Mays Gillon v. University of Illinois Health & Science Systems et al

Filing 42

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 2/15/2018:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BEVERLY R. MAYS GILLON,
Plaintiff,
v.
BOARD OF TRUSTEES OF THE
UNIVERISTY OF ILLINOIS and
DIANE OIKLE, individually,
Defendants.

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No. 17 CV 4482
Hon. Amy J. St. Eve

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Plaintiff Beverly R. Mays Gillon (“Plaintiff” or “Gillon”) brings this action against
Defendants Board of Trustees of the University of Illinois (the “Board”) and Diane Oikle,
individually, (“Oikle,” and collectively with the Board, “Defendants”) alleging employment
discrimination based on her race in violation of Title VII of the Civil Rights Act of 1964, as
amended 42 U.S.C. §2000e et seq., and 42 U.S.C. §§ 1981/1983. (R. 21 at ¶ 1.) Specifically,
Gillon brings Title VII and §§ 1981/1983 claims against the Board, and a §§ 1981/1983 claim
against Oikle. Before the Court is Defendants’ motion to dismiss all three counts of Plaintiff’s
First Amended Complaint (“Amended Complaint”).1 (R. 24.) For the following reasons, the
Court grants Defendants’ motion to dismiss without prejudice in part and with prejudice in part,
and grants Plaintiff leave to amend her complaint consistent with this Opinion.

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In her response to Defendants’ motion to dismiss, Plaintiff states factual allegations that do not appear in her
Amended Complaint and references factual allegations she made in her “pro se [original] complaint.” (R. 34 at 4-5.)
Gillon’s Amended Complaint supersedes her original complaint and the Court here only reviews her Amended
Complaint. See Johnson v. Dossey, 515 F.3d 778, 780 (7th Cir. 2008) (“When an amended complaint is filed, the
prior pleading is withdrawn and the amended pleading is controlling.”).

BACKGROUND2
Plaintiff Gillon is an African-American woman who resides in Illinois. (R. 21 at ¶ 1-2.)
Defendant Board “is the governing body of the University of Illinois system.” (Id. at ¶ 3.)
Defendant Oikle “at all relevant times was the Assistant Director of [the] Gastroenterology Lab
for the University of Illinois Health and Science Systems a/k/a University of Illinois at Chicago
Hospital.” (Id. at ¶ 4.)
According to Plaintiff, the Board employed her from 1993 to the present in various
positions as a nurse at the University of Illinois at Chicago. (Id. at ¶ 10-12.) Gillon alleges that
in the spring of 2016, “Defendants began to exclude Gillon from Charge Nurse duties and
rotation[,] and excluded her from training. As a result, Gillon suffered a loss in pay and
promotional opportunities.” (Id. at ¶ 13.) Specifically, “Oikle made the decision to remove
Gillon from Charge Nurse duties and rotation[,] and to exclude her from training.” (Id. at ¶ 4.)
Plaintiff claims that at all times material to this action, Defendants gave her “performance
evaluations of satisfactory or better,” “took no disciplinary action against” her, and provided “no
valid criticism of her work.” (Id. at ¶ 14, 16.) Further, Gillon “was qualified to perform the
duties of Charge Nurse.” (Id. at ¶ 15.)
Gillon also alleges that “Defendant Board has a policy, practice or custom of demoting
and/or taking adverse employment[] actions against African-American nurses….[which] was
established with deliberate indifference….[and] was the cause of the wrong suffered by Gillon.”
(Id. at ¶ 21-23.) As to Oikle, Gillon states that “Defendant Oikle was personally responsible for
the deprivation of Gillon’s constitutional rights guaranteed under 42 U.S.C. §1981 by directing

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The following facts are taken from Plaintiff’s Amended Complaint and are accepted as true, and all reasonable
inferences are drawn in Plaintiff’s favor. Roberts v. City of Chi., 817 F.3d 561, 564 (7th Cir. 2016); Mann v. Vogel,
707 F.3d 872, 877 (7th Cir. 2013).

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or causing the constitutional violation.” (Id. at ¶ 25.) Plaintiff makes no other factual allegations
in support of her statements or regarding Defendants’ alleged wrongful conduct on account of
her race.
In December 2016, Gillon filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). (R. 21 at ¶ 5.) In March 2017, Gillon received a right to
sue letter from the EEOC. (Id. at ¶ 6.) Gillon filed this lawsuit in June 2017, alleging three
counts: Count I, “demotion and/or adverse employment action in violation of Title VII against
Defendant Board;” Count II, “prohibited discrimination under 42 U.S.C. § 1983 regarding
Defendant Board;” and Count III, “prohibited discrimination under 42 U.S.C. § 1983 regarding
Defendant Oikle in her individual capacity.” (R. 1.) Gillon seeks a permanent injunction,
compensatory damages, punitive damages, and attorney’s fees and costs. (Id.) Before the Court
is Defendants’ motion to dismiss Plaintiff’s Amended Complaint. (R. 24.)
LEGAL STANDARD
“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the
viability of a complaint by arguing that it fails to state a claim upon which relief may be
granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014)
(referencing Fed. R. Civ. P. 12(b)(6)); see also Hill v. Serv. Emp. Int’l Union, 850 F.3d 861, 863
(7th Cir. 2017). Under Rule 8(a)(2), a complaint 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 complaint must
“give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell
Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). A plaintiff’s “factual
allegations must be enough to raise a right to relief above the speculative level.” Id. Put
differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
When determining the sufficiency of a complaint under the plausibility standard, courts
must “accept all well-pleaded facts as true and draw reasonable inferences in the plaintiffs’
favor.” Roberts v. City of Chi., 817 F.3d 561, 564 (7th Cir. 2016); Mann v. Vogel, 707 F.3d 872,
877 (7th Cir. 2013). However, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; see also Thulin
v. Shopko Stores Operating Co., LLC, 771 F.3d 994, 997 (7th Cir. 2014). Pleadings do not
require “detailed factual allegations,” but they do demand “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. 662 at 678. “[A] plaintiff’s
obligation to provide the grounds of his entitle[ment] to relief requires more than labels and
conclusions.” Camasta, 761 F.3d 732 at 739 (citing Twombly, 550 U.S. at 555).
ANALYSIS
Defendants move to dismiss all three counts of Plaintiff’s Amended Complaint pursuant
to Federal Rule 12(b)(6). (R. 24.) Defendants argue that Gillon’s Amended Complaint “simply
alleges, without support, that Plaintiff was discriminated against due to her race.” (Id. at 1.)
They urge the Court to dismiss Gillon’s complaint because she has not suffered an adverse
employment action and has in general failed to state a claim for discrimination. (Id. at 3-7.)
Further, they claim the Court should dismiss the claim against the Board and Oikle because of
Eleventh Amendment sovereign immunity. (Id. at 7-10.)
I.

Count I: Alleged Violation of Title VII by Defendant Board
Plaintiff alleges a violation of Title VII by the Board in Count I. Because Congress has

validly abrogated state sovereign immunity with respect to Title VII, a plaintiff may recover

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damages against a state and its agencies under Title VII. See Nanda v. Bd. of Trs. of Univ. of Ill.,
303 F.3d 817, 830–31 (7th Cir. 2002). To state a claim for discrimination on the basis of race,
Plaintiff must show that the Board subjected her to discrimination based on race. Specifically,
Gillon must set out factual allegations that show: “(1) [s]he is a member of a protected class; (2)
[s]he was qualified for the applicable positions; (3) [s]he suffered an adverse employment action;
and (4) similarly-situated persons not in the protected class were treated more favorably.”
Martino v. W. & S. Fin. Grp., 715 F.3d 195, 202 (7th Cir. 2013) (citing McGowan v. Deere &
Co., 581 F.3d 575, 579 (7th Cir. 2009)). Gillon “need not plead a prima facie case because it is
an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema, 534 U.S. 506,
510 (2002); see Luevano v. Wal–Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013).
A.

Adverse Employment Action

Defendants first argue that Plaintiff has not suffered any damages and has failed to allege
an adverse employment action. In Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742 (7th Cir.
2002), the Seventh Circuit set forth three categories of cases whose facts meet the materially
adverse employment action criterion:
(1) diminishing an “employee’s compensation, fringe benefits, or other financial
terms of employment,” including termination; (2) reducing long-term career
prospects “by preventing [her] from using the skills in which [she] is trained and
experienced, so that the skills are likely to atrophy and [her] career is likely to be
stunted”; and (3) changing “the conditions in which [she] works…in a way that
subjects [her] to a humiliating, degrading, unsafe, unhealthful, or otherwise
significantly negative alteration in [her] workplace environment.”
Alamo v. Bliss, 864 F.3d 541, 552 (7th Cir. 2017) (emphasis in original) (quoting Herrnreiter,
315 F.3d at 744).
Here, Defendants have not terminated or disciplined Gillon. Plaintiff alleges, however,
that she was demoted, that she “suffered a loss in pay and promotional opportunities,” and also

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that she was excluded from Charge Nurse duties and from training. (R. 21 at ¶ 13.) Plaintiff
argues that her pleadings qualify as an adverse employment action under category 1 or 2. (R. 34
at 6.) The determination of whether these actions are adverse employment actions must be made
in the full context of the case. de la Rama v. Ill. Dep’t of Human Servs., 541 F.3d 681, 686 (7th
Cir. 2008). It is plausible that not being assigned Charge Nurse duties and being excluded from
training resulted in a loss of pay and promotional opportunities, and thereby constituted an
adverse employment action. As such, Plaintiff has alleged an adverse employment action.
B.

Plaintiff Has Not Pled a Race Discrimination Claim

While Plaintiff alleges that she is African-American, that she was qualified as a nurse,
and that she suffered an adverse employment action, she fails to allege how the Board subjected
her to discrimination based on race. Gillon does not allege a single fact in support of her claim
and therefore she fails to “nudge” her claim “across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570. Plaintiff merely alleges that “Defendant Board has a policy, practice
or custom of demoting and/or taking adverse employment[] actions against African-American
nurses….[which] was established with deliberate indifference….[and] was the cause of the
wrong suffered by Gillon.” (R. 21 at ¶ 21-23.) Plaintiff does not provide any facts to support
these conclusory statements.
The Court does not require a “heightened fact pleading of specifics, but only enough facts
to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 547. “A pleading
that offers labels and conclusions or a formulaic recitation of the elements of a cause of action
will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” Iqbal, 556 U.S. at 678 (quotations and citations removed). That is precisely
what Gillon has delivered in her Amended Complaint. She has failed to provide “enough details

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about the subject-matter of the case to present a story that holds together.” Swanson v. Citibank,
N.A., 614 F.3d 400, 404 (7th Cir. 2010). Accepting all facts as true and drawing all reasonable
inferences in her favor, the Court dismisses without prejudice Count I, Plaintiff’s Title VII claim
against Defendant Board.
II.

Count II: Alleged Violation of 42 U.S.C. §§ 1981/1983 by Defendant Board
Plaintiff attempts to bring §§ 1981/1983 claims against the Board in Count II. Defendant

correctly argues that Eleventh Amendment immunity bars such claims against the Board because
it is a part of the state. Indeed, unlike Title VII, a plaintiff cannot sue state entities for damages
under §§ 1981/1983. Williams v. Wisconsin, 336 F.3d 576, 580 (7th Cir. 2003) (“[A] state is not
a ‘person’ subject to a damages action under § 1983.”); Will v. Mich. Dep’t of State Police, 491
U.S. 58, 64 (1989) (“[A] State is not a person within the meaning of § 1983.”); Rucker v. Higher
Educ. Aids Bd., 669 F.2d 1179, 1184 (7th Cir. 1982) (holding that states are entitled to sovereign
immunity for § 1981 claims).
Courts have routinely recognized that state universities, as well as their governing bodies,
are protected from suit under the Eleventh Amendment. Mutter v. Madigan, 17 F. Supp. 3d 752,
757 (N.D. Ill. 2014) (finding that the Eleventh Amendment barred claims against University of
Illinois at Chicago and dismissing that entity as a defendant), aff’d as modified sub nom. Mutter
v. Rodriguez, 700 F. App’x 528 (7th Cir. 2017)). See, e.g., Kaimowitz v. Bd. of Trs. of Univ. of
Ill., 951 F.2d 765, 767 (7th Cir. 1991) (holding that the Board of Trustees of the University of
Illinois does “not constitute a suable ‘person[]’ within the meaning of § 1983.”); Cannon v. Univ.
of Health Scis./Chi. Med. Sch., 710 F.2d 351, 356 (7th Cir. 1983) (holding that Southern Illinois
University and the Board of Trustees of the University of Illinois are state agencies with
Eleventh Amendment immunity). “[G]iven the great number of cases holding state universities

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to be instrumentalities of the state for Eleventh Amendment purposes, it would be an unusual
state university that would not receive immunity.” Kashani v. Purdue Univ., 813 F.2d 843, 845
(7th Cir. 1987).
Because the University of Illinois is a state agency, it is shielded from liability under §§
1981/1983 by the Eleventh Amendment. The Eleventh Amendment specifically “bars actions in
federal court against a state, state agencies, or state officials acting in their official capacities.”
Council 31 of the Am. Fed’n of State, Cty. & Mun. Emps. v. Quinn, 680 F.3d 875, 881 (7th Cir.
2012); see Mutter, 17 F. Supp. 3d at 757–58.
Additionally, Gillon’s claim in Count II is a Monell policy claim. Monell v. Dep’t of Soc.
Servs. of N.Y.C., 436 U.S. 658 (1978). It is well established, however, that Monell applies only
to municipalities, not states. See Will, 491 U.S. at 70 (“States are protected by the Eleventh
Amendment while municipalities are not…and we consequently limited our holding in Monell to
local government units which are not considered part of the State for Eleventh Amendment
purposes.”); Joseph v. Bd. of Regents of Univ. of Wis. Sys., 432 F.3d 746, 748–49 (7th Cir. 2005)
(“The Court has been clear, however, that Monell’s holding applies only to municipalities and
not states or states’ departments.”). Because the Board is the arm of the state and not of any
municipality, Monell does not apply. Accordingly, the Court dismisses with prejudice Count II,
Plaintiff’s §§ 1981/1983 claim against Defendant Board.
III.

Count III: Alleged Violation of 42 U.S.C. §§ 1981/1983 by Defendant Oikle
Individually
Plaintiff brings a claim she titles “prohibited discrimination under 42 U.S.C. § 1983

regarding Defendant Oikle in her individual capacity” in Count III. Defendants argue that Oikle
is immune from suit under §§ 1981/1983 because of the state’s Eleventh Amendment sovereign

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immunity, largely addressing a suit against Oikle in her official rather than in her individual
capacity.
Unlike under Title VII, individual employees can be held liable for race discrimination
under § 1981. See Smith v. Bray, 681 F.3d 888, 907 n. 2. (7th Cir. 2012) (“One key difference
between § 1981 and Title VII is that the latter authorizes suit only against the employer as an
entity rather than against individual people who are agents of the employer. Under § 1981,
individuals may be liable.”), overruled on other grounds by Ortiz v. Werner Enters., Inc., 834
F.3d 760 (7th Cir. 2016); Lugo v. Int’l Bhd. of Elec. Workers Local #134, 175 F. Supp. 3d 1026,
1039 (N.D. Ill. 2016) (“[A]s opposed to Title VII, individuals may be liable under § 1981.”).
Here, Plaintiff is bringing her race discrimination case against Defendant Oikle in her individual
capacity and despite Defendants’ arguments to the contrary, the Eleventh Amendment does not
bar claims against state employees in their individual capacities. See Brokaw v. Mercer Cty., Ill.,
235 F.3d 1000, 1009 (7th Cir. 2000) (“An individual capacity suit is not barred by the Eleventh
Amendment.”); see also Rodriguez v. Cook Cty., Ill., 664 F.3d 627, 632 (7th Cir. 2011)
(“Individual-capacity claims against prosecutors are not covered by the [E]leventh
[A]mendment.”).
“The legal analysis for discrimination claims under Title VII and § 1981 is identical.”
Ferrill v. Oak Creek-Franklin Joint Sch. Dist., 860 F.3d 494, 499 (7th Cir. 2017) (citing Smith v.
Chi. Transit Auth., 806 F.3d 900, 904 (7th Cir. 2015)). As detailed above in the discussion of
Count I, Gillon can allege a race discrimination claim by setting out factual allegations that
show: (1) she is a member of a protected class; (2) she was qualified for the applicable position;
(3) she suffered an adverse employment action; and (4) similarly-situated people outside the
protected class received more favorable treatment. See Martino, 715 F.3d at 202.

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Here, Plaintiff fails to plead that she was discriminated against based on her race. At the
heart of her case is “whether the evidence would permit a reasonable factfinder to conclude that
the plaintiff’s race…caused the…adverse employment action.” Ortiz, 834 F.3d at 765. While
the Court assumes as true that Gillion is African-American, was qualified as a nurse, and
suffered an adverse employment action, Gillon has not pled facts showing that Oikle
discriminated against her based on her race.
As with Count I, Plaintiff fails to allege enough factual support to state a racial
discrimination claim. Gillon merely states that “Defendant Oikle was personally responsible for
the deprivation of Gillon’s constitutional rights guaranteed under 42 U.S.C. §1981 by directing
or causing the constitutional violation.” (R. 21 at ¶ 25.) “Determining whether a complaint
states a plausible claim for relief…[is]…a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Plaintiff provides
no context for her bare conclusory statements.
Gillon’s complaint, even under the lenient standard afforded at the Rule 12(b)(6) stage,
does not satisfactorily allege Oikle’s involvement in any violations under §§ 1981/1983. “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 678 (quotations and citations omitted).
Aside from a recitation of conclusory statements, Gillon does not allege a single fact in support
of her claim that Oikle discriminated against Plaintiff due to her race. While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations. Id. at
679.

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As such, Plaintiff has not alleged a plausible race discrimination claim against Defendant
Oikle. The Court dismisses without prejudice Count III, Plaintiff’s §§ 1981/1983 claims against
Defendant Oikle individually.
CONCLUSION
For the foregoing reasons, the Court grants Defendants’ motion to dismiss without
prejudice in part and with prejudice in part. Counts I and III are dismissed without prejudice.
Count II is dismissed with prejudice.

Dated: February 15, 2018

ENTERED:

______________________________
AMY J. ST. EVE
United States District Court Judge

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