Conway et al v. Chicago Housing Authority et al

Filing 42

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 8/9/2012:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIFFANY CONWAY,
Plaintiff,
v.
CHICAGO HOUSING AUTHORITY,
Defendant.

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No.

11 C 7257

MEMORANDUM OPINION AND ORDER
Chicago Housing Authority (“CHA”) selected the previouslyset August 8, 2012 hearing date in this action for the
presentment of its Fed. R. Civ. P. (“Rule”) 12(b)(1) and 12(b)(6)
motion to dismiss the employment discrimination case brought
against it, general contractor Walsh Construction Company
(“Walsh”) and Illinois Window and Glass, Inc. (“Illinois Window”)
by pro se African-American plaintiff Tiffany Conway (“Conway”).1
During the course of the hearing CHA’s counsel referred to, and
provided this Court with a copy of, the June 8, 2012 memorandum
opinion and order entered by this Court’s good friend and
colleague Honorable John Darrah in what counsel accurately
indicated was a mirror image (this Court’s words, not counsel’s)
of this case, Miller v. CHA, et al., 11 C 8625.
That mirror-image characterization and its accuracy are no

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Illinois Window had been Conway’s employer during the
November-December 2009 time frame referred to in the Complaint.
Although Conway said otherwise during the hearing, it appears
unlikely that either Walsh or Illinois Window has been served
with process in this case as yet.

accident.

This case originated with a three-plaintiff pro se

Complaint filed by Conway, Paris Miller (who became the plaintiff
in Judge Darrah’s case) and Joshua Bardney.

This Court’s brief

October 28, 2011 memorandum order shrunk the Complaint by
dismissing out the other two plaintiffs and their respective
employers (who were subcontractors of Walsh other than Illinois
Window).
Miller then proceeded to file a separate action (this
Court’s dismissal of him as a plaintiff in this case had been
without prejudice).

That new action made the selfsame

allegations as the original Complaint here and was assigned at
random to Judge Darrah’s calendar.
In any event, this Court has now reviewed Judge Darrah’s
opinion and finds itself in respectful disagreement with one of
its fundamental conclusions.2

In part Judge Darrah has pointed

to language in Miller’s Complaint asking, as part of the relief
sought, “to provide employment opportunities for himself and
other low income residents to Alltgeld [sic] Gardens” (language

2

It should be emphasized, however, that no conclusion is
reached or suggested here as to Judge Darrah’s thoughtful
discussion and conclusion regarding any potential claim under the
Housing and Urban Development Act of 1968 (12 U.S.C. §1701u) or,
for that matter, regarding the ultimate viability or nonviability
of the 42 U.S.C. §1981 (“Section 1981”) claim advanced by each of
Miller and Conway. One result of the August 8 hearing was an
indication by Conway that she would likely seek the appointment
of pro bono counsel to represent her, and if that takes place
this Court would expect appointed counsel to respond to those
facets of CHA’s motion.
2

that finds an echo in this case’s Complaint ¶21).

On that score

Judge Darrah is of course quite right to hold that nonlawyer
Miller has no authority to appear as anyone else’s legal
representative, so that any such effort would have to be
dismissed for lack of subject matter jurisdiction.
But when the Complaint’s allegations are read with
appropriate inferences favorable to the plaintiff (as Judge
Darrah also correctly sets out to be the rule), it seems
abundantly clear that this case must be perceived as only a oneparty pro se action (there are no class-type references either in
the case caption or in any of its allegations).

Instead the fair

reading of the complaint in each case is that the asserted
treatment of other African-Americans is sought to be relied on as
evidence of the defendants’ race-discriminatory intent.
In that light this Court takes a less strict threshold view
of the Complaint’s compliance with the “plausibility” requirement
mandated by the Twombly-Iqbal canon.

It is true that the

allegations of unequal treatment on racial grounds are stated in
general terms in the Complaint (in this instance in Complaint
¶15), but this Court would treat that aspect as surviving as a
pleading matter, subject of course to more demanding scrutiny
when the subject has been explored through discovery.
As indicated earlier, CHA’s motion has been entered and
continued (as is also true of Conway’s self-prepared “Plaintiff’s

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Motion for Clarification of the Record”).

This Court will await

Conway’s anticipated motion for the appointment of counsel before
determining the future course of proceedings on the pending
motions.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

August 9, 2012

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