JONES v. ANDERSON COMMUNITY SCHOOL CORPORATION
MEMORANDUM ORDER - Defendants' motion to dismiss is GRANTED as to all official- capacity claims against the Board and the Employees, which are all DISMISSED WITH PREJUDICE. Defendants' motion to dismiss is also GRANTED as to the following claims against the School, which are all DISMISSED WITH PREJUDICE: Count One, for race and sex discrimination as to all fleet-operator contracts before the 2014-2015 school year; Count Three; and Count Four, for retaliation as to the 2011 route r eassignment. Defendants' motion to dismiss is also GRANTED as to the following claims against the School, which are both DISMISSED WITHOUT PREJUDICE: Count One, for sex discrimination as to the 2014-2015 fleet-operator contract; and Count Four , for retaliation as to the 2015 pay reduction. Defendants' motion is DENIED as to the following claims against the School: Count One, for race discrimination as to the 2014-2015 fleet-operator contract; and Count Two. The case shall proceed accordingly. Signed by Judge Sarah Evans Barker on 9/28/2017. (CKM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
CHARLES F. JONES,
ANDERSON COMMUNITY SCHOOL
JOSEPH CRONK, Individually and in His )
Official Capacity as Director of Operations )
for the Anderson Community School
NANCY FARLEY, Individually and in Her )
Former Official Capacity as Director of
Transportation for the Anderson
Community School Corporation,
MARY ANN HEINEMAN, Individually
and in Her Official Capacity as Assistant
Director of Transportation for the Anderson )
Community School Corporation,
BOARD OF SCHOOL TRUSTEES OF
THE ANDERSON COMMUNITY
SCHOOL CORPORATION, Individually
and in Their Official Capacities,
Plaintiff Charles F. Jones (“Jones”) brought this employment discrimination action
under 42 U.S.C § 1983 against the Anderson Community School Corporation (“the
School”), its Board of Trustees (“the Board”), and three of its employees (“the
Employees”), all in their individual and official capacities (“Defendants”). 1 Before the
Court is Defendants’ motion to dismiss the official-capacity claims for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons below, the motion
is granted in part and denied in part.
Facts and Procedural History
With its allegations taken as true, Jones’s complaint reveals the following. Jones is
a teacher and school administrator holding associate’s, bachelor’s, and master’s degrees
in education and administration. Pl.’s Am. Compl. ¶¶ 26–27. Jones serves or has served
as the principal and transportation director for the Delaware Christian Academy, and also
works or has worked for the public schools of Muncie, Indiana. Id. ¶ 27. He is also a
school-bus driver. Id. ¶ 13. Jones is black. Id.
In 2005, Jones was hired by the School as an independent contractor to drive
school buses in Anderson, Indiana. Id. ¶¶ 9, 13. For the 2006–2007 school year, Jones
applied to be a “Fleet Operator” for the School, one of “four or five” contractors “which
operate multiple school busses.” Id. ¶ 14. Jones’s application was rejected in favor of a
white contractor’s. Id. ¶ 15.
Every year from then on until before or during the 2015–2016 school year, when
Jones left the School, Jones applied to be a fleet operator. Id. ¶¶ 14, 30. Every year his
application was denied, id. ¶ 15, despite Jones’s “perfect safety record” during his ten-
Defendants moved separately to dismiss the individual-capacity claims under Rule 12(b)(5),
Fed. R. Civ. P., on March 3, 2017. Dkt. 38. That motion is disposed of in Defendants’ favor by
separate Order issued simultaneously to this ruling.
year tenure. Id. ¶ 19. Every new fleet-operator contract was awarded to white or whiteowned contractors, the majority of which were formed after Jones began driving for the
School. Id. ¶¶ 15, 16. One such contractor, at the time its fleet-operator contract was
awarded, had “recently been cited for safety violations by the Indiana State Police.” Id. ¶
19. “When Jones inquired about this [hiring pattern], he was told that ‘seniority and
performance are not factors in awarding contracts.’” Id. ¶ 17. When Jones asked what
factors were used in awarding contracts, he received no answer. Id.
In 2011, Jones was assigned a new bus route. Id. ¶ 18. His old route served
primarily white students; his new route served primarily black students. Id. When Jones
inquired about the reason for his reassignment, he was told it was because he could
“handle those kids better.” Id. Jones’s old route was reassigned to a white bus driver. Id.
Jones believed this reassignment was retaliatory for his “repeated complain[ts]” to the
Board about being subjected to race and sex discrimination. Id. ¶¶ 31, 58.
In late 2014, the School had an opening for a new Transportation Supervisor. Id. ¶
22. The School published the opening in early 2015, but not on its own website. Id. ¶¶ 22,
23. Jones heard of the opening through his work at another school and applied. Id. ¶ 22.
In April 2015, Jones was scheduled to interview for the position, but the interview was
canceled the night before for “budgetary reasons.” Id. ¶ 24. The Transportation
Supervisor position apparently was never filled and was later abolished. See id. ¶¶ 24, 25.
Instead, in May 2015, the School created a new position, Assistant Director of
Transportation, for which the School hired Mary Ann Heineman (“Heineman”). Id. ¶ 25.
Heineman is a white woman with “no college degree, no teaching or other education
credentials, and no prior transportation management experience.” Id. The opening for the
position of Assistant Director of Transportation “was never posted in [the School]
In addition to Jones’s applications for a fleet-operator contract and for the
Transportation Supervisor position during the 2014–2015 school year, Jones applied for a
position as the School’s Human Resources Director. Id. ¶ 28. That application was
rejected as well, making three rejections for him during that school year. Id.
Before the 2015–2016 school year began, “Jones learned that Heineman had
changed Jones’s individual [driver] contract in such a way that he would be paid $1,000
per month less than he had been paid the year before.” Id. ¶ 30 (emphasis omitted). Again
Jones believed this reduction in pay to have been retaliatory for his complaints to the
Board. Id. ¶ 59. In any event, Jones found the new pay rate intolerable and “was
compelled” to give up his driver’s contract. Id. ¶ 30.
When Jones left the School, he was the last nonwhite contractor there. Id. After
awarding Jones his first driver’s contract in 2005, the School never thereafter awarded a
driver’s contract to a nonwhite contractor. Id. ¶¶ 15, 21. Jones believes that no fleetoperator contract has been awarded to a nonwhite contractor since 1989. Id. ¶ 21. Though
the School district is 40 percent nonwhite, its “Central Administration” is entirely white,
as are all but one principal in the district. Id. ¶ 32.
Jones brought the instant action in this Court on August 11, 2016. Dkt. 1. After
Defendants answered and moved for partial judgment on the pleadings, Dkt. 8, 12, Jones
filed an amended complaint on November 28, 2016. Dkt 14. The amended complaint
pleads for relief for unlawful discrimination on the bases of race and sex under the Equal
Protection Clause of the Fourteenth Amendment, Pl.’s Am. Compl. ¶ 2, and for unlawful
retaliation, ¶¶ 58–59, a claim we construe as arising under the First Amendment.
Jones seeks to hold Defendants liable as follows: Count One, for race and sex
discrimination in the awarding of fleet-operator contracts from the 2006–2007 school
year through the 2014–2015 school year; Count Two, for race and sex discrimination in
rejecting Jones’s 2015 application for the Transportation Supervisor position and hiring
Heineman for its successor position; Count Three, for race discrimination in the 2011
route reassignment; and Count Four, for retaliation in the 2011 route reassignment and in
the 2015 pay reduction. Count Five pleads the School’s municipal liability for Counts
One through Four.
Defendants moved to dismiss the official-capacity claims on January 3, 2017. Dkt.
23. Jones failed to respond to that motion, and it is therefore considered unopposed.
Standard of Decision
“A pleading that states a claim to relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P.
8(a); Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014). A motion to
dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) “test[s]
the legal sufficiency of a complaint.” Triad Assocs., Inc. v. Chi. Hous. Auth., 892 F.2d
583, 586 (7th Cir. 1989), abrogated on other grounds by Bd. of Cnty. Comm’rs v.
Umbehr, 518 U.S. 668 (1996). To survive dismissal,
a complaint must “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
(2009). Factual allegations are accepted as true at the
pleading stage, but “allegations in the form of legal
conclusions are insufficient to survive a Rule
12(b)(6) motion.” McReynolds v. Merrill Lynch & Co.,
Inc., 694 F.3d 873, 885 (7th Cir.2012) (citing Iqbal, 556 U.S.
at 678). . . . “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant's liability, it ‘stops short of the
line between possibility and plausibility of entitlement to
relief.’” [Iqbal, 556 U.S. at 678] (quoting Twombly, 550 U.S.
at 557) . . . .
Adams, 742 F.3d at 728.
Where, as here, the deadline for amending a complaint as of right has passed, Fed.
R. Civ. P. 15(a)(1)(B), further amendment requires leave of court or the defendants’
consent. Id. at (a)(2). “Although leave to file a second amended complaint should be
granted liberally, a district court may deny leave for several reasons including . . . futility
of amendment.” Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004)
(quotations omitted); see Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave
when justice so requires.”).
Defendants contend that all of Jones’s official-capacity claims are subject to
dismissal because, first, Jones’s claims against the Board and the Employees are
duplicative of Jones’s claims against the School; second, the applicable statute of
limitations bars several of Jones’s claims against the School; third and finally, Jones’s
remaining claims are insufficiently pled.
I. Redundancy of Official-Capacity Claims Against the Board and the Employees
It is well settled that a suit against a government agent in her official capacity is a
suit against the office itself or the unit of government to which the office belongs.
Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (citing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690 n.55 (1978)). Thus, where the governmental unit is a named defendant,
official-capacity claims against agents of that unit are redundant.
Here, the School is the relevant unit of government. The official-capacity claims
against the Board and the Employees are thus claims against the School. Because the
School is a named defendant, the official-capacity claims are duplicative. Defendants
contend that the official-capacity claims are subject to dismissal on that ground. See
Williams v. County of Cook, 969 F. Supp. 2d 1068, 1074 n.2 (N.D. Ill. 2013) (dismissing
official-capacity claims where governmental unit named defendant; collecting cases
reaching same result).
We agree. Particularly as the individual-capacity claims have been dismissed on
Defendants’ separate motion, Dkt. 38, there is no reason to keep the Board and the
Employees in this case in their official capacities. Defendants’ motion is therefore
granted as to the Board and the Employees in their official capacities. Because no
amendment could cure the redundancy, dismissal is with prejudice.
II. Statute of Limitations
“While complaints typically do not address affirmative defenses, the statute of
limitations may be raised in a motion to dismiss if the allegations of the complaint itself
set forth every necessary to satisfy” the limitations defense “because the relevant dates
are set forth unambiguously in the complaint.” Brooks v. Ross, 578 F.3d 574, 579 (7th
Cir. 2009) (quotations and citation omitted); see also Jones v. Bock, 549 U.S. 199, 215
(2007) (“Whether a particular ground for opposing a claim may be the basis for dismissal
for failure to state a claim depends on whether the allegations in the complaint suffice to
establish that ground, not on the nature of the ground in the abstract.”).
Section 1983 actions borrow the limitations period for personal-injury actions
under the law of the state in which the actions arose. Devbrow v. Kalu, 705 F.3d 765, 767
(7th Cir. 2013). In Indiana, that period is two years. Id. (citing Ind. Code § 34-11-2-4).
Jones filed his initial complaint on August 11, 2016. Dkt. 1. Thus, any claim that appears
unambiguously to have accrued two years before that date is subject to dismissal.
The following claims are barred by the statute of limitations: Count One, for race
and sex discrimination as to all fleet-operator contracts before the 2014–2015 school
year; Count Three, accruing in 2011; and Count Four, for retaliation as to the 2011 route
reassignment, accruing in 2011. Because amendment would be futile, these dismissals are
The claim under Count One for race and sex discrimination as to the fleet-operator
contract for the 2014–2015 school year does not unambiguously appear from the face of
the complaint to have accrued before August 11, 2014, and is therefore not subject to
dismissal at this stage. The facts underlying the claim in Count Two all arose after
August 2014. See Pl’s Am. Compl. ¶ 22. The facts underlying the claim under Count
Four for retaliation as to the 2015 pay reduction arose after August 2014. These claims
therefore accrued within the limitations period and survive dismissal on that basis.
III. Plausibility of Monell Claims
A municipality (or any other unit of local government, like a school district, see,
e.g., Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701 (1989)) may be liable for constitutional
injuries caused by its policies. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
We turn first to Jones’s equal protection claim for racial discrimination, then to his
equal protection claim for sex discrimination and his First Amendment retaliation claim.
A. Equal Protection: Race
We first address the issue of whether Jones has adequately pleaded constitutional
injury, then whether Jones has adequately pled a municipal policy causing such injury.
1. Constitutional Injury
The Equal Protection Clause of the Fourteenth Amendment “prohibits intentional
[invidious] discrimination based on membership in a particular class, including acts of
employment discrimination.” Trigg v. Fort Wayne Comm. Schs., 766 F.2d 299, 300 (7th
Cir. 1985) (citing Davis v. Passman, 442 U.S. 228, 234–35 (1979)). In the publicemployment context, equal protection claims under Section 1983 are analyzed like
disparate treatment claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. McCauley v. City of Chicago, 671 F.3d 611, 615–16 (7th Cir. 2011). “[T]he
same standards for proving intentional discrimination apply to Title VII and § 1983 equal
protection[,]” Williams v. Seniff, 342 F.3d 774, 788 n.13 (7th Cir. 2003), though a number
of the Seventh Circuit’s cases have required a separate showing of invidious
discriminatory intent apart from the rebuttable presumption of discriminatory intent
established by a prima facie case under Title VII. Id. (citing cases).
Without direct evidence of discriminatory intent, an equal protection plaintiff may
proceed under the burden-shifting method of indirect proof established by McDonell
Douglas v. Green, 411 U.S. 792 (1973). Hildebrandt v. Ill. Dep’t of Nat. Res., 347 F.3d
1014, 1029 (7th Cir. 2003). Under this method, a plaintiff must establish a prima facie
case of discrimination. Id. at 1030. The burden of production then shifts to the employer
to produce a nondiscriminatory reason for its conduct. Id. The burden then returns to the
plaintiff to show that the employer’s reason was pretextual. Id. The plaintiff’s complaint
need plead only the prima facie case. See Brown v. Budz, 398 F.3d 904, 916 (7th Cir.
We analogize Jones’s claims to failure-to-hire claims under Title VII. For a
failure-to-hire claim, the elements of the plaintiff’s prima facie case are
(i) that he belongs to a racial minority; (ii) that he applied and
was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his qualifications, he was
rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek applicants
from persons of [the plaintiff’s] qualifications, or that the
position was filled with a person not in the protected class.
Millbrook v. IBP, Inc., 280 F.3d 1169, 1174 (7th Cir. 2002) (quotations and citations
Here, element (i) is plausibly satisfied by Jones’s allegation that he is black. Pl.’s
Am. Compl. ¶ 13. Element (ii) is plausibly satisfied by Jones’s allegations that he applied
for a fleet-operator contract for the 2014–2015 school year, id. ¶ 28, for which his prior
experience, including an unblemished safety record as a driver, qualified him, id. ¶ 15,
19, 28; and that he applied for the Transportation Supervisor position in 2015, id. ¶ 22,
for which his experience and education, including two degrees in administration and two
degrees in education, qualified him. Id. ¶ 24, 26–28. Element (iii) is plausibly satisfied by
Jones’s allegations that both of these applications were rejected. Id. ¶ 28. Element (iv) is
plausibly satisfied by Jones’s allegations that all fleet-operator contracts were awarded to
white contractors, id. ¶¶ 15, 19, 21; and that a white woman was hired as the School’s
Assistant Director of Transportation, the newly created successor position to the
Transportation Supervisor position abolished after Jones applied for it but before he could
interview for it. Id. ¶¶ 22–25. Thus, we conclude that Jones has plausibly pled a prima
facie case of race-based employment discrimination, raising an inference of
Still, “[w]here the claim is invidious discrimination in contravention” of equal
protection guarantees, Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), a court at the pleading
stage must take special care that the complaint is not “merely consistent” with purposeful
discrimination, id. at 678 (quotations omitted), but “nudge[s]” the plaintiff’s claims
“across the line” from possible to plausible, id. at 680 (quotations omitted), by rejecting
“obvious alternative explanation[s]” for the allegedly discriminatory conduct. Id. at 682
The obvious alternative explanation for the School’s actions is that Jones simply
lost out to better qualified, though white, applicants. But this is plausibly rejected by
Jones’s complaint. As to the fleet-operator contracts, Jones alleges that (he was told)
“seniority and performance are not factors in awarding contracts.” Pl.’s Am. Compl. ¶ 17.
Safety cannot be the dispositive factor either, as Jones alleges that a fleet-operator
contract was awarded to a white-owned contractor “that had recently been cited for safety
violations by the Indiana State Police.” Id. ¶ 19. Even upon his inquiry, Jones was not
told which factors were considered in awarding fleet-operator contracts. Id. ¶ 17. The
plausible inference is that “the basis of the decision . . . is less likely to be inarticulable
than unspeakable.” Florida v. Bostick, 501 U.S. 429, 441 n.1 (1991) (Marshall, J.,
dissenting) (original emphasis). As to the Transportation Supervisor position, Jones
plausibly alleges that his training and experience in education and administration better
qualified him for the position than the successful applicant for its successor position, who
had no relevant training and little experience. Pl.’s Am. Compl. ¶¶ 25–26. “As between
th[is] obvious alternative explanation” for the School’s actions “and the purposeful,
invidious discrimination” Jones “asks us to infer,” discrimination is a plausible
conclusion. Iqbal, 556 U.S. at 682 (quotations omitted).
We turn next to whether Jones has plausibly pled that his constitutional injuries
were caused by a policy of the School.
2. Caused by Municipal Policy
To establish municipal liability, “a plaintiff must show that his constitutional
injury was caused by (1) the enforcement of an express policy . . . , (2) a widespread
practice that is so permanent and well settled as to constitute a custom or usage with the
force of law, or (3) a person with final policymaking authority.” Wragg v. Village of
Thornton, 604 F.3d 464, 467 (7th Cir. 2010) (quotations and citations omitted).
Jones does not allege the existence of an express School policy of antiblack
discrimination as to school-bus drivers, and pleads no facts plausibly suggesting their
existence. Jones’s equal protection Monell claim therefore cannot survive the School’s
motion to dismiss on the ground of an express policy.
Further, Jones does not plausibly plead that his injuries were caused by a person
with final policymaking authority. “[W]hether a person has [final] policymaking
authority is a question of state law, and is to be decided by the court.” Valentino v.
Village of South Chicago Heights, 575 F.3d 664, 675 (7th Cir. 2009). Jones alleges that
the Board is “the governing body of the [School], pursuant to [Indiana Code §] 20-23-427, and [is] the highest policy-making authority for the [School].” Pl.’s Am. Compl. ¶ 5;
see also id. ¶ 63 (“Discrimination against African Americans is a policy and/or a
government custom promulgated by the [Board].”). But Jones nowhere alleges that the
Board or Board members did any of the allegedly discriminatory acts complained of.
Jones does not allege who decided to award fleet-operator contracts (though he
suggests it was one of the Employees, Nancy Farley, then the School’s Director of
Transportation, see id. ¶ 15), or who decided not to interview Jones for the Transportation
Supervisor position and to hire one of the Employees, Mary Ann Heineman, for the
newly created Assistant Director of Transportation position instead. In any event, Jones
does not allege that the Board made those decisions. Jones does allege that one of the
Employees decided to dock Jones’s route pay before the 2015–2016 school year. Id. ¶ 30.
“But just because [a person] is the decisionmaker on hiring/firing decisions for the . . .
government does not necessarily make [the person] the policymaker on those issues.”
Valentino, 575 F.3d at 675 (original emphasis). “It is a well-established principle that the
mere unreviewed discretion to make hiring and firing decisions does not amount to
policymaking authority. There must be a delegation of authority to set policy for hiring
and firing, not a delegation of only the final authority to hire and fire.” Id. at 676
(quotations and citations omitted). What goes for hiring and firing decisions goes for
decisions to award contracts as well.
In sum, Jones identifies the Board as the final policymaking authority on the
relevant issues for the School, but does not allege that the Board made the decisions
complained of. Jones identifies or suggests the identity of Employees who made the
decisions complained of, but does not allege them to be final policymaking authorities on
the relevant issues for the School. Jones’s equal protection Monell claim therefore cannot
survive the School’s motion to dismiss on the ground of the conduct of the School’s final
We conclude, however, that Jones has plausibly pleaded a widespread practice of
race discrimination in hiring that is so well settled as to constitute a custom having the
force of law.
The usual way in which an unconstitutional policy is inferred,
in the absence of direct evidence [in the form of an express
policy], is by showing a series of bad acts and inviting the
court to infer from them that the policymaking level of
government was bound to have noticed what was going on
and by failing to do anything must have encouraged or at least
condoned, thus in either event adopting, the misconduct of
subordinate officers. When this method of proof is used,
proof of a single act of misconduct will not suffice; for it is
the series that lays the premise of the system of inference.
Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir. 1995); see also Thomas v. Cook
Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (“To demonstrate that the [local
government unit] is liable for a harmful custom or practice, the plaintiff must show that
[government] policymakers were deliberately indifferent as to the known or obvious
consequences.” (quotations, citations, and alterations omitted)).
The Seventh Circuit has not “adopt[ed] any bright-line rules defining a
‘widespread custom or practice.” Thomas, 604 F.3d at 303. There is no magic number for
“how frequently [unconstitutional] conduct must occur to impose Monell liability, except
that it must be more than one instance, or even three[.]” Id. (quotations and citations
omitted). The chief concern is that the plaintiff demonstrate “that there is a policy at issue
rather than a random event.” Id. (emphasis added). To this end, a plaintiff is “not required
to identify every other or even one other individual who had been” a victim of the same
allegedly unconstitutional treatment. White v. City of Chicago, 829 F.3d 837, 844 (7th
Here, Jones has pleaded that he was not awarded a fleet-operator contract on nine
separate occasions, at the beginning of each school year from the 2006–2007 school year
to the 2014–2015 school year. Pl.’s Am. Compl. ¶¶ 14–15, 28. On each occasion, the
contract went to a white contractor. Id. ¶ 15. Jones pleads further that he applied for three
administrative positions (Transportation Supervisor, id. ¶ 22, Human Resources Director,
id. ¶ 28, and Transportation Director, id.). Jones was turned down for all three. In the case
of the Transportation Supervisor position, its successor position went to a white woman.
Id. ¶ 25. As the circumstances of these rejections do not appear to be meaningfully
different from the 2014–2015 fleet-operator contract and the 2015 Transportation
Supervisor position found plausibly unconstitutional supra, we conclude that Jones
plausibly alleges a nearly decade-long campaign of racially discriminatory failures to
The effects of this campaign are plain. Jones alleges that he was the last nonwhite
contractor to be awarded a driver contract, id. ¶ 21, 30, and that no fleet-operator
contracts have been awarded to nonwhite contractors in nearly thirty years, since 1989.
Id. ¶ 21. The School’s “Central Administration” is exclusively white, as is every school
principal in the district but one. Id. ¶ 32. An obvious alternative explanation for this state
of affairs would be that Jones was the only nonwhite applicant to apply for the respective
contracts and positions during this period, but that explanation is implausible where the
School’s “student population” is 40 percent nonwhite. Id. ¶ 32.
Taking Jones’s allegations as true, over the past decade and beginning as early as
1989, the School’s administration and transportation workforces have gradually become
monochromatic, while the minority population served by the School is nearly a majority.
We conclude that Jones has plausibly alleged that the School’s decisionmakers for filling
administration positions and awarding driver and fleet-operator contracts consistently
preferred white applicants to black applicants on the basis of their race. Jones has further
plausibly alleged that the School’s decisionmakers did so consistently enough that the
School’s policymakers—the Board—can justifiably be thought to have winked at,
acquiesced in, or affirmatively approved their decisions. And because Jones has plausibly
pleaded a municipal policy of failing to hire black applicants in favor of hiring white
applicants, he has plausibly pleaded that his failure-to-hire claims were caused by the
B. Equal Protection: Sex, and First Amendment Retaliation
Jones’s equal protection claim for sex discrimination and his claim for First
Amendment retaliation both fail for the same reason: Jones’s failure to plausibly allege a
municipal policy behind them.
Even assuming the conduct complained of would rise to constitutional injury in
both cases, Jones’s complaint alleges only one instance of sex discrimination (the hiring
of a woman for the Assistant Director of Transportation position, Pl.’s Am. Compl. ¶ 25)
and only two instances of retaliation (assigning Jones a new bus route, id. ¶ 58, and
reducing his route pay, id. ¶ 59). As discussed in the racial discrimination analysis above,
without an express policy or the act of a final policymaker, Jones must rely on a
widespread custom or practice as the basis for his Monell claims. See Wragg v. Village of
Thornton, 604 F.3d 464, 467 (7th Cir. 2010). While there is no magic number for “how
frequently [unconstitutional] conduct must occur to impose Monell liability, . . . it must
be more than one instance, or even three[.]” Thomas v. Cook Cnty. Sheriff’s Dep’t, 604
F.3d 293, 303 (7th Cir. 2010). Thus, Jones’s allegations of one or two instances of
unconstitutional conduct are insufficient to state a municipal policy under Monell.
For the reasons above, Defendants’ motion to dismiss is GRANTED as to all
official-capacity claims against the Board and the Employees, which are all DISMISSED
Defendants’ motion to dismiss is also GRANTED as to the following claims
against the School, which are all DISMISSED WITH PREJUDICE: Count One, for race
and sex discrimination as to all fleet-operator contracts before the 2014–2015 school
year; Count Three; and Count Four, for retaliation as to the 2011 route reassignment.
Defendants’ motion to dismiss is also GRANTED as to the following claims
against the School, which are both DISMISSED WITHOUT PREJUDICE: Count One,
for sex discrimination as to the 2014–2015 fleet-operator contract; and Count Four, for
retaliation as to the 2015 pay reduction.
Defendants’ motion is DENIED as to the following claims against the School:
Count One, for race discrimination as to the 2014–2015 fleet-operator contract; and
Count Two. The case shall proceed accordingly.
IT IS SO ORDERED.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Jonathan Lamont Mayes
BOSE MCKINNEY & EVANS, LLP
BOSE MCKINNEY & EVANS, LLP
JAY MEISENHELDER EMPLOYMENT & CIVIL RIGHTS LEGAL SERVICES PC
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