Conclusion
For the reasons stated above, defendants’ motion to dismiss Bottoms’ claims is granted in
part and denied in part. Defendants’ motion to dismiss Bottoms’ ADA claims and claims under 42
U.S.C. §§ 1981 and 1983 is granted; those claims are dismissed with prejudice. Defendants’ motion
to dismiss Bottoms’ Title VI claim with respect to conduct that occurred after July 1999 is denied.

ENTER:

By, ~) - ;

UNITED STATES DISTRICT JUDGE
PAUL E. PLUNKETT

JUN 2 1 2004

DATED:

-13-



two individuals in federal court, alleging violations of Title VIL, 42 U.S.C. § 1981 and 42 U.S.C. §
1983 (“Bottoms I”). (Id. Ex. E.) On September 11, 2000, Judge Conlon granted defendants’ motion
to dismiss in part and denied it in part. (/d. Ex. F at 10.) On April 24, 2001, Judge Conlon granted
IDHS and Chicago-Read’s motion for summary judgment on the remaining claims. (/d. Ex. G at
12.)

In March 2003, Bottoms filed the complaint before us now. Defendants have filed a motion
to dismiss, asserting many grounds for dismissing the complaint, including: the Eleventh
Amendment, the Rooker-Feldman doctrine, res judicata and collateral estoppel, and the statute of

limitations.

Discussion

1. Eleventh Amendment

Bottoms has brought her claims under a number of federal statutes. The claims brought
under 42 U.S.C. §§ 1981 and 1983 and the ADA, however, are barred by the Eleventh Amendment.
See Velasco v, Illinois Dep't of Human Servs., 246 F.3d 1010, 1016 (7th Cir. 2001) (ADA); Hearne
v. Board of Educ. of City of Chicago, 185 F.3d 770, 776 (7th Cir. 1999) (42 U.S.C. §§ 1981 and
1983). In general, a state may claim immunity from suit in federal court under the Eleventh
Amendment. Kroll v. Board of Trustees of the Univ. of Ill., 934 F.2d 904, 907 (7th Cir. 1991). A
state agency is treated the same as the state. Jd. A state’s sovereign immunity is not absolute,
however; in some cases, a suil may continue against a state or its officials, Ameritech Corp. v.

McCann, 297 F.3d 582, 585 (7th Cir. 2002), A state may waive its sovereign immunity and consent

to suit in federal court or “Congress may use its enforcement powers under the fourteenth



claims were not litigated in the state court procecdings and, according to the Illinois Appellate Court,
they could not have been.
In its opinion, the I!linois Appellate Court commented that
much of Bottoms’ argument is tangential to the issues before this Court. She

continually argues that her discharge was a result of racial discrimination and
relation for the complaints that she filed with the [EEOC].

ek ®

Whether or not Bottoms suffered discrimination at the hands of Chicago-Read

is not a determination for this court to make under the circumstances presented

here... . We will not consider this argument.
(Mot. to Dismiss Ex. D at 20.) The Illinois Appellate Court then cites to Cooper v. Illinois State
Univ., 772 N.B.2d 396 (IH. App. Ct. 2002), for the proposition that the Iinois Human Rights Act,
775 TLCS 5/1-101 et seg., provides the exclusive vehicle for bringing employment discrimination
claims in Illinois, But see Jones, 757 F.2d at 882 (noting that in some cases “I)linois appellate courts
have considered defenses of racially discriminatory selective enforcement of employment regulations
in determining whether there was “cause” for discharge”). The state court proceedings only
addressed whether Bottoms’ discharge for insubordination was warranted given the fact that she did
not submit to a fitness-for-duty evaluation. Although it seems Bottoms did raise a discrimination
defense in the Civil Service Cormmission proceedings before the ALJ, see Ex. A 97, in his findings,
the ALJ said only: “one of the witnesses who testified against [Bottoms] was an African Amcrican
as is [Bottoms}.” Id. See also id. 9 46. The Ilimois Appellate Court reviewing the Civil Service
Commission’s findings clearly did not consider her racial discrimination allegations relevant. (Mot.
to Dismiss Ex. D at 20.) Bottoms did not have an opportunity to raise her discrimination claims in

the state proceedings and therefore those claims are not barred by res judicata. See Jones, 757 F.2d

-9-


then the default provisions of the Statute on Statutes, 5 ILCS 70/4, apply. 7d. (citing Caveney v.
Bower, 797 N.E.2d 596, 601 (Ll. 2003)). Section 4 of the Statute on Statutes prohibits retroactive
application of substantive changes to statutes. See Caveney, 797 N.E.2d at 602 (citing People v.
Glisson, 782 N.E.2d 251 (Tl, 2002)). The Immunity Act amendments created by section 5 of Public
Act 93-0414 do not apply to Bottoms’s claims, Her claims pertain to conduct that occurred in 1999
and her case was already pending before us when the Immunity Act amendments became effective.
Thus, the state and its agencies are immunc from Bottoms’ claims under 42 U.S.C. §§ 1981 and

1983 and the ADA.*

2. Rooker-Feldman Doctrine

Defendants next argue that Bottoms’ claims are barred by the Rooker-Feldman doctrine.*
“The Rooker-Feldman doctrine provides that lower federal courts are precluded from exercising
jurisdiction over claims that would require them to review a final judgment of a state court.” Rizzo
y. Sheahan, 266 F.3d 705, 713 (7th Cir. 2001). When determining the applicability of the Rooker-
Feldman doctrine, courts must determine whether a plaintiff's alleged injury resulted from the state

court judgment itself or is distinct from that judgment. Garry v, Geils, 82 F.3d 1362, 1365 (7th Cir.

3 Bottoms argues that the use of the words “former employee” in the Immunity Act represents the legislature’s
intent to give retroactive effect to section 5 of Public Act 93-0414, According to Bottoms, the legislature clearly
anticipated and expected the state to be amenable to suits by previously terminated employees. This argument is
unpersuasive. ‘The legislature must express clearly that it intends to give retroactive effect to an amendment. See
Cavency, 797 N.E.2d at 601. See also Bartley v, United States Dep't of Army, 221 F. Supp. 2d 934, 949 -951 (C.D, TI,
2002) (state must make clear declaration that it intends to submit to federal jurisdiction) (citing College Savings Bank,
527 U.S, 666, 675-76 (1999)).

4 We do not reach defendants’ starute of limitations argument.

5 The doctrine is derived from two Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)
and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983),

-6-



amendment to abrogate a [state’s] eleventh amendment immunity.” /d. (quoting MSA Realty Corp.
v. Illinois, 990 F.2d 288, 291 (7th Cir. 1993)).

Bottoms argues that the state of Illinois has waived its sovereign immunity with respect to
suits under 42 U.S.C. §§ 1981 and 1983 as well as suits under the ADA.’ She says that section 5 of
Public Act 93-0414, which amended the State Lawsuit Immunity Act (“Immunity Act”), 745 ILCS
5/1 et seq., removed the sovercign immunity barrier to suits brought under various federal laws,
including the ADA and Title VII. (Response at 12.) There are a few problems with this argument,
as defendants point out. First, while the Immunity Act amendments do create exceptions to the
state’s sovereign immunity, the only exccptions relevant here are for Bottoms’ claims brought under
the ADA and Title VII. See 745 TLCS 5/1.5 (new section to Immunity Act created by section 5 of
Public Act 93-0414). There is no mention in the amendments of the state’s waiver of sovereign
immunity for claims brought under 42 U.S.C. §§ 1981 and 1983.

In addition, the Immunity Act amendments became effective January 1, 2004, and they are
not retroactive. Illinois has adopted the retroactivity test articulated by the Supreme Court in
Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). See Foster Wheeler Energy Corp. v. LSP
Equip., LLC, 805 N.E.2d 688, 692 (Ill. App. Ct. 2004) (applying retroactivity analysis of Landgraf).
The first step in the Landgraf analysis is to determine whether the legislature has clearly indicated
the temporal reach of an amended statute. Jd. Illinois courts have said that the Illinois legislature
always indicates the temporal reach of an amended statute because, where, as in this case, the

legislature fails to clearly indicate in the amendcd statute itself its position on retroactive application,

2 Our court of appeals has said that state employers are not immune from suits under Title VI. See Varner v.
Hlinois State Univ., 226 F.3d 927, 936 (7th Cir. 2000).

-5-



that occurred prior to July 1999 is timc-barred.® In her response to defendants’ motion to dismiss,
Bottoms acknowledges the 300-day cut-off date and focuses her arguments on events that took place
between July 1999 and May 2000, namely, the alleged discriminatory requirement that she undergo
a fimess-for-duty examination and the retaliatory nature of her discharge. (Response at 2.)

Defendants first argue that, because Bottoms litigated her claims in state court, res judicata
bars her from bringing her claims here. We do not agree. To determine whether res judicata applies,
we look to Illinois law to determine if Illinois courts would give preclusive effect to the state court
judgment. Jones v, City of Alton, 757 F.2d 878, 883 (7th Cir. 1985). In Illinois, under the doctrine
of res judicata, or claim preclusion, resolution of a previous case bars litigation of a later claim if:
“(1) there was a final judgment on the merits rendered by a court of competent jurisdiction; (2) there
is an identity of cause of action; and (3) there is an identity of parties or their privies.” River Park,
Inc. v. City of Highland Park, 703 N.E.2d 883, 889 (ILL. 1998). Res judicata also bars litigation of
issues which could have been, but which were not, litigated in prior proceedings. See Welch v,
Johnson, 907 F.2d 714, 720-21 (7th Cir. 1990). The burden is on the party asserting preclusion to
show “with clarity and certainty that the issue was or could have been determined by the prior
judgment.” Jones, 757 F.2d at 886.

One general limitation on the application of res judicata, however, is that it cannot apply
when the party against whom the earlier judgment is asserted did not have a full and fair opportunity
to litigate the issue in the earlier case. /d. at 884. This limitation is applicable here. Bottoms is

presenting to us her claims of racial discrimination and retaliation in violation of Title VI. These

® We do not, for example, address Bottorns’s specific complaints regarding the racial hate mail, the denial of
the promotion, the delay in receiving an air puritier, Targos’s physical aggression toward her, Targos’s filing of falsc
incident reports, the unauthorized retention of disciplinary reports in Bottoms’s personnel file and Bottoms's initial
placement on administrative leave, all of which occurred prior to July 1999. (Mot. to Dismiss Ex. F.)

-8-



Minute Order Form (0697)

United States District Court, Northern District of Illinois

Name of Assigned Judge 5 Sitting Judge if Other
or Magistrate Judge Paul E. Plunkett than Assigned Judge

CASE NUMBER 03 C 1881 DATE 6/21/2004

CASE Carolyn Bottoms vs. Illinois Department of Human Services, ct al.

TITLE

Un the fotlowing box (a) indicate the party filing the motion, c.g...plaintif?, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. |
DOCKET ENTRY:
(1) oO Filed motion of [ use listing in “Motion” box above.]
(2) Q Brief in support of motion due
g oO ‘Answer brief to motion due . Reply to answer brief due
(4) ao Ruling/Hearing onset for att.
(5) a Status hearing set for 7/22/2004 at 11:00 a.m..
® oO Pretrial conferencefheli/continued to] [sel for/reeset for) on ___set for _at .
(7) o Trial(set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) O This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) OlLocal Rule 41.1 OFRCP41(a)(1) OO PRCP41(a)(2).
(do) off [Other docket entry} Enter Memorandum Opinion and Order. Defendants’ motion to dismiss
(15-1) is granted in part and denied in part. Accordingly, plaintiffs ADA claims and claims under
42 US.C, §§ 1981 and 1983 are dismissed with prejudice,

(il) @f [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document

‘ Number

No notices required. umber f notices

Notices mailed by judge's staff.

Notified counse] by telephone. JUN 2 2 2004
a | Dockcting to mail notices.

Mail AO 450 form.

Copy to judge/magistrale judge.

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deputy’s
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Moreover, res judicata would not bar these claims because Bottoms did not have the right
to present these claims before Judge Conlon, Before Bottoms can bring her claims in federal court,
she is required to have filed a charge of discrimination with the EEOC, The particular events that
she complains of before us now were not included in the June 1999 EEOC charge related to the case
before Judge Conlon. Her discharge, which occurred in November 1999, was a discrcte act that
constituted a separate violation of Title VIL. It was a claim she could not have brought in earlier
proceedings before Judge Conlon. (Ex. F at 10.) See Zugay v. Progressive Care, S.C., 180 F.3d 901,
902 (7th Cir. 1999) (before filing a lawsuit under Title VI, a plaintiff must timely file a charge with
the EEOC and receive a right-to-sue letter).

In Green v. Illinois Dep't of Transp., 609 F. Supp. 1021 (ND. Il. 1985), Judge Aspen
addressed whether res judicata should be applied to bar claims stemming from conduct that occurs
after the filing of the first complaint but before judgment. In Green, the plaintiff was terminated
after he filed suit claiming a failure to promote and retaliatory harassment in violation of Title VIL
but before final judgment in that suit was issued. He then sued his former employer for race
discrimination based on his termination. Judge Aspen held that res judicata would not bar the
plaintiff's Title VII claim for discriminatory discharge. The termination was a new and separate
claim for relief under Title VI and the plaintiff was not required to amend his prior complaint to add
the new claim. Judge Aspen noted that even if res judicata implied a genera} duty to amend, the
plaintiff probably would not be able to amend his complaint because he had not completed the
EEOC administrative process. Id. at 1025-26. See also Jackson v. City of Chicago, 38 F, Supp. 2d
648, 650 (N.D. Til. 1999) (plaintiff not required to amend complaint or ask EEOC for immediate

right-to-sue letter to include later actions of discrimination). We find the Green case instructive.

-il-


at 882-86 (where plaintiff has no opportunity to raise racially discriminatory treatment as defense
to employment discharge before city civil service commission and state courts would not consider
it, Minois courts would not apply claim preclusion and, accordingly, claim not barred in federal
court); Welch, 907 F.2d at 720 (party asserting res judicata has burden of showing with clarity and
certainty what was determined in prior judgment).

Defendants also argue that collateral estoppel prevents Bottoms from litigating her claims
at this time. “Under the doctrine of collateral estoppel, once a court has decided an issue necessary
to its judgment, that decision is conclusive in a subsequent suit on a different cause of action
involving a party to the prior litigation.” Kunzelman v, Thompson, 799 F.2d 1172, 1176 (7th Cir.
1986). In order to invoke collateral estoppel, four conditions must be met: (1) there was a final
judgment on the merits in the prior proceeding; (2) the issue for which estoppel is sought was
essential to that decision; (3) the party against whom estoppel is invoked had a full opportunity to
address the issue; and (4) the issue decided in the prior proceeding is identical to the issue presented
in the current action. Ray v. Indiana & Michigan Elec. Co., 758 F.2d 1148, 1150 (7th Cir. 1985).

Defendants assert that the issues raised here are identical to the ones raised and decided in
Bottoms I before Judge Conlon. Many of the issues are the same, such as Bottoms's claims
regarding the receipt of interoffice hate mail, the failure to obtain the promotion and the improper
retention of documents in her personnel file. These issues are disposed of, however, under the 300-
day EEOC filing requirement,’ All we are left with are Bottoms’s Title VU claims for discriminatory
discharge, due to race or retaliation. These particular issues, however, were not addressed in the

proceedings before Judge Conlon. (Mot. to Dismiss Ex. F at 10; Ex. G at 6, 8-10, 11.)

7 Collateral estoppel may also bar these claims,

-10-


1996). The Rizzo court distinguished between a “federal claim alleging injury caused by astate court
judgment (necessarily raising the Rooker-Feldman doctrine) and a federal claim alleging a prior
injury that a state court failed to remedy (raising a potential res judicata problem but not Rooker-
Feidman).” Rizzo, 266 F.3d at 714 (quoting Garry, 82 F.3d at 1366) (internal quotations omitted).
Bottoms alleges here an injury that occurred before she sought relief in state court; the injury did not
result from the state court judgment itself. She claims she suffered from discrimination in the
workplace and the Illinois courts did not grant her the relief she sought — a determination that she
should not have been terminated, Her injury occurred before she sought relief in state court. Thus,

the Rooker-Feldman doctrine does not bar her claims.

3. Res Judicata and Collateral Estoppel

We are Icft to consider Bottoms’ Title VII claims alleging discrimination and retaliation.
Title VI! prohibits discrimination on the basis of racc, color, religion, sex and national origin and
prohibits an employer from discriminating against an employee who has filed a charge of
discrimination. 42 U.S.C.A. §§ 2000e-2, 2000e-3(a) (2003), Bottoms’ complaint identifies
numerous instances of discrimination, for example, receiving racial hate mail through the interoffice
mail system, being denied access to the workplace and being denied a promotion. However, many
of these claims are time-barred. In Ilinois, an individual must initiate a claim by filing an EEOC

charge within 300 days of the alleged discrimination. See Hall v. Bodine Elec. Co., 276 F.3d 345,

352 (7th Cir. 2002). Bottoms filed her charge on May 15, 2000, so under the general rule, conduct



nine day suspensions, a one-day suspension and two written reprimands for her alleged refusal of
supervision, Bottoms filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) in June 1999,

Bottoms also claims that Targos hit her and was aggressive towards her on at least three
occasions. Targos was not disciplined, investigated or asked to submit to a fitness-for-duty
evaluation for her behavior. In May 1999, Bottoms was placed on administrative leave without a
hearing or without the opportunity for reassignment pursuant to policy.’ While on this leave,
Bottoms was informed by mail in September 1999 that she was to report to Chicago-Read’s
psychiatrist for a fitness-for-duty evaluation. She did not comply with this directive. Bottoms was
discharged by IDHS on November 16, 1999. She filed a charge of discrimination with the Illinois
Department of Human Rights on May 15, 2000, where she claimed she was discharged “‘in retaliation
for opposing unlawful discrimination.” (Compl. Ex. A.) She said in the charge of discrimination
that Chicago-Read’s reason for the termination was insubordination. (/d.)

Bottoms litigated her discharge before the Illinois Civil Service Commission (“Civil Service
Commission”), An administrative law judge (“ALJ”) held that Bottoms’s discharge was warranted.
(Mot. to Dismiss Ex. A at 30.) On September 20, 2000, the Civil Service Commission adopted the
ALJ’s findings and conclusions and upheld IDHS’s decision to discharge Bottoms. (/d. Ex. B.)
Bottoms filed a petition for administrative review in the Circuit Court of Cook County, Chancery
Division. The circuit court upheld the decision of the Civil Service Commission. (/d. Ex. D at 2.)

The Iinois Appellate Court affirmed. (7d. Ex. D at 21.) Bottoms sued IDHS, Chicago-Read and

' Although not clear from her complaint, the documents submitted by defendants in support of their motion to
dismiss suggests that Bottoms was placed on administrative leave because of a physical (or near physical) altercation
with a co-worker. (Mot. to Dismiss Ex. D at 10; Ex. Gi at 3.)

-3-


Factual Background

The parties have litigated variations of this casc in administrative proceedings, Illinois state
court and in federal court. The following recitation is taken from Bottoms’ complaint, court
documents and the briefs submitted to us in connection with defendants’ motion to dismiss. Bottoms
began working for IDHS in 1991 as an office assistant in Chicago-Read’s staff development
department. In April 1998, she took a leave of absence under an LDHS family leave program. When
she retumed in October 1998, Bottoms was transferred to an office assistant position in the general
stores department because her previous position had been abolished. Her supervisor in the general
stores department was Marilyn Targos (“Targos”).

Bottoms alleges that she was discriminated against on numerous occasions. She claims that
in October 1998, defendants resisted her request for an air purifier for her work area. Chicago-Read
was cited by the Illinois Department of Labor for conditions that were detrimental to Bottoms’
health. After an unreasonable delay of four months, she was eventually provided with an air purifier.
She also alleges that on three separate occasions in Januaty 1999 she was denied access to her
workplace to conduct union business even though she was, at that timc, a union steward. Bottoms
says she received racial hate mail through the interoffice mail system on February 4, 1999. She also
alleges that she failed to receive a promotion that should have been hers because she was the only
bidder and was qualified.

Bottoms alleges that defendants have retained in her personnel file documents relating to
disciplinary action even though the documents should have been expunged under two settlement
agreements, Bottoms was asked to submit to twice-weekly supervision meetings, which she refused

to attend. She says she was disciplined many times for insubordination: she received two twenty-

-2-



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

CAROLYN BOTTOMS,
Plaintiff,

No, 03 C 1881
Paul E, Plunkett, Senior Judge

v.
ILLINOIS DEPARTMENT OF
HUMAN SERVICES, and CHICAGO-
READ MENTAL HEALTH CENTER,

Defendants,

wwe eevee re

MEMORANDUM OPINION AND ORDER
Carolyn Bottoms has brought this suit against the Illinois Department of Human Services
(“IDHS”) and the Chicago-Read Mental Health Center (“Chicago-Read”) (collectively “defendanis”)
pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000¢ et seq., 42 U.S.C. § 1983, 42 U.S.C.
§ 1981 and the Americans with Disabilitics Act (“ADA”), 42 U.S.C. § 12101 et seq., alleging
discrimination based on race, color and disability. She also asserts a retaliation claim. Defendants
move to dismiss these claims under Federal Rules of Civil Procedure (“Rule”) 12(6)(1), 12(b)(2) and

12(b)(6). For the following reasons, the motion is granted in part and denied in part.



The conduct at issue before Judge Conlon occurred between August 1998 and June 14, 1999. (Mot.
to Dismiss Ex, G at 6.) Judge Conlon did not specifically address Bottoms’ claims relating to her
discharge and could not have addressed them because Bottoms had not yet completed the
administrative process. See Restatement (Second) of Judgments, § 26(1)(c) (1982) (claim preclusion
does not apply where limitations on first court’s jurisdiction prevented litigation of theory or
availability ofremedy). Defendants’ motion to dismiss Bottoms’ Title VII claims for discrimination

and retaliation that occurred after July 20, 1999 is denied.®

4, Chicago-Read As Defendant

Defendants also seek to dismiss Chicago-Read as a defendant from this suit, arguing that it
is not a suable entity. Bottoms responds by saying that until defendants provide a supporting
affidavit or information in which IDHS acknowledges that it is liable for the actions of Chicago-
Read and its supervisory employees, Chicago-Read should not be dismissed from the case.

Title VII actions must be brought against the “employer.” When a state entity is sued,
“employer” is understood to mean the “the particular agency or part of the state apparatus that has
actual hiring and firing responsibility.” Hearne, 185 F.3d at 777. We do not have sufficient
information at this stage in the litigation to determine that Chicago-Read is not Bottoms’
“employer” as that term is used in Title VI. Therefore, we will nol dismiss Chicago-Read from the

case at this time.

® Bottoms asserts that July 15, 1999 is the cut-off date tor the claims she filed with the Iltinois Department of
Human Rights and the EEOC on May 15, 2000. According to our calculations, 300 days before May 15, 2000 is July
20, 1999.

-12-