Smith v. Chief Judge of the Circuit Court of Cook County et al
Filing
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MEMORANDUM Opinion and Order. The Court grants the Office of the Chief Judge's motion to dismiss 18 as to plaintiff's §§1981 and 1983 claims as well as plaintiff's Title VII claims of unlawful national origin and sex discri mination. Defendants Alexander, Das, and Patterson's motion to dismiss 29 is granted as to plaintiff's Title VII claims. Plaintiff is given an opportunity to amend his complaint by July 10, 2018 if he chooses to do so. Status hearing previously set for June 21, 2018 is stricken and reset to July 12, 2018 at 9:30 a.m. Signed by the Honorable Jorge L. Alonso on 6/20/2018. Notices mailed by judge's staff (ntf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JASON SMITH,
Plaintiff,
v.
CHIEF JUDGE OF THE CIRCUIT
COURT OF COOK COUNTY, et al.,
Defendants.
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Case No. 17 C 8341
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
Before the Court are defendants’ motions to dismiss plaintiff’s Complaint [18], [29]
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Office of the
Chief Judge’s motion [18] is granted in part and denied in part. Defendants Alexander, Das, and
Patterson’s motion [29] is granted. Plaintiff is given an opportunity to amend his complaint by
July 10, 2018 consistent with this opinion if he chooses to do so. Status hearing previously set
for June 21, 2018 is stricken and reset to July 12, 2018 at 9:30 a.m.
BACKGROUND
Plaintiff Jason Smith is a probation officer for the Office of the Chief Judge of the Circuit
Court of Cook County (“Office of Chief Judge”). He has worked as a probation officer since
April 3, 2003.
On or about November 9, 2016, Smith filed a Charge of Discrimination with the Illinois
Department of Human Rights, alleging a claim of retaliation. Smith alleged that he engaged in
various protected activities from 2012 through 2014 while serving as Vice President of the Local
Union, including appearing as a witness in a discrimination case. Smith claimed that, on or about
July 8, 2016, defendants retaliated against him by denying him a flex-time schedule—a schedule
that was not denied to similarly situated employees who did not participate in protected
activities. On October 19, 2017, Smith received a right-to-sue letter.
On November 17, 2017, plaintiff, proceeding pro se, filed suit against “Chief Judge of the
Circuit Court of Cook County,” 1 Dennis Alexander, Avik Das, and William Patterson, alleging
claims of discrimination and retaliation. He alleges that defendants denied him a flex-time
schedule but approved a similar schedule for a white probation officer. He attaches a copy of his
Charge of Discrimination and his right to sue letters.
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The Court construes plaintiff’s complaint to be against the Office of the Chief Judge of the
Circuit Court of Cook County.
Plaintiff asserts the following claims against the Office of the Chief Judge: unlawful color,
national origin, and race discrimination in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”) and 42 U.S.C. §1981 (“§1981”); unlawful sex discrimination in violation of Title
VII; retaliation; and unlawful race, color, and national origin discrimination in violation of 42
U.S.C. §1983 (“§1983”). The Office of the Chief Judge moves to dismiss, arguing that plaintiff’s
§§1981 and 1983 claims are barred by the Eleventh Amendment. Additionally, the Office of the
Chief Judge argues that plaintiff’s claims of discrimination based on color, national origin, race,
and sex under Title VII fail because plaintiff did not exhaust his administrative remedies.
As for defendants Alexander, Das, and Patterson, plaintiff asserts the following claims:
unlawful color, national origin, and race discrimination in violation of Title VII and §1981;
unlawful sex discrimination in violation of Title VII; and retaliation. Defendants Alexander, Das,
and Patterson move to dismiss the Title VII claims, arguing that individual liability does not exist
under Title VII.
STANDARD
The purpose of a Rule 12(b) motion to dismiss is to test the sufficiency of the complaint,
not decide the merits of the case. Derfus v. City of Chi., 42 F. Supp. 3d 888, 893 (7th Cir. 2014).
To survive a motion to dismiss pursuant to Rule 12(b)(6), a pleading that purports to state a
claim for relief must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
satisfies this standard when its factual allegations “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555-56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th
Cir. 2010) (“[P]laintiff must give enough details about the subject-matter of the case to present a
story that holds together.”). For purposes of a motion to dismiss, the Court accepts “as true all of
the well-pleaded facts in the complaint and draws all reasonable inferences in favor of the
plaintiff.” Platt v. Brown, 872 F.3d 848, 851 (7th Cir. 2017). “A document filed pro se is to be
liberally construed, … and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers. Beal v. Beller, 847 F.3d 897, 902
(7th Cir. 2017).
DISCUSSION
Eleventh Amendment Immunity
The Office of the Chief Judge argues that plaintiff’s §§1981 and 1983 claims should be
dismissed because the Office of the Chief Judge is not a person for purposes of plaintiff’s
§§1981 and 1983 claims and because the Eleventh Amendment shields the Office of the Chief
Judge from liability.
The Eleventh Amendment provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. “If properly raised, the amendment bars actions in federal court against a
state, state agencies, or state officials acting in their official capacities.” Ind. Prot. & Advocacy
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Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir. 2010). A state agency
cannot be sued under §§1981 and 1983 unless an exception to immunity applies. See Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) (“neither a State nor its official acting in
their official capacities are ‘persons’ under §1983”); see also Carter v. Ill. Dep’t of Commerce
and Cmty. Affairs, 600 F. Supp. 583 (N.D. Ill. 1984); Titus v. Ill. Dep’t of Transp., 828 F. Supp.
2d 957, 967 (N.D. Ill. 2011). “An official capacity suit is the same as a suit against the entity of
which the officer is an agent.” DeGenova v. Sheriff of DuPage Cty., 209 F.3d 973, 975 n.1 (7th
Cir. 2000). State officials named in their official capacities may not be sued for monetary
damages in federal court. See Milazzo v. O’Connell, 925 F. Supp. 1331, 1336 n. 1 (N.D. Ill.
1996), aff’d, 108 F.3d 129 (7th Cir. 1997) (citing Scott v. O’Grady, 975 F.2d 366, 369 (7th Cir.
1992), cert. denied, 508 U.S. 942 (1993) (monetary claims against a state are barred by the
Eleventh Amendment); Orenic v. State Labor Relations Bd., 127 Ill. 2d 453, 476 (1989)
(employees of the Office of the Chief Judge are employees of the State of Illinois)).
There are, however, three exceptions to Eleventh Amendment immunity: (1) a state may
consent to the suit in federal court and therefore waive immunity; (2) Congress may abrogate the
states’ eleventh amendment; and (3) a plaintiff may file suit against state officials seeking
prospective equitable relief for ongoing violations of federal law under the Ex parte Young
doctrine. Peirick v. Indiana Univ.-Purdue Univ. Indianapolis Athletics Dep’t., 510 F.3d 681, 695
(7th Cir. 2007) (citations omitted). “Ex Parte Young does not reach, however, claims for
retroactive damages to be paid from a state treasury, which the Eleventh Amendment generally
continues to preclude.” Brown v. Budz, 398 F.3d 904, 918 (7th Cir. 2005).
None of the exceptions to immunity appear to apply here. The Office of the Chief Judge
has not consented to suit in federal court for plaintiff’s §§1981 and 1983 claims. See 745 ILCS
5/1; 705 ILCS 505/8. Congress has not abrogated the states’ immunity in §§1981 and 1983
claims. See Baker v. Indiana Family & Social Services Admin., 260 F. Supp. 2d 731, 737 (7th
Cir. 2003). And plaintiff is not seeking injunctive relief against a state official in his or her
official capacity. Accordingly, plaintiff’s §§1981 and 1983 claims against the Office of the Chief
Judge are dismissed. However, to the extent that plaintiff is seeking injunctive relief, the Court
grants plaintiff leave to amend.
Exhaustion – Title VII claims
Prior to filing suit under Title VII, a plaintiff must first file a charge of discrimination
with the EEOC or IDHR. Salas v. Wis. Dep’t of Corr., 493 F.3d 913, 921 (7th Cir. 2007). This
requirement gives the employer notice and affords the EEOC and the employer an opportunity to
attempt conciliation without resorting to the courts. Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir.
2005). “Courts review the scope of an EEOC charge liberally.” Huri v. Office of the Chief Judge
of the Circuit Court of Cook Cnty., 804 F.3d 826, 831-832 (7th Cir. 2015) (citations omitted).
“[B]ecause most EEOC charges are completed by laypersons rather than by lawyers, a Title VII
plaintiff need not allege in an EEOC charge each and every fact that combines to form the basis
of each claim in her complaint.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994).
In other words, a plaintiff can pursue a claim in federal court on claims not explicitly laid out in a
charge if the claims are “like or reasonably related” and “the claim in the complaint can
reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.”
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(Id.) (internal quotation marks and citation omitted). At a minimum, the EEOC charge and the
relevant claim must describe the same conduct and implicate the same individuals. Huri, 804
F.3d at 832.
Failure to exhaust administrative remedies is an affirmative defense, which the defendant
has the burden of proving. Salas v. Wis. Dep’t of Corr., 493 F.3d at 922. “Affirmative defenses
cannot form the basis to dismiss unless the plaintiff’s complaint pleads the plaintiff out of court.”
Graham v. United Parcel Serv., 519 F. Supp. 2d 801, 808 (N.D. Ill 2007) (citations omitted).
Although a plaintiff need not plead around an affirmative defense, a court may dismiss a claim
based on an affirmative defense when the plaintiff “plead[s] himself out of court by alleging (and
thus admitting) the ingredients of a defense.” Chicago Bldg Design, PC v. Mongolian House,
Inc., 770 F.3d 610, 613-614 (7th Cir. 2014); United States Gypsum v. Indiana Gas Co., 350 F.3d
623, 626 (7th Cir. 2003).
Here, plaintiff alleged the following in his charge of discrimination:
I.
A. ISSUE/BASIS
UNEQUAL TERMS AND CONDITIONS OF EMPLOYMENT –
JULY 8, 2016, IN RETALIATION FOR HAVING OPPOSED
UNLAWFUL DISCRIMINATION IN THE WORKPLACE.
B. PRIMA FACIE ALLEGATIONS
1. From 2012 through 2014, I engaged in various protected
activities when I filed at least a dozen discrimination complaints
with the EEOC as the Vice President of the Local Union. On
March 21, 2015, I engaged in a protected activity when I served as
a witness for discrimination charge #2014CF2907, with the Illinois
Department of Human Rights. On December 4, 2105, I engaged in
a protected activity when I was named as a witness to
discrimination case No. 15CV5907, filed with the United State
District Court of the Northern District of IL, Eastern Division.
2. I was hired on April 3, 2003. My performance as a Probation
Officer met Respondent’s expectations.
3. On July 8, 2016, I was subjected to unequal terms and
conditions of employment when I was denied a flex time schedule
by Dennis Alexander, Deputy Chief of Probation Officer.
4. Similarly situated employees who had not participated in
protected activities, such as Lisa Poczatek, were not denied a flex
time schedule under similar circumstances.
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5. The adverse action closely followed my protected activity within
such a period of time as to raise an inference of retaliatory
motivation.
(Dkt. 1, pgs. 10-11.) In his complaint, plaintiff states that he “requested a similar schedule that
was approved for a white probation officer. Plaintiff has been complaining of racial
discrimination for over two years. Plaintiff has provided evidence. . . Plaintiff was denied this
schedule and was further denied by each defendant through the process.” (Dkt. 1, pg. 5.)
The Office of the Chief Judge moves to dismiss, arguing that plaintiff did not exhaust his
administrative remedies because he did not raise any allegation of color, national origin, race,
and sex discrimination in his charge of discrimination and because plaintiff’s allegations are not
reasonably related to his original charge of discrimination. Plaintiff responds that all defendants
were notified of his discrimination claims via the grievance process and the filing of his
administrative charge. He says that he exhausted his administrative remedies because he
“mentions his color on the letter he sent to the Illinois Department of Human Rights, national
origin, race, sex, and that he believes he has been subject to a form of discrimination based on
the same” and that he “does allege in his narrative sent to the Illinois Department of Human
Rights in the initial harm of the intake form.” (Dkt. 25, pg. 6.) He attaches an intake form 2 as an
exhibit to his response to the Office of the Chief Judge’s motion to dismiss. (See dkt. 25-2.) The
Office of the Chief Judge objects to plaintiff’s reliance on the exhibits attached to plaintiff’s
response, arguing that the Court may not look to materials beyond the complaint when
considering a Rule 12(b)(6) motion to dismiss.
Generally, the court considers “the complaint itself, 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” when ruling on a 12(b)(6) motion to dismiss. Cohen v. Am. Sec. Ins. Co.,
735 F.3d 601, 604 (7th Cir. 2013) (citing Geinosky v. City of Chicago, 675 F.3d 743, 745-46 n. 1
(7th Cir. 2012)). However, “a plaintiff has much more flexibility in opposing a Rule 12(b)(6)
motion.” Geinosky, 675 F.3d at 745-46 n. 1. “[A] plaintiff ‘may elaborate on his factual
allegations so long as the new elaborations are consistent with the pleading * * * [A] party
opposing a Rule 12(b)(6) motion may submit materials outside the pleadings to illustrate the
facts the party expects to be able to prove * * * [and] is free to assert new facts in brief opposing
motion to dismiss.’” Derfus, 42 F. Supp. 3d at 893 n. 1 (citing Geinosky, 675 F.3d at 746 n. 1.)
Because the exhibits attached to plaintiff’s response are consistent with his pleadings, the Court
will consider them solely as they relate to the argument of exhaustion.
Regarding his claims of discrimination based on race and/or color, plaintiff has not pled
himself out of court at this stage of the proceedings. In his complaint, plaintiff says that he
“requested a similar schedule that was approved for a white probation officer” and that he “has
been complaining of racial discrimination for over two years.” (Dkt. 1, pg. 5.) On his intake
form, plaintiff states that he would like to correct his claim to one of “discrimination based on
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On the intake form, plaintiff states that he seeks to make several corrections to his Charge of
Discrimination, including correcting his claim to one of discrimination based on race, color, and
retaliation.
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race, color, and retaliation.” (Dkt. 25-2.). An intake form may, in certain circumstances, be
construed as a charge. See Federal Exp. Corp. v. Holowecki, 552 U.S. 389 (2008). Accordingly,
at this time, the Office of the Chief Judge’s motion to dismiss these claims is denied. Plaintiff
may proceed with these claims.
However, the same cannot be said for plaintiff’s claims of discrimination based on
national origin and/or sex. On his form complaint, plaintiff checked the boxes for national origin
discrimination and sex discrimination. But he stopped there. A review of the narrative sections in
both his complaint and his charge of discrimination reveals that plaintiff did not mention or
suggest that he suffered discrimination based on his national origin and/or sex. The narrative
sections of plaintiff’s complaint and charge of discrimination are devoid of any facts that would
have reasonably notified the Office of the Chief Judge or the EEOC that these issues were
subject to investigation and conciliation efforts. Accordingly, plaintiff’s claims of discrimination
based on national origin and sex are dismissed with prejudice. See Williams v. County of Cook,
969 F. Supp. 2d 1068, 1077-1079 (N.D. Ill. 2013) (dismissing plaintiff’s Title VII claims based
on color, national origin, age, and sex because neither plaintiff’s factual narrative or causes of
discrimination alleged in her EEOC Charge could reasonably have led defendant to conclude that
plaintiff was a victim of such discrimination).
Title VII – Individual Liability
Defendants Alexander, Das, and Patterson argue that the Title VII claims against them
must be dismissed because individual liability does not exist under Title VII. The Court agrees.
Title VII authorizes suit only against an employer as an entity rather than against
individual people who are agents of the employer. Smith v. Bray, 681 F.3d 888, 896 n. 2 (7th Cir.
2012), overruled on other grounds by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 764 (7th
Cir. 2016). “A supervisor does not, in his individual capacity, fall within Title VII’s definition of
employer.” Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995). Thus, plaintiff cannot state a
claim against Defendants Alexander, Das, and Patterson because Title VII does not impose
liability on managers in their individual capacities. Accordingly, the Title VII claims against
defendants Alexander, Das, and Patterson are dismissed.
CONCLUSION
For these reasons, the Court grants the Office of the Chief Judge’s motion to dismiss [18]
as to plaintiff’s §§1981 and 1983 claims as well as plaintiff’s Title VII claims of unlawful
national origin and sex discrimination. Defendants Alexander, Das, and Patterson’s motion to
dismiss [29] is granted as to plaintiff’s Title VII claims. Plaintiff is given an opportunity to
amend his complaint by July 10, 2018 if he chooses to do so. Status hearing previously set for
June 21, 2018 is stricken and reset to July 12, 2018 at 9:30 a.m.
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SO ORDERED.
ENTERED: June 20, 2018
______________________
HON. JORGE ALONSO
United States District Judge
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