Carr v. County Of Dupage et al

Filing 65

Memorandum Opinion and order signed by the Honorable Robert W. Gettleman on 4/5/2017: Defendants' motion 60 to dismiss is granted in part and denied in part. Answers to plaintiff's remaining claims are due by 4/27/2017. A joint status report is due by 5/5/2017. Status hearing date of 4/6/2017 is reset to 5/11/2017 at 9:00 a.m. Mailed notice (gds)

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

)
)
)
Plaintiff,
)
v.
)
)
SHERIFF JOHN ZARUBA, indivudally and in
)
his official capacity, JAMES KRUSE,
)
ANTHONY ROMANELLI, JAMES WILLIAMS )
and JACK DELLINGER in thier official capacity, )
and THE COUNTY OF DUPAGE
)
)
Defendants.
)

Case No. 15 C 11690
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
Pro se plaintiff Copres Carr filed a five-count fourth amended complaint against
defendants based on racial discrimination and retaliation he allegedly suffered in violation of
Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000 et seq., 42 U.S.C. §
1981, and 42 U.S.C. § 1983. Defendants moved to dismiss under Rule 12(b)(6) for failure to
state a claim on all counts. For the reasons described below, defendants’ motion is granted in
part and denied in part.
BACKGROUND1
Plaintiff’s complaint alleges five counts: discrimination, harassment, and retaliation in
violation of Title VII (Counts I, II, and V); discrimination in violation of 42 U.S.C. § 1983
(Count III); and retaliation in violation of 42 U.S.C. § 1981 (Count IV). At the heart of

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The following facts are taken from plaintiff’s complaint and are assumed to be true for
purposes of this motion to dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995).

plaintiff’s complaint are actions taken by his supervisors, which plaintiff claims were adverse
and racially motivated.
Plaintiff, an African-American man, began working for the Dupage County Sheriff’s
Office in March of 1997 and continues to do so to this day. Defendants Dellinger and Williams
are Sergeants with the Dupage County Sheriff’s Office that supervise plaintiff. Defendant
Romanelli is a Major with the Dupage County Sheriff’s Office and also supervises plaintiff.
Defendant Kruse is a Chief with the Dupage County Sheriff’s Office and is another of plaintiff’s
supervisors. Defendant Zaruba is the Sheriff of Dupage County. Plaintiff does not allege any
personal involvement on Zaruba’s part.
In his complaint, plaintiff alleges a number of adverse employment actions based on race.
First, plaintiff alleges that Dellinger ordered plaintiff to obtain a doctor’s note regarding a skin
condition that prevented plaintiff from complying with the office’s appearance policy that
required male employees to shave. According to plaintiff, his skin condition, which “greatly
affects African Americans,” had already been documented in his personnel file in 2007, and
obtaining an updated doctor’s note cost him one day of paid leave as well as his copay. At the
time, plaintiff requested documentation that he was required to obtain another doctor’s note, but
never received any such documentation. Plaintiff filed a complaint regarding the incident with
Kruse on January 15, 2015.
Plaintiff further alleges that Dellinger has twice given plaintiff written reprimands for
tardiness, first on September 11, 2014, and again on January 13, 2015. According to plaintiff, he
had been tardy only five times before receiving each of these reprimands, and the office’s
attendance policy did not call for a written reprimand under such circumstances. Plaintiff

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complained to Romanelli regarding the reprimands and documented his complaint during his
January 14, 2015, performance review. Presumably related to the above incidents, plaintiff
alleges that Dellinger “enforced unauthorized discipline on Plaintiff concerning Sheriff
Department appearance and attendance policy.”
Plaintiff additionally alleges that on July 22, 2014, Dellinger ordered plaintiff to
complete reports in a way that differed from the manner in which his reporting sergeant had
instructed him. When plaintiff informed Dellinger that he had been taught to compete reports a
different way, Dellinger instructed plaintiff to tell his reporting sergeant that Dellinger’s way
was “the correct way.” Plaintiff refused, informing Dellinger that doing so could subject
plaintiff to discipline for insubordination. Plaintiff does not allege that Dellinger took any
further action on the issue.
At some point, which plaintiff does not specify, Dellinger conducted a performance
review of plaintiff.2 Plaintiff alleges that Dellinger gave him a “low” evaluation despite having
been assigned to the courthouse (presumably, where plaintiff works) for only five weeks.
According to plaintiff, he did not interact with Dellinger often enough for the review to be based
on plaintiff’s job performance, so “Dellinger had predetermined Plaintiff’s job performance, and
abilities based on Assumptions and stereotypes.” Plaintiff complained to Kruse while reviewing
his personnel file, but Kruse allegedly “failed to investigate, address, or remedy the issue.”

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Plaintiff also makes allegations regarding a September 10, 2013, performance review
conducted by Dellinger, where Dellinger documented “that Plaintiff needed to request other
assignments and perform collateral duties/positions that become available.” It is unclear to the
court if this is the same performance review that resulted in a “low” evaluation. It is clear to the
court, however, that plaintiff does not allege that any adverse action resulted from the September
10, 2013, performance review, so the court will not address it.
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Williams also conducted a performance review of plaintiff on July 22, 2014. Plaintiff
alleges that Williams had also “predetermined Plaintiff’s job performance, and abilities based on
Assumptions and stereotypes, not based on Plaintiff’s performance.” As with Dellinger, plaintiff
alleges that he did not have sufficient interactions with Williams for the performance review to
be based on plaintiff’s actual performance. According to plaintiff, his “evaluation decreased two
points,” but plaintiff does not state the result of the evaluation beyond that it was “low.”
Plaintiff alleges that he spoke with Williams regarding the evaluation, but does not explain what
that conversation consisted of or what, if anything, resulted from the conversation. Plaintiff filed
a formal complaint on July 23, 2014, stating that Williams could not accurately evaluate
plaintiff’s performance because plaintiff “took assignments from and was directly supervised by”
someone else. Plaintiff alleges that Kruse and Romanelli ignored the complaint. According to
plaintiff, he “was not permitted to test for promotion” due to the low scores he received on his
performance evaluations.
Plaintiff alleges that, in sum, “Zaruba, Kruse, Romanelli, Dellinger, [and] Williams in
their official capacity have intentionally discriminated against African Americans by
manipulating performance evaluation scores, preventing or hindering advancement of African
American Deputies within the Court Security division,” all while “similarly situated Caucasian
employees were treated more favorably.”
In addition to discrimination, plaintiff alleges that he was retaliated against after lodging
complaints regarding his alleged mistreatment. As evidence of retaliation, plaintiff alleges that
lesser qualified employees were promoted to positions for which plaintiff was eligible.
Additionally, on January 17, 2015, plaintiff alleges that he was ordered to remove his three

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children, aged 11, 12, and 15, from the courtroom where he was working, while other
employees’ children were allowed to attend court as spectators. According to plaintiff, this too
was retaliatory.
Plaintiff filed a complaint with the Equal Employment Opportunity Commission
(“EEOC”) on March 27, 2015, alleging ongoing misconduct that subjected plaintiff to “different
terms and conditions of employment, including, but not limited to, poor performance
evaluations.” In his complaint, plaintiff alleged that he was “denied the opportunity to test for
promotion” based on his race and that, after complaining of his mistreatment, he was retaliated
against for “engaging in protected activity, in violation of Title VII.” The EEOC issued a right
to sue letter on September 28, 2015.
DISCUSSION
I.

Legal Standard
When ruling on a Rule 12(b)(6) motion to dismiss, the court accepts the complaint's well-

pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor.
Sprint Spectrum L.P. v. City of Carmel, Indiana, 361 F.3d 998, 1001 (7th Cir. 2004). The
pleading must describe the claim in sufficient detail to give the defendant fair notice of what the
claim is and the grounds on which the claim rests. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). The allegations must plausibly suggest that the plaintiff has a right to relief,
raising the possibility above the “speculative level.” Id.
This standard demands that a complaint allege more than legal conclusions or
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when

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the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Keeping this standard in mind, the court
construes pro se complaints liberally. See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.
2001) (“Allegations of a pro se complaint are held ‘to less stringent standards than formal
pleadings drafted by lawyers.’”) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).
II.

Analysis
Defendants argue, for a number of reasons, that plaintiff’s complaint should be dismissed

in its entirety for failure to state a claim. Defendants first argue that allegations of adverse
employment actions that were not included in plaintiff’s EEOC complaint should be dismissed
because they are outside of the scope of the charges filed with the EEOC. Plaintiff attempts to
cure this perceived defect by attaching to his response intake notes that appear to be related to
his EEOC charge and more fully flesh out the allegations he presented to the EEOC, as well as
informational pages taken from the EEOC’s website. Defendants argue that the court should
disregard the attachments because they were not in defendant’s possession during the EEOC’s
investigation. The court need not resolve the issue because it finds no reason to rely on the
attachments in any way. It is true that plaintiff did not include in his complaint to the EEOC
each of the allegations that he has presented to this court, but those that were omitted are still
within the scope of the charges filed with the EEOC because both of the complaints “describe
the same circumstances and participants.” Conner v. Illinois Dept. of Nat. Res., 413 F.3d 675,
680 (7th Cir. 2005). The allegations are therefore “reasonably related to or grow out of the
allegations in the EEOC charge” and are properly considered by this court. Martinez v.
Universal Laminating, Ltd., 2002 WL 31557621, at *3 (N.D. Ill. Nov. 18, 2002).

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That said, the court finds that the only allegations raised in the complaint that are
sufficient to support a Title VII claim are those that were raised in plaintiff’s EEOC charge.
Plaintiff’s additional allegations amount to nothing more than “minor and even trivial
employment actions” that do not “form the basis of a discrimination suit.” Smart v. Ball
University, 89 F.3d 437, 441 (7th Cir. 1996) (citing cases). Although the Seventh Circuit’s
definition of adverse employment action is broad, it does not encompass “everything that makes
an employee unhappy” or results in a “bruised ego.” Id. Plaintiff’s allegations that he was
required to obtain a doctor’s note to avoid complying with the Sheriff Department’s appearance
policy, that he was written up after five instances of tardiness, that he was told to complete
reports in two different ways by two different supervisors, and that his young children were not
allowed to spectate unaccompanied in the courtroom where he was working fall into this
category. Importantly, even an allegation of falsely low performance evaluations falls into this
category absent some other negative consequence arising from the evaluations. Id. at 442. Here,
however, plaintiff has sufficiently pled that he received low performance evaluations because of
his race and that he has been denied the opportunity to test for promotion based on those
performance evaluations, while Caucasian employees were not subjected to such treatment.
Construing these facts as true and drawing all reasonable inferences in plaintiff’s favor, as the
court must, plaintiff has sufficiently pled a Title VII racial discrimination claim.
Although plaintiff has sufficiently pled racial discrimination in violation of Title VII, he
has failed to plead retaliation. In order to establish retaliation, plaintiff must allege that: (1) he
engaged in a statutorily-protected activity; (2) he suffered an adverse employment action
subsequent to that activity; and (3) there was a causal link between the adverse action and the

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protected activity. Raymond v. City of Chicago, 183 F. Supp. 2d 1060, 1070 (N.D. Ill. 2002).
As defendants point out, plaintiff fails to satisfy the first prong. Plaintiff filed his complaint with
the EEOC on March 27, 2105. He does not allege any discriminatory actions subsequent to that
date. Although plaintiff alleges that he filed complaints with his supervisors regarding
employment actions that he disagreed with prior to March 27, 2015, he does not allege that he
complained of racial discrimination at any point prior to that. Accordingly, plaintiff has failed to
plead retaliation in violation of Title VII or Section 19813 and Counts II and IV are dismissed.
Plaintiff has also failed to sufficiently plead harassment or a hostile work environment.
As discussed above, most of plaintiff’s allegations amount to nothing more than minor or trivial
employment actions that, at most, were annoying or resulted in a bruised ego. “To be actionable,
harassment must be sufficiently severe or pervasive to alter the conditions of employment and
create an abusive working environment.” Ezell v. Potter, 400 F.3d 1041, 1047 (7th Cir. 2005).
Beyond conclusively stating that the actions he complains of created a hostile work environment,
plaintiff has done nothing to establish that his workplace was both objectively and subjectively
offensive, as the law requires. Id. Although plaintiff may be personally offended by the
employment decisions made by his supervisors, the court finds that a reasonable person would
not find plaintiff’s workplace “hostile or abusive considering all of the circumstances.” Id.
Consequently, plaintiff has failed to sufficiently plead that his workplace is objectively
offensive, and his harassment claim fails. Accordingly, Count V is dismissed.

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Defendants further argue that plaintiff’s Section 1981 claim fails because Section 1983
provides the exclusive remedy for a state actor’s violations of Section 1981, citing Campbell v.
Forest Pres. Dist. of Cook County, Ill., 752 F.3d 665 (7th Cir. 2014). Because the court finds
that plaintiff has failed to plead retaliation, it need not address this issue.
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The only counts that remain are Count I, racial discrimination in violation of Title VII
against all defendants, and Count III, racial discrimination in violation of Section 1983 against
Dellinger and Williams in their individual and official capacities. Although plaintiff’s complaint
survives on these counts, it does not survive as to all of the named defendants. As for Count I,
because “a supervisor is not a proper defendant in Title VII, the suit must proceed against the
employer as an entity rather than against a natural person.” Carver v. Sheriff of LaSalle Cnty.,
Ill., 243 F.3d 379, 381 (7th Cir. 2001). Accordingly, the Title VII claims against defendants
Dellinger, Kruse, Romanelli, and Williams are dismissed. See Walker-dabner v. Dart, 2015 WL
9259882, at *3 (N.D. Ill. Dec. 18, 2015).4
As for Count III, plaintiff’s Section 1983 discrimination claim fails against Dellinger and
Williams in their official capacities. For that claim to succeed the acts complained of must be
caused by: “(1) an official policy adopted and promulgated by its officers; (2) a governmental
practice or custom that, although not officially authorized, is widespread and well settled; or (3)
an official with final policy-making authority.” Thomas v. Cook Cnty. Sheriff’s Dept., 604 F.3d
293, 303 (7th Cir. 2009) (citation omitted). Although “there is no clear consensus as to how
frequently certain conduct must occur” to impose liability on the municipality, “it is difficult to
show there was a widespread custom or practice” where a plaintiff’s complaint is “limited to his
experience.” Price v. City of Chicago, 2017 WL 36444, at *10 (N.D. Ill. Jan. 4, 2017). Such is
the case here. Although plaintiff briefly mentions another African-American woman who was

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Because Dupage County is responsible for paying any judgments entered against the
Sheriff, it is properly named as a defendant for the purposes of indemnification only. See Carter
v. Sheriff of Cook Cnty., 2017 WL 621772, at *1 (N.D. Ill. Feb. 15, 2017) (citing Carver, 324
F.3d at 948).
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allegedly “passed up for promotion to Corporal by Caucasian males” three times, aside from this
one sentence, the entire complaint is based on plaintiff’s own experiences, as outlined above.
Plaintiff has failed to sufficiently plead an official or unofficial policy, or that either Dellinger or
Williams had final policy-making authority. Accordingly, plaintiff’s claim against Dellinger and
Williams in their official capacities fails.
As for plaintiff’s claims against Dellinger and Williams in their individual capacities,
plaintiff has met the minimal pleading standard to assert a claim for racial discrimination under
Section 1983. Plaintiff alleges that Dellinger and Williams gave plaintiff artificially low
performance evaluations because of his race and that he has been denied the opportunity to test
for promotion based on those performance evaluations, while Caucasian employees were not
subjected to such treatment.
Defendants argue that plaintiff’s claims against Dellinger and Williams should be
dismissed based on qualified immunity. The court disagrees. As defendants point out,
“government officials performing discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). The problem with defendants’ argument is that plaintiff claims
precisely what Harlow forbids: that Dellinger and Williams violated his right to equal protection
by giving him artificially low performance evaluations because of his race. The court rejects
defendants’ argument that plaintiff’s right to be free of racial discrimination was not clearly
established “such that every reasonable official would have understood that what he is doing
violates that right.” Thayer v. Chiczewski, 705 F.3d 237, 253 (7th Cir. 2012). Taking plaintiff’s

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allegations true, as the court must at the pleading stage, plaintiff has sufficiently alleged that
Dellinger and Williams violated his clearly established right to be free from racial discrimination
in the workplace. Accordingly, defendants’ motion to dismiss Count III against Dellinger and
Williams in their individual capacities is denied.
CONCLUSION
For the foregoing reasons, Counts II, IV, and V are dismissed in their entirety. Count I is
dismissed as to defendants Dellinger, Kruse, Romanelli, and Williams. Count III is dismissed as
to Dellinger and Williams in their official capacities. The remaining defendants are directed to
answer the remaining claims on or before April 27, 2017. The parties are directed to file a joint
status report using this court’s form on or before May 5, 2017. This matter is set for a report on
status on May 11, 2017, at 9:00 a.m.

ENTER:

April 5, 2017

__________________________________________
Robert W. Gettleman
United States District Judge

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