Burton v. Chicago Transit Authority et al
Filing
87
MEMORANDUM OPINION AND ORDER: Pro se plaintiff Annie Burton filed this employment discrimination lawsuit against her former employer the Chicago Transit Authority (CTA) and three of its employees. The court previously dismissed Burton's first am ended complaint for failure to state a claim 60 but granted her leave to file a second amended complaint. Burton did so, and defendants now move to dismiss that complaint with prejudice 68 . For the reasons set forth below, defendants' motion to dismiss is granted. Signed by the Honorable Martha M. Pacold on 9/30/2021. Mailed notice. (lw, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANNIE BURTON,
Plaintiff,
v.
Case No. 17-cv-08508
CHICAGO TRANSIT AUTHORITY,
DERRICK PITTMAN, REGINALD
MURPHY, THERESA FLETCHERBROWN, and VILLETTA WELLS,
Judge Martha M. Pacold
Defendants.
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Annie Burton filed this employment discrimination lawsuit
against her former employer the Chicago Transit Authority (CTA) and three of its
employees. The court previously dismissed Burton’s first amended complaint for
failure to state a claim [60] but granted her leave to file a second amended
complaint. Burton did so, and defendants now move to dismiss that complaint with
prejudice [68]. For the reasons set forth below, defendants’ motion to dismiss is
granted.
BACKGROUND
The following facts are taken from the complaint and the documents attached
it and are assumed to be true for purposes of this motion.1 See Zahn v. N. Am.
Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). Annie Burton worked at
the CTA as a bus driver from at least 2013 until she was terminated in December
2017. [63] at 1, 5 n.2, 6.2 Defendants Pittman, Murphy, Fletcher-Brown, and Wells
also were employed by the CTA during this period. [63] at 1, 5–6. The complaint
alleges that the CTA and the individual defendants violated Burton’s constitutional
1
Unless otherwise specified, “complaint” refers to the operative complaint, Burton’s second
amended complaint [63].
2
Bracketed numbers refer to district court docket entries and are followed by the page or
paragraph number as appropriate. Page numbers refer to the CM/ECF page number.
and statutory rights. [63] at 1. The complaint includes numerous legal conclusions,
but with respect to factual allegations, it alleges as follows.
Around October 22, 2016, Burton was injured when a potentially intoxicated
driver hit a CTA bus; Burton does not state whether she was driving the bus. [63]
at 2. Following the accident, Burton was taken to the hospital in an ambulance and
released with instructions not to return to work for two days. Id.; see also [63-2].
Upon release, Burton asked a CTA supervisor, defendant Reginald Murphy, to give
her a ride home. [63] at 2–3. Murphy agreed, Burton got into the governmentissued SUV that he was driving, and Murphy locked the doors and drove away. [63]
at 3. Burton did not know where he was driving and requested that he unlock the
doors and let her out. [63] at 3. Murphy informed her that he was following
instructions from the CTA manager, defendant Derrick Pittman. [63] at 3. When
they arrived at the destination (which is not specified in the complaint), Murphy
unlocked the doors and escorted Burton to Pittman. [63-1] at 3. The complaint
contains no further details about the SUV ride, where Murphy drove, where
Pittman was located, or what happened when Burton got to Pittman. The
complaint does not say whether Burton returned to work after the October 2016
accident.
In January 2017, Burton wrote the CTA’s president, complaining that she
was kidnapped and falsely arrested by Murphy, Pittman, and a third CTA
employee, Marie Marasovich, following the October 2016 bus accident. [63] at 5 n.2.
In March 2017, Burton submitted a complaint to the Illinois Department of Human
Rights (IDHR). [63] at 5.
On October 24, 2017,3 Burton arrived at the CTA’s office under the
impression that she would be completing paperwork “to be removed from 605 or
return to work.” [63] at 5.4 Defendants Theresa Fletcher-Brown and Villetta Wells,
both managers at CTA, arrived while Burton was completing her 605 paperwork.
Burton was not provided union representation during this meeting. [63] at 5. After
the meeting with defendants Fletcher-Brown and Wells, a “Record of Interview” was
created and Burton states that she was “suspend[ed]” and placed in a “drug
program.” [63] at 6–7. The Record of Interview stated, “She was found to be in
violation of the following rules: General Rules 7 a, b, c 14 a, e and 24[.]” [63] at 7.
Burton alleges that she did not violate the drug and alcohol policy, and that she was
3
While the complaint says this meeting took place in October 2017, Burton’s November 23,
2016 IDHR charge, [69-2] at 11–12, states that this meeting took place in October 2016.
4
The complaint uses the terms “605 paperwork” and “605 meeting” without further
explanation, and neither party elaborates on this term in the briefs. (Based on context,
however, it appears that 605 is referring to a type of medical leave.)
2
terminated in retaliation for filing complaints with the IDHR, Office of Inspector
General, and Illinois Labor Relations Board.5 [63] at 6.
In addition to the foregoing, Burton contends that around September 27,
2017, she sent a complaint to the EEO unit at the CTA’s Forest Glen garage (where
she was stationed), complaining that she was being intimidated and “yell[ed] at” by
a CTA bus clerk or serviceman, potentially named Robert Kaese, in a way that
created a “hostile and unsafe work environment.” [63] at 3.
Burton filed multiple complaints against the CTA with the IDHR, Office of
Inspector General, and Illinois Labor Relations Board. [63] at 6. The complaint
does not specify why or when those complaints were filed.
PROCEDURAL HISTORY
Burton filed this lawsuit in November 2017, alleging retaliatory treatment
for filing complaints with the EEOC and IDHR and discrimination on account of her
age, race, and disability in violation of Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act (ADA), and the Age Discrimination in Employment
Act (ADEA), and constitutional claims (through 42 U.S.C. §§ 1981 and 1983). [1].
After she filed the lawsuit, Burton was terminated from the CTA in
December 2017. See [44] at 2. She filed another charge with the IDHR following
her termination, alleging retaliatory discharge and discrimination based on
disability. [63] at 8; see also [39] at 7-10. In May 2018, defendants filed a motion to
dismiss. [27]. Burton filed an amended complaint in July 2018, adding her
termination. [39]. In light of the amended complaint, the court struck defendants’
motion to dismiss and directed them to respond to the amended complaint. [45].
Defendants filed a second motion to dismiss. [50].
In an order dated May 1, 2019, the court dismissed Burton’s amended
complaint, dismissing certain claims with prejudice and others with leave to amend.
[60] (Kennelly, J.). The court dismissed with prejudice the ADA, ADEA, and Title
VII claims against the individual defendants and the 42 U.S.C. § 1981 claims
against the CTA and the individual defendants in their official capacities. Id. at 10
n.3. The court warned Burton that if she did not file an amended complaint that set
forth at least one viable claim, her case would be dismissed with prejudice. Id. at 1,
10.
5
Burton contends that she filed multiple complaints with the EEOC and IDHR beginning
in 2013. [63] at 1, 6. The court previously directed defendants to obtain records of any
EEOC/IDHR complaints filed by Burton since January 2016. [66.] Defendants sent
subpoenas to both agencies, and attached the documents they received, including three
different EEOC/IDHR charges, to their motion to dismiss. See [69-1]–[69-7].
3
Burton timely filed a second amended complaint, again alleging that
defendants violated the ADA, ADEA, Title VII, and 42 U.S.C. §§ 1983 and 1981; she
also added an allegation that defendants violated the Revenue Sharing Act, 31
U.S.C. § 6711. [63]. The CTA, along with defendants Fletcher-Brown, Pittman, and
Wells now move to dismiss the second amended complaint in its entirety pursuant
to Federal Rule of Civil Procedure 12(b)(6). [68].
LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need
only include “‘a short and plain statement of the claim showing that the pleader is
entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citation omitted). A court may grant a motion to dismiss under Rule
12(b)(6) only if a complaint lacks “enough facts to state a claim for relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. Although a facially plausible claim need not give “detailed factual
allegations,” it must allege facts sufficient “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. “Neither conclusory legal statements
nor abstract recitations of the elements of a cause of action add to the notice that
Rule 8 demands, so they do not help a complaint survive a Rule 12(b)(6) motion.”
Huri v. Office of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 832
(7th Cir. 2015) (citation omitted).
A pro se complaint must be construed liberally, and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (citations omitted). A pro se plaintiff need not plead legal theories; it
is the facts that count. Norfleet v. Walker, 684 F.3d 688, 690 (7th Cir. 2012);
Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010).
ANALYSIS
I.
ADA, ADEA, and Title VII Claims
A.
Title VII
Title VII prohibits employers from discriminating against any employee
based on their race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a).
To state a claim of discrimination pursuant to Title VII, Burton need “allege only
that [her] employer instituted a specific adverse employment action against her
4
based on [a protected characteristic].” Phillips v. Baxter, 768 F. App’x 555, 559 (7th
Cir. 2019).
Title VII also protects employees from discrimination that creates a hostile or
abusive work environment. Lord v. High Voltage Software, Inc., 839 F.3d 556, 561
(7th Cir. 2016) (noting Title VII’s prohibition on discrimination “encompasses the
‘creation of a hostile work environment’ that is severe or pervasive enough to affect
the terms and conditions of employment”); see also Huri, 804 F.3d at 833–34. To
state a Title VII hostile work environment claim, Burton must allege “(1) she was
subject to unwelcome harassment; (2) the harassment was based on [a
characteristic protected by Title VII]; (3) the harassment was severe or pervasive so
as to alter the conditions of employment and create a hostile or abusive working
environment; and (4) there is basis for employer liability.” Huri, 804 F.3d at 834.
In other words, Burton’s Title VII arguments require her to allege that an
adverse action was taken, or that harassment occurred, because of a protected
characteristic. She has not done so.
In the complaint, Burton alleges that she was driven from the hospital to an
unspecified location against her will following a work accident, that she was
suspended and later terminated in retaliation for filing earlier EEOC charges,6 and
that she was yelled at by a coworker. She does not claim—or allege any facts
suggesting—that these actions occurred because of her race or sex.
Burton includes in the complaint a series of concerning but conclusory
statements. Burton alleges that she was held in “captivity” while she was being
transported in the SUV and states that she “assumed [that Murphy, the SUV’s
driver] was going [to] rape or sexually assault her.” [63] at 4–5, 10–11, 13. These
are serious and disturbing allegations, but contrary to the district court’s prior
dismissal order, in which Burton was instructed to describe the underlying events
in reasonable detail (“describe in reasonable detail the events that gave rise to her
contention that the defendants discriminated against her,” [60] at 8), Burton has
not done so. Neither Burton’s complaint nor her response brief states what if
anything happened inside the SUV except that she was transported against her
will. Neither document states what Murphy said to Burton, aside from that he was
following instructions from Pittman, or whether Murphy took any action apart from
driving Burton to their destination. Neither document states when they arrived at
their destination, much less where that destination was. Neither document states
what happened once she was escorted to Pittman. Burton alleges no facts
connecting Murphy’s or Pittman’s actions to her race or her sex. The only facts
alleged about either defendant are that Murphy drove Burton against her will from
the hospital to an unknown location and that Murphy said he was following
6
The court addresses Burton’s retaliation claims separately below.
5
Pittman’s directions. While Burton alleges that she feared that Murphy was going
to assault her, she does not allege what specific actions Murphy took or what
Murphy said that gave rise to this fear except that Burton asked Murphy to give her
a ride home, that he gave her a ride to a location (which Burton does not specify in
her complaint), and that he locked the doors of the car and would not unlock them
when she asked. These facts may give rise to a state-law tort claim, but they do not
state a discrimination claim under Title VII. Burton has not alleged facts giving
rise to an inference that the involuntary transportation happened because of her
race or sex or that this incident was connected to her suspension or termination.
The same is true for Burton’s other factual allegations—her suspension, her
termination, and being yelled at by a co-worker. The complaint does not allege any
facts suggesting that these unfavorable actions were connected to her race or sex.
The complaint does not state a claim for discrimination under Title VII.
Accordingly, Burton’s Title VII discrimination claims are dismissed.
The court previously dismissed these claims for the same reason, and
Burton’s second amended complaint has not added any factual allegations to save
them. As a result, they are dismissed with prejudice.
B.
ADEA
“The ADEA protects workers 40 years of age and older from age-based
employment discrimination,” Wrolstad v. Cuna Mut. Ins. Soc’y, 911 F.3d 450, 454
(7th Cir. 2018), and makes it unlawful for an employer to take adverse action
against such employees “because of” their age, Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 170 (2009) (quoting 29 U.S.C. § 623(a)). In other words, as in the Title VII
context, Burton can prevail on her discrimination claim only if she pleads that she
suffered an adverse employment action because of her age. Barry v. City of
Chicago, No. 18-cv-02183, 2020 WL 1445607, at *3 (N.D. Ill. Mar. 25, 2020); see also
Haymon v. Metra, No. 18-cv-00848, 2020 WL 1548953, at *10 (N.D. Ill. Mar. 31,
2020) (dismissing ADEA and Title VII claims because “there are no facts to support
an inference that [defendant] took any adverse employment action against
[plaintiff] on account of [her sex, color, or age].”). She does not do so.
The only time Burton’s age is mentioned in the complaint is when she
describes herself as a female “over the age of 45.” [63] at 4, 10, 11, 12, 13. The
complaint says nothing more about how her age is connected to any of the
allegations in the complaint. This is not enough to state a claim under the ADEA.
See Haymon, 2020 WL 1548953, at *10; Cover v. OSF Healthcare Sys., No. 18-cv50114, 2020 WL 108422, at *2 (N.D. Ill. Jan. 9, 2020). Burton’s ADEA claims are
once again dismissed, this time with prejudice.
6
C.
ADA
To state a violation of the ADA, Burton must allege that “[s]he is disabled
within the meaning of the Act, is nevertheless qualified to perform the essential
functions of the job either with or without reasonable accommodation, and has
suffered an adverse employment action because of [her] disability.” Tate v. SCR
Med. Transp., 809 F.3d 343, 345 (7th Cir. 2015). This requires her to identify her
disability. Id. Burton alleges that she was discharged from the hospital following
the October 2016 accident with a “total disability from working physcian [sic]
statement.” [63] at 2. She does not identify that disability in the complaint. She
attaches the referenced physician’s note to her response brief [63-2], but it does not
identify a disability. It simply restricted Burton from working for two days and
required a follow-up appointment. Id. Because the complaint does not identify
Burton’s disability, it does not state a claim under the ADA.
Moreover, as the court stated in its previous dismissal order, Burton has not
alleged that any discrimination occurred because of a disability. [60] at 8.
Accordingly, Burton’s ADA discrimination claim is dismissed with prejudice.
D.
Retaliation
In addition to the Title VII, ADEA, and ADA discrimination claims, Burton
alleges that the CTA retaliated against her in violation of these statutes by
suspending her and later terminating her.
To state a retaliation claim under any of these statutes, Burton must allege
that she engaged in activity protected by one of these statutes and suffered an
adverse employment action as a result of that activity. See Luevano, 722 F.3d at
1029 (Title VII); Wrolstad, 911 F.3d at 456 (ADEA); Sanders v. Illinois Dep’t of Cent.
Mgmt. Servs., 593 F. App’x 575, 577 (7th Cir. 2015) (ADA). A “protected activity”
consists either of opposing unlawful discrimination or filing a charge or complaint of
discrimination. See Evans v. United Parcel Serv., Inc., No. 19-cv-04818, 2020 WL
777253, at *2 (N.D. Ill. Feb. 18, 2020) (Title VII); Wrolstad, 911 F.3d at 456 (ADEA);
Sanders, 593 F. App’x at 577 (ADA).
Burton alleges that she was suspended on October 24, 2017,7 in retaliation
for filing complaints with the IDHR, the Office of Inspector General, and the Illinois
Labor Relations Board. [63] at 6. She does not specify the basis for any of those
complaints, nor does she attach them to the complaint. Plaintiff also alleges that
she was terminated in retaliation for something but does not explain what. Id. at 1.
Burton does not allege that the complaints she filed were based on discriminatory
7
Her second EEOC charge, discussed above, suggests this date may be October 24, 2016.
[69-2] at 11–12.
7
conduct. She does not describe the content of any of her complaints, except for the
complaint she filed after her suspension. While defendants attached three IDHR
charges to their motion to dismiss, the complaint does not reference any specific
charges, nor does it allege which charges, if any, are connected to Burton’s
suspension or termination. Because Burton does not allege that she was retaliated
against for complaining of discrimination, she has not alleged that she engaged in
protected conduct under Title VII, the ADEA, or the ADA.8 See Sanders, 593 F.
App’x at 577 (“Because [plaintiff] has never alleged that in the state proceedings he
protested discrimination, that litigation was not ADA-protected activity.”) Thus,
her retaliation claims are dismissed with prejudice for failure to state a claim.9
II.
Section 1983
“Section 1983 provides a procedural vehicle for lawsuits vindicating federal
constitutional or statutory rights.” Haymon, 2020 WL 1548953, at *5 (citing
Graham v. Connor, 490 U.S. 386, 393–94 (1994)). To state a Section 1983 claim,
Burton must allege that she was “deprived of a right secured by the Constitution or
federal law, by a person acting under color of law.” Thurman v. Vill. of Homewood,
446 F.3d 682, 687 (7th Cir. 2006).
Burton alleges that defendants violated her rights protected by the Bill of
Rights and by the Thirteenth, Fourteenth, and Fifteenth Amendments. Burton is
not required to give detailed factual allegations to state a claim, but she must
provide “more than labels and conclusions” and give the defendants fair notice of
her claims against them. Twombly, 550 U.S. at 555. As discussed below, Burton’s
allegations do not plausibly allege that she has been deprived of a right secured by
the Constitution.10
8
The court only addresses these claims with respect to the CTA. To the extent Burton
alleges claims under the ADA, ADEA, or Title VII against the individual defendants, those
claims were dismissed with prejudice in the court’s May 1, 2019 order. [60] at 10 n.3. As
stated there, “the ADA, ADEA, and Title VII provide for liability only with regard to the
plaintiff’s employer, not the plaintiff’s supervisors or other individuals working for the
plaintiff’s employer.” Id. at 4.
9
Because the court holds that Burton has failed to state a claim under the ADA, ADEA,
and Title VII, it declines to address whether she has also failed to exhaust administrative
remedies for these claims.
10
The CTA seeks dismissal of Burton’s Section 1983 claims under Monell. To bring
constitutional claims against the CTA, Burton must satisfy the requirements of Monell v.
Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 659 (1978). As the court explained in
its previous dismissal order, this requires her to allege facts supporting a reasonable
inference that she (1) suffered a constitutional deprivation and that (2) it was caused by:
(a) an express policy; (b) a widespread practice that is so permanent or well settled as to
constitute a custom or usage within the force of law; or (c) a person with final policymaking
8
Read generously, Burton’s complaint appears to allege that the CTA’s drug
and alcohol policy, its decision to suspend Burton in October 2016, its decision to
terminate her in December 2017, and the SUV ride in October 2016 violated various
constitutional rights, invoking thirteen amendments. [63] at 9–12. She alleges that
the CTA’s ordinance, requiring “‘[a]ll employees covered by this policy who are
involved in an accident . . . to submit to a drug and alcohol test,’” violated her
constitutional rights, and that she was improperly found to have violated the policy,
suspended “into an illegal drug program” by Fletcher-Brown and Wells, and
terminated by a CTA representative with final policymaking authority. Id. at 7, 9–
11. The complaint does not explain how the SUV ride, involving Murphy and
Pittman, fits into the allegations related to the drug and alcohol policy. The court
addresses these incidents in turn below.
First, Burton alleges that a CTA drug and alcohol policy or ordinance violated
her constitutional rights. [63] at 9–10. Neither Burton nor the defendants filed the
policy with the court.11 Burton also does not explain how the ordinance violated her
rights, but construing her complaint liberally, it appears she is contending that the
CTA’s policy, which requires bus drivers to submit to a drug and alcohol test
following a bus accident, is unconstitutional. Burton does not allege that she was
tested, and based on her other allegations, it appears that she was not. She also
does not state how any of the individual defendants are connected to the policy.
Nonetheless, drug and alcohol tests imposed by law and enforced by state
officials are searches within the meaning of the Fourth and Fourteenth
Amendments. See Chandler v. Miller, 520 U.S. 305, 313 (1997); Skinner v. Ry.
Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989). The Fourth Amendment, applied
to state actors through the Fourteenth Amendment, New Jersey v. T.L.O., 469 U.S.
325, 334 (1985), protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV.
authority. [60] at 9 (citing McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir.
2000)). In her amended complaint, Burton cites an express CTA policy and an unnamed
person with final decision-making authority, but she does not allege a constitutional
deprivation. Accordingly, while her amended complaint satisfies the second requirement in
Monell, it does not satisfy the first—it does not allege a constitutional deprivation.
Defendants cite Chicago Transit Board Ordinance Number 014–006 in their motion, but
that ordinance only references the drug and alcohol policy, which the parties did not provide
and which the court could not locate. See
https://www.transitchicago.com/board/ordinances/?Keyword=014-006 (last accessed
September 22, 2021).
11
9
To be reasonable under the Fourth Amendment, a search ordinarily
must be based on individualized suspicion of wrongdoing. But
particularized exceptions to the main rule are sometimes warranted
based on “special needs, beyond the normal need for law enforcement.”
When such “special needs”—concerns other than crime detection—are
alleged in justification of a Fourth Amendment intrusion, courts must
undertake a context-specific inquiry, examining closely the competing
private and public interests advanced by the parties.
Chandler, 520 U.S. at 313–14. While the court ordinarily could not determine the
reasonableness of a search based on the complaint, Burton does not allege a search.
She does not allege that she took a drug or alcohol test, whether she refused to do
so, or when (if ever) she was asked to do so. Accordingly, the complaint does not
allege an unconstitutional search.
Second, Burton alleges that her termination, which was decided by
“Defendants’ representative, who interprets and ha[s] final policymaking
authority,” was unconstitutional. [63] at 11–12. She also alleges that FletcherBrown and Wells participated in a disciplinary hearing that led to her suspension
into a drug program. As defendants argue, Burton does not allege who participated
in her termination or how her termination violated the Constitution. She similarly
does not allege how her suspension violates the Constitution. Plaintiffs can bring
retaliation claims (related to discharges and suspensions) pursuant to Section 1983,
but to do so, Burton must first allege that she participated in an activity protected
by the Constitution. See Hutchins v. Clarke, 661 F.3d 947, 955 (7th Cir. 2011)
(recognizing “the government cannot retaliate against its employees for engaging in
constitutionally protected speech” and such First Amendment claims may be
brought pursuant to Section 1983). She has not done so. The complaint does not
allege a constitutional claim related to Burton’s suspension or termination.
Finally, Burton alleges that Murphy, at Pittman’s instruction, drove her to
Pittman, and that this violated the Constitution. To the extent this allegation
attempts to state an unlawful seizure under the Fourth Amendment, it has not
done so. “The Fourth Amendment, which protects individuals’ liberty and privacy
interests, principally applies in the context of law enforcement, preventing police
from searching private areas without a warrant absent exigent circumstances and
from seizing suspected criminals unreasonably.” Wallace by Wallace v. Batavia Sch.
Dist. 101, 68 F.3d 1010, 1012 (7th Cir. 1995) (citing Ingraham v. Wright, 430 U.S.
651, 673 n. 42 (1977)). Nonetheless, as stated above, the protections of the Fourth
Amendment have been held to extend to certain conduct by non-law enforcement
government actions. See, e.g., Skinner, 489 U.S. at 616.
To the extent Burton alleges that Murphy at the direction of Pittman
arrested or seized her in violation of the Fourth Amendment, they could not do so
10
under of color of state law, and thus would not be liable under Section 1983. To
state an unlawful seizure under Section 1983, she must allege that she was “seized”
by someone acting under color of state law. See Honaker v. Smith, 256 F.3d 477,
484 (7th Cir. 2001). “It is firmly established that a defendant in a § 1983 suit acts
under color of state law when he abuses the position given to him by the State.”
West v. Atkins, 487 U.S. 42, 49–50 (1988). Thus, a person employed by the state
“acts under color of state law while acting in his official capacity or while exercising
his responsibilities pursuant to state law.” Id. at 50. “[A]cts by a state officer are
not made under color of state law unless they are related in some way to the
performance of the duties of the state office.” Honaker, 256 F.3d at 458. Burton
does not allege that Murphy or Pittman, as transit employees, had ordinary
authority under state law to make an arrest, that they were deputized to do so, or
that the SUV ride led to some sort of encounter with law enforcement. Instead, she
alleges she was driven in a CTA vehicle from the hospital to a CTA supervisor.
The allegations related to the SUV ride do not state a plausible violation of the
Fourth Amendment. See id.; see also Sroga v. Hondzinski, No. 16-cv-05796, 2017
WL 3278916, at *3 (N.D. Ill. Aug. 2, 2017) (dismissing plaintiff’s claim that he was
seized in violation of the Fourth Amendment because street and sanitation
employees that towed plaintiff’s car did not have police powers “to stop, arrest, or
generally seize people”) (emphasis omitted).
Burton has not alleged a constitutional deprivation. Accordingly, her Section
1983 claims are dismissed with prejudice.
III.
Revenue Sharing Act
Finally, Burton contends that defendants violated the Revenue Sharing Act,
31 U.S.C. § 6711(a). [63] at 14. The Revenue Sharing Act states, “No person in the
United States shall be excluded from participating in, be denied the benefits of, or
be subject to discrimination under, a program or activity of a unit of general local
government because of race, color, national origin, or sex if the government receives
a payment under this chapter.” 31 U.S.C. § 6711(a). The Act’s prohibition on
discrimination also applies to discrimination because of age, disability, or religion.
31 U.S.C. § 6711(b). Before bringing an action under the Revenue Sharing Act, an
individual must exhaust administrative remedies by filing an administrative
complaint with the Secretary of Housing and Urban Development (see 31 U.S.C.
§ 6720(a)(9)), the head of another United States government agency, or the
appropriate state agency. 31 U.S.C. § 6716.
As set forth above, Burton has not alleged that she was subject to
discrimination under a CTA program or activity because of her race, color, sex, age,
or disability. She likewise has not alleged that she was excluded from participating
in or denied the benefits of any CTA program or activity, much less that it was done
11
because of her race, color, sex, age, or disability. Accordingly, her claims under the
Revenue Sharing Act are dismissed with prejudice.
CONCLUSION
For the foregoing reasons, the court grants the defendants’ motion to dismiss
[68]. Because this is the second dismissal for failure to state a claim, and pursuant
to the court’s earlier warning ([60] at 10), Burton’s complaint is dismissed with
prejudice.
12
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