charge with the EEOC within 180 days of the alleged unlawful employment practice (300
days if the plaintiff files a corresponding claim with the appropriate state or local agency).
42 U.S.C. § 2000e-5(e)(1); Ameritech Ben, Plan Committe. v. Communication Workers of
America, 220 F.3d 814, 821 (7" Cir. 2000), cert. denied, 531 U.S. 1127 (2001). In this
case, it is undisputed that the plaintiff failed to file an EEOC charge until February 11, 2002.
She thus failed to exhaust her administrative remedies in a tumely manner, irrespective of
whether she learned of the change in her pension plan in 1999 or 2000. Because the
plaintiff failed to pursue administrative remedies within 30) days of the alleged illegal
employment practice [or within 300 days of learning of the .illzged employment practice],
she is barred from bringing suit under Title VIE. Shelton v. Ernst & Young LLP, 143 F.
Supp.2d 982, 987 (N.D. Ll. 2001), citing Speer v. Rand MeNaily & Co., 123 F.3d 658, 662
(7" Cir. 1997). The plaintiff's Title VI claim must accordingly be dismissed.”

The court nevertheless finds that the plaintiff may have a potential cause of action for
retaliation under 42 U.S.C. § 1983. Again, if the plaintiff learned of the change in pension
calculations in May 1999, the limitations period on any civil rights action expired by the
time she initiated this suit on December 6, 2001. “The correct statute of limitations for
Section 1983 actions filed in Illinois is two years as set forth in 735 ILCS § 5/13-202.”

Henderson y, Bolanda, 253 F.3d 928, 931 (7" Cir. 2001), citing Ashafa v. City of Chicago,

?In any case, the plaintiff cannot sue the CTA Retirement: P!an under Title VI because
the Retirement Plan was not the plaintiff's “employer.” See 42 U.S.C. § 2000e-3(a);
Komorowski v. Townline Mini-Mart and Restaurant, 162 F.3d 52, 964-65 (7" Cir. 1998).

4


Finally, any perceived unfair labor practices must be brought before the Illinois Labor
Relations Board. See 5 ILCS § 315/1, ef seg. In short, any claims under state statutes or
state common law must be litigated in the plaintiff's pending state court case. The only
claim the plaintiff may pursue in this court is that the CTA Retirement Plan retaliated
against her for her litigation in violation of the First Amenc ment.
CONCLUSION

In sum, the plaintiff will be permitted to submit a second amended complaint against
the CTA Retirement Plan with regard to only her First Amendment retaliation claim. All
other claims are dismissed pursuant to Fed. R. Civ. P. 12(b)(6): in addition, the Chicago
Transit Authority is dismissed as a defendant. The second amended complaint must show
that: (1) the plaintiff previously filed an EEOC charge or Jawsuit alleging race
discrimination; (2) the plaintiff can establish that the CTA Retirement Plan modified the
plaintiff's pension benefits in retaliation for her suits against the Chicago Transit Authority
(that is, the second amended complaint must state facts indicating that the retirement board
or persons charged with calculating the plaintiffs benefits were aware of the plaintiff's
litigation and modified her benefits as a result of her litigation): and (3) the plaintiff filed
suit within two years of learning of the alleged retaliation.

The plaintiff is once again cautioned to be mindful of the provisions of Fed. R. Civ.
P, 11(b). If the plaintiff fails to subrnit a second amended complaint within twenty-one days

of the date of this order, the court will dismiss this case in its entirety, on the understanding


The plaintifi’s earlier lawsuits apparently involved alleged racial discrimination,’ among
other concerns. If the plaintiff complained of allegedly unconstitutional behavior by public
officials in her previous lawsuits, then the prior litigation could be regarded as protected
activity. Glatt v. Chicago Park District, 87 F.3d 190, 193 (7" Cir. 1996). Consequently, a
claim of retaliation would be actionable in a suit under the Constitution. /@. Furthermore,
contrary to the defendants’ argument, the plaintiff need not allege an official custom or
policy that caused the deprivation of a federal right. In a case such as this, where the
plaintiff claims that the City committed the unlawful act directly rather than through
employees below the policymaking level, she need not plead that the retaliation was part of
a “custom” or “policy.” /d. at 193-94.

The plaintiff is nonetheless advised that she will have to provide more than an
unsubstantiated allegation of retaliation in her second amencied complaint. Under the
circumstances of this case, the plaintiff must provide facts slowing why she believes the

change in her pension calculation was retaliatory and how the knowledge of her lawsuits

°The court relies on the amended complaint, where the plaintiff checks on the box on p.
32 that the alleged discrimination was based on “race, color, or ‘vational origin.” However, as
the Retirement Plan points out, “the right to be free from retaliation for protesting sexual
harassment and sex discrimination is a right created by Title VI/, not the equal protection
clause.” Gray v. Lacke, 885 F.2d 399, 414 (7" Cir. 1989), cert. denied, 494 U.S. 1029 (1990).
“Section 1983 provides a remedy for deprivation of constitutior.al rights. It supplies no remedy
for tights created by Title VII.” /d.; accord Vickery v. Minooka Volunteer Fire Dept., 990 F.
Supp. 995, 1001 (N.D. Ill. 1997); Kessel v. Cook County, 2001 W). 826914, *3, No. 00 C 3980
(Jul. 12, 2001) (Gottschall, J.) (“Courts have refused to give t Amendment protection to
complaints of employer sexual harassment... .”) The plaintiff must therefore affirmatively
verify in her second amended complaint that she filed a charge «incer Title VII on the basis of
racial discrimination, as opposed only to sexual harassment or sexual discrimination. Her
February 2002 EEOC charge suggests otherwise.

6


146 F.3d 459, 462 (7" Cir. 1998). But if the plaintiff learned of the change in her pension
plan only in May 2000, this action is timely.

The plaintiff will be permitted to file a second amended complaint correcting the
pleading error she contends she made in her amended complaint. In drafting her second
amended complaint, the plaintiff should be aware that in sizning documents she submits to
the court, she is certifying that her representations are factually accurate. See Fed. R. Civ. P.
11(b). The plaintiff is on notice that she will be subject to sanctions, including possible
dismissal of this lawsuit as well as monetary penalties, if the court finds that she has made
any intentional falsehoods in her filings. The CTA Retiremen: Plan may keep records of its
mailings.

Assuming arguendo that this lawsuit is timely, the plaintiff has expressed a colorable
claim against the CTA Retirement Plan under the Civil Rights Act. The defendants
correctly point out that the plaintiff's Fourteenth Amendment due process claim is without
foundation. Because the plaintiff has an adequate post-deprivation remedy in state court,
her claim that she has been improperly deprived of a vested property right is not, in and of
itself, actionable under 42 U.S.C. § 1983. See Parratt v. Taylor, 451 U.S. 527, 540-41
(1972). In fact, as noted in a previous order, the plaintiff has a pending suit in state court
involving the same basic claims as those raised in this case.

But the plaintiff asserts that the purported miscalculation of her pension benetits is

not simply a mistake, but rather a retaliatory move that violates her First Amendment rights.


an inference that the miscalculation was both intentional and retaliatory in nature, wil] not
suffice. The court discerns no reason for prolonging a fruitless, duplicative suit in this
forum unless the plaintiff can demonstrate some likelihood that she will be able to prove
retaliation. In order to survive a threshold review, the plair.titl must be able to establish that
the Chicago Retirement Board, which presumably calculates <n employee’s years of service
and pension benefits, was somehow aware of the plaintifl’s suits against the Chicago Transit
Authority and accordingly punished her.*

The plaintiff implicitly raises certain other causes of action in her amended
complaint; those claims must be dismissed for failure to state a federal claim. The plaintiff
vaguely cites the Employee Retirement Income Security Aci, but ERISA specifically
exempts government retirement plans from its coverage. Sez 29 U.S.C. § 1003(b)(1). The
plaintiff refers to a breach of contract without identifying what contract has been breached;
she likewise provides no basis for her fraud or negligence claims. Without making any
finding as to whether the plaintiff has a colorable cause of acticn in state tort law, the court

hereby dismisses those claims sounding in state tort for failure 10 present a federal question.

‘The plaintiff is mistaken that the Chicago Transit Authcrity and the CTA Retirement
Plan are the same entity. In a recent opinion, a magistrate judge o/ this district noted: “(t]he
[CTA] Retirement Plan is the subject of collective bargaining between the CTA and the various
unions representing its rank and file employees.” Bosco v. Chicago Transit Authority, 164 F.
Supp.2d 1040, 1052-53 (N.D. fll. 2001). The Retirement Plan i+ administered by a committee
consisting of four members selected by the union, one member selected by non-union CTA
employees, and five members appointed by the board overseeing the CTA. /d. at 1044. The
governing and administrative body of the Chicago Transit Authurity. on the other hand, is the
seven-member Chicago Transit Board. Jd. The CTA and CTA Retirement Plan are thus two
completely separate entities controlled by two completely separ:ite bodies. Contrary to the
plaintiff's assertion, the CTA does not “own” or administer the CTA Retirement Plan.

8


Mcrmte Order Form (06/97)

. oe United States District Court, Norther District of Illinois

Name of Assigned Judge | BLANCHE M, MANNING Sitting Judge if Over

or Magistrate Judge ed Judise
CASE NUMBER 01. C9340 DATE | AUG 3 0 2002
CASE Quinshela Brown vs. Chicage: Transit Authority, et al.
TITLE

{In the following box (a) indicate the party filing the motion, e.g...plain iff, Jerendant, 3rd party plaintiff, and (b) state brielly the nature
of the motion being, presented.|

MOTION:

DOCKET ENTRY:

(ep) Oo Filed motion of [ use listing in “Motion” box above.]
Q Oa Brief in support of motion due _
@) a Answer brief to motion due - Reply to answer brief due_
(4) Q Ruling/Hearing on_____set for at
(5) ao Status hearing[held/continued to] [set for/re-set for}on set for _ at .
(6) a Pretrial conference[held/continued to] [set for/re-set for]on____set for at__
(7) o Trial[set for/re-set for]}on at.
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs|by/agreement/pursuant to]
OCOFRCP4(m) CGeneral Rule 21 CO FRCP41(ay(1) OO FRCP41(a)(2)
qo) (Other docket entry] For the reasons set forth in the accompany ing Memorandum Opinion and Order, the
defendant Chicago Transit Authority’s motion to dismiss [#49] is zranted pursuant to Fed. R. Civ. P. 12(b)(6).
The defendant CTA Retirement Plan’s motion to dismiss [#47] is likewise granted. The plaintiffs motions “not
to dismiss” [## 52 and 53] are denied. The plaintiff is granted leave to file a second amended complaint curing
pleading deficiencies, but only against CTA Retirement Plan and only concerning her First Amendment retaliation
claim under 42 U.S.C. § 1983. The Chicago Transit Authority is terminated as a defendant. The clerk is directed
§ 8 ry
to mail the plaintiff an amended civil rights complaint form. Failure to file a second amended complaint within
twenty-one days will result in summary dismissal of this case in its entirety.
daly (For further detail, see attached Memorandum Opinion and Order.]
No notices required, advised in open court Document
. Number
No notices required. vanber ot notiges
Notices mailed by judge’s staff 3 ‘02
| T Notitied counsel by telephone ks cy ve "
yy telephone. 2 alate docketed
SY | Docketing to mail notices wa
Mail AO 450 form. docheting Bhan. 459
Copy to judge/magistrate judge. .
die muited notice
courtroom
mim deputy’s
initials —
Date/time received in
central Clerk's Office railing deputy inital



that the plaintiff cannot, in good faith, file a second amenc.2d complaint stating a First
Amendment retaliation claim,

IT IS THEREFORE ORDERED, for the reasons set forth in the preceding
paragraphs, that: (1) the defendant Chicago Transit Autho:ity’s motion to dismiss [docket
#49] is granted; (2) the defendant CTA Retirement Plan’s motion to dismiss [docket #47] is
granted; and (3) the plaintiff's motions “not to dismiss” [decket numbers 52 and 53] are
denied. The amended complaint is dismissed without prejudice pursuant to Fed. R. Civ. P.
12(b)(6). The Chicago Transit Authority is terminated as a defendant.

IT IS FURTHER ORDERED that the plaintiff is granted leave. within twenty-one
days of the date of this order, to file a second amended complaint, but only against CTA
Retirement Plan and only concerning her First Amendment retaliation claim. Failure to file
a second amended complaint in accordance with this order witiin twenty-one days will
result in summary dismissal of this case in its entirety.

ENTER:

Bliunche M. Manning

United States District Court
Dated: AUG 20 2002

10


against the Chicago Transit Authority can be imputed to the CTA Retirement Plan. An
amended or supplemental complaint

requires more to compel acceptance than the fact that the pleading sought to

be added states a claim. Especially when the motios is filed long after the

original complaint was tiled... the court is entitled :o demand reasons for

thinking that the denial of the motion would work a serious injustice. The

court not only may but should consider the likelihood that the new claim is

being added in a desperate effort to protract the litigation. ...

Glatt, 87 F.3d at 194 (citations omitted).

As discussed in preceding paragraphs, the plaintiff aj»pears to have changed the
procedural background of this case in order to show that this lawsuit is timely. In addition,
as also noted above, the plaintiff already has a suit pending in state court to rectify the
alleged miscalculation of her pension benefits. The court previously denied a motion to
dismiss based on the fact that the plaintiff had a parallel action pending in state court. See
Minute Order of May 6, 2002. But because the plaintiff's federal action is simply a
recasting of a pension dispute as a First Amendment retaliation case, concerns of comity and
judicial economy, the potential for conflicting decisions, and the disfavor of piecemeal and
duplicative litigation, all militate against concurrent jurisdiction. Moses H. Cone Memorial
Hosp. v. Mercury Const. Corp., 460 U.S. 1, 15 (1983). ‘The plaintiff therefore cannot pursue
a separate federal claim unless she can justify the second suit by setting forth a basic
chronology of events from which retaliation can be inferred.

In her second amended complaint, the plaintiff must provide specific facts showing
why she believes that the reduction in her calculated vears of se-vice was based on
retaliatory animus. Merely alleging the ultimate fact of retali:tion, without some basis for

7


able to articulate an arguable claim against the CTA Retirement Plan, she will be given the
opportunity to file a second amended complaint curing the pleading defects outlined in this
order.

The court is satisfied that the plaintiffs Title VI claim against the defendants is
time-barred. Proper exhaustion of administrative remedies is a precondition to filing suit
under Title VIL. See, e.g, Hentosh v. Herman M. Finch Unversity, 167 F.3d (170, 1173-74
(7° Cir. 1999). In the case at bar, the plaintiff failed to purse her administrative remedies
within the statutory time period; therefore, she is barred frorn bringing suit under Title VII.

Throughout the amended complaint, the plaintiff alleges that the CTA/CTA
Retirement Plan “sent” her a statement in 1999 “altering and modifying” her pension. See
complaint at p. 36, 4 26; see also multiple references in unnumbered paragraphs at p. 34.
Only in response to the motion to dismiss does the plaintiff now contend that she did not
receive her 1999 statement until May 2000, directly conflicting: with her repeated assertions
in her amended complaint. The plaintiff would seem to be completely changing the facts in
order to avoid dismissal. Compare Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d
703, 705 (3 Cir. 1988) (court properly disregarded conflicting evidence where no
explanation was offered for contradictions with prior sworn testimony and where the new
statements were made only after the plaintiff “faced almost cerlain defeat in summary
judgment”).

Even accepting the later date as true, the court finds as a matter of law that the

plaintiffs Title VII claims are untimely. An aggrieved party must file an administrative


It is well established that pro se complaints are to be l:berally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972), reh’g denied, 405 U.S. 948 (1972); see also McCormick
v. City of Chicago, 230 F.3d 319, 325 (7" Cir. 2000). They can be dismissed for failure to
state a claim only if it appears “beyond doubt that the plain:iff can prove no set of facts in
support of his claim which would entitle him to relief.” Haines, 404 U.S. at 521;
Zimmerman y. Tribble, 226 ¥.3d 568, 571 (7" Cir. 2000).

When considering whether to dismiss a complaint for failure to state a claim upon
which relief can be granted, the court takes the allegations i: tve complaint as true, viewing
all facts--as well as any inferences reasonably drawn therefroni--in the light most favorable
to the plaintiff. Autry v. Northwest Premium Services, Inc., 44 F.3d 1037, 1039 (7" Cir.
1998). Dismissal should be denied whenever it appears that a 2asis for federal jurisdiction
in fact exists or may exist and can be stated by the plaintifl. Jones v. Edgar, 3 F. Supp. 2d
979, 980 (C.D. Ill. 1998). Nevertheless, in order to withstand a motion to dismiss, a
complaint must allege facts sufficiently setting forth the essential elements of the cause of
action. Lucien v. Preiner, 967 F.2d 1166, 1168 7" Cir.), cert. denied, 506 U.S. 893 (1992).

Analysis

Even accepting the plaintiff's allegations as true, the imended complaint fails to state
a colorable federal cause of action against either named defendant. The plaintiff is barred
from pursuing a Title VII claim against the defendants because she failed to avail herself of
administrative remedies in a timely manner; furthermore, the pleading on file fails to state an

actionable civil rights claim against the defendants. However. because the plaintiff may be


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
QUINSHELA BROWN, )
Plaintiff,
v. 01 CV 9340
CHICAGO TRANSIT AUTHORITY, et al., eterey
Defendants. ) 3 2002

ORDER

The plaintiff, Quinshela Brown, has brought this pro se civil action pursuant to 42
U.S.C. § 2000e and 42 U.S.C. § 1983. The plaintiff claims that the defendants, the Chicago
Transit Authority and the CTA Retirement Plan, have retaliated against her for her protected
activity, in violation of Title VII and the Civil Rights Act. More specifically, the plaintiff
alleges that the defendants recalculated her years of service and modified her pension
benefits after the plaintiff filed multiple lawsuits against her union and her former employer
relating to her purportedly wrongful termination in 1996.' ‘This matter is before the court for
consideration of the defendants’ motions to dismiss. For the reasons stated in this order, the
motions will be granted. However, the plaintiff will be given the opportunity to file a

second amended complaint.

:The legality of the plaintiffs discharge is not itself a subject of this lawsuit. An earlier
lawsuit challenging the plaintiff's termination on the basis of sex discrimination was dismissed
for failure to exhaust administrative remedies prior to bringing suit. See Brown v. CTA, Case
No. 97 CV 4885, Memorandum Opinion and Order entered July 17, 1997 (Shadur, J.) Another
lawsuit alleging retaliatory discharge is currently pending before another judge in this district
[Brown v. CTA, Case No. 01 C 9944 (Bucklo, J.)].

LY