction because Plaintiff’s claims
are based on federal law. See 28 U.S.C. § 1331 (“The district courts shall
have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States”). Venue is proper because the events
giving rise to the claim occurred in Sangamon County, Illinois. See 28
U.S.C. § 1391(b)(2) (a civil action may be brought in a judicial district where
a substantial part of the events or omissions giving rise to the claim
occurred).
III. LEGAL STANDARD
A motion under Rule 12(b)(6) challenges the sufficiency of the
complaint. Christensen v. Cnty. of Boone, 483 F.3d 454, 458 (7th Cir.
2007). To state a claim for relief, a plaintiff need only provide a short and
plain statement of the claim showing she is entitled to relief and giving the
defendants fair notice of the claims. Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008).
When considering a motion to dismiss under Rule 12(b)(6), the Court
construes the complaint in the light most favorable to the plaintiff,
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accepting all well-pleaded allegations as true and construing all reasonable
inferences in her favor. Id. However, the complaint must set forth facts
that plausibly demonstrate a claim for relief. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547 (2007). Plausibility means alleging factual
content that allows the Court to reasonably infer that the defendants are
liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Merely reciting the elements of a cause of action or supporting
claims with conclusory statements is insufficient. Id.
IV. ANALYSIS
A.
Plaintiff States a Plausible Claim of Race Discrimination
Against Defendants Westnedge and Caskey
Defendants interpret Plaintiff’s race discrimination claim as one
brought under the Equal Protection Clause of the Fourteenth Amendment
pursuant to 42 U.S.C. § 1983. Plaintiff does not object to this
characterization. See Pl. Resp., d/e 24, p. 1.
To state a claim pursuant to § 1983, Plaintiff must allege (1) that she
was deprived of a right secured by the Constitution or laws of the United
States and (2) that the deprivation occurred based on an act of someone
acting under color of state law. Alvarado v. Litscher, 267 F.3d 648, 651 (7th
Cir. 2001) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). A plaintiff
Page 7 of 24
may use § 1983 to sue for a deprivation of one’s rights under the Equal
Protection Clause. See Lavalais v. Village of Melrose Park, 734 F.3d 629,
634 (7th Cir. 2013) (finding the plaintiff stated a § 1983 claim based on race
discrimination in violation of the Equal Protection Clause). A plaintiff
bringing a § 1983 race discrimination claim does not need to exhaust
administrative remedies before bringing suit in federal court. See Elliott v.
Dedelow, 115 Fed. Appx. 881, 883 (7th Cir. 2004) (unpublished) (“[T]here
is no exhaustion requirement applicable to § 1983”); Trigg v. Fort Wayne
Cmty. Schs., 766 F.2d 299, 302 (7th Cir. 1985) (“A plaintiff may sue her
state government employer for violations of the Fourteenth Amendment
through § 1983 and escape Title VII’s comprehensive remedial scheme,
even if the same facts would suggest a violation of Title VII”).
Defendants argue that Plaintiff fails to state a claim or plead any facts
that establish a right to relief under the Equal Protection Clause. According
to Defendants, Plaintiff does not allege any facts to show that she is a
member of a protected class, that the denial of a transfer was due to her
race, that coworkers who were granted a transfer were members of the
unprotected class and similarly situated to Plaintiff, or that Defendants
acted with discriminatory intent.
Page 8 of 24
This Court must construe pro se complaints liberally and hold pro se
litigants to a less stringent standard that is imposed on pleadings drafted by
lawyers. Arnett v. Webster, 658 F.3d 742, 751-52 (7th Cir. 2011) (finding,
upon a review of the complaint and attached documents, that the pro se
plaintiff stated a claim). Moreover, the Seventh Circuit has, even after
Twombly, 550 U.S. 544, and Iqbal, 556 U.S. 662, “reaffirmed the minimal
pleading standard for simple claims of race or sex discrimination.”
Tamayo, 526 F.3d at 1084, reaffirming Bennett v. Schmidt, 153 F.3d 516,
518 (7th Cir. 1998) (holding that a plaintiff alleging a race discrimination
claim does not have to plead evidence); see also Swanson v. Citibank, N.A.,
614 F.3d 400, 404 (7th Cir. 2010) (noting that “[a] plaintiff who believes
that she has been passed over for a promotion because of her [gender] will
be able to plead that she was employed by Company X, that a promotion
was offered, that she applied and was qualified for it, and the job went to
someone else”).
In this case, under a liberal construction of the Second Amended
Complaint and the attachments thereto, Plaintiff has alleged a plausible
claim of race discrimination. Plaintiff alleges that she is black, was
disciplined for not completing her job duties, and was denied a transfer.
Plaintiff alleges that other workers outside of the protected class who did
Page 9 of 24
not complete their job duties were not disciplined. Moreover, even if the
discipline was warranted, an employer cannot discipline a black employee
more severely than a white employee when they share similar
shortcomings. See Rodgers v. White, 657 F.3d 511, 517 (7th Cir. 2011).
Plaintiff also alleges that other workers were allowed to transfer.
Defendants cite Park v. Indiana Univ. Sch. of Dentistry, 692 F.3d 828,
832 (7th Cir. 2012) in support of their argument that Plaintiff’s Second
Amended Complaint is deficient is distinguishable. Park is distinguishable.
In Park, the plaintiff alleged that her dismissal from the state
university’s dental school violated the Equal Protection Clause. The
Seventh Circuit found that the plaintiff did not specifically plead that her
race or her gender had anything to do with her dismissal from the dental
school. Id. Moreover, the plaintiff did not plausibly allege discriminatory
intent where the complaint contained only the single statement that the
conduct was undertaken due to the plaintiff’s race or gender. Id. at 832.
The Court found this unsupported legal conclusion was insufficient to state
a claim. Id.
In contrast here, Plaintiff alleges she is within a protected class. In
addition, she attaches documents to her Second Amended Complaint that
plausibly allege that Plaintiff was treated differently than other similarly
Page 10 of 24
situated individuals outside the protected class. Moreover, discriminatory
intent can be inferred from the allegations in her Second Amended
Complaint and the attachments thereto. See, e.g., Bennett, 153 F.3d at 518
(noting that “a plaintiff may want to allege intent–although this is implied
by a claim of racial ‘discrimination’”). Therefore, Plaintiff has stated a
plausible claim of race discrimination under § 1983.
B.
Plaintiff’s Claims Against Defendant White in his Individual
Capacity and in his Official Capacity for Damages Are
Dismissed
Defendant White raises additional arguments in support of his
argument that the race discrimination claim against him should be
dismissed. First, Defendant White argues that he cannot be sued in his
official capacity under § 1983 because he represents the Secretary of State’s
executive office, which is not a “person” within the meaning of § 1983.
Second, Defendant White argues that the claim for damages is barred by
the Eleventh Amendment and sovereign immunity.
Section 1983 provides that “every person” acting under color of law
who deprives another of the rights, privileges, or immunities secured under
the Constitution and laws is liable to the party injured. 42 U.S.C. § 1983. A
State is not a person within the meaning of § 1983. Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 (1989). Moreover, when a plaintiff sues a
Page 11 of 24
state official in his official capacity for damages, the suit is considered as
having been brought against the State, and the state official is not a
“person” for purposes of § 1983. Id. at 71 n. 10. However, when a plaintiff
sues a state official in his official capacity seeking prospective injunctive
relief, the state official is considered a person under § 1983 “because
‘official-capacity actions for prospective relief are not treated as actions
against the State.’” Id. at 71 n. 10, quoting Kentucky v. Graham, 473 U.S.
159, 167, n. 14 (1985).
Here, Plaintiff seeks both damages and prospective injunctive relief.
The prospective relief includes placement to a different department, an
injunction against further discrimination, and an order directing the
Secretary of State to reasonably accommodate Plaintiff. While Defendant
White in his official capacity is not considered a person under § 1983 for
Plaintiff’s claim for damages against him, he is considered a person under §
1983 for Plaintiff’s official-capacity claim for prospective injunctive relief.
Further, Plaintiff’s claim for damages against Defendant White in his
official capacity is also barred by the Eleventh Amendment. A suit against
the State, or a state official in his official capacity, is barred by the Eleventh
Amendment unless: (1) Congress has abrogated the State’s immunity from
suit, (2) a State has waived its immunity and consented to suit, or (3) the
Page 12 of 24
suit is one for prospective injunctive relief pursuant to Ex Parte Young, 209
U.S. 123, 159-60 (1908). Sonnleitner v. York, 304 F.3d 704, 717 (7th Cir.
2002).
Congress has not abrogated the State’s immunity from suit and the
State has not waived its immunity. However, because Plaintiff seeks
prospective injunctive relief from Defendant White in his official capacity,
that claim is not barred by the Eleventh Amendment. Kashani v. Purdue
Univ., 813 F.2d 843, 848 (7th Cir. 1987) (finding that the Eleventh
Amendment does not bar “claims against the officials in their official
capacities for the injunctive relief of reinstatement”).
Whether Plaintiff brings the claim against Defendant White in his
official or individual capacity, or both, is unclear. Therefore, the Court will
assume she intended to bring both an official and individual capacity claim.
Defendant White does not address the possibility of an individual capacity
claim against him. Nonetheless, the Court notes that the Second Amended
Complaint and attachments are devoid of any factual allegations suggesting
that Defendant White was personally involved in the alleged Constitutional
violation, that he acted or failed to act with reckless disregard for Plaintiff’s
rights, or that the conduct occurred at his direction or with his knowledge.
See Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (“An
Page 13 of 24
individual cannot be held liable in a § 1983 action unless he caused or
participated in an alleged constitutional deprivation”) (emphasis in
original); Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986).
Plaintiff’s response to the Motion to Dismiss suggests, however, that
Plaintiff may be able to allege facts in support of such a claim. Therefore,
any individual capacity claim against Defendant White is dismissed without
prejudice.
C.
Plaintiff States a Plausible ADA Claim Against Her
Employer
Defendants also seek to dismiss Plaintiff’s disability discrimination
claim. Defendants assert that the Second Amended Complaint fails to
plead any facts that would establish a right to relief under the ADA.
Specifically, Defendants claim that Plaintiff fails to allege any facts that
show she has a disability covered by the ADA, that Defendants Westnedge
and Caskey were aware of Plaintiff’s disability, that a transfer was an
appropriate accommodation for her disability, or that Plaintiff was capable
of performing the essential duties of the transfer position despite her
disability.
Page 14 of 24
Although not addressed by Defendants, the proper defendant in an
ADA claim is the plaintiff’s employer. See 42 U.S.C. § 12112(a) (“No covered
entity shall discriminate against a qualified individual on the basis of
disability”); 42 U.S.C. § 12111(2) (definition of “covered entity” includes “an
employer, employment agency, labor organization, or joint labormanagement committee”). Supervisors are not personally liable under the
ADA. See Silk v. City of Chicago, 194 F.3d 788, 797 n. 5 (7th Cir. 1999)
(holding that “a supervisor cannot be held liable in his individual capacity
under the ADA”). Therefore, the Court construes Plaintiff’s ADA claim as
being brought against Plaintiff’s employer, the Illinois Secretary of State
Jesse White. The State of Illinois has waived Eleventh Amendment
immunity with respect to the ADA. See 745 ILCS 5/1.5(d) (providing that a
State employee, former employee, or prospective employee may bring an
action under the ADA in State circuit court or federal court).
To establish a prima facie failure-to-accommodate claim, a plaintiff
must show (1) that she is a qualified individual with a disability, meaning
she can perform the essential functions of the job with or without a
reasonable accommodation; (2) her employer was aware of her disability;
and (3) her employer failed to reasonably accommodate her disability. See
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Kotwica v. Rose Packing Co., Inc., 637 F.3d 744, 747-48 (7th Cir. 2011); 42
U.S.C. § 12111(8) (defining “qualified person with a disability”).
Defendants first argue that Plaintiff fails to allege she has a disability
covered by the ADA. The ADA defines “disability” to include a physical or
mental impairment that substantially limits one or more major life
activities. 42 U.S.C. § 12102(1)(A); Powers v. USF Holland, Inc., 667 F.3d
815, 819 (7th Cir. 2011) (noting that “[m]erely having a physical injury or a
medical condition is not enough” for a plaintiff to be considered disabled
under the ADA). Major life activities include performing manual tasks,
learning, concentrating, thinking, communicating, and working. 42 U.S.C.
§ 12102(2)(A). A major life activity also includes the operation of major
bodily function, including neurological and brain function. 42 U.S.C. §
12102(2)(B). Although the mental or physical impairment must
“substantially limit” a major life activity for an individual to be considered
disabled, the 2008 amendments to the ADA clarified that the term
“substantially limit” should be broadly construed in favor of expansive
coverage. See 42 U.S.C. § 12102(4); ADA Amendments Act of 2008, Pub. L.
No. 110-325, 122 Stat. 3553 (providing that the term “substantially limits”
should be construed consistent with the findings and purposes of the ADA
Amendments Act of 2008); see also 29 C.F.R. § 1630.2(j)(1)(i) (providing
Page 16 of 24
that the term “substantially limits” is “not meant to be a demanding
standard”).
In light of Plaintiff’s pro se status, which requires a liberal
construction of the Second Amended Complaint, and the ADA
Amendments Act of 2008, which expanded the ADA’s coverage, the Court
finds that, for purposes of the Motion to Dismiss, Plaintiff has sufficiently
alleged she was disabled under the ADA. Plaintiff alleges she suffers from
an acute stress disorder. The attachments to the Second Amended
Complaint indicate that Plaintiff took a disability leave and is currently
unemployed. These facts suggest that Plaintiff’s stress disorder
substantially limited Plaintiff’s major life activity of working.
Defendants next argue that Plaintiff has not alleged that she was
capable of performing the essential duties of the transfer position despite
her disability. Plaintiff sufficiently alleges she was qualified to perform the
essential functions of the job, Operations Associate, with or without a
reasonable accommodation. The October 5, 2012 denial of Plaintiff’s
request for a reasonable accommodation reflects that Plaintiff’s doctor
indicated that she could perform all of the job duties required by her
position as Operations Associate. Moreover, the attachments to the Second
Amended Complaint include at least one performance review that found
Page 17 of 24
Plaintiff met performance standards. Plaintiff had also been performing
the job for over two years when she was denied the transfer to another
Operations Associate position. See, e.g., Gogos v. AMS Mech. Sys., Inc., 737
F.3d 1170, 1173 (7th Cir. 2013) (finding the plaintiff sufficiently alleged he
was qualified to perform the essential functions of the job where the
plaintiff alleged he had 45 years of experience and worked in the job for
more than one month before he was fired).
Defendants also argue that Plaintiff has not alleged that Defendants
Westnedge and Caskey were aware of Plaintiff’s disability. As noted above,
however, the proper defendant in an ADA claim is the plaintiff’s employer.
In this case, Plaintiff has sufficiently alleged that her employer was aware of
her disability. Plaintiff requested a reasonable accommodation and
specifically referenced her acute stress disorder.
Defendants last argue that Plaintiff has not alleged that a transfer was
an appropriate accommodation for her disability. The Court notes that in
cases decided prior to the 2008 Amendments to the ADA, the Seventh
Circuit has held that a transfer away from particular supervisors is not
required as a reasonable accommodation under the ADA. See Weiler v.
Household Finance Corp., 101 F.3d 519, 526 (7th Cir. 1996) (finding, on
review of a grant of summary judgment, that the ADA did not require that
Page 18 of 24
the defendant transfer the plaintiff to work for a different supervisor). The
Seventh Circuit has also held that
a personality conflict with a supervisor that causes anxiety and depression
does not necessarily establish a disability. See Schneiker v. Fortis Ins. Co.,
200 F.3d 1055, 1062 (7th Cir. 2000) (holding, on review of a grant of
summary judgment, that a personality conflict between an employer and
her supervisor is not enough to establish that the employee is disabled if
she can still perform the job under a different supervisor), citing Weiler, 101
F.3d at 524-25; but see Palmer v. Circuit Court of Cook County, 117 F.3d
351, 352 (7th Cir. 1997) (holding that “if a personality conflict triggers a
serious mental illness that is in turn disabling, the fact that the trigger was
not itself a disabling illness is no defense”). However, these are issues
better addressed on a motion for summary judgment. At this stage,
Plaintiff has alleged a plausible ADA claim against her employer, Illinois
Secretary of State Jesse White.
D.
Plaintiff Has Not Sufficiently Alleged Any State Law Claims
In her response to the Motion to Dismiss, Plaintiff asserts that one of
her claims is a state law discrimination claim.
Prior to 2007, the Illinois Human Rights Commission had exclusive
jurisdiction over civil rights violations. See Mendez v. Perla Dental, 646
Page 19 of 24
F.3d 420, 422 (7th Cir. 2011) (noting that a state law claim that was
inextricably linked with the Act was preempted), citing 775 ILCS 5/8111(C); see also Lynch v. Dep’t of Transp., 979 N.E.2d 113, 118 (Ill. App.
2012) (noting that prior to the 2008 amendments, the Commission had
exclusive jurisdiction to hear civil rights claims under the Act after the
administrative remedies before the Department were exhausted), citing 775
ILCS 5/7A-102 (F), (G) (West 2006). In 2008, the statute was amended to
allow complainants to seek review with the Commission or to commence a
civil action in the circuit court. 775 ILCS 5/7A-102(D)(3), (D)(4), (F); see
also De v. City of Chicago, 912 F.Supp.2d 709, 731 (N.D. Ill. 2012) (stating
that the majority of district courts in the Seventh Circuit have found that
federal district courts have subject matters jurisdiction over Illinois Human
Rights Act claims based on supplement jurisdiction).
Plaintiff has not alleged facts in her Second Amended Complaint
suggesting she filed a charge of race discrimination with the Illinois Human
Rights Commission. Although an earlier version of Plaintiff’s complaint
contained a March 2011 Charge of Discrimination filed by Plaintiff with the
Illinois Department of Human Rights alleging race discrimination (see d/e
4-3, p. 2), Defendants were not put on notice by the Second Amended
Complaint that Plaintiff was potentially bringing a state law race
Page 20 of 24
discrimination claim under the Illinois Human Rights Act. Moreover,
sovereign immunity may bar Plaintiff’s claim against the State. See Lynch,
979 N.E.2d at 120 (noting that the State of Illinois has not waived its
sovereign immunity for claims under the Illinois Human Rights Act and
that a state employee’s remedy for violations of the Human Rights Act is
with the Commission); Harris v. Illinois, 753 F.Supp.2d 734 (N.D. Ill. 2010)
(finding the State of Illinois has not waived its sovereign immunity for
Illinois Human Rights Act claims and dismissing the claim without
prejudice to be refiled in the Illinois Court of Claims). Plaintiff’s state law
race discrimination claim is dismissed without prejudice and with leave to
replead.
Plaintiff also claims that she has alleged a negligent infliction of
emotional distress claim. To plead such a claim, a plaintiff must allege duty,
breach, causation, and damages. Corgan v. Muehling, 143 Ill. 2d 296, 306
(1991).
Plaintiff did not plead sufficient facts to put Defendants on notice of
such a claim. However, in her response to the Motion to Dismiss, Plaintiff
states she is entitled to compensatory damages for the negligent infliction
of emotional distress caused by the failure to transfer her to another
department. Because Plaintiff may be able to state a claim for negligent
Page 21 of 24
infliction of emotional distress, Plaintiff is granted leave to amend her
complaint to allege such a claim.
Plaintiff is advised that her Third Amended Complaint will replace
the Second Amended Complaint in its entirety and must be complete in
itself without reference to the original complaint. See Flannery v.
Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004) (“It is
axiomatic that an amended complaint supersedes an original complaint
and renders the original complaint void”). Therefore, Plaintiff must
include all of the allegations in her Third Amended Complaint and attach
all of the documents she wishes to attach.
In sum, Plaintiff has plausibly alleged (1) a § 1983 race discrimination
against Defendant Westnedge, Defendant Caskey, and Defendant Illinois
Secretary of State Jesse White, in his official capacity for prospective relief
only; and (2) an ADA claim against her employer, Illinois Secretary of State
Jesse White. Plaintiff is granted leave to amend her complaint to add (1) a
§ 1983 race discrimination claim against Defendant White in his individual
capacity if Plaintiff can allege facts suggesting that Defendant White was
personally involved in the alleged Constitutional violation, that he acted or
failed to act with reckless disregard for Plaintiff’s rights, or that the conduct
occurred at his direction or with his knowledge; (2) a state law claim of race
Page 22 of 24
discrimination under the Illinois Human Rights Act; and (3) a negligent
infliction of emotional distress claim.
V. CONCLUSION
For the reasons stated, Defendants’ Motion to Dismiss (d/e 22) is
GRANTED IN PART and DENIED IN PART. Plaintiff has stated a
plausible § 1983 race discrimination claim against Defendants Westnedge
and Caskey, as well as Defendant White in his official capacity for
prospective injunctive relief only. Plaintiff has also stated a claim against
her employer, Illinois Secretary of State Jesse White, under the Americans
with Disabilities Act (ADA). The § 1983 race discrimination claim against
Defendant White in his individual capacity is DISMISSED WITHOUT
PREJUDICE and with leave to replead. The claim for damages against
Defendant White in his official capacity is DISMISSED WIT H
PREJUDICE. The claims against Defendants Westnedge and Caskey under
the ADA are DISMISSED WITH PREJUDICE. Finally, Plaintiff’s state law
claims are DISMISSED WITHOUT PREJUDICE, with leave to replead.
Plaintiff is granted until February 24, 2014 to file a Third Amended
Complaint if she so desires. If she does not do so, the Court will assume
that she intends to stand on her Second Amended Complaint. If Plaintiff
files a Third Amended Complaint, Defendants shall answer or otherwise
Page 23 of 24
plead on or before March 10, 2014. If Plaintiff does not file a Third
Amended Complaint, Defendants shall file an Answer to the Second
Amended Complaint on or before March 10, 2014.
ENTER: February 10, 2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 24 of 24
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