UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHELL T. BUCHANAN, )

)

Plaintiff, )

)

v. ) No. 12 C 4951

)

COOK COUNTY, d/b/a Cook County ) Judge Rebecca R. Pallmeyer

Department of Building and Zoning; and )

DONALD WLODARSKI, an Individual, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

On September 8, 2010, Plaintiff Michell Buchanan filed a charge in which she alleged that

her employer, the Cook County Department of Building and Zoning, discriminated against her on

the basis of race and retaliated for a previous grievance when the Department imposed a three-day

disciplinary suspension. After a right-to-sue letter issued, Ms. Buchanan filed a pro se complaint

this court, alleging that she had been suspended on the basis of her race and in retaliation for

having filed a union grievance, and that Defendant failed to promote her on the basis of race. 

Judge Manning of this court appointed counsel to represent Ms. Buchanan, and through counsel

she has filed an amended complaint amplifying these claims. The amended complaint [14], filed

on September 27, 2012, names both Cook County and Plaintiff’s supervisor, Donald Wlodarski,

as Defendants, and includes ten counts: Counts I and II, against Cook County, allege race

discrimination and retaliation in violation of Title VII of the Civil Rights Act. Counts III and IV are

claims of race discrimination in violation of 42 U.S.C. § 1981 against Cook County and Wlodarski.

Counts V and VI, also brought under § 1981, allege retaliation against Cook County and Wlodarski. 

Counts VII and VIII allege a failure to promote on the basis of race, in violation of 42 U.S.C. § 1983,

against both Defendants. Counts IX and X, also brought under 42 U.S.C. § 1983, allege retaliation
against both Defendants. Cook County and Wlodarski have moved to dismiss all of these counts

for various reasons. For the reasons stated here, the motion is granted.

DISCUSSION

I. Title VII Claims

Counts I and II are brought under Title VII. Plaintiff alleges that Defendants failed to

promote Plaintiff on the basis of her race, black (Count I) and subjected her to unfair discipline in

retaliation for her protected activity (Count II). Defendants have moved to dismiss both counts as

beyond the scope of the underlying charge of discrimination that Plaintiff filed with the EEOC.

As a general rule, a plaintiff may raise in a federal complaint only those claims that were

first presented in her underlying charge of discrimination. Cheek v. Western and Southern Life Ins.

Co., 31 F.3d 497, 500 (7th Cir.1994). For a claim to fall within the scope of an EEOC charge, the

claim must be “like or reasonably related” to the allegations in that charge or reasonably likely to

be part of the EEOC investigation. Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167

(7th Cir.1976). In determining whether this test is met, the court considers whether the charge and

the complaint “at a minimum, describe the same conduct and implicate the same individuals.”

Cheek, 31 F.3d at 501 (emphasis original).

The EEOC charge filed by Plaintiff in this case makes no mention of a failure to promote

her. It identifies a single discrete adverse action–a three-day suspension imposed on August 25,

2010—and alleges that the suspension was a product of discrimination on the basis of Plaintiff’s

race and of retaliation for a grievance Plaintiff filed in July 2010 “opposing that which I reasonably

and in good faith believed to be unlawful discrimination based on my race.” (EEOC Charge, Ex. A

to Amended Complaint [14-10].) Plaintiff correctly notes that there are circumstances in which

claims not specifically mentioned in an underlying charge are nevertheless actionable because they

are “like or reasonably related” to the underlying charge. As the case law Plaintiff herself cites

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shows, however, those circumstances do not encompass this situation, where Plaintiff complained

of one discrete act (her suspension) but made no mention of another form of alleged wrongdoing

(failure to promote her). See, e.g., Kolupa v. Roselle Park Dist., 438 F.3d 713, 716 (7th Cir. 2006) 

(overrul “ed in part on other grounds) (dismissing promotion, accommodation, and retaliation claims

not mentioned in underlying charge of termination based on religion). The principle is illustrated

well in Conley v. Village of Bedford Park, 215 F.3d 703, 710 (7th Cir. 2000), where the Court of

Appeals affirmed dismissal of a complaint alleging discriminatory suspension because the

underlying charge presented only a claim of discriminatory failure to promote.

Plaintiff suggests her failure-to-promote claim should nevertheless be considered by the

court because failure-to-promote allegations “would have been expected to be explored during the

course of the administrative agency’s investigation” of the suspension claims. (Plaintiff’s Response

Brief [42], at 4.) Assuming such a showing would be sufficient, by itself, the court is not persuaded

it can be made here. Plaintiff’s complaint is notably silent as to the dates and circumstances of

Defendants’ decision[s] not to promote her. It is not at all clear that, in the course of investigating

the suspension Plaintiff presented in her charge, the EEOC would have investigated a failure to

promote that may have occurred months before or after that suspension. 

Count I is dismissed as beyond the scope of the underlying charge.

Defendant characterizes Count II as a failure to promote claim, as well. (Defendants’

Memorandum in Support of Motion to Dismiss [26], at 4.) As the court reads those allegations,

however, they challenge “disciplinary action” against Buchanan as a retaliatory response to her

protected activity. (Amended Complaint [14] ¶ 16.) The court presumes this is a reference to the

suspension identified in the underlying charge. For reasons discussed more fully below, the court

concludes Plaintiff has not alleged that she engaged in protected activity under the civil rights laws;

but Defendants’ objection to Count II as beyond the scope of the EEOC charge is overruled.

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II. Section 1981

A. Failure to Promote 

Plaintiff may proceed on race discrimination claims under 42 U.S.C. § 1981 even if she did

not present them first to the EEOC. Fane v. Locke Reynolds, LLP, 480 F.3d 534, 539 (7th

Cir.2007). Counts III and IV allege that Defendants failed to promote Plaintiff in violation of § 1981.

Defendants have moved to dismiss this claim on a variety of grounds, including an argument that

Plaintiff has not made allegations sufficient to support a Monell claim against Cook County. When

a § 1981 claim is brought against a municipal corporation, the standards in Monell and its progeny

apply. See Jett v. Dallas Independent Sch. Dist., 491 U.S. 701, 731-34 (1989) (holding that § 1983

is the exclusive remedy in a damages suit against state actor for § 1981 violations and that Monell

applies); Smith v. Chicago Sch. Reform Bd. of Trs., 165 F.3d 1142, 1148 (7th Cir.1999) (“recovery

against a governmental body under § 1981 may not be based on respondeat superior. The plaintiff

must show that the body's official policy or custom was discriminatory”). In suggesting that the

Monell test is met, Plaintiff notes only that Defendant Wlodarski was Commissioner of the County

Department of Zoning, where she worked at the time of the alleged wrongdoing. The fact that

Wlodarski had power to hire, fire or discipline Plaintiff does not, by itself, establish that his decisions

constitute municipal policy. Venters v. City of Delphi, 123 F.3d 956. 966 (7th Cir. 1997).

Plaintiff argues that his allegations are nevertheless sufficient at this stage, where all

reasonable inferences must be drawn in her favor. Indeed, information establishing Wlodarski’s

status as final policymaker would presumably be unearthed in discovery. And, the merits of the

Monell argument aside, it would not afford a basis for dismissal of Defendant Wlodarski himself,

named in Count IV. Under § 1981, as opposed to Title VII, an individual who was involved in a

decision that violates the statute may be held liable. See Smith v. Bray, 681 F.3d 888, 896 n.2 (7th

Cir.2012); cf. Alexander v. Wisc. Dep't of Health & Family Servs., 263 F.3d 673, 683–84 (7th Cir.

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2001) (individual defendants who were not “involved in any capacity” in the alleged adverse action

are not liable under § 1981).

The court nevertheless concludes that both Counts III and IV are insufficient in their current

form. Contemporary pleading standards require that Plaintiff provide enough detail to raise her 

right to relief about the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d

773, 776 (7th Cir. 2007), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Plaintiff’s

complaint offers no detail at all sufficient to determine whether that test has been met. She alleges

only that “[d]uring this time [that is, at all times relevant], similarly situated, although less qualified,

Non African American employees within the Department of Zoning were promoted instead of

Buchanan.” (Amended Complaint [14] ¶ 12.) Absent is any indication of what specific positions

the more-favorably-treated employees received, when they were promoted, or by whom. Nor has

Plaintiff offered any basis for her conclusion that the unidentified individuals who did receive

promotions were less qualified. Without such information, Defendants will not be able to answer

or even investigate Plaintiff’s allegations in any meaningful way. Counts III and IV are dismissed.

B. Retaliation

Section 1981 prohibits retaliation as well as race discrimination, and methods for proving

a Title VII retaliation claim are applicable to a retaliation claim under § 1981 as well. Humphries v.

CBOCS West, Inc., 474 F.3d 387, 403-04 (7th Cir. 2007), citing Alexander, 263 F.3d at 682. 

Counts V and VI allege retaliation in violation of § 1981, but each count consists of nothing more

than a sentence incorporating Plaintiff’s previous allegations that Defendants imposed discipline

in retaliation for Plaintiff’s union grievance. The grievance itself makes no specific reference to

race discrimination. It alleges that “The employer has violated Job Classification, Article V.1 & 2,

Article XIII section 1 and all other relevant sections of the CBA” and asks that the employer provide

all information “relied upon in bringing the Department to the conclusion to pay employees a

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substantial difference in pay when doing the same work as other employees.” Grievance Report

Form, Ex. C to Amended Complaint [14], at 15. As relief, the grievance requests that the employer

[p]ay all employees wages that are applicable to the work being performed. Move

Ms. Buchanan to the title and pay grade that is appropriated [sic] for the work she

is performing. Make all members whole from the time the [sic] she was performing

work outside of her title.

Id. Defendants acknowledge that the section of the Collective Bargaining Agreement provision

cited in the grievance (Article XIII section 1) broadly prohibits discrimination. The provision includes

a laundry list of prohibited forms of discrimination, however. The fact that Plaintiff’s grievance 1

makes a generic reference to the provision is not sufficient to characterize the grievance as

protected activity for purposes of a retaliation claim, Defendants urge. As they observe, the

grievance’s reference to the collective bargaining agreement’s “No Discrimination” clause is no

more than a “general complaint of discrimination that fails to indicate a connection to a protected

class pursuant to Title VII or Section 1981.” (Defendants’ Reply [43] at 14.) 

The case law supports Defendants’ contention. A general complaint that makes no mention

of the specific form of discrimination is insufficient to support a retaliation claim. For example, in

Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006), the court observed that an

internal grievance alleging “‘discriminatory treatment with respect to [plaintiff’s] pay’” coudl not form

Article XIII, Section 13.1 is titled “No Discrimination” and reads, in full: 1

The County and the Union agree that neither shall discriminate in employment by

reason of race, color, religion, national origin, ancestry, political belief or activity,

age, sex, sexual orientation, military discharge, marital status, disability, parental

status or activity on behalf of the Union. It is the policy of the County that applicants 

for employment and promotion are recruited, selected, and hired on the basis of

individual merit and ability with respect to positions being filled and potential for

promotions or transfer which may be expected to develop.

Collective Bargaining Agreement Between Service Employees International Union (SEIU) (Local

73) and County of Cook, Exhibit 1 to Plaintiff’s Response [42-1] at 20-21.

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the predicate for a retaliation claim because it did not identify the basis of the alleged

discrimination. “Merely complaining in general terms of discrimination or harassment, without

indicating a connection to a protected class or providing facts sufficient to create that inference,

is insufficient.” Id. See also Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 727 (7th Cir. 2003)

(affirming summary judgment on plaintiff’s retaliation claim where plaintiff had “complained only that

she felt picked on, not that she was discriminated against ‘because of’ sex or gender”);

Andonissamy v.Hewlett-Packard Co., 547 F. 3d 841, 851 (7th Cir.2008) (affirming summary

judgment on retaliation claims where e-mail message containing a “litany of complaints” about

plaintiff’s working conditions presented “nothing that a reader would interpret as a complaint of

national origin discrimination”); Northington v. H & M Intern., 712 F.3d 1062 (7th Cir. 2013) (“Vague

and obscure ‘complaints’” about harassment arising from a personal conflict unrelated to race or

gender “do not constitute protected activity.”); Leon v. Jacobson Transp. Co., No. 10 C 4939, 2012

WL 1204366, *7 (N.D. Ill. Apr. 11, 2012) (general complaints of unfair treatment and harassment,

without mention of race, insufficient).

 The cited cases were decided at the summary judgment stage. At least one district court

has reached a similar conclusion on a Rule 12(b)(6) motion, as well. See Mattern v. Panduit Corp.,

No. 11 C 984, 2011 WL 4889091, *7 (N.D. Ill. Oct. 11, 2011) (dismissing retaliation claims where

the purported protected activity consisted of a complaint of harassment without mention of sex as

the reason). In any case, in response to this motion, Plaintiff has not argued that further factual

development would demonstrate that Defendant Wlodarski (or any County decision-maker)

understood and interpreted her union grievance as a complaint about race discrimination, as

opposed to any other form of unfair treatment. Her allegations are insufficient to establish that she

engaged in protected activity. Counts V and VI are dismissed. 2

In light of this conclusion, the court need not reach Defendants’ remaining 2

(continued...)

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III. Section 1983

A. Failure to Promote

Plaintiff’s remaining claims require only brief discussion. Counts VII and VIII allege a failure

to promote on the basis of race. The court is uncertain how this claim differs, if at all, from the

failure to promote claim brought pursuant to § 1981, but as noted, § 1983 provides the appropriate

procedural vehicle for bringing a substantive § 1981 claim against a municipal defendant. 

Assuming this claim is independent of the one asserted in Counts III and IV, the court dismisses

it for the same reason discussed above: absent any details about the date(s) on which Plaintiff was

denied promotion(s), the nature of the positions she sought, the qualifications of the successful

candidate(s) or the identity of the decision-maker(s), Defendants can neither investigate nor answer

these allegations. Even under generous pleading standards, these claims must be dismissed.

B. Retaliation 

Finally, Counts IX and X invoke 42 U.S.C. § 1983 and allege that Defendants retaliated

against Plaintiff for protected activity. Defendants have interpreted these allegations as a claim

under the First Amendment—that Plaintiff was disciplined for her speech on a matter of public

concern. (Defendants’ Memorandum [26] at 8-9.) This interpretation is a reasonable one, as it

suggests a distinction between these counts and the claims asserted in Counts V and VI. As

Defendants note in their reply brief, Plaintiff has not responded to that argument. (Defendants’

Reply [43] at 11.) To the extent Plaintiff does attempt to make such a speech claim in Counts IX

and X, the court agrees with Defendants that her grievance, which seeks relief for what she deems

unfair pay, relates to her personal circumstances, not to a matter of public concern. To the extent

(...continued) 2

arguments, including their contention that Plaintiff has not alleged that Wlodarski was aware of her

protected activity, and that any claim of retaliation that rests on a union grievance is preempted by

the Illinois Public Labor Relations Act, 5 ILCS 315/1 et seq. 

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she instead simply intends to invoke § 1983 as a basis for her retaliation claims, the allegations are

insufficient, for the reasons discussed earlier, to establish that her grievance constitutes protected

activity.

CONCLUSION

Defendants’ motion to dismiss [25] is granted. The amended complaint is dismissed without

prejudice. Plaintiff has leave to file an amended complaint within 21 days. Status conference is

set for July 10, 2013 at 9:00 AM. Parties are encouraged to discuss the possibility of settlement.

ENTER:

Dated: June 12, 2013 _________________________________________

REBECCA R. PALLMEYER

United States District Judge

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