Arce v. Cardoff et al

Filing 103

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 6/2/2015.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ISRAEL ARCE,
Plaintiff,
vs.
CHICAGO TRANSIT AUTHORITY, TIMOTHY
CARDUFF, and DANIEL MURPHY,
Defendants.

)
)
)
)
)
)
)
)
)
)

14 C 102
Judge Feinerman

MEMORANDUM OPINION AND ORDER
In December 2012, Israel Arce retired—involuntarily, he claims—from the Chicago
Transit Authority (“CTA”), where he had worked since 1998 as a service truck driver. In
January 2014, he sued CTA and two supervisors, Daniel Murphy and Timothy Carduff, for a
variety of alleged wrongs. Doc. 1. Arce filed an amended complaint in February 2014, Doc. 8;
Defendants moved to dismiss the amended complaint, Doc. 21, and Arce elected to file a second
amended complaint rather than litigate to completion the motion to dismiss, Doc. 44. The
second amended complaint alleges that Defendants discriminated against Arce based on his race
and national origin (he is Puerto Rican), created a hostile work environment, and forced him to
retire because of back injuries he suffered on the job, in violation of 42 U.S.C. § 1981, Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., and the Fifth and Fourteenth Amendments to the United
States Constitution. Doc. 44. The second amended complaint also alleges that CTA
intentionally and negligently inflicted emotional distress. Ibid. Defendants have moved under
Federal Rule of Civil Procedure 12(b)(6) to dismiss the suit. Doc. 54. The motion is granted in
part and denied in part.

1

Background
On a motion to dismiss under Rule 12(b)(6), the court must accept the operative
complaint’s well-pleaded factual allegations, with all reasonable inferences drawn in Arce’s
favor, but not its legal conclusions. See Smoke Shop, LLC v. United States, 761 F.3d 779, 785
(7th Cir. 2014); Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). The court must also
consider “documents attached to the complaint, documents that are critical to the complaint and
referred to in it, and information that is subject to proper judicial notice,” along with additional
facts set forth in Arce’s brief opposing dismissal, so long as those additional facts “are consistent
with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013)
(internal quotation marks omitted) (quoting Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1
(7th Cir. 2012)). The facts are set forth as favorably to Arce as those materials permit. See
Meade v. Moraine Valley Cmty. Coll., 770 F.3d 680, 682 (7th Cir. 2014); Gomez v. Randle, 680
F.3d 859, 864 (7th Cir. 2012).
Arce joined CTA in January 1998 as a truck driver, reporting to Murphy. Doc. 44 at
pp. 2-3, ¶¶ 8, 21. Arce had previously worked for the Chicago Public School system, and while
there had received workers’ compensation benefits for an injury. Id. at p. 5, ¶ 32. Upon learning
this fact, Carduff (at the time not a manager) told other drivers that Arce was “a useless Puerto
Rican, a Puerto Rican scammer, and a workman’s compensation train wreck.” Ibid. Carduff
also pretended Arce’s first name was “Egypt.” Ibid. Carduff and Murphy are white. Id. at
pp. 2-3, ¶¶ 13, 15. Sometime in 1998, Arce hurt his back on the job; but when he returned to
work in September of that year, Murphy refused to assign him to drive a truck, instead making
him change truck tires and pick up wheels without assistance. Id. at p. 5-6, ¶ 33. Yet when at

2

least four white employees returned from similar injuries, they were each given “light duty” or
even no assignments. Id. at p. 6, ¶ 34.
Arce hurt his back again at some point; in 2005, while recovering, he was assigned to a
truck that allowed noxious fumes from the exhaust to enter the truck cabin, causing him to suffer
a headache and nausea. Id. at p. 12, ¶ 64. In June 2007, Arce again hurt his lower back on the
job. Id. at p. 3, ¶¶ 22-23. Carduff, by then Arce’s direct supervisor, id. at p. 2, ¶ 12, and Murphy
had assigned Arce to drive a “front loader” that lacked adequate suspension and “bounced
vigorously,” aggravating his lower back injuries. Id. at p. 12, ¶¶ 65-66. It is unclear from the
operative complaint how much time (if any) Arce missed due to the June 2007 injury, but in
January 2008 Murphy and Carduff demanded that he return to work on full duty without
restrictions. Id. at p. 9, ¶ 51. Whether Arce returned at that time and was subsequently reinjured,
or whether he never returned, is also unclear; the complaint states simply that Arce was ready to
return to work in October 2009. Id. at p. 6, ¶ 37. Arce had requested an accommodation for his
injuries, and CTA had offered to limit his work assignments to those requiring that he lift no
more than 70 pounds occasionally and 35 pounds frequently. Id. at p. 10, ¶ 56. Murphy and
Carduff, however, never told Arce about the offer, and so he returned to work without
restrictions and his accommodation request was “withdrawn” without his knowledge. Id. at
pp. 10-11, ¶¶ 57-58.
Upon returning to work in late October 2009, and pursuant to a clause in the union’s
collective bargaining agreement that allowed workers to select their trucks in order of seniority,
Arce asked to be assigned to Truck 262, which he felt had “stable seating and [a] good
suspension … that would not aggravate his previous injury.” Id. at pp. 6-7, ¶ 37. Immediately
after Arce made his selection, however, Carduff removed Truck 262 from service “for an oil

3

change”; the truck remained out of service for seven weeks, and Arce was forced to drive
another truck. Id. at p. 7, ¶ 39. Carduff then “publicly bet $20.00 … that [Arce] would not last
until Christmas.” Id. at p. 11, ¶ 62. On January 7, 2010, Carduff assigned Arce to drive a truck
with a broken seat and stiff suspension; Arce suffered what wound up being a “career ending
injury” to his tailbone as a result. Id. at p. 7, ¶¶ 40, 42. Truck 262 was returned to service the
next day. Id. at p. 7, ¶ 41.
In May 2010, a CTA doctor determined that Arce was medically capable of returning to
work, and so CTA stopped paying Arce disability benefits. Id. at p. 8, ¶ 44. Arce wanted to
return to work in November 2010, but Murphy and Carduff refused to allow him his pick of
trucks at that time. Id. at p. 8, ¶¶ 43, 45. Arce had been assigned to “Area 605” (a designation
for injured workers on disability leave, id. at p. 8, ¶ 47), and Murphy and Carduff believed that
under the collective bargaining agreement, workers in Area 605 did not have the right to pick
trucks based on seniority. Id. at p. 8, ¶ 45. Yet they allowed at least one white employee in Area
605 to pick his vehicle. Id. at p. 8, ¶ 46.
In October 2012, a CTA benefits officer told Arce that he would soon lose his benefits
unless he retired and began collecting a disability pension. Id. at p. 16, ¶ 81; id. at p. 28, ¶ 34.
On November 7, 2012, Larry Wall, general manager of the CTA benefits department, told Arce
that if he did not return to work by January 7, 2013, he would be discharged. Id. at p. 16, ¶ 82.
Arce requested to be put on light duty, but Wall denied that request on December 4, 2012. Id. at
p. 16, ¶ 83. Arce then retired from CTA sometime between December 31, 2012, and January 7,
2013. Id. at p. 2, ¶ 9 (listing a retirement date “on or about December 31, 2012”); Doc. 44-4 at 2
(alleging that “[o]n January 7, 2013, I was forced into retirement”).

4

Meanwhile, on December 19, 2012, Arce filed a charge with the Illinois Department of
Human Rights (“IDHR”) and U.S. Equal Employment Opportunity Commission (“EEOC”). Id.
at p. 16, ¶ 84; Doc. 44-2. (For ease of exposition, the court will refer to Arce’s various charges
as EEOC charges, with the understanding that they were also filed with IDHR.) The charge
alleged that Wall’s November 7, 2012 ultimatum amounted to harassment on the basis of Arce’s
disability and was in retaliation for a 2009 complaint that Arce had made. Doc. 44-2 at 1-2.
Wall’s stated reason for the ultimatum was that Arce “ha[d] been in an inactive employment
status in excess of the maximum time permitted.” Id. at 2. The charge also alleged that Wall’s
December 4, 2012 refusal to assign Arce to light duty violated CTA’s obligation to
accommodate Arce’s disability, and was done on the basis of Arce’s race and national origin. Id.
at 3-4. Wall’s stated reason for denying the light duty request was that “there was no alternate
position available.” Id. at 3.
EEOC sent Arce a right-to-sue letter on June 2, 2014. Doc. 44-1. In the meantime, Arce
filed two more EEOC charges; the first, dated March 27, 2013, alleged that he was forced into
retirement on January 7, 2013, on the basis of his race, national origin, and disability. Doc. 44-4.
CTA’s stated reason for forcing him to retire, according to Arce, was his “inability to return to
work in full duty status because [he] was a threat because of the medication [he] took.” Id. at 2.
Arce received a right-to-sue letter for that charge on June 17, 2014. Doc. 44-3. The other
charge, filed on July 3, 2013, alleged that Arce was forced into retirement on the basis of his age
(64 at the time). Doc. 44-6. Although Arce received a right-to-sue letter on this charge on June
5, 2014, Doc. 44-5, he does not allege age discrimination in the operative complaint, Doc. 44.
Arce filed this lawsuit on January 7, 2014. Doc. 1.

5

Discussion
I.

Title VII and ADA Claims
Counts 2 and 3 of the second amended complaint allege that CTA created a hostile work

environment on the basis of Arce’s race and national origin; Counts 4, 5, and 6 allege that CTA
forced Arce to retire because of his race, national origin, and disability. Doc. 44. Defendants
argue that those claims should be dismissed as time barred or, equivalently, for failure to exhaust
administrative remedies. Doc. 55 at 5-6, 10-11.
“An individual wishing to challenge an employment practice under [Title VII] must first
file a charge with the EEOC. Such a charge must be filed within a specified period (either 180 or
300 days, depending on the State) after the alleged unlawful employment practice occurred, and
if the employee does not submit a timely EEOC charge, the employee may not challenge that
practice in court.” Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 623-24 (2007)
(internal quotation marks and citations omitted), superseded by statute with respect to
compensation practices, Pub. L. No. 111-2, 123 Stat. 5 (Jan. 29, 2009); see Hill v. Potter, 352
F.3d 1142, 1145 (7th Cir. 2003) (same); 42 U.S.C. § 2000e-5(f)(1). “In Illinois, the charging
period is 300 days.” Groesch v. City of Springfield, 635 F.3d 1020, 1024 n.2 (7th Cir. 2011).
These requirements apply equally to discrimination claims under the ADA. See 42 U.S.C.
§ 12117(a) (adopting Title VII’s requirements); Flannery v. Recording Indus. Ass’n of Am., 354
F.3d 632, 637 (7th Cir. 2004) (“In Illinois, an employee may sue under the ADEA or ADA only
if he files a charge of discrimination with the EEOC within 300 days of the alleged ‘unlawful
employment practice.’”). In short, a Title VII or ADA “plaintiff cannot bring claims in a lawsuit
that were not included in h[is] EEOC charge.” Lavalais v. Vill. of Melrose Park, 734 F.3d 629,
634 (7th Cir. 2013) (internal quotation marks omitted).

6

Two of Arce’s EEOC charges are pertinent to the Title VII and ADA claims. Docs. 44-2,
44-4. That Arce did not have right-to-sue letters in hand when he filed this suit is immaterial,
now that he has the letters. See Worth v. Tyer, 276 F.3d 249, 259 (7th Cir. 2001) (holding that
because a right-to-sue letter is not jurisdictional, obtaining one after filing suit suffices to defeat a
motion to dismiss) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). But
the allegations in his EEOC charges are limited to alleged conduct on just three dates: November
7, 2012 (Wall’s telling Arce that he would be discharged if he did not return to work by January
7); December 4, 2012 (Wall’s denial of Arce’s request for light duty); and January 7, 2013 (the
date of Arce’s forced retirement). Docs. 44-2, 44-4.
“[C]laims brought in judicial proceedings must be within the scope of the charges filed
with the EEOC[.]” Conner v. Ill. Dep’t of Natural Res., 413 F.3d 675, 680 (7th Cir. 2005).
Accordingly, “an aggrieved employee may not complain to the EEOC of only certain instances
of discrimination, and then seek judicial relief for different instances of discrimination.” Ibid.
(internal quotation marks and alteration omitted). Yet in alleging various instances of
discriminatory conduct not included in the EEOC charges—conduct that in fact predates
February 23, 2012, and is thus outside the 300-day limitations period—Arce’s operative
complaint attempts to do just that. That is improper. See Brown v. Ill. Dep’t of Natural Res.,
499 F.3d 675, 681 (7th Cir. 2007) (“Brown is time-barred from filing suit under Title VII for any
‘discrete act’ about which he did not file an EEOC charge within the 300-day EEOC charging
deadline.”).
To be sure, “a plaintiff can still bring claims not included in the EEOC charge if they are
like or reasonably related to the allegations of the EEOC charge and growing out of such
allegations.” Lavalais, 734 F.3d at 634 (internal quotation marks, alterations, and citations

7

omitted). But that principle applies only to otherwise timely allegations; “[d]iscrete
discriminatory acts are not actionable if time barred, even when they are related to acts alleged in
timely filed charges.” Adams v. City of Indianapolis, 742 F.3d 720, 730 (7th Cir. 2014) (internal
quotation marks omitted) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002)); see Morgan, 536 U.S. at 114 (“While Morgan alleged that he suffered from numerous
discriminatory and retaliatory acts from the date that he was hired through March 3, 1995, the
date that he was fired, only incidents that took place within the timely filing period are
actionable.”).
In an effort to deal with this problem, Arce seeks leave to replead, averring that he has
since amended his EEOC charge to include conduct dating back to 1998. Doc. 61 at 8. Labor
Department regulations allow EEOC charges to be amended, but only “to cure technical defects
or omissions” or to “clarify and amplify allegations made” in the original charge. 29 C.F.R.
§ 1601.12(b). Adding entirely new allegations satisfies neither criterion. See Cheek v. W. & S.
Life Ins. Co., 31 F.3d 497, 502 (7th Cir. 1994) (holding that 29 C.F.R. § 1601.12(b) does not
permit a plaintiff to add conduct not reasonably related to that alleged in the original EEOC
charge). Moreover, Arce cites no authority to suggest that adding new allegations outside the
300-day window is permitted by rule or statute; indeed, Arce’s position would render the 300day limitations period meaningless.
Slightly more promising is Arce’s invocation of the “continuing violation” doctrine,
which he says rescues his otherwise untimely allegations. The Supreme Court in Morgan
acknowledged that “[h]ostile environment claims are different in kind from discrete acts. Their
very nature involves repeated conduct.” 536 U.S. at 115. Therefore, said the Court, “[i]n order
for the charge to be timely, the employee need only file a charge within … 300 days of any act

8

that is part of the hostile work environment.” Id. at 118 (emphasis added). The problem,
however, is that the allegations in Arce’s EEOC charges do not plausibly suggest a hostile work
environment. Instead, the charges mention only three discrete acts: the threatened termination on
November 7; the light-duty assignment refusal on December 4; and the forced retirement on
January 7. Even taken together, those acts are insufficient to establish a viable hostile work
environment claim. The Seventh Circuit has, it its own words, “on many occasions distinguished
between harassing and merely objectionable conduct”:
See, e.g., Hilt-Dyson [v. City of Chicago], 282 F.3d [456,] 463-64 [(7th Cir.
2002)] (holding that plaintiff’s allegations that supervisor rubbed her back,
squeezed her shoulder and stared at her chest during a uniform inspection
while telling her to raise her arms and open her blazer were isolated incidents
that, even when taken together, did not create a sufficient inference of a
hostile work environment); Patt v. Family Health Sys., Inc., 280 F.3d 749, 754
(7th Cir. 2002) (holding that plaintiff’s complaints of eight gender-related
comments during course of her employment, including that “the only valuable
thing to a woman is that she has breasts and a vagina,” insufficient to
demonstrate hostile work environment); Adusumilli v. City of Chicago, 164
F.3d 353, 361-62 (7th Cir. 1998) (finding plaintiff’s complaints of teasing,
ambiguous comments about bananas, rubber bands and low-neck tops, staring
and attempts to make eye contact and four isolated incidents where a coworker briefly touched her arm, fingers or buttocks did not constitute sexual
harassment).
With these precedents in mind, we conclude that the incidents that occurred
prior to Copenharve’s physical assault of McPherson on March 21, 2001,
although boorish, do not constitute the severe or pervasive conduct necessary
to create an objectively hostile work environment in violation of Title VII.
While Copenharve’s inquiries about what color bra McPherson was wearing,
his suggestive tone of voice when asking her whether he could “make a house
call” when she called in sick and the one occasion when he pulled back her
tank top with his fingers were lamentably inappropriate, we agree with the
district court that, due to the limited nature and frequency of the objectionable
conduct, a hostile work environment did not exist until the March 21, 2001
assault.
McPherson v. City of Waukegan, 379 F.3d 430, 438-39 (7th Cir. 2004) (paragraph break added).
Even construed in a light most favorable to Arce, the EEOC charges describe at worst
only “objectionable” conduct. After all, his sole allegation of “harassment,” the November 7
9

ultimatum, acknowledges that Wall’s stated reason was “because [Arce] ha[d] been in an
inactive employment status in excess of the maximum time permitted.” Doc. 44-2 at 2. Maybe
that reason was pretextual, and maybe it states a discrete violation of Title VII or the ADA, but it
hardly amounts to the sort of repugnant behavior the Seventh Circuit described in McPherson
and the cases cited therein—behavior that was held not to be egregious enough to make out a
hostile work environment claim. See McPherson, 379 F.3d at 438-39. Moreover, “[a] plaintiff
bringing a hostile environment claim must establish that the workplace was both subjectively and
objectively offensive.” Ezell v. Potter, 400 F.3d 1041, 1047 (7th Cir. 2005). Given that Arce
was not even working in 2012, it is hard to see how he can plausibly allege that the “workplace
was both subjectively and objectively offensive” during that time. Absent plausible hostile work
environment allegations in the EEOC charges, Arce is barred from recovery on that theory. See
Lavalais, 734 F.3d at 635 (“Nothing in Lavalais’s … EEOC charge fairly suggests a hostile work
environment, so such a claim fails.”); Hottenroth v. Vill. of Slinger, 388 F.3d 1015, 1035 (7th
Cir. 2004) (holding that the plaintiff’s hostile work environment claim was barred because “the
facts and allegations set forth in Hottenroth’s final two EEOC filings do not rise to the level of
cognizable hostile workplace claims”).
Even were the court to overlook Arce’s failure to include true hostile work environment
allegations in his EEOC charges, the continuing violation doctrine still would not save his hostile
work environment claims. The most egregious conduct described in the operative complaint
dates back to 1998, when Carduff—not even a supervisor at the time—labeled Arce a “useless
Puerto Rican” and called him by the wrong first name. But under Seventh Circuit precedent,
which of course binds this court, “[t]he mere utterance of a racial epithet that engenders
offensive feelings does not sufficiently affect the conditions of employment to create a hostile

10

work environment.” Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 997 (7th Cir. 2002); see
Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 601 (7th Cir. 2014) (“We have stated
that while there is no ‘magic number of slurs’ that indicates a hostile work environment, an
‘unambiguously racial epithet falls on the “more severe” end of the spectrum.’ However, while
referring to colleagues with such disrespectful language is deplorable and has no place in the
workforce, one utterance of the n-word has not generally been held to be severe enough to rise to
the level of establishing liability.”) (citation omitted). In any event, Arce’s other allegations are
far too spread out in time to allow stringing them together for purposes of the continuing
violation doctrine. Following Carduff’s inexcusable 1998 insults, Arce alleges a 2005
assignment to a cab with noxious fumes, a 2007 assignment to drive a front loader, and a few
incidents in late 2009: denying him an accommodation, taking Truck 262 out of service, and
Carduff’s betting $20 that Arce would not last until Christmas. Discrete incidents separated by
such lengthy gaps cannot be strung together to form a single hostile work environment claim.
See Lucas v. Chicago Transit Auth., 367 F.3d 714, 727 (7th Cir. 2004) (holding that a three-year
gap between incidents defeats a continuing violation claim); Tinner v. United Ins. Co. of Am.,
308 F.3d 697, 708-09 (7th Cir. 2002) (holding that a one-year gap was too long in part because
“if the employee knew, or with the exercise of reasonable diligence should have known, that
each act, once completed, was discriminatory, the employee must sue upon that act within the
relevant statutory period”) (citing Morgan, 536 U.S. at 112-13); Selan v. Kiley, 969 F.2d 560,
567 (7th Cir. 1992) (holding that a two-year gap was too long). Counts 2 and 3 are therefore
dismissed.
Counts 4, 5, and 6, by contrast, survive. For the reasons described above, Defendants are
correct that Arce may not recover for any alleged acts in violation of the ADA or Title VII that

11

predate February 23, 2012. Yet Arce did allege at least some post-February 23, 2012 acts that
are plausibly discriminatory. Count 4 alleges discrimination on the basis of Arce’s disability; his
first EEOC charge timely alleged that Defendants violated the ADA by refusing to assign him to
light duty on December 4, 2012. Doc. 44-2. Count 5 alleges that Defendants retaliated against
Arce for his complaints about the workplace. Doc. 44 at p. 23, ¶¶ 29-30. True, Arce’s first
EEOC charge improbably suggests that the November 7, 2012 ultimatum was in retaliation for
Arce’s 2009 complaint (Defendants patiently laid in wait for three years to get their revenge?),
Doc. 44-2, and Count 5 makes non-specific allegations of retaliation, Doc. 44 at p. 22, ¶ 24
(“Plaintiff frequently from on or about 1998 through 2013 complained about harassing
treatment”); id. at p. 23, ¶ 29 (“Plaintiff was subjected to a constant barrage of threats from
Carduff and Murphy including that if Plaintiff complained about overtime or other terms he
would be put on the dark side.”). Yet the EEOC charge at least mentions retaliation, thereby
giving Defendants and the EEOC some notice of the claim. Cf. Cheek, 31 F.3d at 502 (noting an
EEOC charge’s “dual purpose of giving [Defendant] notice of the factual basis for the claims of
sex discrimination in [Plaintiff’s] complaint, and of affording the EEOC an opportunity to
investigate the claims.”). And the operative complaint, although admittedly in support of Count
7, not Count 5, alludes to Defendants’ retaliating against Arce for April 2012 testimony on
behalf of a union steward who had also alleged workplace discrimination. Doc. 44 at p. 27, ¶ 27.
Although the issue is close, Count 5 survives dismissal.
Count 6 alleges that Arce was “constructive[ly] discharge[d]” on the basis of his race or
national origin. A constructive discharge “address[es] situations in which employers coerce[]
employees to resign, often by creating intolerable working conditions, in retaliation for
employees’ engagement in protected activities.” Pa. State Police v. Suders, 542 U.S. 129, 141

12

(2004). As the Seventh Circuit put it: “Constructive discharge refers to a situation in which an
employee is not fired but quits, but in circumstances in which the working conditions have made
remaining with this employer simply intolerable.” McPherson, 379 F.3d at 440 (internal
quotation marks omitted); see also Note, “That’s It, I Quit: Returning to First Principles in
Constructive Discharge Doctrine,” 23 Berkeley J. Emp. & Lab. L. 401, 443 (2002) (“The point of
constructive discharge is to recognize that an employer is responsible for deliberately creating
working conditions so intolerable that a reasonable person would be forced to resign.”), cited in
Suders, 542 U.S. at 142.
Dismissal of Count 6 would be inappropriate in light of Arce’s allegations that he was
physically incapable of returning to work in November 2012 without an accommodation, which
Defendants refused to grant, and that facing a looming January 7, 2013 deadline to choose either
retirement or the loss of his benefits, he quit. Doc. 44 at p. 24, ¶¶ 25-27. Under these
circumstances, it seems unreasonable to require Arce to have “remain[ed] employed while
seeking redress,” McPherson, 379 F.3d at 440, in order to preserve a constructive discharge
claim—or, alternatively, to be fired and lose his benefits in order to preserve a straightforward
“adverse employment action” claim, see Phelan v. Cook Cnty., 463 F.3d 773, 780 (7th Cir. 2006)
(plaintiff must show only that an “adverse employment action” was motivated by discriminatory
animus in order to recover). Cf. Hinthorn v. Roland’s of Bloomington, Inc., 503 N.E.2d 1128,
1130 (Ill. App. 1987) (“If an employer can obtain resignations from weaker willed and less
sophisticated employees in order to retaliate against them for exercise of rights involving a
public policy by threatening discharge, even by implication, the remedy promulgated by the
retaliatory discharge doctrine can be significantly impaired.”), aff’d, 519 N.E.2d 909 (Ill. 1988).
Defendants’ motion to dismiss Count 6 is therefore denied.

13

Two final notes. First, although Arce may not recover for any pre-February 23, 2012 acts
under Title VII or the ADA, that is not to say that such acts are irrelevant; for under either
statute, Arce may “us[e] the prior acts as background evidence in support of a timely claim.”
Morgan, 536 U.S. at 113. Second, because the operative complaint lists only CTA as a
defendant on the Title VII and ADA counts, Doc. 44 at pp. 15, 17, 19, 22, 24, the court need not
reach Defendants’ argument that the EEOC charge letters failed to name Carduff or Murphy. Cf.
Cheek, 31 F.3d at 502 (“[T]he charge is unrelated to the claims in count I in at least two ways:
the type of conduct alleged to be discriminatory, and the identity of the individuals involved.
These differences between the claims in the complaint and the allegations in the charge cannot
be overlooked, even under the liberal standard of pleading applied to allegations in an EEOC
charge.”) (emphasis added).
II.

42 U.S.C. §§ 1981 and 1983 Claims
The second amended complaint alleges that Carduff, Murphy, and CTA created a hostile

work environment for Arce (Count 1), retaliated against him (Count 7), and constructively
discharged him (the first of two “Count 8”s, which the court will call “Count 8A”) on the basis
of his race or national origin, all in violation of § 1981. Doc. 44 at 4, 26, 29. Title VII’s
comprehensive remedial scheme likely does not preclude Arce’s alleging a violation of § 1981
for the same conduct. See Trigg v. Fort Wayne Cmty. Sch., 766 F.2d 299, 302 (7th Cir. 1985)
(holding that Title VII does not preempt actions against state actors under § 1983); see also
Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 459 (1975) (holding that Title VII does not
preempt actions against non-state actors under § 1981). Because Defendants are state actors,
however, § 1981 does not provide a direct cause of action against them; instead, Arce must bring
his § 1981 claims through the vehicle provided by § 1983. See Campbell v. Forest Pres. Dist. of
Cook Cnty., 752 F.3d 665, 671 (7th Cir. 2014) (“We now join the overwhelming weight of
14

authority and hold that … § 1983 remains the exclusive remedy for violations of § 1981
committed by state actors.”). The upshot is that a two-year statute of limitations applies to
Arce’s claims. See id. at 667-68 (holding that § 1983 borrows the forum state’s personal-injury
statute of limitations, which in Illinois is two years).
Arce filed this suit on January 7, 2014, so only conduct after January 7, 2012 is
actionable. That is nearly the same timeframe as for his Title VII claims (from February 23,
2012 onward), and the substantive standard on the claims is also the same, see Egonmwan v.
Cook Cnty. Sheriff’s Dep’t, 602 F.3d 845, 850 n.7 (7th Cir. 2010) (“The same requirements for
proving discrimination apply to claims under Title VII, § 1981, and § 1983.”). Accordingly,
Count 1 fails for the same reason as Counts 2 and 3, namely, a failure to allege any acts within
the limitations period that could plausibly have contributed to a hostile work environment.
As with his Title VII claims, Arce seeks leave to replead, claiming that he can allege new
acts within the two-year window. Here is what Arce would add: “each six months [CTA]
conducts a ‘pick’ [for trucks] and from January 2010 until plaintiff’s separation for his
employment would be an event within the statute that plaintiff was not allowed to pick which
would place an additional four acts within the 2 year limitations period.” Doc. 61 at 3. Because
Arce was allegedly once denied his choice of Truck 262 in October 2009, he would like the court
to assume that Defendants would have continued to improperly deny him his pick of trucks for
four years thereafter, and that these notional denials after January 2012 are actionable, even
though Arce was not working—was incapable of working, according to the complaint, Doc. 44
at p. 24, ¶ 27—and so would not have been able to pick a truck during that time anyway. Put
differently, Arce’s theory appears to be that Defendants’ imaginary denials of Arce’s
hypothetical picks somehow violate § 1981. Needless to say, a plaintiff may not sue for a

15

hypothetical violation of his civil (or any other) rights, much less use the nonexistent violations
to rescue otherwise time-barred claims. Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 105
(1983) (“That Lyons may have been illegally choked by the police on October 6, 1976 … does
nothing to establish a real and immediate threat that he would again be stopped for a traffic
violation, or for any other offense, by an officer or officers who would illegally choke him into
unconsciousness without any provocation or resistance on his part.”).
Arce does argue that at least one act is within the limitations period: his discovery, in
January 2014, of the falsely “withdrawn” accommodation letter from October 2009. Doc. 44 at
p. 10, ¶ 56. Arce does not, however, explain how this discovery, long after he had stopped
working at CTA, contributed to a hostile work environment. Maybe he means to say that
Defendants’ hiding the accommodation from him contributed to a hostile work environment.
But that argument would fail because, as mentioned, “[a] plaintiff bringing a hostile environment
claim must establish that the workplace was both subjectively and objectively offensive.” Ezell,
400 F.3d at 1047. By definition, Defendants’ concealment could not have been subjectively
offensive to Arce because he was unaware that they were concealing anything.
The court is mindful that “because the period of limitations is an affirmative defense it is
rarely a good reason to dismiss under Rule 12(b)(6).” Reiser v. Residential Funding Corp., 380
F.3d 1027, 1030 (7th Cir. 2004); see Sidney Hillman Health Ctr. of Rochester v. Abbott Labs.,
Inc., 782 F.3d 922, 928 (7th Cir. 2015) (“Dismissing a complaint as untimely at the pleading
stage is an unusual step, since a complaint need not anticipate and overcome affirmative
defenses, such as the statute of limitations.”) (internal quotation marks omitted) (quoting Cancer
Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 674 (7th Cir. 2009)). But “when a
plaintiff’s complaint nonetheless sets out all of the elements of an affirmative defense, dismissal

16

under Rule 12(b)(6) is appropriate.” Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d
930, 935 (7th Cir. 2012); Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir.
2004) (“Only when the plaintiff pleads itself out of court—that is, admits all the ingredients of an
impenetrable defense—may a complaint that otherwise states a claim be dismissed under Rule
12(b)(6).”). Arce’s failure to allege timely acts—despite having had three shots at a complaint,
and despite Defendants’ having already moved to dismiss his first amended complaint on
limitations grounds, Doc. 22 at 3-5—fits the bill. Besides, as discussed above regarding Arce’s
Title VII claims, even were the court to consider all of the (time-barred) allegations in the second
amended complaint, Arce’s hostile work environment claim would still fail on the merits. Count
1 is accordingly dismissed.
Counts 7 and 8A, by contrast, survive for the same reasons as Counts 5 and 6: Arce has
plausibly alleged that Defendants retaliated against him for his April 2012 testimony, and that he
was then coerced to retire under pain of losing his benefits in January 2013. That said, none of
the operative complaint’s timely allegations involving retaliation or forced retirement even
mention Carduff or Murphy; instead, they name only Wall and other CTA employees. Carduff
and Murphy are therefore dismissed as defendants on Counts 7 and 8A.
Arce’s final claim under § 1983, the second “Count 8” (which the court will call “Count
8B”), alleges that CTA violated the Fifth and Fourteenth Amendments. Doc. 44 at pp. 36-40.
Defendants are correct that the Due Process Clause of the Fifth Amendment applies only to
federal, not state, actors, see Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008); MartinezRivera v. Sanchez Ramos, 498 F.3d 3, 8-9 (1st Cir. 2007), and that none of the Fifth
Amendment’s other clauses could conceivably apply. As for the Fourteenth Amendment,
Defendants argue only that Arce has not plausibly alleged a due process claim because he has not

17

identified a protected life, liberty, or property interest. Whether or not he has is irrelevant,
though, because Arce’s claim is grounded not in due process, but in equal protection. Doc. 44 at
36 (bringing Count 8B “against Chicago Transit Authority, based upon a denial of plaintiff’s
Fourteenth Amendment … right to equal protection of the laws”). Defendants do not even
mention equal protection in their brief urging dismissal. Yet the two-year statute of limitations
applies equally to this claim, and Arce does not allege any acts by Carduff and Murphy within
the limitations period. Carduff and Murphy are therefore dismissed as defendants on Count
8B—and are therefore dismissed entirely from the case, making it unnecessary to reach their
qualified immunity defense.
That leaves CTA as the only remaining defendant on Counts 7, 8A, and 8B, all brought
under § 1983. Defendants do not argue that CTA, as a municipal entity, see Bester v. Chicago
Transit Auth., 887 F.2d 118, 119 (7th Cir. 1989) (“Chicago Transit Authority is a statutorily
created, tax-exempt municipal corporation”), is immune from liability under § 1983 except under
the limited circumstances outlined in Monell v. New York Dep’t of Soc. Servs., 436 U.S. 658
(1978). The Seventh Circuit has explained:
Recovery under § 1981 is problematic, however, for although the accused
perpetrators of discrimination are the teachers and administrators at the
schools where Smith worked, the only defendant is the School Board, an
agency of municipal government—and recovery against a governmental body
under § 1981 may not be based on respondeat superior. The plaintiff must
show that the body’s official policy or custom was discriminatory.
Demonstrating that an executive official, even a high ranking one, engaged in
discrimination is insufficient.
Smith v. Chicago Sch. Reform Bd. of Trustees, 165 F.3d 1142, 1148 (7th Cir. 1999) (citations
omitted). As Defendants have not argued for dismissal on the ground that Arce has failed to
plausibly allege a Monell claim, and because Counts 7, 8A, and 8B otherwise state valid claims,
their motion to dismiss those counts as to CTA is denied.

18

III.

State Law Emotional Distress Claims
Counts 9 and 10 allege that CTA intentionally and negligently inflicted emotional

distress, in violation of Illinois law. “Under Illinois law, a plaintiff may recover damages for
intentional infliction of emotional distress only if she establishes that: (1) the defendant’s
conduct was extreme and outrageous, (2) the defendant intended to inflict severe emotional
distress or knew that there was at least a high probability that his conduct would inflict severe
emotional distress, and (3) the defendant’s conduct did cause severe emotional distress.” Naeem
v. McKesson Drug Co., 444 F.3d 593, 604-05 (7th Cir. 2006) (quotation marks omitted); see
McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988) (same).
Defendants argue that none of their alleged conduct was “extreme and outrageous.”
“Conduct is extreme and outrageous only if the conduct has been so outrageous in character and
so extreme in degree, as to go beyond all possible bounds of decency.” Van Stan v. Fancy
Colours & Co., 125 F.3d 563, 567 (7th Cir. 1997) (Illinois law) (quotation and alteration marks
omitted). As the Supreme Court of Illinois has explained:
[L]iability clearly does not extend to mere insults, indignities, threats,
annoyances, petty oppressions or trivialities. “It has not been enough that the
defendant has acted with an intent which is tortious or even criminal, or that
he has intended to inflict emotional distress, or even that his conduct has been
characterized by ‘malice,’ or a degree of aggravation which would entitle the
plaintiff to punitive damages for another tort. Liability has been found only
where the conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency.”
Pub. Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976) (quoting Restatement (Second) of Torts
§ 46, cmt. d (1965)). Illinois sets a particularly high bar for “extreme and outrageous” behavior
in the employment context: “[C]ourts often hesitate to find a claim for intentional infliction of
emotional distress in employment situations. Courts are concerned that, if everyday job stresses
resulting from discipline, personality conflicts, job transfers or even terminations could give rise

19

to a cause of action for intentional infliction of emotional distress, nearly every employee would
have a cause of action.” Graham v. Commonwealth Edison Co., 742 N.E.2d 858, 867 (Ill. App.
2000) (citation omitted). Arce does not allege anything more than garden variety employment
discrimination, which Illinois courts have consistently refused to find rises to the level of
intentional infliction of emotional distress. See Breneisen v. Motorola, Inc., 512 F.3d 972, 983
(7th Cir. 2008) (Illinois law); Bannon v. Univ. of Chicago, 503 F.3d 623, 630 (7th Cir. 2007)
(Illinois law); Graham, 742 N.E.2d at 867; Vickers v. Abbott Labs., 719 N.E.2d 1101, 1115 (Ill.
App. 1999); Lundy v. City of Calumet City, 567 N.E.2d 1101, 1102-03 (Ill. App. 1991); Miller v.
Equitable Life Assurance Society, 537 N.E.2d 887, 889 (Ill. App. 1989).
That said, “[c]ourts have found outrageous behavior where defendants threatened to
exercise their power to coerce plaintiffs into doing something they would not otherwise do.
When an employer’s conduct is both coercive and retaliatory, courts have generally found the
conduct to be extreme and outrageous, constituting a claim for intentional infliction of emotional
distress.” Graham, 742 N.E.2d at 867-68 (emphasis added, citation omitted). Arce alleges that
Defendants retaliated against him for his April 2012 testimony and coerced him into retirement.
Yet the behavior he alleges is far less outrageous than the situations described in Graham and the
cases cited therein. See ibid. (holding that a five-month-long sham investigation of employee,
and defamatory statements made about him, in retaliation for reporting nuclear safety violations
to the NRC was outrageous); Pavilon v. Kaferly, 561 N.E.2d 1245, 1251-52 (Ill. App. 1990)
(holding that pressuring employee for dates, offering her money for sexual favors, firing her
when she refused, and then threatening to rape and kill her was outrageous); Milton v. Ill. Bell
Tel. Co., 427 N.E.2d 829, 831 (Ill. App. 1981) (holding that coercing employee to illegally
falsify work reports and retaliating against him when he refused to do so was outrageous).

20

Arce’s own allegations admit that Wall told him in November 2012 that he had to return to work
“because [he] ha[d] been in an inactive employment status in excess of the maximum time
permitted,” Doc. 44-2 at 2, and that Wall denied his request for light duty in December 2012
because “there was no alternate position available,” id. at 3, and would not let him drive a truck
because Arce “was a threat because of the medication [he] took,” Doc. 44-4 at 2. Enforcing the
terms of an employment contract regarding the maximum amount of leave, or ensuring safety by
refusing to allow employees to drive trucks while on medication, are the kinds of legitimate
employer interests that—though pursued insensitively, even discriminatorily—do not rise to the
level of extreme and outrageous behavior. See Vickers, 719 N.E.2d at 1115 (holding that
conducting an allegedly bad faith disciplinary investigation and coercing plaintiff to accept a
demotion was not outrageous); Lundy, 567 N.E.2d at 1102-03 (holding that relieving the plaintiff
officers of uniformed duty, confiscating their guns and badges, and telling their coworkers that
they may be suffering from schizophrenia or hysteria on the basis of an inconclusive
psychological evaluation was not outrageous). Arce has therefore failed to state a claim for
intentional infliction of emotional distress.
“Illinois courts treat claims by direct victims of negligent infliction of emotional distress
under the same approach used for standard negligence claims.” Lewis v. CITGO Petroleum
Corp., 561 F.3d 698, 703 (7th Cir. 2009) (citing Corgan v. Muehling, 574 N.E.2d 602, 606 (Ill.
1991)). “In other words, a party advancing a negligent infliction of emotional distress claim
must demonstrate a defendant’s duty, as well as a breach that proximately caused the claimant an
injury.” Ibid. (citing Parks v. Kownacki, 737 N.E.2d 287, 296-97 (Ill. 2000)). In addition, “a
direct victim of alleged negligent infliction of emotional distress must satisfy the ‘impact’ rule.
Under the impact rule, a direct victim may not recover for emotional distress suffered as a result

21

of the defendant’s alleged negligence unless the emotional distress ‘was accompanied by a
contemporaneous physical injury to or impact on the plaintiff.’” Ibid. (quoting Rickey v.
Chicago Transit Auth., 457 N.E.2d 1, 2 (Ill. 1983)) (citation omitted). Arce has not alleged any
contemporaneous physical injury or impact, and so his claim for negligent infliction of emotional
distress also fails.
Even if Arce’s emotional distress claims did not fail on the merits, they would likely be
preempted. Under the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq., common law claims
“inextricably linked” to statutory civil rights violations are barred. Geise v. Phoenix Co. of
Chicago, 639 N.E.2d 1273, 1277 (Ill. 1994) (affirming dismissal of the plaintiff’s common law
claims because they were “inextricably linked to the [Title VII] claims” and that “[a]bsent the
allegations of sexual harassment, Geise would have no independent basis for imposing liability”
on the common law claims); see 775 ILCS 5/8-111(D) (“Except as otherwise provided by law,
no court of this state shall have jurisdiction over the subject of an alleged civil rights violation
other than as set forth in this Act.”); Krocka v. City of Chicago, 203 F.3d 507, 517 (7th Cir.
2000) (Illinois law) (holding that an emotional-distress claim was preempted where the plaintiff
“based his IIED claim on several statements made by CPD employees that referred to his mental
condition,” the same basis as for his ADA claims). Arce’s emotional distress claims are
indisputably “inextricably linked” to his Title VII and ADA claims; the factual bases for all of
the claims are materially identical. Doc. 44 at pp. 40-45. So even had Defendants’ alleged
conduct been extreme and outrageous, and even had Arce alleged a contemporaneous physical
injury, both emotional distress claims still would fail. See Quantock v. Shared Mktg. Servs., Inc.,
312 F.3d 899, 905 (7th Cir. 2002) (Illinois law) (holding that the plaintiff’s emotional distress
claim was preempted because it was “supported by factual allegations identical to those set forth

22

in her Title VII sexual-harassment claim”); Smith, 165 F.3d at 1151 (dismissing the plaintiff’s
common law tort claim because “[r]acial discrimination was not ‘merely incidental’ to” the tort
claim but was “the core of [the plaintiff’s] theory”).
Conclusion
Defendants’ motion to dismiss the second amended complaint is granted on Counts 1, 2,
3, 9, and 10. On Counts 4, 5, 6, 7, 8A, and 8B, the motion to dismiss is granted with respect to
Carduff and Murphy and denied with respect to CTA. Accordingly, Carduff and Murphy are
dismissed from the suit, leaving Arce to proceed against CTA on Counts 4, 5, 6, 7, 8A, and 8B.

June 2, 2015
United States District Judge

23