Conway et al v. Chicago Housing Authority et al

Filing 84

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 3/25/2013. Mailed notice by judge's staff. (srb,)

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

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No.

11 C 7257

MEMORANDUM OPINION AND ORDER
Tiffany Conway (“Conway”) has filed a pro se Complaint1
against the Chicago Housing Authority (“CHA”), Walsh Construction
Company (“Walsh”) and Illinois Window and Glass, Inc. (“Illinois
Glass”),2 charging employment discrimination in violation of 42
U.S.C. §2000e (“Title VII”), 42 U.S.C. §1981 (“Section 1981") and
Section 3 of the Housing and Urban Development Act of 1968, 12
U.S.C. §1701u (“Section 1701u").

CHA has filed a motion to

dismiss under Fed. R. Civ. P. (“Rule”) 8(a), 12(b)(1) and
12(b)(6), which was then joined and adopted by Illinois Glass.
Walsh has also filed a motion to dismiss under Rules 8(a),
12(b)(1) and 12(b)(6), which was joined and adopted by CHA.

1

Conway’s Complaint will be construed “liberally,” as all
pro se complaints must be (Gould v. Schneider, 448 F. App'x 615,
618 (7th Cir. 2011)). But in the intervening months since her
Complaint, counsel has been appointed to represent Conway, and it
was appointed counsel who filed the response to Walsh’s motion to
dismiss.
2

Additional parties were originally named in the suit (on
both sides), but they were previously dismissed for reasons
unrelated to the present motions (Dkt. Nos. 15-16).

For the reasons set out in this opinion:
1.

All Section 1701u claims against all three

defendants are dismissed with prejudice.
2.

All Title VII claims against Walsh and CHA are also

dismissed with prejudice
3.

All Section 1981 claims against Walsh and CHA are

also dismissed with prejudice.
4.

All motions targeting the Title VII and Section

1981 claims against Illinois Glass are denied.
This opinion will discuss the claims in terms of their respective
subject matters, rather than in the sequence suggested by the
above enumeration.
Standards of Review
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.”

Although familiar Rule 12(b)(6)

principles require the district court to accept as true all of
plaintiff’s well-pleaded factual allegations, drawing all
reasonable inferences in plaintiff’s favor (Christensen v. County
of Boone, 483 F.3d 454, 457 (7th Cir. 2007) (per curiam)), “legal
conclusions and conclusory allegations merely reciting the
elements of the claim are not entitled to this presumption of
truth” (McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.
2011)).

Rule 12(b)(1) motions to dismiss for lack of subject

2

matter jurisdiction are evaluated under the same standard
(Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012)).
In recent years the Supreme Court has made an important
change in the evaluation of Rule 12(b)(6) motions.

Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 562-63 (2007) was the first case
to repudiate, as overly broad, the half-century-old 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.”

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, “[a] claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged” (Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
citing Twombly, 550 U.S. at 556).

Erickson v. Pardus, 551 U.S.

89 (2007)(per curiam) and Iqbal have provided further Supreme
Court enlightenment on the issue.
Our Court of Appeals has “interpreted Twombly and Iqbal to
require the plaintiff to provid[e] some specific facts to support
the legal claims asserted in the complaint” (McCauley, 671 F.3d
at 616 (internal quotation marks omitted)). McCauley, id.

3

(internal quotation marks again omitted) went on to reconfirm
that “the plaintiff must give enough details about the subjectmatter of the case to present a story that holds together,” and
Brooks v. Ross, 578 F.3d 594, 581 (7th Cir. 2009) has confirmed
that plaintiff may not “merely parrot the statutory language of
the claims that they are pleading.”
Statement of Facts3
Conway, an African American woman, was at all relevant times
a “low income resident” of the Altgeld Gardens public housing
development on the south side of Chicago (Compl. ¶2).

CHA owns

and operates Altgeld Gardens and receives federal funds from the
United States Department of Housing and Urban Development (“HUD”)
for the operation and rehabilitation of the site (id. ¶3).
Walsh, a private construction company, had a construction
contract with CHA for work at Altgeld Gardens in 2009-2010 (id.
¶4).

That contract was funded with federal funds from HUD and

was subject to Section 1701u's regulatory requirements (id.).
Illinois Glass, also a private company, was a subcontractor for
Walsh and, as such, also contracted to do work on the Altgeld
Gardens project (id. ¶5) under a contract that was also funded by

3

Allegations in Conway’s Amended Complaint will be cited
“Compl. ¶--.” CHA’s memorandum accompanying its motion to
dismiss will be cited “CHA Mem. --,” Walsh’s memorandum will be
cited “W. Mem. --,” with Conway’s response to that memorandum
cited “C. Resp. Mem. --” and Walsh’s reply to that response cited
“W. R. Mem. --.”
4

federal HUD funds (id.).
Conway was employed4 by Illinois Glass as a “gatekeeper” on
the Altgeld Gardens construction site from November through
December 2009 (Compl. ¶8).

Conway advances several allegations

attributed to that time period.
First, she charges a violation of Section 1981 by Walsh and
Illinois Glass because she was “denied the same employment
contract rights that [Walsh and Illinois Glass] provided to white
employees during this same period” (id. ¶13).

Second, she

asserts a violation of Section 1701u because she was “denied
priority employment opportunities” by CHA, Walsh and Illinois
Glass and because CHA, Walsh and Illinois Glass “did not offer
training and or employment opportunities to the greatest extent
possible” (id. ¶¶14, 19).

In particular Conway alleges that “she

was subjected to different treatment by [Walsh and Illinois
Glass] because of her race and sex, when she was monitored more
closely than white or male employees in November and December
2009, and given discipline for minor offenses during this period
that were not given to white and or male employees” (id. ¶15).
Conway also claims a violation of Title VII, Section 1981 and
Section 1701u, alleging that CHA and Walsh “knew about, and or

4

Whether or not Conway was an “employee” of any of the
defendants is disputed and will be discussed below. Hence the
use of the term “employed” in this Statement of Facts is merely
for convenience and should not be understood as a ruling on that
legal issue.
5

were informed about, the disparate treatment accorded to [Conway]
at the time these acts occurred, and or shortly after their
occurrence, and did not take steps to stop and or rectify the
disparate treatment” (id. ¶18).

No further detail is provided by

the Complaint on the factual circumstances surrounding those
legal allegations.
On December 23, 2009 Conway filed a pro se charge against
Illinois Glass5 with the United States Equal Employment
Opportunity Commission (“EEOC”), asserting that she had been the
victim of employment discrimination based on race and sex (id.
¶11).

Specifically Conway alleged (C. Resp. Mem. Ex. 1):

I began working for Respondent [Illinois Glass] on
November 9, 2009. My most recent position was
gatekeeper. During my employment, I was subjected to
harassment. On or around December 8, 2009, I expressed
interest in the position of flagger. I was not
selected for the position. Other non-Black, non-female
employees have been treated better than me.
I believe that I have been discriminated against
because of my race, Black, and my sex, female, in
violation of Title VII of the Civil Rights Act of 1964,
as amended.
Conway received a right to sue letter on July 19, 2011 (id.), and
on October 11, 2011 Conway filed her Complaint here.
Conway’s Claims
Failure To Exhaust Administrative Remedies for Title VII Claims
Walsh first argues that Conway’s Title VII claims should be

5

Illinois Glass was the only party named in the charge
(more on this subject later).
6

dismissed because she failed to name Walsh or CHA in her EEOC
charge.

It is well-settled that a plaintiff generally cannot

bring such Title VII claims unless they were originally contained
in the EEOC charge (Cheek v. W. & S. Life Ins. Co., 31 F.3d 497,
500 (7th Cir. 1994)).

But “a Title VII plaintiff need not allege

in an EEOC charge each and every fact that combines to form the
basis of each claim in her complaint” (id.).

Instead a claim is

cognizable “if there is a reasonable relationship between the
allegations in the charge and the claims in the complaint, and
the claim in the complaint can reasonably be expected to grow out
of an EEOC investigation of the allegations in the charge” (id.).
Conway was required to bring an EEOC discrimination charge
within 300 days of the allegedly unlawful employment practice (42
U.S.C. §2000e-5(e)(1); 42 U.S.C. §12117(a)), but she never filed
any such charge against either Walsh or CHA (see W. Mem. Ex. 1).
Instead her EEOC charge alleged discrimination only on the part
of Illinois Glass (C. Resp. Mem. Ex. 1).
Though Conway acknowledges those facts, she contends that
this Court should recognize an exception to the general
exhaustion requirement.

To that Conway points to the exception

marked out in Eggleston v. Chicago Journeymen Plumbers' Local
Union No. 130, U. A., 657 F.2d 890, 905 (7th Cir. 1981):
where an unnamed party has been provided with adequate
notice of the charge, under circumstances where the
party has been given the opportunity to participate in
conciliation proceedings aimed at voluntary compliance.
7

But she simply fails to bring herself within either of those
conditions (id. at 905-07).
Eggleston, id. at 908, also employed a four-factor test,
which had originated in the Third Circuit, in determining whether
to excuse a plaintiff’s failure to name a defendant in an EEOC
charge:
(1) Whether the role of the unnamed party could through
reasonable effort by the complainant be ascertained at
the time of the filing of the EEOC complaint.
(2) Whether, under the circumstances, the interests of
a named party are so similar to the unnamed party's
that for the purpose of obtaining voluntary
conciliation and compliance it would be unnecessary to
include the unnamed party in the EEOC proceedings.
(3) Whether its absence from the EEOC proceedings
resulted in actual prejudice to the interests of the
unnamed party.
(4) Whether the unnamed party has in some way
represented to the complainant that its relationship
with the complainant is to be through the named party.
Again, despite Conway’s assertions to the contrary, none of those
four factors--either alone or in combination--weighs in favor of
excusing her failure to name CHA and Walsh in the EEOC complaint.
Although that strikes this Court as so obvious that extended
exposition is unnecessary, a brief explanation follows in the
interest of thoroughness.
First, there is no reason to believe that Conway could not
have ascertained CHA’s and Walsh’s involvement “through
reasonable effort.”

Conway argues that because she filed her

8

complaint pro se, the very fact that she omitted any reference to
Walsh and CHA means that their involvement was unascertainable.
That contention--really a circular one--falls flat.

Conway makes

no allegation that their involvement was somehow hidden from her.
Indeed, as Walsh points out, less than three weeks after Conway
filed her EEOC charge she filed another complaint with HUD in
which she did name Walsh and CHA (W. R. Mem. Ex. 1)!
Second, there are no allegations that the interests of
Illinois Glass, Walsh and CHA are so intertwined that it would be
“unnecessary” to name the latter two parties.

Conway’s purported

responses are in fact wholly unresponsive to the issue.

She

asserts, totally without any basis in logic, that the allegations
in her own EEOC charge support the inference that she believed
that the defendants were somehow acting together.

As Walsh

correctly observes, CHA, Walsh and Illinois Glass are entirely
separate entities with separate sources of funding and separate
interests, and the fact that they were involved in a contractual
relationship with one another on the same construction project
does not alter that separateness vis-a-vis Conway.
Third, the fact that Walsh and CHA were not on notice of
Conway’s grievances until the filing of this lawsuit was clearly
prejudicial to them.

They lost any access to possible

conciliation--any opportunity for resolution short of litigation.
Conway offers no argument to the contrary.

9

Fourth, there is no indication that any of the three
defendants represented to Conway “that its relationship with the
complainant is to be through the named party.”

Conway recycles

the same unsupported--and unsupportable--ipse dixit that the
allegations of her complaint itself lead to the inference that
Conway believed that her relationship to Illinois Glass was
through Walsh and CHA.
Finally, Conway makes one last puzzling argument that her
(C. Resp. Mem. 6):
allegation[s] bring Walsh and CHA within the ambit of
the EEOC complaint because allegations, in part, were
aimed at not being hired for a flagger position, a job
that 12 U.S.C. §1701u entitled her to preferential
treatment when applying for. Accordingly, both Walsh
and CHA would likely have had an opportunity to
participate in the conciliation process, if so desired,
and plaintiff’s Title VII allegations should be
permitted.
That argument is nonsensical and does not address any of the
issues presented by the four-factor test.
In sum, Conway has failed every facet of the four-factor
analysis.

And because the 300-day time limit on filing EEOC

charges has already run, that failure is not remediable. Hence
all Title VII charges against Walsh and CHA are dismissed with
prejudice.6

6

While Title VII claims and Section 1981 claims are often
analyzed together for substantive purposes, Section 1981 carries
no exhaustion requirement (Bullard v. Sercon Corp., 846 F.2d 463,
469 (7th Cir. 1988)). So the foregoing analysis applies only to
Conway’s Title VII claims.
10

Standing
CHA next urges that dismissal is proper under Rule 12(b)(1)
on the premise that Conway lacks standing because she assertedly
(1) fails to “allege an injury in fact, specific conduct or a
sufficient causal connection of a particular injury against CHA”
and (2) cannot pursue her claims on behalf of “‘other aggrieved
persons’ because she is not an attorney and Plaintiff cannot
individually assert the rights of third parties in federal court”
(CHA Mem. 3).

Neither contention survives scrutiny.

As for the first, to establish standing a plaintiff must
show (1) an injury in fact, (2) a causal connection between that
injury and defendant’s conduct and (3) that it is likely, as
opposed to merely “speculative,” that the injury will be
redressed by a favorable decision (Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)).

At the pleading stage,

“general factual allegations of injury resulting from the
defendant's conduct may suffice, for on a motion to dismiss we
presume that general allegations embrace those specific facts
that are necessary to support the claim” (id. at 561).

At this

early point in the litigation, Conway has met that burden by
alleging that the defendants injured her by taking certain
adverse employment actions against her.
As to the second argument, this Court’s August 9, 2012
memorandum opinion and order has already stated that “it seems

11

abundantly clear that this case must be perceived as only a oneparty pro se action” and that “the fair reading of the complaint
in each case is that the asserted treatment of other AfricanAmericans is sought to be relied on as evidence of the
defendants’ race-discriminatory intent” (Dkt. No. 42 at 3).

On

that ground as well, then, Conway has standing to assert her
claims.
No Private Right of Action Under Section 1701u
Walsh and CHA next argue that dismissal is proper under Rule
12(b)(1) because Section 1701u provides no private right
enforceable either through 42 U.S.C. §1983 (“Section 1983") or
through an implied right of action.7

Either way a court must

first inquire “whether or not Congress intended to confer
individual rights upon a class of beneficiaries” (Gonzaga Univ.
v. Doe, 536 U.S. 273, 285 (2002)).8

That inquiry focuses on a

7

It is unclear whether Conway is arguing that Section 1701u
is enforceable (1) through Section 1983 or (2) on its own through
an implied private right of action. Although Section 1983 is
mentioned nowhere in the pleadings, Conway does advance this
argument in her reply memorandum. Pro se litigants are not
required to refer correctly to the precise statute or legal
theory to state a claim (Kennedy v. Nat'l Juvenile Det. Ass'n,
187 F.3d 690, 695 (7th Cir. 1999)) but as stated earlier the
reply memorandum was the work product of appointed counsel. All
the same, this opinion will give Conway the benefit of an
assumption that she too meant to assert both positions, and it
will accordingly address both.
8

Although later steps of the analysis differ between
Section 1983 and an implied private right of action, that initial
inquiry is the same in either scenario (id. at 283).
12

three factor test: (1) “Congress must have intended that the
provision in question benefit the plaintiff,” (2) “the plaintiff
must demonstrate that the right assertedly protected by the
statute is not so vague and amorphous that its enforcement would
strain judicial competence” and (3) “the provision giving rise to
the asserted right must be couched in mandatory, rather than
precatory, terms” (id. at 282, quoting Blessing v. Freestone, 520
U.S. 329, 340-41 (1997)).

As Gonzaga, id. at 290 (emphasis

added) concluded:
In sum, if Congress wishes to create new rights
enforceable under §1983, it must do so in clear and
unambiguous terms–no less and no more than what is
required for Congress to create new rights enforceable
under an implied private right of action.
To perform that three-factor inquiry, it is necessary to
turn to the text of the statute.

Section 1701u(c)(1)(A) and

(c)(2)(A) provide in relevant part:
The Secretary shall require that public and Indian
housing agencies, and their contractors and
subcontractors, make their best efforts, consistent
with existing Federal, State, and local laws and
regulations, to give to low- and very low-income
persons the training and employment opportunities
generated by development assistance..., operating
assistance...and modernization grants....
*

*

*

In other programs that provide housing and community
development assistance, the Secretary shall ensure
that, to the greatest extent feasible, and consistent
with existing Federal, State, and local laws and
regulations, opportunities for training and employment
arising in connection with a housing rehabilitation
(including reduction and abatement of lead-based paint
13

hazards), housing construction, or other public
construction projects are given to low--and very
low--income persons residing within the metropolitan
area (or nonmetropolitan county) in which the project
is located.
That language clearly meets the third factor of the Gonzaga
test, for it expressly provides that the Secretary “shall
require” and “shall ensure” that the requirements are met.

But

further analysis confirms that the other two factors are not
satisfied.
While Section 1701u is clearly meant to benefit low income
persons, “it is rights, not the broader or vaguer ‘benefits’ or
‘interests,’ that may be enforced” under Section 1983 or an
implied right of action (Gonzaga, 536 U.S. at 283, emphasis in
original).

Several aspects of Section 1701u weigh against a

finding that Congress intended to provide an individual right of
action.
First, “[f]or a statute to create such private rights, its
text must be phrased in terms of the persons benefitted”
(Gonzaga, 536 U.S. at 284 (internal quotation marks omitted)).
Section 1701u addresses itself to the Secretary of HUD, rather
than speaking directly in terms of granting rights to the lowincome individuals whose interests HUD is required to promote
(see id. at 284 n.3).

And Alexander v. Sandoval, 532 U.S. 275,

289 (2001)(internal quotation marks omitted) has told us that
“[s]tatutes that focus on the person regulated rather than the

14

individuals protected create no implication of an intent to
confer rights on a particular class of persons.”
Second, Section 1701u does not say anything about individual
instances of discrimination against low income persons.

It

addresses itself only to the general policy of using “best
efforts” to offer low income persons employment and training and
ensuring compliance “to the greatest extent feasible.”

That type

of “aggregate focus” indicates that the statute is “not concerned
with whether the needs of any particular persons have been
satisfied” (Gonzaga, 536 U.S. at 288, again quoting Blessing).
Third, Section 1701u requires employers to “make their best
efforts” to give low income persons opportunities.
call for perfect compliance.

It does not

That too contraindicates any

conclusion that Congress intended to provide a right of action to
every individual who is not offered such an opportunity (see
Gonzaga, id.).
Finally, the fact that there are administrative remedies
available to redress violations of Section 1701u (see 24 C.F.R.
§135.76) weighs against finding a private right of action
(Gonzaga, 536 U.S. at 288). Ultimately, “where the text and
structure of a statute provide no indication that Congress
intends to create new individual rights, there is no basis for a
private suit, whether under §1983 or under an implied right of

15

action” (id. at 286).9
In sum, as there is no private right of action under Section
1701u, all claims pursuant to that statute must be dismissed with
prejudice.

Hence there is no need to address the parties’ other

arguments as to those claims.
Failure To State a Claim under Title VII and Section 1981
After the analysis to this point, only Conway’s Section 1981
claims against Walsh, CHA and Illinois Glass and her Title VII
claims against Illinois Glass remain for consideration.10

Title

VII provides that it is unlawful for an employer:
to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to compensation, terms,
conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or
national origin.
And Section 1981 provides:
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, as is enjoyed

9

District Courts examining the issue have reached the same
conclusion (see, e.g., Miller v. CHA, No. 11 C 8625, 2012 WL
2116190, at *3-*4 (N.D. Ill. June 8); Price v. Hous. Auth. of New
Orleans, No. 09-4257, 2010 WL 1930076, at *3-*5 (E.D. La. May
10); Nails Constr. Co. v. City of St. Paul, No. 06-2657, 2007 WL
423187, at *3-*5 (D. Minn. Feb. 6)).
10

It is unclear from Conway’s complaint whether she is
advancing both Title VII and Section 1981 claims against all
three defendants. But construing the pro se complaint liberally,
this Court will so assume. As Title VII cases are analyzed in
the same fashion as Section 1981 cases (Yancick v. Hanna Steel
Corp., 653 F.3d 532, 544 (7th Cir. 2011)), the claims will be
yoked together.
16

by white citizens.
To establish a claim under Section 1981, Conway must show
that (1) she is a member of a racial minority,11 (2) a defendant
had an intent to discriminate on the basis of race12 and (3) the
discrimination concerned one or more of the activities enumerated
in the statute (here the making and enforcing of an employment
contract) (Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir.
1996)).

Conway can make her Title VII case through direct

evidence of discrimination or indirectly by showing that ”(1) she
is a member of a protected class; (2) her performance met her
employer's legitimate expectations; (3) despite this performance,
she was subjected to an adverse employment action; and (4) her
employer treated similarly situated employees outside of the
protected class more favorably” (Barricks v. Eli Lilly & Co., 481
F.3d 556, 559 (7th Cir. 2007)).

But Conway does not need to

provide specific facts corresponding to each of those elements at
this stage of the litigation.

Bennett, 153 F.3d at 518 has

specifically held that in discrimination cases “‘I was turned
down for my job because of my race’ is all a complaint has to

11

There is of course no dispute that this element is met.

12

Under Rule 9(b) intent may be averred generally in race
discrimination cases (Bennett v. Schmidt, 153 F.3d 516, 518 (7th
Cir. 1998)).
17

say.”13

So while Conway’s pleadings are somewhat vague, that

alone is not enough to warrant dismissal.
Conway makes several relevant claims.

First, she alleges

that she “suffered employment discrimination because of [my] race
in November and December of 2009, and, as a result [was] denied
the same employment contract rights that Defendants [Walsh and
Illinois Glass] provided to white employees during this same
period” (Compl. ¶13).

Second, she alleges that Walsh and CHA

“knew about, and or were informed about, the disparate treatment
accorded to Plaintiff[ ] Conway...at the time these acts
occurred, and or shortly after their occurrence, and did not take
steps to stop and or rectify the disparate treatment described
herein, despite a duty to do so under Title VII, [Section 1981
and Section 1701u]” (id. ¶18).

Conway’s only specific

allegations of mistreatment are that she was “subjected to
different treatment by [Illinois Glass and Walsh] because of her
race and sex, when she was monitored more closely than white and
or male employees in November and December of 2009, and given
discipline for minor offenses during this period that were not
given to white and or male employees” (id. ¶15).
Those allegations suffice to state a claim against Illinois

13

While Bennett antedated Twombly and Iqbal, the Seventh
Circuit has continued to reaffirm its holding (Tamayo v.
Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008); see also EEOC
v. Concentra Health Servs., Inc., 496 F.3d 773, 781-82 (7th Cir.
2007)).
18

Glass on both Section 1981 and Title VII grounds, but not against
Walsh or CHA (even apart from the fact that any Title VII claims
against Walsh and CHA fail independently because of Conway’s
failure to exhaust administrative remedies).

Conway has clearly

alleged that she was employed by Illinois Glass, and Walker v.
Abbott Labs., 340 F.3d 471, 475-78 (7th Cir. 2003) has held that
an employment relationship--even if it is at-will--is sufficient
to form a “contract” within the meaning of Section 1981.

But

Conway has not alleged that she was employed by Walsh or CHA (for
Title VII purposes) or that she had any contract with Walsh or
CHA (for Section 1981 purposes).14
Conway argues that a person may have more than one
“employer” when there is more than one company that controls her
work environment (C. Mem. 7-8, citing Tamayo, 526 F.3d at 1088).
That is so as a statement of law in general, but it does not
apply to Conway’s situation.

In Tamayo the plaintiff alleged

that while one entity controlled her hiring and promotion,
another entity controlled her compensation, made certain
personnel decisions and made the decision not to give her a
promised raise (id. at 1087).
facts.

Conway advances no analogous

She alleges only that she was employed by Illinois Glass,

that Illinois Glass was a subcontractor of Walsh and that CHA

14

While non-employees (such as independent contractors) can
bring Section 1981 cases, they must still show that there was
some kind of contract.
19

hired Walsh for the construction project.

There is no assertion

that CHA or Walsh had any control over any aspect of her
employment (contrast Tamayo, id. at 1089).
In summary, even where the Complaint here is viewed
liberally and with all inferences in favor of Conway, she has
alleged nothing to support a proposition that she had any kind of
employment contract (at-will or otherwise) with Walsh or CHA, nor
has she alleged that Walsh or CHA had any kind of control over
her employment (EEOC v. N. Knox Sch. Corp., 154 F.3d 744, 747
(7th Cir. 1998)).
Nor does Conway’s assertion that Walsh and CHA had a “duty”
to prevent the alleged “disparate treatment” have any merit.
Though she contends that EEOC v. Pipefitters Ass’n Local Union
597, 334 F.3d 656 (7th Cir. 2003) “clearly establishes” such a
duty (C. Mem. 7-8), that case stated only that “[a]n employer who
is aware of racial or sexual harassment that is making the
workplace intolerable for the targets of the harassment, and does
nothing to correct the situation, is guilty of violating Title
VII” (id. at 658, emphasis added).

As already discussed, neither

Walsh nor CHA was Conway’s “employer.”

Pipefitters, id. at 659-

63 went on to hold that a union that does not exercise control
over the circumstances of a workplace does not have an
affirmative duty under Title VII to step in and prevent workplace
discrimination.

20

It is thus clear that neither Walsh nor CHA had any
affirmative duty to act in this situation (see Gen. Bldg.
Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 396-97
(1982)).

Section 1981 mandates that employers may not

intentionally discriminate against minority employees.

It does

not transform any entity into “the guarantor[ ] of the workers'
rights as against third parties who would infringe them” (id. at
396).

Accordingly all claims against Walsh and CHA under

Title VII and Section 1981 are dismissed.
While Conway’s claims against Walsh and CHA have fallen, her
Title VII and Section 1981 claims against Illinois Glass are
sufficient to meet her low burden at this stage of the
litigation.

She has alleged that she was employed by Illinois

Glass, that Illinois Glass took certain adverse actions against
her because of her race or sex and that other non-minority
employees were treated more favorably.

That suffices to survive

a Rule 12(b)(6) motion to dismiss (Bennett, 153 F.3d at 518).
Conclusion
To recap what was said at the outset of this opinion, all
claims against Illinois Glass, Walsh and CHA under Section 1701u
and all Title VII and Section 1981 claims against Walsh and CHA
are dismissed with prejudice.

Claims under Title VII and Section

1981 against Illinois Glass are not dismissed.

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This action is

set for a status hearing on April 4 at 9 a.m.

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

March 25, 2013

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