Escarzaga v. Board of Trustees of Community College Distrcty 508 et al
Filing
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Memorandum Opinion and Order signed by the Honorable Jorge L. Alonso on 10/23/2015: Defendants' motion to dismiss 15 is granted in part and denied in part. Mailed notice (gds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CARMEN ESCARZAGA,
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Plaintiff,
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v.
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BOARD OF TRUSTEES OF COMMUNITY )
COLLEGE DISTRICT NO. 508 d/b/a
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CITY COLLEGES OF CHICAGO and
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MICHAEL ROBERTS, in his individual
)
and official capacities,
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Defendants.
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No. 15 C 2568
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
Plaintiff, Carmen Escarzaga, sues defendants, City Colleges of Chicago and Michael
Roberts, for discrimination, hostile work environment harassment, and retaliation under 42
U.S.C. §§ 1981 and 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
This case is before the Court on defendants’ motion to dismiss certain of plaintiff’s claims
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court
grants the motion in part and denies it in part.
BACKGROUND
According to the allegations of the complaint, plaintiff is a “Hispanic woman of Mexican
ancestry” who worked as an instructor of cosmetology at Harry S. Truman College (“Truman
College”), one of the City Colleges of Chicago (Am. Compl. ¶¶ 6-7, 16.) She was hired in 1993
as an “adult educator,” but in April 2013, her position was changed to “part-time lecturer.” (Id.
¶¶ 16-17.) Plaintiff learned of the change at an April 20, 2013 meeting with defendant Roberts,
the Human Resources Director at Truman College, although Roberts told plaintiff that her pay
would remain the same. (Id. ¶ 25.) On April 23, 2013, plaintiff learned that her pay had in fact
been reduced (contrary to what Roberts told her), the change took effect retroactively on April 8,
and she had been overpaid. (Id. ¶¶ 23, 28.) She subsequently received letters informing her that
she had been overpaid not just in April but for several months prior, beginning in January 2013,
and the amount must be repaid with interest. (Id. ¶ 29.) On or about April 29, 2013, plaintiff
was forced to sign an agreement to repay amounts she was allegedly overpaid, or face discharge.
(Id. ¶ 34.)
Roberts and others allegedly harassed and embarrassed plaintiff by stating that she does
not understand English, her education is lacking, and she incorrectly filled out her time sheets.
(Id. ¶¶ 30-32.) Plaintiff does speak and understand English, although she speaks with a strong
accent, but she was asked on numerous occasions, to her embarrassment, to confirm that she
understood what was discussed with her in English. (Id. ¶¶ 31, 33.)
In August 2013, plaintiff filed a charge of discrimination that was forwarded to the Equal
Employment Opportunity Commission (“EEOC”), in which she alleged discriminatory treatment
and harassment based on ancestry, national origin, and disability due to her diabetes. (Id., Ex.
A.)
Plaintiff was terminated at some point, but she does not say when or describe the
circumstances, 1 other than to say that she was 63 years old at the time (id. ¶ 40) and to allege that
the termination was “wrongful” (id. ¶¶ 1, 53-54, 60). She received a right to sue letter in January
2015. (Id., Ex. B).
Plaintiff’s complaint consists of general factual allegations followed by claims of civil
rights violations in two counts.
Count I, captioned as “Violation of Title VII,” claims
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Defendants attach a copy of what is purportedly plaintiff’s resignation letter, dated May 5, 2014, to their reply
brief. The Court does not assume the truth of any facts contained in this letter or base any inferences on it; at the
motion to dismiss stage, the Court can only consider the allegations of the complaint, documents that are attached to
plaintiff’s complaint or to which the complaint explicitly refers, and documents of which the Court can take judicial
notice. See Facebook, Inc. v. Teachbook.com LLC, 819 F. Supp. 2d 764, 770 (N.D. Ill. 2011).
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discrimination based on “ancestry/national origin, age and disability.” (Id. ¶ 43; see ¶¶ 42-46.)
Count II, captioned “Civil Rights Violations 42 U.S.C. § 1981 and 42 U.S.C. § 1983 (City
Colleges of Chicago and Michael Roberts),” claims “discrimination against the [p]laintiff in
violation of § 1981, which subjects her to discriminatory discipline and terms and conditions of
employment by terminating her on the basis of her ancestry/national origin, disability and age”
(id. ¶ 49) and violation of her equal protection rights pursuant to § 1983 (id. ¶ 52). The caption
of the complaint names as a defendant “Michael Roberts, in his individual and official
capacities.”
In her prayers for relief, plaintiff states that she seeks to be reinstated as an
employee with a clean disciplinary record and to be compensated for lost wages and other
damages.
DISCUSSION
“A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief
may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a
pleading that states a claim for relief must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain
statement under Rule 8(a)(2) must “give the defendant fair notice of what the claim is and the
grounds upon which it rests,” and the “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(ellipsis omitted).
Stated differently, a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
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Defendants move to dismiss plaintiff’s wrongful termination claims under Title VII, her
age and disability discrimination claims, and her § 1981 and § 1983 claims against Roberts in
both his official and individual capacities.
I.
TITLE VII WRONGFUL TERMINATION
Defendants contend that plaintiff’s Title VII wrongful termination claim should be
dismissed because the EEOC charge she filed did not encompass that claim. Prior to filing suit,
plaintiff filed an EEOC charge against the defendants and received a right to sue letter, but her
charge did not allege that she had been terminated at all, wrongfully or otherwise. In her
complaint, she alleges that her “employment with the City Colleges of Chicago was terminated”
when she was “63 years old” (Am. Compl. ¶ 40), but the complaint contains no other facts
bearing on the date, cause or other circumstances of her termination.
Before filing a federal lawsuit under Title VII, a plaintiff must file a charge of
discrimination before the EEOC, or her suit is barred. Salas v. Wis. Dep’t of Corr., 493 F.3d
913, 921 (7th Cir. 2007). “The test for determining whether an EEOC charge encompasses the
claims in a complaint [is whether they] are ‘like or reasonably related to the allegations of the
charge and growing out of such allegations.’” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500
(7th Cir. 1994) (quoting Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.
1976)). Stated slightly differently, the test is satisfied “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.
Defendants cite two cases—Moore v. Vital Products, Inc., 641 F.3d 253, 257 (7th Cir.
2011), and Rush v. McDonald’s Corp., 966 F.2d 1104, 1110-11 (7th Cir. 1992)—in support of
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their argument that plaintiff’s wrongful termination claim, nowhere mentioned or suggested in
the EEOC charge, is not reasonably related to her charges of discriminatory treatment or
harassment. These cases are on point, and plaintiff cites no cases in response, nor does she
attempt to distinguish them other than to say that, unlike in Moore and Rush, “Escarzaga
indicated in her EEOC claim that Defendant was threating [sic] to terminate her.” (Resp. at 5.)
However, the Court fails to see why this should be a distinguishing factor, at least in the absence
of any citation to case law supporting the distinction. It is true that plaintiff states in the EEOC
charge that Roberts threatened to terminate her if she did not repay amounts she was allegedly
overpaid, but the complaint suggests that she was not actually terminated because of the amounts
she had allegedly overpaid; rather, a natural reading of the complaint suggests that the matter of
the overpayment was resolved by plaintiff’s signing a repayment agreement. (Am. Compl. ¶ 34.)
In fact, plaintiff’s complaint contains no facts shedding any light on the immediate
circumstances surrounding her termination. Her most specific description of the matter appears
in her response brief:
Plaintiff’s EEOC claim discusses (1) plaintiff being overpaid because of
Defendants changing her position without notifying her in advance, (2)
defendants cutting the plaintiff’s pay without notice, (3) defendants changing the
time sheets without informing her, and (4) threats of discharge if “overpayment”
was not refunded to the school. Defendants’ action towards plaintiff and the
reduction of her job and continuous harassment alleged in the EEOC claim,
resulted in plaintiff’s wrongful termination.
(Resp. at 5.) Despite this attempted clarification, plaintiff’s statement that defendants’
discriminatory treatment and harassment “resulted” in her “wrongful termination” is vague and
conclusory. Plaintiff provides no facts to illustrate how, when, why and by whom she was
terminated. She never says, for example, that she was terminated because she failed to make any
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repayment of the amounts she was allegedly overpaid. The Court is left to speculate as to
precisely how her employment with Truman College ended.
To the extent plaintiff is making a discriminatory discharge claim that bears “a factual
connection,” Jackson v. FBI, No. 02 C 3957, 2007 WL 2492069, at *6 (N.D. Ill. Aug. 28, 2007),
to the overpayment issue she describes in her EEOC charge and complaint (as if, for example,
she was fired for failing to repay the money that she was allegedly overpaid), the Court disagrees
with defendants that the claim is beyond the scope of plaintiff’s EEOC charge. Such a claim
would “reasonably grow out of an EEOC investigation of the allegations in the charge.” Cheek,
31 F.3d at 500; cf. Harden v. Bd. of Trs. E. Ill. Univ., No. 12-CV-2199, 2013 WL 6248500, at *2
(C.D. Ill. Dec. 2, 2013). To the extent plaintiff is claiming to have been discriminatorily
discharged on any other grounds, even if the discharge was motivated by the same
discriminatory animus that motivated the earlier disparate treatment and harassment, the Court
agrees with defendants that plaintiff is asserting a separate act of discrimination as to which she
has failed to exhaust her administrative remedies, under Moore and like cases. See, e.g., Gbur v.
City of Harvey, 835 F. Supp. 2d 600, 625-26 (N.D. Ill. 2011) (citing Moore). In either case,
plaintiff’s claim does not contain sufficient factual matter to meet the plausibility standard of
Twombly and Iqbal. Defendant’s motion is granted with respect to this claim, with leave to
amend if plaintiff can state a wrongful termination claim that is within the scope of her EEOC
charge because it is reasonably related to the overpayment issue she described in her complaint
and response brief.
II.
“TITLE VII” AGE AND DISABILITY DISCRIMINATION
Defendants move to dismiss the age and disability discrimination claims that plaintiff
purports to bring under Title VII. As defendants point out, Title VII prohibits discrimination
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based on an “individual’s race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2, but
not her age or disability.
In response, plaintiff admits that Title VII does not apply to
discrimination based on age or disability, but she argues that discrimination on those bases is
nevertheless prohibited by other federal statutes, the Age Discrimination in Employment Act
(“ADEA”), see 29 U.S.C. § 623, and the Americans with Disabilities Act (“ADA”), see 42
U.S.C. § 12132, and under federal notice pleading standards, plaintiff argues, it is of no
consequence that the claims are incorrectly captioned.
Plaintiff is correct. She was not required to cite the correct statutes in her complaint; she
was merely required to relate sufficient facts to state a plausible claim for relief under Twombly
and Iqbal. As the Seventh Circuit has explained,
A complaint under Rule 8 limns the claim; details of both fact and law come later,
in other documents. Instead of asking whether the complaint points to the
appropriate statute, a court should ask whether [the complaint meets the pleading
standard articulated by the Supreme Court] . . . . A drafter who lacks a legal
theory is likely to bungle the complaint (and the trial); you need a theory to decide
which facts to allege and prove. But the complaint need not identify a legal
theory, and specifying an incorrect theory is not fatal.
Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (internal citations
omitted). Plaintiff’s failure to cite the correct statutes provides no basis by itself for dismissing
her age and disability discrimination claims.
However, as stated above, plaintiff’s EEOC charge asserted only claims of national
origin, ancestry and disability discrimination; it did not assert any claim of age discrimination,
nor did the allegations within it reasonably put defendants or the EEOC on notice of age
discrimination. The ADEA, like Title VII, requires exhaustion of administrative remedies before
the EEOC before bringing a lawsuit. See 29 U.S.C.A. § 626; Allen v. City of Chi., 828 F. Supp.
543, 557 (N.D. Ill. 1993). It is clear that plaintiff has failed to exhaust her administrative
remedies for any age discrimination claim because her EEOC charge did not encompass any
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such claim. Siciliano v. Chi. Local 458-3M, 946 F. Supp. 596, 600 (N.D. Ill. 1996) (EEOC
charge of sex and disability discrimination did not exhaust age discrimination claim); Hansboro
v. Northwood Nursing Home, Inc., 832 F. Supp. 248, 252 (N.D. Ind. 1993) (“Numerous courts
have dismissed complaints or granted summary judgment where the complaint alleged a different
type of discrimination from the EEOC charge.”). Thus, the motion to dismiss is granted as to
plaintiff’s ADEA claim, but denied as to her ADA claim.
III.
SECTION 1981 AND 1983 CLAIMS
First, defendants move to dismiss any age or disability claims that plaintiff may assert
under § 1981, as she appears to do in ¶ 49 of the complaint. Plaintiff makes a half-hearted
attempt to argue that § 1981a permits disability claims, but, as defendants point out, § 1981a
merely “details potential damages for civil rights violations generally” (Reply at 3); it does not
provide a separate cause of action for disability discrimination, nor does it support any argument
that § 1981 provides a cause of action for disability discrimination. It is axiomatic that § 1981
applies only to race discrimination. See Vogel v. S. Bend Cmty. Sch. Corp., No. 3:11 CV 254,
2013 WL 2156483, at *1 (N.D. Ind. May 17, 2013). Plaintiff’s age and disability discrimination
claims are not cognizable under § 1981.
Intentional age and disability discrimination claims are cognizable under § 1983, but
defendants argue that plaintiff fails to state either a § 1983 claim against Roberts in his official or
individual capacity for intentional discrimination based on “ancestry/national origin, age and
disability” in violation of her equal protection rights, or a race discrimination claim under §
1981.
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A.
Official Capacity
Defendant argues that plaintiff fails to state a claim against Roberts in his official
capacity because he is not an official with “final policymaking authority with regard to
employment policies.” (Mot. to Dismiss at 7.)
The same standards govern plaintiff’s intentional discrimination claims under § 1981 and
§ 1983 and her Title VII claims. Friedel v. City of Madison, 832 F.2d 965, 971-72 (7th Cir.
1987). An individual sued in his official capacity under § 1983 and § 1981 can be held liable for
intentional discrimination if he had “final policymaking authority for the local governmental
actor concerning the action alleged to have caused the particular constitutional or statutory
violation at issue.” Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 619 (7th
Cir. 2001) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). Whether a local
government official has final policymaking authority is a question of state law. Horwitz, 260
F.3d at 619.
Plaintiff cites the Illinois Public Community College Act, which empowers the board of
trustees of any community college district to “[t]o employ such personnel as may be needed, to
establish policies governing their employment and dismissal, and to fix the amount of their
compensation.” 110 Ill. Comp. Stat. Ann. 805/3-42 (emphasis added); see 110 Ill. Comp. Stat.
Ann. 805/3-30 (“The board of any community college district has the powers enumerated in
Sections 3-31 through 3-43 of this Act.”). Michael Roberts was a human resources director at
Truman College, not a member of the board of trustees. As such, defendants argue, he did not
have final policymaking authority with respect to employment matters.
See McFadden v.
Chicago Pub. Sch., No. 11 C 7555, 2012 WL 2459161, at *2-3 (N.D. Ill. June 27, 2012).
Plaintiff makes no serious response to this argument; she cites no legal authority in support of
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her contention that Roberts was a final policymaker, and the only facts she cites bear only on
whether he was personally involved in the actions that are the subject of this lawsuit, not on
whether he had final policymaking authority as a matter of state law. The Court must agree with
defendants that Roberts was not a final policymaker; therefore, plaintiff’s official capacity claim
against Roberts is dismissed.
B.
Individual Capacity
Defendants move to dismiss plaintiff’s claim against Roberts in his individual capacity
because plaintiff only makes general allegations against the “defendants” and does not allege that
Roberts personally participated in the alleged improper conduct.
Plaintiff responds that she has alleged that Roberts was directly involved in effectuating
plaintiff’s alleged discriminatory demotion, and he personally “commented on her understanding
of the English language, ability to perform tasks and lack of educational background.” (Resp. at
5-6 (citing Am. Compl. ¶¶ 23-24, 30, 32-33).) Defendants insist that the allegations against
Roberts are merely “generalized,” and it is true that the paragraphs of the complaint under the
heading “Count II: Civil Rights Violations 42 U.S.C. § 1981 and 42 U.S.C. § 1983” make only
general allegations, but defendants ignore that plaintiff expressly “incorporates and re-alleges”
all the preceding paragraphs “as if fully set forth” within Count II. (Am. Compl. ¶ 47.) Plaintiff
has sufficiently alleged that Roberts personally participated in the improper conduct to state a
valid civil rights claim against him in his individual capacity.
Defendants also argue that plaintiff’s § 1981 and § 1983 claims against Roberts must be
dismissed because he has not been served in his individual capacity. Plaintiff has filed a waiver
of service as to Roberts that names the party waiving service as “Michael Roberts, official
capacity,” and is signed by one Valerie Harper at 226 W. Jackson, Chicago, Illinois, the same
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person who waived service on behalf of the board of trustees of the City Colleges of Chicago.
Defendant Roberts has apparently not been personally served in this matter, and he must be
personally served if plaintiff intends to sue him in his individual capacity, regardless of whether
he has actual notice of the lawsuit. See Holiday v. City of Chi., No. 05 C 4514, 2006 WL
2853595, at *4-5 (N.D. Ill. Sept. 29, 2006); Saniat v. City of Chi., No. 96 C 5191, 1998 WL
748399, at *5 (N.D. Ill. Oct. 22, 1998); see also Del Raine v. Carlson, 826 F.2d 698, 704 (7th
Cir. 1987) (plaintiff must serve Bivens defendant personally to sue him in his individual
capacity).
The § 1981 and § 1983 claims against Roberts in his individual capacity are
dismissed.
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CONCLUSION
For the reasons set forth above, the Court grants in part and denies in part defendants’
motion to dismiss [15]. Plaintiff’s Title VII wrongful termination claim is dismissed without
prejudice to refiling if plaintiff can state a claim that is reasonably related to the overpayment
issue she described in her EEOC charge. Plaintiff’s § 1981 and § 1983 claims against defendant
Roberts in his individual capacity are dismissed without prejudice for lack of service. Plaintiff’s
ADEA age discrimination claim, her § 1983 and § 1981 claims against defendant Roberts in his
official capacity, and her § 1981 age and disability discrimination claims are dismissed with
prejudice. The motion is denied as to her ADA disability discrimination claim.
Status hearing
remains set for 1/13/16 at 9:30 a.m.
SO ORDERED.
ENTERED: October 23, 2015
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HON. JORGE L. ALONSO
United States District Judge
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