Strickland v. Village of RIchton Park et al
Filing
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MEMORANDUM Opinion and Order. The Court grants in part and denies in part defendants' motion to dismiss 60 and: (1) dismisses with prejudice the Count II ADEA claim and any § 1983 age discrimination claim plaintiff may have attempted to a ssert; (2) dismisses without prejudice for failure to exhaust administrative remedies any Title VII or ADA retaliation claims plaintiff may have attempted to assert; and (3) dismisses without prejudice to amendment any § 1981 retaliation claims against the Village and Chief Williams and any § 1983 race discrimination claim against the Village that plaintiff may have attempted to assert. The § 1983 race discrimination claim against Chief Williams based on the unequal assignment of extra hours stands. Plaintiff has until September 9, 2015, her final opportunity, to amend the §§ 1981 and 1983 race discrimination claims in accordance with this Order. If she fails to do so by that date, the Court will dismiss those claims with prejudice. [For further details see order.] Signed by the Honorable Jorge L. Alonso on 8/26/2015. Notice mailed by judge's staff (ntf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CYNTHIA LYNN STRICKLAND,
Plaintiff,
v.
VILLAGE OF RICHTON PARK and
CHIEF ELVIRA P. WILLIAMS,
Defendants.
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14 C 2741
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
Plaintiff alleges that she was terminated from her job with the Village of Richton Park
(“Village”) because of her race, age, and disability in violation of Title VII, 42 U.S.C. §§ 1981 and
1983, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act
(“ADEA”). Defendants have filed a Federal Rule of Civil Procedure (“Rule”) 12(b)(6) motion to
dismiss certain claims from the first amended complaint. For the reasons set forth below, the Court
grants in part and denies in part the motion.
Facts
In August 2008, plaintiff, who is Hispanic and has a physical disability, was hired by the
Village as a part-time records clerk working in the Police Department. (1st Am. Compl. ¶¶ 10, 12.)
Starting in June 2011, African-American records clerks were given the opportunity to work
extra hours, but plaintiff was not. (Id. ¶¶ 21, 31.) Plaintiff complained to defendant Williams about
the situation, but Williams ignored her complaints. (Id. ¶¶ 22-23, 31-32.)
On March 20, 2012, plaintiff learned that a full-time payroll assistant position in the Village
Administrative Office, for which plaintiff was qualified, had been “handed to” Australia Williams, an
African-American records clerk. (Id. ¶ 29.) When plaintiff asked defendant Williams why the job had
not been posted, she said the Village wanted Australia Williams for the position and “did not want”
plaintiff. (Id. ¶ 30.)
In April 2012, plaintiff was reprimanded for refusing to let an officer’s wife into the personnelonly area of the Police Department, though plaintiff says she was acting in accordance with
Department policy. (Id. ¶ 33; see id., Ex. F, 4/1/12 Email from Pl. to Williams).)
On December 1, 2012, plaintiff was reprimanded for trying to contact the owner of a lost wallet
before inventorying it. (Id. ¶ 36.) Plaintiff said she her action was in keeping with office protocol,
which “many other Record Clerks, many of whom were African American,” followed without being
disciplined. (Id. ¶¶ 37-39.)
On November 5, 2013, when plaintiff was forty-three years old, the Village terminated her
employment. (Id. ¶ 12.)
Discussion
On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff’s favor. Hecker v. Deere
& Co., 556 F.3d 575, 580 (7th Cir. 2009). “[A] complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations” but must contain “enough facts to state a claim for
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In Count II, plaintiff alleges that the Village violated the ADEA by giving more favorable
treatment to records clerks who were older than she. (See 1st Am. Compl. ¶¶ 47- 50 (alleging that:
(1) seven of the nine other records clerks were older than plaintiff; (2) “throughout [her] employment,
Plaintiff was treated differently than [older] Records Clerks”; and (3) “Plaintiff was required to work
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the midnight shift solely because she was one of the ‘youngest’ on staff.”).) However, the ADEA only
bars employers from discriminating against older employees, not in favor of them. See Gen. Dynamics
Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) (“We see the text, structure, purpose, and history
of the ADEA, along with its relationship to other federal statutes, as showing that the statute does not
mean to stop an employer from favoring an older employee over a younger one.”); Levin v. Madigan,
692 F.3d 607, 621 (7th Cir. 2012) (citing General Dynamics and stating that “[t]he [ADEA] statutory
scheme . . . prohibits . . . so-called ‘reverse age discrimination’ claims.”). Thus, plaintiff has not stated
a viable ADEA claim.
Plaintiff does not contest this point, but argues that she should be given leave to amend the
claim because she “mistyped” certain words in paragraphs 49 and 50 of the first amended complaint.
Specifically, she says that paragraph 49, which states that she was treated differently than older records
clerks, should say that she was treated differently than younger records clerks. (Pl.’s Resp. Mot.
Dismiss at 4-5.) Likewise, plaintiff says paragraph 50, which states that she was put on the midnight
shift because she was one of the youngest clerks, should say that she was put on midnights because
she was one of the oldest clerks. (Id.) But this explanation is belied by her allegation that she was the
third youngest of the ten clerks, i.e., she was not one of the oldest clerks. (See 1st Am. Compl. ¶ 48
(alleging that “six [of the ten records clerks] were over fifty (50) years old, another clerk was
approximately forty-five (45), and two other clerks were younger than Plaintiff”).) Because plaintiff
cannot disclaim as “error” the facts she alleged to support her reverse age discrimination claim, which
is not actionable under the ADEA, the Court dismisses Count II with prejudice.
Defendants also move to dismiss any retaliation claim plaintiff may have attempted to state by
her single, off-hand reference to retaliation. (See id. ¶ 62.) To the extent plaintiff meant to state a
claim for retaliation under Title VII or the ADA, it fails. Both statutes make filing a charge of
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discrimination with the EEOC a prerequisite to filing suit. See 42 U.S.C. §§ 12117(a), 2000e-5(e)(1).
Plaintiff does not allege that she filed an EEOC charge alleging retaliation. Thus, she can pursue a
retaliation claim only if it is “like or reasonably related” to the claims she did raise before the EEOC.
Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994) (quotation omitted). “[C]laims are not
alike or reasonably related unless . . . . at a minimum, [they] describe the same conduct and implicate
the same individuals.” Id. at 501 (emphasis in original).
Plaintiff’s EEOC charge states that she was subject to “different terms and conditions of
employment, including, but not limited to promotion opportunities, breaks, scheduling, and
disciplinary action” and that she was discriminated against because of her “race,” “national origin,”
“age,” and “disability.” (1st Am. Compl., Ex. C, 11/26/13 EEOC Charge.) The premise of a
retaliation claim is that plaintiff was punished for engaging in protected activity, an allegation she does
not make in her EEOC charge, not that she was subjected to disparate treatment. See Peters v.
Renaissance Hotel Operating Co., 307 F.3d 535, 550 (7th Cir. 2002). Thus, her retaliation claims are
not like or reasonably related to her discrimination claims and cannot be pursued in this suit. See id.
(“[W]e believe that [plaintiff’s] failure to mention any type of protected activity and his failure to
identify retaliation as a basis for his charge preclude him from relying on the original charge of
discrimination as a basis for his retaliation claim.”); Campbell v. Adventist Health Syst., No. 10 C
2586, 2010 WL 3975597, at *3 (N.D. Ill. Oct. 8, 2010) (“As a matter of law, retaliation and
discrimination are unrelated and a charge of one generally cannot support a civil suit for the other.”)
(quotation omitted).
Plaintiff was no more successful if she attempted to allege a retaliation claim under § 1981.
See Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012) (stating that Ҥ 1981 authorizes claims for
retaliation, if one person takes action against another for asserting the right to substantive contractual
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equality provided by [the statute]”) (citing Humphries v. CBOCS W., Inc., 553 U.S. 442, 445 (2008)).
To state a claim against the Village, plaintiff must allege that it has a policy of retaliating against
employees who complain of discrimination, see Looper Maintenance Service Inc. v. City of
Indianapolis, 197 F.3d 908, 913 (7th Cir. 1999), an allegation plaintiff does not make. To state a claim
against Chief Williams, plaintiff must allege that plaintiff engaged in statutorily protected activity, she
suffered an adverse employment action, and there is a causal connection between the two. Id. The
adverse actions plaintiff allegedly suffered for complaining to Chief Williams about discrimination
were the April and December 2012 reprimands. (1st Am. Compl. ¶¶ 61-62); see Davis v. Time Warner
Cable of Se. Wis., L.P., 651 F.3d 664, 674 (7th Cir. 2011) (assuming that protected activity is the same
for Title VII and § 1981 retaliation claims); Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir.
2009) (“[A]n informal complaint may constitute protected activity for purposes of [Title VII]
retaliation claims.”). However, a reprimand is an adverse employment action only if it “materially
alter[s] the terms or conditions of employment.” Sklyarsky v. ABM Janitorial Servs.-N. Cent., Inc.,
494 F. App’x 619, 622 (7th Cir. 2012); see Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir.
2009) (“[R]eprimands without any changes in the terms or conditions of . . . employment are not
adverse employment actions.”); Crady v. Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136
(7th Cir. 1993) (“A materially adverse change [in the terms or conditions of employment] might be
indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a
less distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices that might be unique to a particular situation.”). Plaintiff does not allege that the
reprimands materially altered the conditions of her employment. Thus, she has not stated a § 1981
retaliation claim.
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In Count V, plaintiff asserts a § 1983 claim against the Village for its alleged “discriminatory
policy to eliminate employees near entitlement of pensions.” (1st Am. Compl. ¶ 92.) Even if
“entitlement of pensions” is a proxy for age, plaintiff’s affirmative allegation that she was one of the
youngest record clerks (id. ¶ 48), scotches any § 1983 age discrimination claim.
Though she does not explicitly plead them, plaintiff contends that her complaint also supports
§ 1983 race discrimination claims against both the Village and Chief Williams. To hold the Village
liable under § 1983, plaintiff must allege that the deprivation of her constitutional rights occurred
pursuant to one of its policies or practices. Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978). A policy, in this context, is an express policy, a practice so widespread and permanent that
it has the force of law, or action by a person with final policymaking authority. McCormick v. City
of Chi., 230 F.3d 319, 324 (7th Cir. 2000).
Plaintiff argues that there is a widespread practice of discrimination against non-AfricanAmerican records clerks. In support of this theory, she alleges that: (1) in June 2011 and March 2012,
extra work hours were offered to African-American clerks but not to her; (2) in March 2012, a payroll
assistant position for which she was qualified was “handed to” an African-American clerk instead of
being “posted for all to apply”; (3) in April 2012, plaintiff was reprimanded for following a
Department policy about access to restricted areas; and (4) in December 2012, plaintiff was
reprimanded for failing to inventory lost property, conduct that another clerk, whose race is not
specified, committed without reprisal (1st Am. Compl. ¶¶ 21-25, 28-31, 33, 36-39). At best, these
allegations suggest sporadic, discrete incidents of discrimination, not a pervasive practice of treating
African Americans more favorably than others.
Alternatively, plaintiff argues that the allegedly discriminatory acts were perpetrated by a
person with policymaking authority, Chief Williams. State law determines who is a policymaker for
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§ 1983 purposes. See Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 675 (7th Cir. 2009). “[The]
inquiry is not whether an official is a policymaker on all matters for the municipality, but whether he
is a policymaker in a particular area, or on a particular issue.” Id. at 676 (quotation omitted). Thus,
Chief Williams is a policymaker in this case only if she has the authority to set personnel policies for
the Police Department. She does not. See Richton Park, Ill. Code, tit. 6, ch. 230 §§ 230.04 (“The
Village Manager shall be the administrative head of the Village government, and he or she shall be
responsible for the efficient administration of all departments of the Village.”); id. § 230.05(m) (stating
that the Village Manager is empowered to “[p]rescribe rules and regulations for the conduct of the
various departments of the Village and divisions thereof”); id. § 250.03 (“All police officers shall be
subject to rules and regulations as shall be prescribed from time to time by the Chief of Police. . . .
[and] approved by the Village Manager . . . .”). Because Williams’ alleged actions do not constitute
Village “policy” within the meaning of § 1983, the Village’s motion to dismiss the § 1983 claim is
granted.1
To hold Chief Williams individually liable under § 1983, plaintiff must allege that Williams
was personally involved in the alleged constitutional deprivation. Doyle v. Camelot Care Ctrs., Inc.,
305 F.3d 603, (7th Cir. 2002) (a supervisory official can be held liable only if she “essentially
direct[ed] or consent[ed] to the challenged conduct”). Plaintiff does not allege that Williams gave the
payroll job to Australia Williams or failed to discipline another clerk–of any race–whom she knew
engaged in the conduct for which she reprimanded plaintiff. Thus, those allegations do not support
a § 1983 claim. Plaintiff does, however, allege that Williams knew about and refused to remedy the
1
Because defendant seeks punitive damages solely from Chief Williams, individually (see
Pl.’s Resp. Mot. Dismiss at 9-10), the Village’s request to dismiss the punitive damages claim
against it is moot.
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unequal assignment of extra hours (1st Am. Compl. ¶¶ 22-23, 25, 31-32), which is sufficient to state
a § 1983 claim against Williams.
Conclusion
For the reasons set forth above, the Court grants in part and denies in part defendants’ motion
to dismiss [60] and: (1) dismisses with prejudice the Count II ADEA claim and any § 1983 age
discrimination claim plaintiff may have attempted to assert; (2) dismisses without prejudice for failure
to exhaust administrative remedies any Title VII or ADA retaliation claims plaintiff may have
attempted to assert; and (3) dismisses without prejudice to amendment any § 1981 retaliation claims
against the Village and Chief Williams and any § 1983 race discrimination claim against the Village
that plaintiff may have attempted to assert. The § 1983 race discrimination claim against Chief
Williams based on the unequal assignment of extra hours stands. Plaintiff has until September 9, 2015,
her final opportunity, to amend the §§ 1981 and 1983 race discrimination claims in accordance with
this Order. If she fails to do so by that date, the Court will dismiss those claims with prejudice.
SO ORDERED.
ENTERED:
August 26, 2015
__________________________________
JORGE L. ALONSO
United States District Judge
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