Green et al v. Scurto Cement Construction et al
Filing
65
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 10/27/2011:Mailed notice(srn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RONALD GREEN SR., et al.,
Plaintiffs,
v.
SCURTO CEMENT CONSTRUCTION,
LTD., et al.,
Defendants.
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No.
10 C 4562
MEMORANDUM OPINION AND ORDER
Ronald Green Sr. and Donald Green (“Greens”) have sued
Operative Plasterers & Cement Masons International Association,
Local 11, Area 161 (“Union”), charging it with racial
discrimination and retaliation in violation of 42 U.S.C. §1981
(“Section 1981”).
Greens’ action originally contained both the
Section 1981 charges and assertions of race discrimination under
Title VII.
But on June 20, 2011 this Court issued a memorandum
opinion and order (“Opinion”) that (1) dismissed the Title VII
claims, finding that Greens had brought suit too late (past the
statutory 90-day time limit after Greens had received an EEOC
right-to-sue letter), (2) held that any Section 1981 claim
depending on acts that occurred before July 22, 2006 was barred
by a four-year limitation period and (3) granted Greens leave to
file an Amended Complaint (“AC”) that removed the time-barred
allegations.
They did so on August 11.
Now Union has filed a motion to dismiss the AC under Fed. R.
Civ. P. (“Rule”) 12(b)(6), and the litigants have briefed the
matter.
For the reasons stated here, the motion is denied.
Rule 12(b)(6) Standards
Under Rule 12(b)(6) a party may move for dismissal of a
complaint on the ground of “failure to state a claim upon which
relief can be granted.”
Bell Atl. Corp. v. Twombly, 550 U.S.
544, 562–63 (2007) was the first case to repudiate, as overly
broad, the half-century-old Rule 12(b)(6) formulation announced
in Conley v. Gibson, 355 U.S. 41, 45–46 (1957) “that a complaint
should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.”
And
post-Twombly cases have further reshaped a new Rule 12(b)(6)
standard.
First Twombly, 550 U.S. at 570 held that to survive a Rule
12(b)(6) motion a complaint must provide “only enough facts to
state a claim to relief that is plausible on its face.”
Or put
otherwise, “[f]actual allegations must be enough to raise a right
of relief above the speculative level” (id. at 555).
Then
Erickson v. Pardus, 551 U.S. 89 (2007)(per curiam) and Ashcroft
v. Iqbal, 556 U.S. ---, 129 S.Ct. 1937 (2009) provided further
Supreme Court enlightenment on the issue.
Before Iqbal our own Court of Appeals, in Airborne Beepers &
Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir.
2007) described Twombly and Erickson as establishing “only that
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at some point the factual detail in a complaint may be so sketchy
that the complaint does not provide the type of notice of the
claim to which the defendant is entitled under Rule 8.”
And more
recently Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) has
confirmed that the Airborne Beepers reading of pleading law
post-Twombly and post-Erickson remains accurate after Iqbal.
Brooks, id. describes Iqbal as “admonishing those plaintiffs who
merely parrot the statutory language of the claims that they are
pleading (something that anyone can do, regardless of what may be
prompting the lawsuit), rather than providing some specific facts
to ground those legal claims, that they must do more.”
Familiar Rule 12(b)(6) principles--still operative under the
new pleading regime--require this Court to accept as true all of
Greens’ well-pleaded factual allegations, with all reasonable
inferences drawn in their favor (Christensen v. County of Boone,
483 F.3d 454, 457 (7th Cir. 2007)(per curiam)).
What follows in
the next Section adheres to those principles.
Background
Greens are African-Americans and members of Union (AC ¶3),1
which uses a referral system to dispatch its members to various
job sites (id. ¶10).
That system refers members for work based
on the time since their last job, with the member who has been
1
This opinion cites to the AC as “AC ¶--,” to Greens’
memorandum as “G. Mem. --” and to Union’s responsive memorandum
as “U. Mem. --.”
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without work the longest being first in line for a new assignment
(id. ¶11).
But Union gerrymandered the referral system so that
African-Americans such as Greens are given, because of their
race, shorter jobs that pay less (id. ¶¶14-16).
Greens filed
grievances with Union, EEOC, the Illinois Department of Human
Rights and the National Labor Relations Board (“NLRB”), because
of which filings Union retaliated against Greens (id. ¶17).
Discrimination Claim
U. Mem. 4 contends that Greens failed to plead two elements
of their Section 1981 claim adequately:
intentional
discrimination based on race and interference with an activity
protected by Section 1981.
But the AC passes muster in both
respects.
First, as to intentional discrimination, AC ¶12 simply
states:
Defendants, however, have been discriminatory in their
application of the referral system on account of
Plaintiffs’ race, African American.
Union says that’s a bare recital of an element of a claim, which
Iqbal deems insufficient.
But Bennett v. Schmidt, 153 F.3d 516,
518 (7th Cir. 1998) has held that “a general allegation of
intent” to discriminate based on race is sufficient:
“I was turned down for a job because of my race” is all
a complaint has to say.
Greens assert that they were prevented from making contracts
because of their race.
Bennett--which Union does not even
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cite--holds that is sufficient in a pleading.
True enough, Bennett antedated Twombly and Iqbal, and the
latter (129 S.Ct. at 1949) states:
Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.
Indeed, this Court notes two post-Iqbal District Court cases that
are more demanding:
one cited by Union (Johnson v. Vill. of
Bellwood, No. 09 C 5011, 2010 WL 2653335, at *2 (N.D. Ill.
July 1)(which does not discuss Bennett)) and the other not
mentioned by Union (Riley v. Vilsack, 665 F.Supp.2d 994, 1004
(W.D. Wis. 2009)(which does discuss Bennett)).
But both of those
opinions have missed the fact that our Court of Appeals has twice
reconfirmed Bennett’s holding, first in EEOC v. Concetra Health
Servs., Inc., 496 F.3d 773, 781-82 (7th Cir. 2007)(post-Twombly,
though pre-Iqbal) and then implicitly in Swanson v. Citibank,
N.A., 614 F.3d 400, 406-07 (7th Cir. 2010)(post both Twombly and
Iqbal).
If Union were correct that Greens must provide factual
support now, they would be unable to get past the pleading stage.
And that would be at odds with the McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) burden-shifting approach to proving
discrimination.
Greens have alleged that (1) they are in a
protected class, (2) they were qualified for the work they
sought, (3) Union denied them that work and (4) Union gave the
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work to similarly situated people who were not members of the
protected class.
That suffices for a prima facie case of racial
discrimination under McDonnell Douglas (Zaccagnini v. Chas. Levy
Circulating Co., 338 F.3d 672, 675 (7th Cir. 2003)--and if that’s
enough at the evidentiary stage of a lawsuit, it certainly
enables Greens to get past the pleading stage.
As for Union’s other contention that Greens failed to plead
the third Section 1981 element--Union’s interference with a
protected Section 1981 activity--adequately, Union faults Greens
for failing to “allege that there were any specific jobs to which
they were not dispatched in favor of a similarly situated nonAfrican American” (U. Mem. 4).
But any such requirement of fact
pleading was expressly disavowed in Twombly, Erickson and Iqbal
(see Swanson, 614 F.3d at 403).
Greens have pleaded that Union interfered with their right
to contract by funneling better jobs to non-African-American
Union members (AC ¶¶14-16).
That is certainly enough for now.
Although Greens will have to present evidence of specific
instances of Union’s behavior at the summary judgment or trial
stage, the function of Rule 8 would actually be defeated by a
requirement that Greens list their proof in the AC (Bennett, 153
F.3d at 519).
Retaliation
Union also argues that Greens failed to plead retaliation
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under Section 1981 adequately.
But before this opinion turns to
the merits of Union’s argument, a moment or two must be spent on
the issue raised in Union’s memorandum that discloses its
counsel’s lack of understanding of a fundamental principle of the
federal practice.
U. Mem. 7 complains that Greens “combine their claims of
retaliation and discrimination in one count, and it is not clear
which allegations in the Amended Complaint are meant to state a
retaliation cause of action.”
But the relevant concept in
federal practice is not a plaintiff’s “cause of action” (the
Illinois state law concept, which calls for an identification of
the legal theories under which a party hopes to succeed, with
different legal theories being set out in different “counts”),
but rather the plaintiff’s “claim” (the term used throughout the
Rules).
If this Court could prescribe a single opinion for
mandatory reading by every federal practitioner, NAACP v. Am.
Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992) would be
in, or very near to, first place.2
Union’s counsel would do well to read and grasp what is
taught in the NAACP opinion and, relatedly, the second sentence
of Rule 10(b) as to the function prescribed for separate counts
in federal pleading.
Though it may often be disregarded as a
2
That is far from the only case that explains and applies
the principle stated in the text. It is rather, in this Court’s
view, the most lucid exposition.
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matter of convenience or habit by those schooled in the state
system, that Rule does not obligate Greens to split their
discrimination and retaliation contentions into different counts.
Union fares no better in attacking the merits of Greens’
retaliation allegation.
First, U. Mem. 7 says that Greens failed
to plead retaliation adequately, because under Section 1981 the
retaliation itself must have a racial motivation.
That’s a
throwback to McKnight v. Gen. Motors Corp., 908 F.2d 104 (7th
Cir. 1990), a case decided in the wake of Patterson v. McLean
Credit Union, 491 U.S. 164 (1989).
McKnight, 908 F.2d at 112
interpreted Patterson as barring a retaliation contention when
the adverse action was occasioned by an employee’s complaining
about discriminatory conduct.
But McKnight, id. at 1l1 did
suggest that retaliation designed to interfere with the
enforcement of a contract might be actionable under Section 1981,
not because it was retaliation for engaging in protected conduct
but rather because the retaliation could deter protected conduct.
Courts often use “retaliation” to refer to the sort of
conduct prohibited by 42 U.S.C. §2000e-3(a):
an adverse action
motivated by a person complaining of illegal conduct.
McKnight,
however, was played out against a backdrop in which that vintage
of retaliation was not actionable under Section 1981, and so the
“retaliation” that McKnight addressed was really just a
description of a type of adverse action prohibited by Section
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1981 (interference with a person’s ability to contract because of
that person’s race).
That’s why McKnight and a few later cases
insisted that the retaliation itself have a racial motivation.
Today, however, CBOCS West, Inc. v. Humphries, 553 U.S. 442,
457 (2008) has removed any doubt that retaliation occasioned by
complaints of discriminatory conduct is actionable under Section
1981 whether or not the retaliation was intended to deter a right
protected by that section.
Hence Union is not correct that
Greens had to plead that the retaliation inflicted on them was
racially motivated.
It is enough that Greens have pleaded that
Union retaliated after they complained of Union’s interference
with their Section 1981 rights.
Although Greens have failed to discuss McKnight or raise
CBOCS in their response, that does not justify trashing their AC.
After all, it has been crystal clear for some 3-1/2 years (since
CBOCS) that retaliation claims are actionable under Section 1981.
Even so, Greens’ counsel would do well to take all arguments-even incorrect ones--seriously in any future briefing.
Union also seeks to invoke Twombly and Iqbal yet again to
attack Greens’ pleading of the retaliation claim.
In doing so,
Union once more asks too much at the pleading stage.
On that score U. Mem. 9 calls the AC deficient because
(incorrectly referring to Greens in the singular) it fails to say
“how the Plaintiff was retaliated against, who specifically
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retaliated against him, or a temporal nexus between the charge
filing and alleged retaliation.”
But how, who and when are
questions that a complaint must answer when pleading fraud under
Rule 9(b)(Pirelli Armstrong Tire Corp. Retiree Med. Benefits
Trust v. Walgreen Co., 631 F.3d 436, 441-42 (7th Cir. 2011),
while Rule 8 requires only that Greens provide “fair notice” of
their claim by giving “enough details about the subject-matter of
the case to present a story that holds together” (Swanson, 614
F.3d at 404).
Greens readily cleared that hurdle:
They alleged
that Union had a discriminatory practice, that they complained
about it to everyone in sight--Union, the EEOC, the Illinois
Department of Human Rights and the NLRB--and that Union
retaliated against them for making those complaints.
Timeliness
Finally, Union says that Greens do not specify in their
pleadings when the discrimination alleged in the AC took place.
Union sees that as a problem in light of the Opinion’s barring of
claims based on alleged acts that occurred before July 22, 2006.
Although Greens have inexplicably failed to respond to that
contention, it should be remembered that the Opinion directed
Greens to file an amended complaint that eliminated the dismissed
subject matter (including Section 1981 claims based on alleged
pre-July 22, 2006 conduct).
It has therefore been assumed here
that Greens’ filing had complied with this Court’s directive--but
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if that assumption should prove incorrect, Union will find
adequate remedies in the various fee-shifting mechanisms
available under the Rules.
Again Greens’ counsel would do better
not to leave such matters to chance and to be more thorough in
the future.
Conclusion
Union’s motion to dismiss is denied, and it is ordered to
answer the AC on or before November 10, 2011.
This action is set
for a status hearing at 8:45 a.m. November 14, 2011.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
October 27, 2011
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