Lopez, David v. Wisconsin Department of Health Services et al

Filing 23

OPINION AND ORDER granting in part and denying in part 13 Motion to Dismiss. The motion is GRANTED with respect to plaintiff David Lopez's equal protection claim against the Wisconsin Department of Health Services and plaintiff's independent claim brought under 42 U.S.C. § 1981, and those claims are DISMISSED. The motion is DENIED in all other respects. Signed by District Judge Barbara B. Crabb on 11/9/2017. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DAVID LOPEZ,
OPINION AND ORDER
Plaintiff,
16-cv-500-bbc
v.
WISCONSIN DEPARTMENT OF
HEALTH SERVICES, JENNIFER JIRSCHELE
and CHERYL K. JOHNSON,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff David Lopez filed this civil action against his former employer, Wisconsin
Department of Health Services, and two supervisors, contending that he was harassed and
discriminated against at work, constructively terminated and then actually terminated
because of his Hispanic race, Puerto Rican national origin, brown skin and opposition to
unlawful discriminatory practices. Plaintiff relies on 42 U.S.C. § 1981, 42 U.S.C. § 1983
and Title VII of the Civil Rights Act of 1964, as the legal bases for his claims. Now before
the court is a motion to dismiss some of plaintiff’s claims. Dkt. #13. For the reasons set
out below, I am granting the motion to dismiss plaintiff’s equal protection claim against the
Department of Health Services and his claim brought under 42 U.S.C. § 1981. I am denying
the motion to dismiss his equal protection claim based on allegations of retaliation.

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OPINION
Defendants have moved to dismiss plaintiff’s (1) equal protection claim against the
Department of Health Services; (2) retaliation claims based on the equal protection clause;
and (3) claims under 42 U.S.C. § 1981. Plaintiff concedes that he cannot bring an equal
protection claim against the Department, so I will dismiss that claim. Plaintiff also concedes
that § 1981 does not create a private right of action against government actions, Campbell
v. Forest Preserve District of Cook County, Illinois, 752 F.3d 665, 671 (7th Cir. 2014), but
argues that he can enforce his § 1981 rights via § 1983. Plaintiff is correct. Goldberg v. 401
N. Wabash Venture LLC, 755 F.3d 456, 467 (7th Cir. 2014) (noting that “the prohibitions
in 42 U.S.C. § 1981 are enforced against state actors by suits under section 1983, because
section 1981 does not provide remedies against state actors for violation of its
prohibitions”). Therefore, I will dismiss plaintiff’s independent § 1981 claims. Plaintiff may
proceed with his § 1983 claims.
This leaves defendants’ argument that plaintiff cannot bring a retaliation claim based
on the equal protection clause. Defendants rely on Grossbaum v. Indianapolis–Marion
County Building Authority, 100 F.3d 1287, 1296 n. 8 (7th Cir. 1996), in which the court
of appeals stated, in a footnote contained in a discussion about First Amendment retaliation,
that the equal protection clause “does not establish a general right to be free from
retaliation.” They also cite Boyd v. Illinois State Police, 384 F.3d 888, 898 (7th Cir. 2004),
in which the court of appeals affirmed judgment in favor of the defendant on a retaliation
claim brought under the equal protection clause. In Boyd, the plaintiff brought an equal

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protection claim against his employer for withholding a raise because the plaintiff was suing
the employer for Title VII violations. Boyd, 384 F.3d at 898. The plaintiff had not asserted
that his employer “retaliated against him on the basis of a protected trait or because of his
membership in a particular class, but only because of his participation in [the] litigation.”
Id. The court of appeals held that the retaliation claim could be brought under Title VII or
the First Amendment but not under the equal protection clause. Id.
Recently, the court of appeals cautioned against reading Grossbaum and Boyd too
broadly. In Locke v. Haessig, 788 F.3d 662, 664-65 (7th Cir. 2015), a parolee brought an
equal protection claim against his parole officer’s supervisor, contending that the supervisor
failed to intervene or investigate his complaints that his parole officer was sexually harassing
him and threatened to retaliate against him for complaining. The defendant relied on Boyd,
and argued that the plaintiff could not bring an equal protection claim based on allegations
of retaliation. Id. at 672. The court of appeals disagreed, explaining that unlike the plaintiff
in Boyd, Locke had alleged that the supervisor “retaliated against him because of a protected
characteristic, his sex.” Id. The court concluded that a “reasonable jury could conclude . .
. that [defendant] responded to [plaintiff’s] complaint with irritation and told him he would
remain on an ankle monitor because of his sex—because he was a man rather than a woman
complaining of sexual harassment.” Id. (citing Jackson v. Birmingham Board of Education,
544 U.S. 167, 173-174 (2005) (“[R]etaliation is discrimination ‘on the basis of sex’ because
it is an intentional response to the nature of the complaint: an allegation of sex
discrimination.”)).

The court went on to explain that the plaintiff could “submit his

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evidence to a jury and c[ould] prevail if he c[ould] convince the jury that [the defendant]
treated [his] complaint differently because he was a man complaining of sexual harassment.”
Id. at 672.
Subsequently, in Hughes v. Farris, 809 F.3d 330, 334 (7th Cir. 2015), the court of
appeals relied on Locke to conclude that a detainee had stated a claim under the equal
protection clause based on allegations that a facility director retaliated against him in
response to his complaints about an employee’s abuse. Specifically, the plaintiff alleged that
after he complained about an employee’s anti-gay slurs, the director had suspended the
plaintiff from vocational training. The court stated that these allegations of retaliation
“suffice[] to describe another violation of his equal protection rights.” Id. at 334.
In the instant case, plaintiff alleges that defendants discriminated and retaliated
against him in violation of the equal protection clause when he was “given a bad evaluation
and relieved of his most significant duties, and then suspended, disciplined, constructively
discharged and, finally, medically separated from his employment.” Plt.’s Am. Cpt., dkt.
#12, ¶ 504-05. These claims are similar to the claims on which plaintiffs were permitted to
proceed in Locke and Hughes. In particular, plaintiff alleges that he was treated differently
and subject to retaliation because of his race, color, national origin and complaints of
discrimination. Therefore, at this stage, these allegations are sufficient to state a claim under
the equal protection clause.

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ORDER
IT IS ORDERED that the motion to dismiss filed by defendants Wisconsin
Department of Health Services, Jennifer Jirschele and Cheryl K. Johnson, dkt, #13, is
GRANTED IN PART and DENIED IN PART. The motion is GRANTED with respect to
plaintiff David Lopez’s equal protection claim against the Wisconsin Department of Health
Services and plaintiff’s independent claim brought under 42 U.S.C. § 1981, and those claims
are DISMISSED. The motion is DENIED in all other respects.

Entered this 9th day of November 2017.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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