Outley v. City Of Chicago et al

Filing 71

Opinion and Order Signed by the Honorable Joan H. Lefkow on 3/10/2015: Defendants' motion to dismiss third amended complaint 53 is granted in part and denied in part. The defendants' motion to strike Outley's oversized brief is de nied. Outley's Title VII claims (Counts I and II) are dismissed with prejudice as to the individual defendants. Conduct that occurred prior to December 17, 2011 is time-barred for the purposes of Outley's Title VII claims. Outley's §§ 1981 and 1983 claims (Counts III and IV) are dismissed without prejudice as to the city, and to the extent they are based on retaliation. Conduct that occurred prior to February 28, 2011 is time-barred for purposes of Count IV. Outley& #039;s request for punitive damages is stricken from the complaint. Defendant City of Chicago is directed to answer Counts I and II, limited to conduct that occurred later than December 17, 2011. Individual defendants are directed to answer Counts III and IV. Status hearing is set for 4/15/2015 at 10:00 AM. Mailed notice(mad, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MICHAEL OUTLEY,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF CHICAGO, PAUL MAZUR,
)
Individually, ALAN STARK, Deputy
)
Commissioner of the Department of Water and )
Individually, and THOMAS POWERS,
)
Commissioner of the Department of Water and )
Individually,
)
)
Defendants.
)
)

No. 13 CV 1583
Judge Joan H. Lefkow

OPINION AND ORDER
Plaintiff Michael Outley’s third amended complaint against the City of Chicago and
individual defendants Paul Mazur, Alan Stark and Thomas Power alleges discrimination on the
basis of race as well as retaliation in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1981 and 42 U.S.C. § 1983. 1 (Dkt. #48.)
Defendants now move to dismiss the third amended complaint in part pursuant to Federal Rule
of Civil Procedure 12(b)(6). Defendants argue that 1) some of Outley’s claims are beyond the
scope of his EEOC charges, 2) some of his claims are time-barred, 3) he failed to state a valid
claim of retaliation, 4) he failed to properly plead claims against the city, 5) the Equal Protection
Clause does not protect against retaliation, 6) the individual defendants cannot be sued under
Title VII, § 1981 or § 1983, and 7) punitive damages cannot be brought against the city. (Dkt.

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This court has jurisdiction under 28 U.S.C. § 1331 and venue is appropriate under 28 U.S.C.
§ 1391(b).
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#53.) For the reasons set forth herein, the motion will be granted in part and denied in part. The
defendants’ motion to strike Outley’s oversized brief is denied.
BACKGROUND 2
Michael Outley, an African-American man, began working for the City of Chicago in
1987, as an operating engineer in the Department of Aviation. In 1993, he transferred to the
Department of Water Management as an operating engineer. The Department of Water
Management oversees approximately eleven pumping stations and two filtration plants. Soon
after his transfer, Outley began to serve as Acting Assistant Chief Operating Engineer at the
Lexington pumping station. In 1994, Outley applied for the posted position of Chief Operating
Engineer and was denied the promotion. In 1998, Outley received a promotion to a permanent
position of Assistant Chief Operating Engineer, a position he had been filling in an acting
capacity for five years. In each of the years 2010, 2011 and 2012, the City of Chicago posted
announcements for the position of Chief Operating Engineer in the Department of Water
Management, and each year Outley applied.
The application process included a multiple choice test, a technical exam and an oral
interview related to the technical aspects of the position. Outley passed each portion of the
application process every year, and satisfied all the requirements for the promotion. Yet, he
never received the promotion. Meanwhile, since 2010, six Caucasian applicants with fewer
qualifications and less experience were promoted to Chief Operating Engineer. In fact, at the
time Outley filed his third amended complaint, all of the Chief Operating Engineers within the
Department of Water were Caucasian. Outley alleges that defendants acted willfully and in bad
faith in their failure to promote him.
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The facts in this section are taken from the well-pleaded allegations in Outley’s third amended
complaint. They are presumed true for the purpose of resolving the present motion. See Barnes v. Briley,
420 F.3d 673, 677 (7th Cir. 2005).
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In October 2012, Outley filed a complaint with the city’s human resources department,
alleging that he had been denied a promotion because of his race. His immediate supervisor,
defendant Mazur, was informed of his complaints and met with human resources regarding the
allegations. Following this meeting, Mazur asked Outley to submit proof of a medical condition,
which he did. Nonetheless, Mazur requested a pre-disciplinary hearing for insubordination,
alleging that Outley had failed to provide the requested proof. Following these events, on
October 12, 2012, Outley filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC) alleging that he had been denied a promotion on the basis of
race.
Less than a month later, Mazur again accused Outley of insubordination, along with
“failure to perform work” and “conduct unbecoming” regarding an incident that allegedly
occurred on September 11, 2012, and requested another pre-disciplinary hearing. (Dkt. 48 at 5.)
Outley requested to work on Thanksgiving Day in 2012 and was denied an overtime
opportunity. Several days later, on December 2, 2012, the EEOC sent Outley a right to sue
letter. On December 13, Mazur requested a third pre-disciplinary hearing for “insubordination,
violation of safety protocols and violation of a written directive.” (Id.) At the time Outley filed
his complaint he had not yet had a disciplinary hearing or received any disciplinary action based
on Mazur’s three pre-disciplinary hearing requests. These requests remain pending.
In March 2013, an Assistant Chief Operating Engineer, Chris Houlihan, made racially
charged and intimidating threats to Outley. Houlihan told Outley that he had been transferred to
the Lexington pumping station to intimidate and threaten Outley. Shortly afterwards, Outley was
transferred against his wishes to the Mayfair pumping station, and then transferred to the Jardine

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pumping station. He requested to be returned to the Lexington station, and his request was
ignored by defendants.
On May 9, 2013, Outley filed a second charge with the EEOC, alleging retaliation based
on his complaints to human resources and the EEOC. The EEOC sent him a right to sue letter on
his second charge on August 13, 2013. Finally, Outley filed a third charge on October 25, 2013
with the EEOC, again alleging retaliation, after the City of Chicago conducted an administrative
investigation. He received a right to sue letter based on that charge in January 2014.
Outley alleges that defendants have shown a pattern and practice of discrimination and
retaliation against him. He alleges that defendants acted willfully and in bad faith and seeks
compensatory damages, prejudgment interest, attorneys’ fees and costs.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a
claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v.
Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). In ruling on a Rule
12(b)(6) motion, the court takes as true all facts in the complaint and draws all reasonable
inferences in favor of the non-moving party. Dixon v. Page, 291 F.3d 485, 486–87 (7th Cir.
2002). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant
with fair notice of the claim’s basis but must also establish that the requested relief is plausible
on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d
929 (2007). “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.” Iqbal, 556 U.S. at 678. That is, the allegations in the complaint must be “enough to

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raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. At the same time,
the plaintiff need not plead legal theories; it is the facts that count. Hatmaker v. Mem’l Med.
Ctr., 619 F.3d 741, 743 (7th Cir. 2010); see also Johnson v. City of Shelby, 574 U.S. ---, 135 S.
Ct. 346, 346, --- L. Ed. 2d --- (2014) (per curiam) (“Federal pleading rules call for ‘a short and
plain statement of the claim showing the pleader is entitled to relief’ . . . . [T]hey do not
countenance dismissal of a complaint for imperfect statement of the legal theory supporting the
claim asserted.”).
ANALYSIS
I.

Validity of Outley’s Title VII claims
A.

Whether Outley’s Failure to Promote Claims are Within the Scope of His

EEOC Charges
Defendants argue that Outley’s failure to promote claims, with the exception of the
October 2012 instance referenced in his first charge, should be dismissed because they are
beyond the scope of his EEOC charges. Generally, “a Title VII plaintiff cannot bring claims in a
lawsuit that were not included in her EEOC charge.” Cheek v. W. & S. Life Ins. Co., 31 F.3d
497, 500 (7th Cir. 1994). This exhaustion requirement has two purposes: to promote resolution
of the dispute by settlement and to ensure that defendants receive adequate notice of the charges
against them. Id.; see also Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 550 (7th
Cir. 2002). Courts must keep in mind, however, both the goals of Title VII and the fact that
EEOC charges are generally submitted without legal counsel. Cheek, 31 F.3d at 500. A Title
VII plaintiff is not required to allege in an EEOC charge each and every fact that supports his or
her complaint. Welch v. Cook County Clerk’s Office, 36 F. Supp. 2d 1033, 1038 (N.D. Ill.
1999). Rather, additional claims must be “reasonably related to the allegations” included in the

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EEOC charge. Id. “This standard is a liberal one.” Teal v. Potter, 559 F.3d 687, 692 (7th Cir.
2009). The claims are sufficiently related if the allegations describe the same conduct and
involve the same individuals. Id.; see also Lacy v. Americtech Mobile Comm. Inc., 965 F. Supp.
1056, 1063-64 (N.D. Ill. 1997) (allegations of prior instances of failure to promote were found to
be within the scope of the plaintiff’s EEOC charge.)
Here, Outley’s October 12, 2012 EEOC charge alleged that defendants failed to promote
him based on his race. The prior instances of failure to promote (1994, 2010 and 2011) are
allegations of the same conduct by the same individuals and are therefore within the scope of
Outley’s first EEOC charge.
B. Whether Outley States a Claim for Retaliation
To establish a plausible Title VII claim for retaliation, a plaintiff must allege (1) that he
participated in a protected activity, (2) that he suffered an adverse employment action, and (3)
that there is a causal connection between the protected activity and the adverse employment
action. Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005) (citations omitted). It is
undisputed that Outley engaged in protected activity by complaining to the City’s Department of
Human Resources and filing charges of discrimination. Defendants argue Outley’s allegations
are not sufficiently material to be considered adverse employment actions.
At this stage in litigation, a plaintiff need only plead “facts to create an inference of a
plausible claim,” he need not “prove a prima facie retaliation claim.” Vega v. Chicago Park
Dist., 958 F. Supp. 2d 943, 955 (N.D. Ill. 2013) (citation omitted). In Outley’s complaint, he
alleges that he was “threatened,” accused of insubordination, denied overtime opportunities,
transferred to a less desirable work location, and that pre-disciplinary hearings were called
threatening his employment. (Compl. at 30, 54.) “Adverse actions can come in many shapes

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and sizes.” Knox v. State of Ind., 93 F.3d 1327, 1334 (7th Cir. 1996). Whether something
constitutes an adverse employment action is fact-specific and therefore more appropriate for
summary judgment. Morris v. City of Chicago, 2011 WL 5868162 3 (N.D. Ill. 2011) (noting
that “before a court can determine whether an adverse action rises to the level required by the
statute, there needs to be greater factual development of the claim”). Indeed, the cases cited by
defendants on this issue were decided after discovery and are factually distinguishable from the
case at hand. See Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993);
Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53, 68 (2006); Claude v. American Stores
Co., 76 F. Supp. 2d 883, 885 (N.D. Ill. 1999); Roney v. Ill. Dept. of Transp., 376 F. Supp. 2d
857, 866-67 (N.D. Ill. 2005). Outley has sufficiently pleaded that he suffered an adverse
employment action.
Defendants also maintain that Outley has not alleged a “but-for” causal connection. A
plaintiff must also plead he was retaliated against as a result of his protected activity. Vega v.
Chicago Park Dist., 958 F. Supp. 2d 943, 955 (N.D. Ill. 2013). Circumstantial evidence, such as
suspicious timing, can support an inference of retaliation. Id. Outley alleges in his complaint
that the threats of discipline, intimidation, denial of overtime, location transfer and other adverse
employment actions occurred after his October 2012 complaint with Human Resources.
Furthermore, Outley explicitly alleges that these actions were a direct result of his complaints of
discrimination. (Compl. ¶¶ 46, 47). For these reasons, Outley has sufficiently states a valid
claim for retaliation.
C.

Whether Outley’s Title VII Claims are Time-Barred

To bring a Title VII claim, a plaintiff must file a charge with the EEOC within 180 or 300
days of the alleged unlawful employment practice, depending on the state. 42 U.S.C. § 2000e-

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5(e)(1). The charging period in Illinois is 300 days. Groesch v. City of Springfield, 635 F.3d
1020, 1024 n.2 (7th Cir. 2011) (citations omitted). The time period begins to run when the
defendant has taken the action complained of and the plaintiff knows of the injury. Sharp v.
United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001).
Defendants correctly argue that any Title VII failure to promote discrimination claims of
conduct occurring prior to December 17, 2011 (300 days prior to his October 2012 EEOC
charge) are time barred. Outley attempts to save the time-barred claims with the continuing
violation doctrine, which operates to allow what would otherwise be time-barred allegations to
be brought in a complaint if the time-barred acts are linked to a timely discriminatory act.
Welch v. Cook County Clerk’s Office, 36 F. Supp. 2d 1033, 1039-40 (N.D. Ill. 1999). The
continuing violation doctrine does not apply to discrete events, which must be filed within the
limitations period. Lucas v. Chicago Transit Auth., 367 F.3d 714, 724 (7th Cir. 2004). The
Supreme Court has explained that if a plaintiff complains of discrete acts, each act “starts a new
clock for filing charges,” and the clock starts on the date that the act took place. Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 102, 122 S. Ct. 2061, 2066, 153 L. Ed. 2d 106 (2002)
(“[D]iscrete acts that fall within the statutory time period do not make timely acts that fall
outside the time period.”). The Court has specifically noted “failure to promote” as an example
of a discrete act. Id. at 114. Therefore, conduct that occurred prior to December 17, 2011 is not
actionable.
Outley claims that the alleged retaliation began in October 2012, and therefore his
retaliation claim falls well within the actionable time period, as he filed his retaliation-related
EEOC charge within 300 days on May 9, 2013.

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D.

Whether Defendants Are Personally Liable Under Title VII

Individual defendants cannot be held personally liable under Title VII. Gastineau v.
Fleet Mortg. Corp., 137 F.3d 490, 493-94 (7th Cir. 1998). Outley’s complaint implicates the
individual defendants Stark, Powers and Mazur in Counts I and II, which are both based on Title
VII. Counts I and II are therefore dismissed as to the individual defendants.
II.

Validity of Outley’s §§ 1981 and 1983 Claims
A.

Whether Outley’s §§ 1981 and 1983 Claims are Time-Barred

Section 1981 claims are subject to a four-year statute of limitations. Dandy v. United
Parcel Service, Inc., 388 F.3d 263, 269 (7th Cir. 2004). Outley does not complain of any
conduct relevant to his § 1981 claim that occurred prior to February 28, 2009. Thus, his § 1981
claim (Count III) is timely under the statute of limitations.
Section 1983 claims are subject to a two-year statute of limitations. Harris v. Illinois,
753 F. Supp. 2d 734, 740 (N.D. Ill. 2010). Here, the two-year period began on February 28,
2011. Conduct that occurred prior to that date would be untimely, unless the continuing
violation doctrine applies. As discussed above, the continuing violation doctrine allows a
plaintiff to bring in conduct that falls outside of the statute of limitations if that conduct can be
linked to timely conduct. Welch v. Cook County Clerk’s Office, 36 F. Supp. 2d 1033, 1039-40
(N.D. Ill. 1999). Because Outley only alleges incidents of failure to promote to support his racial
discrimination claims, the continuing violation doctrine does not apply here. See supra Part I.C;
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 102, 122 S. Ct. 2061, 2066, 153 L. Ed. 2d
106 (2002). Conduct that occurred prior to February 28, 2011 is time-barred for purposes of
Outley’s § 1983 claim.

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B.

Whether Outley States a Claim Against the City

To validly state a claim for municipal liability under § 1983, 3 a plaintiff must allege that
the violation of his rights was caused by either (1) an express municipal policy; (2) a widespread
municipal custom that, although not authorized by written law or express municipal policy, is so
permanent and well-settled as to constitute a custom or usage with the force of law; or (3) a
person with final policymaking authority. McCormick v. City of Chicago, 230 F.3d 319, 324
(7th Cir. 2000). “[M]unicipal liability is limited to action for which the municipality is actually
responsible.” Waters v. City of Chicago, 580 F.3d 575, 580 (7th Cir. 2009) (citations omitted).
Outley alleges that individual defendants Powers and Stark have “ultimate policy making
authority.” (Compl. ¶ 23.) Whether a city official has “final policymaking authority” is
determined by state law. Limes-Miller v. City of Chicago, 773 F. Supp. 1130, 1136 (N.D. Ill.
1991). According to Illinois law, only the City Council and its Department of Personnel have
the authority to determine City employment policy. Id. Plaintiff has not alleged that either of
those entities took or sanctioned action against him.
Moreover, while Outley does allege there are no minorities in the position of Chief
Operating Engineer (Compl. ¶ 12), he does not allege that any other person was denied a
promotion on the basis of race. He has not pleaded any specific facts to support a widespread
custom of discrimination. Therefore, Outley has not alleged a plausible claim against the city
under § 1983 or § 1981, and those claims are dismissed as to the Defendant City of Chicago.
C.

Whether Outley States a Claim Against the Individual Defendants

Personal liability under § 1981 must be based on a defendant’s personal involvement.
Petrovic v. Enterprise Leasing Co. of Chicago, LLC., No. 12 C 3779, 2013 WL 1200220 at *2
3

There is no claim under § 1981 against a municipality. De v. City of Chicago, 912 F. Supp. 2d
709, 725 (N.D. Ill. 2012). Instead, a plaintiff must “assert a cause of action against state actors under §
1983 to remedy violations of the civil rights secured by § 1981.” Id.
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(7th Cir. 2013). The same is true for § 1983. Gossmeyer v. McDonald, 128 F.3d 481, 494-95
(7th Cir. 1997). Contrary to defendants’ argument, Outley alleges that each individual
defendants was personally involved in the decision to deny him a promotion. Specifically, he
alleges that “Defendants Stark, Powers and Mazur, in their respective capacities as decision
makers over Plaintiff’s performance evaluations and promotions, caused or participated in the
deprivation of Plaintiff’s rights under 42 U.S.C. § 1981.” (Compl. ¶ 61). This paragraph was
incorporated by reference into Count IV, his § 1983 claim. These allegations are sufficient to
survive a motion to dismiss.
D.

Whether Retaliation is Actionable Under the Equal Protection Clause

The Equal Protection Clause does not guarantee the right to be free from retaliation.
Boyd v. Ill. St. Police, 384 F.3d 888, 898 (7th Cir. 2004) (citations omitted). Therefore, to the
extent Outley’s § 1981 and § 1983 claims (Counts III and IV, respectively) invoke retaliation,
they are dismissed. Possible recovery for alleged retaliation is limited to Outley’s Title VII
claims, specifically Count II.
III.

Punitive Damages
Municipalities are immune from liability for punitive damages under § 1983. See City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L. Ed. 2d 616
(1981). The same is true for both § 1981 and Title VII. See Ferguson v. Joliet Mass Transit
Dist., 526 F. Supp. 222, 224 (N.D. Ill. 1981); Adams v. City of Chicago, 865 F. Supp. 445, 447
(N.D. Ill. 1994). This immunity may be waived by either federal or state law. Kolar v. County
of Sangamon, 756 F.2d 564, 567 (7th Cir.1985). Illinois, however, has reaffirmed immunity for
its local governments. See 745 ILCS 10/2–102. Therefore, to the extent that Outley’s complaint
seeks punitive damages against defendant City of Chicago, it is stricken.

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CONCLUSION AND ORDER
For the foregoing reasons, Outley’s Title VII claims (Counts I and II) are dismissed with
prejudice as to the individual defendants. Conduct that occurred prior to December 17, 2011 is
time-barred for the purposes of Outley’s Title VII claims. Outley’s §§ 1981 and 1983 claims
(Counts III and IV) are dismissed without prejudice as to the city, and to the extent they are
based on retaliation. Conduct that occurred prior to February 28, 2011 is time-barred for
purposes of Count IV. Outley’s request for punitive damages is stricken from the complaint.
Defendant City of Chicago is directed to answer Counts I and II, limited to conduct that
occurred later than December 17, 2011. Individual defendants are directed to answer Counts III
and IV (Count IV is limited to conduct that occurred later than February 28, 2011).

Date: March 10, 2015
_____________________________
U.S. District Judge Joan H. Lefkow

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