had notice of any claims against it and was given an opportunity to participate in EEOC conciliation
proceedings. CHA’s motion to dismiss is granted as to counts I and III.

In addition, PMOne moves to dismiss count III for retaliation under Title VII.’ Generally,
a Title VII plaintiff cannot bring claims in a lawsuit that were not included in his EEOC charge.
Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). Allowing the
complaint “to encompass allegations outside the ambit of the predicate EEOC charge would frustrate
the EEOC’s investigatory and conciliatory role, as well as deprive the charged party of notice of the
charge.” id. Because most EEOC charges are completed by {aypersons, not lawyers, the test for
determining whether an EEOC charge encompasses the claims in a complaint provides the plaintiff
with “significant leeway.” /d. Title VII claims set forth in a complaint are cognizable if they are
“dike or reasonably related to the allegations of the charge and growing out of such allegations.” /d.
(quoting Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976).

In his EEOC charge, Shields alleged that he had been subjected to, among other things,
“harassment in the form of. . . threats of discharge from the Vice President of Chicago Region
[Dau]” and that “(mJost recently . . . [Shields] was suspended without pay.” Shields concludes his
allegations by stating, “On September 20, 2001, I was discharged.” Shields’ EEOC charge makes
no mention of retaliation by anyone at PMOne, nor does it even state that Shields’ lodged any
complaints to management at PMOne regarding the sexual harassment. “(Retaliation and
discrimination are separate and distinct wrongs,” given that “the very gist ofa retaliatory harassment
action is that the employer has ‘lashed out’ against an employee for filing discrimination charges,

not out of animosity for the employee’s race or national origin.” Nair v. Bank of Am. Illinois, 991

‘Shields voluntarily dismissed count II against Dau.
4


§ 1983 claims CHA, as well as against PMOne and Daw. Therefore, counts II and IV are dismissed
as to all defendants.‘
State Law Wrongful Discharge (Count VII)

Lastly, the defendants’ contend that count VII of Shields’ complaint, which alleges acommon
law claim for retaliatory discharge against all defendants, should be dismissed because the retaliatory
discharge claim is preempted by the Illinois Human Rights Act, 775 ILCS 5/1-101, et seq. (“IHRA”).
The IHRA, which prohibits sex discrimination and harassment, provides the exclusive means of
redress for a retaliatory discharge action such as Shields’. 775 ILCS 5/8-111 (West 1994); Corluka
v. Bridgford Foods of Illl., Inc., 671 N.E.2d 814, 817 (Ill. App. 1996). While the common law tort
of retaliatory discharge was first recognized in Illinois in 1978, the Illinois legislature passed the
IHRA in 1980 which created a statutory retaliatory discharge cause of action. Corluka, 671 N.E.2d
at 817, “This Act provides a means of redress for civil rights violations to the exclusion of common
law retaliatory discharge actions.” Jd, Where a common law tort claim is inextricably linked to a
civil rights violation, a district court will not have jurisdiction over the tort claim. Maksimovic v.
Tsogalis, 687 N.E.2d 21, 23 (Ill. 1997). Here, Shields’ common law retaliatory discharge claim is

inextricably linked to his asserted civil rights violations, and as such, it is preempted by the IHRA.

3Generally, a municipal entity is not liable for the actions of its employees under a
respondeat superior theory. Monell v. Dept. of Social Servs., 436 U.S. 658, 691 (1978). Because
employees of PMOne are not employees of CHA, Shields’ argument that CHA had a custom or
policy of allowing sexual harassment is irrelevant here.

‘Because Shields has not provided allegations sufficient to support his § 1983 claims, the
question of whether Shields’ protestations against his alleged discriminatory treatment
constituted constitutionally-protected speech need not be considered here.

5$hields voluntarily dismissed count VII against Dau.

9


attributable to the State.” Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).

The Supreme Court has developed anumber of tests to help determine whether private action
can qualify as state action in any given case. The tests articulated by the Supreme Court are not
exhaustive, and “[t}he question of whether conduct may be considered state action is a fact based
inquiry and therefore must be answered on a case by case basis.” Stillwell v. Mayflower Contract
Servs., Inc., No. 94 C 7253, 1995 WL 368898, at *3 (N.D. Ill. June 19, 1995) (citing Burton v.
Wilmington Parking Authority, 365 U.S. 715, 722 (1961)). Under the “symbiotic relationship” test,
state action is present if “[t]he State has so far insinuated itself into a position of interdependence
with [the private entity] that it must be recognized as a joint participant in the challenged activity.”
Burton, 365 U.S. at 725. In an attempt to show that CHA, PMOne and Dau were “joint
participant[s},” Shields alleges that they conspired to intimidate, harass and retaliate against him.
While there is no heightened pleading requirement for civil rights actions, Leatherman v. Tarrant
County Narcotics Intelligence & Coord. Unit, 507 U.S. 163, 168 (1993), in order to survive a motion
to dismiss, a pleading must contain enough to allow the court and the defendant to understand the
gravamen of the plaintiff's complaint. McCormick v. City of Chicago, 230 F.3d 319, 323-24 (citing
Payton v. RushPresbyterian-St. Luke's Medical Center, 184 F.3d 623, 625 (7th Cir. 1999)). Itis
enough in pleading a civil conspiracy merely to indicate the parties, general purpose, and

approximate date, so that the defendant has notice of what he is charged with? Walker, 288 F.3d at

?PMOne relies primarily on Ryan v. Mary Immaculate Queen Ctr. for the proposition that
bare allegations of a conspiracy among a group of defendants are insufficient under Fed. R. Civ.
P. 8 and therefore cannot survive a motion to dismiss. 188 F.3d 857, 860 (7th Cir. 1999).
However, the ruling in Ryan has been severely limited, most notably by Swierkiewicz v. Sorema
N.A., where the Supreme Court held that under a notice pleading system it is inappropriate to
require a plaintiff to plead facts establishing a prima facie case. 534 U.S. 506, 511 (2002). The
Seventh Circuit clarified the ruling in Ryan, and quoted Swierkiewicz in the process, by

6


F. Supp. 940, 954 (N.D. Ill. 1997); see Noreuil v. Peabody Coal Co., 96 F.3d 254, 258 (7th Cir.
1996) (stating that retaliation claims and discrimination claims are “sufficiently dissimilar that an
administrative charge of one fails to support a subsequent civil suit for the other”); Lalvani v. Cook
County, No. 98 C 2847, 2000 WL 198459, at *5 (N.D. Ill. Feb. 14, 2000) (“Because Lalvani’s
retaliation claim in his EEOC charge does not encompass the discriminatory animus alleged in his
disparate treatment claim in this case, the Court finds the two claims are not reasonably related and
do not grow out of the same allegations.”). Because the Title VII retaliation charge contained in
count III of Shields’ complaint is not reasonably related to the allegations made in Shields’ EEOC
charge, count III is dismissed as to all defendants.
Section 1983 Sexual Harassment (Count II) and Section 1983 Retaliation (Count IV)

PMOne, CHA and Dau argue that counts II and IV of Shields’ complaint, sexual harassment
and retaliation claims based on § 1983 against all defendants, should be dismissed because Shields
has failed to plead sufficient facts to establish municipal liability under Rule 8. The court agrees.
Because Shields failed to tie CHA to PMOne or the alleged discrimination at issue here, Shields’
§ 1983 claims fail as to CHA. Without CHA (a municipal entity) as a defendant, Shields’ § 1983
claims against the private entities, PMOne and Dau, also fail.

To state a claim against the defendants for violations of § 1983, Shields must allege that each:
(1) deprived him of his constitutional rights while (2) acting under the color of state law. 42 U.S.C.
§ 1983; Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998). PMOne and Dau are private parties.
Generally speaking, the protections of § 1983 do not extend to private conduct that violates
individual rights. NCAA v. Tarkanian, 488 U.S. 179, 191 (1988). Therefore, in order to succeed on

the merits, Shields must demonstrate that the alleged infringement of federal rights is “fairly



with respect to the conspiracy allegation. Walker, 288 F.3d at 1008 (noting that the two roles of
notice pleading are to enable defendants to prepare their defense and to allow the district court to
determine whether an alleged claim is within the realm of possibly valid claims). Shields’ single
reference to a conspiracy in his complaint, made against all defendants without differentiation and
without specification, is insufficient to provide notice to the defendants of the claims against them.

The only other test suggested by Shields’ allegations as a way to deem PMOne a state actor
for purposes of § 1983 is the “public function” test. Rendell-Baker, 457 U.S. at 842. The relevant
inquiry under this test is not simply whether a private entity is serving a “public function.” Jd.
Under this test, the relevant question is whether “the function performed has been traditionally the
exclusive prerogative of the State.” Jd. (emphasis in original) (internal quotation marks and citations
omitted). Shields has not provided the court with any authority (nor can the court locate any
authority) that suggests that providing the service of property management for a public entity is a
function that is within “the exclusive prerogative of the State.” Wade v. Byles, 83 F.3d 902, 906 (7th
Cir. 1996) (private security company employed by the Chicago Housing Authority did not perform
function that was within the exclusive prerogative of the state); see also Stillwell, 1995 WL 368898,
at *3 (private company that provided bus service for public school district is not performing function
that is exclusively prerogative of the state). PMOne therefore does not meet the “public function”
test.

Because § 1983 is directed at municipal liability (and private actors who act in concert with

the government entity), Shields’ failure to tie CHA to PMOne and the present dispute dooms any


Minute Order Form (06/97)

$

United States District Court, Northern District of Illinois

f Sitting Judge if Oth
ar Magistrate Judge Joan B. Gottschall than Anigned Judge
CASE NUMBER 02 C 3712 DATE 8/5/2003
CASE : Shields vs. Property Management One, LTD, et al.
TITLE
[Im the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

(1) Q Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) a) Answer brief to motion due. . Reply to answer brief due,

(4) oO Ruling/Hearing on set for at :

(5) |_| Status hearing set for 8/28/2003 at 9:30 A.M..

(6) im 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) Qo (Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (CLocal Rule 41.1 CFRCP41(a\(1) OFRCP41(a)(2).

(0) BB [Other docket entry] | Enter Memorandum Opinion and Order. Defendant Property Management
One, LTD’s motion to dismiss counts II, Il, IV and VII [12-1] is granted. Defendant Chicago Housing
Authority’s motion to dismiss counts I, II, Il, IV and VII [13-1] is granted. Defendant Marlene Dau’s
motion to dismiss counts II, Ii, TV and VII [10-1] is granted. The parties shall appear for a status hearing
on August 28, 2003 at 9:30 a.m.

(11) 1 | [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.
Not i 8 mailed by judge's staff. uc
tified counsel by telephone. a
/ | Pocketing to mail notices.
Mail AO 450 form. 4unoo sause GL
Copy to judge/magistrate judge. MYya19
courtroom ER: Wd 9-9nve ste pe
| WL depuis a ascaseeg
Datelt it
cove Cates ofkee msn yi

7


Consequently, count VII is dismissed as to all defendants.
Conclusion
For the reasons stated above, the defendants’ motions to dismiss are granted.

ENTER:

B72 :

JAN B. GOTTSCHALL
ited States District Judge

DATED: August 5, 2003

10


1007. It is within this framework that the court must determine the sufficiency of Shields’
conspiracy allegations.

Even under liberal notice-pleading standards, Shields has failed to provide adequate notice
to PMOne, Dau, and CHA of the conspiracy claim against them. The only mention of
communication of any kind between PMOne and CHA is found in Paragraph 18 of Shields’
complaint, which simply states that Dau had a “close personal relationship and friendship with Ms.
Ruby Holley, the Asset Manager for CHA.” Ms. Holley, however, is never again mentioned in the
complaint. Moreover, while Shields alleges that the Inspector General of CHA refused to assign
Shields’ sexual harassment complaint for investigation, Shields does not explain why CHA had a
duty to investigate alleged harassment at PMOne, nor does he even make a boilerplate assertion that
this failure on the part of the CHA’s Inspector General’s Office to assign the claim was part of a
larger conspiracy between CHA and PMOne. Shields does allege in Paragraph 28 (and only in
Paragraph 28) of his complaint that “The Defendants conspired to intimidate, harass, and retaliate
against . . . Shields, to punish him and those who dared to support him, and to protect Defendants
from public disclosure of the pattern and practice of sexual harassment within PMOne.” While this
may adequately allege the general purpose of an alleged conspiracy, Shields has not provided facts
regarding the identities of the parties involved in the alleged conspiracy. Moreover, Shields has not
pled which defendants jointly agreed to carry out which alleged violations of his civil rights.
Consequently, the court cannot conclude that Shields has provided the defendants adequate notice

of the gravamen of his complaint, such that they would be able to adequately prepare their defense

reiterating that there is no requirement in federal suits of pleading the facts or the elements of a
claim (with the exceptions listed in Rule 9, which do not apply in the instant case). Walker v.
Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002).

7


Title VII Sexual Harassment (Count I) and Title VII Retaliation (Count II)

CHA contends that counts J and III of Shields’ complaint, which allege a violation of Title
VII based on sexual harassment against PMOne and CHA, and a Title VII retaliation claim against
all defendants, respectively, should be dismissed as to CHA because Shields failed to list CHA on
his charge and, even more fundamentally, Shields failed to establish that CHA was his employer for
purposes of Title VII.

To state a claim under Title VII, a plaintiff must, at the very least, allege that a defendant is
his employer within the meaning of the Act. 42 U.S.C. § 2000¢-2(a)(1); Davis v. Commonwealth
of Penn., No. 01-3091, 2002 U.S. Dist. LEXIS 3357, at * 14 (E.D. Pa. Feb. 22, 2002 (granting a
motion to dismiss a Title VII claim because plaintiff failed to allege an employment relationship
between himself and defendant); Caston v. Methodist Med. Cir. of Ill. 215 F. Supp. 2d 1002, 1006
(C.D. Ill. 2002) (same). Because Shields has failed to allege that he had any employment
relationship with CHA, his Title VII claims must be dismissed against CHA.

Even assuming CHA could somehow be deemed to be Shields’ employer, Shields’ claims
still fail because CHA was not named in Shields’ EEOC charge. A party not named in an EROC
charge cannot generally be sued under Title VII. 42 U.S.C. § 2000e-5; Schnellbaecher v. Basking
Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989). A limited exception to this rule exists where an
unnamed party is given adequate notice of the charge and opportunity to participate in conciliation
proceedings aimed at voluntary compliance. Eggleston v. Chicago Journeymen Plumbers’ Local
Union No. 130, 657 F.2d 890, 905 (7th Cir, 1981). A Title VI complaint will be dismissed as to an
unnamed party where a plaintiff fails to allege any facts that warrant an exception to the general rule.

Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991). Here, Shields has failed to show that CHA


Background

PMOne is a private corporation that contracts with property owners to provide property
management services. Among PMOne’s clients is CHA, a municipal government entity that
provides and administers housing for its low-income and qualifying residents. In 1997, PMOne
/ hired Shields as a Property Manager. In June 2000, Shields was promoted to Regional Property
Manager, and was directly supervised in this capacity by Dau, Vice President of PMOne’s Chicago
Regional Office. On September 20, 2001, PMOne terminated Shields’ employment. On November
13, 2001, Shields filed a charge of discrimination against PMOne with the Illinois Department of
Human Rights and the EEOC. In his charge, Shields alleges that he was discriminated against on
the basis of his sex and, specifically, that he was “subjected to harassment in the forms of false
accusations, disciplinary actions, and threats of discharge from the Vice President of the Chicago
Tegion”; was suspended without pay in March 2001; was “subjected to incidents of offensive verbal
comments from the current Director of Property Management”; and was discharged on September
20, 2001. Shields did not name CHA in his EEOC charge. The EEOC issued a right-to-sue letter
on February 21, 2002, and on May 23, 2002, Shields filed his complaint.

Analysis

A dismissal under Fed. R. Civ. P, 12(b)(6) for failure to state a claim is improper unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would
entitle him to relief. Ekerman v. City of Chicago, No. 01 C 9686, 2002 WL 1008458, at *1 (N.D.
Til. May 16, 2002) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In ruling on a motion to
dismiss, the court must construe the allegations of the complaint in the light most favorable to the

plaintiff, and all well-pleaded facts and allegations in the complaint must be accepted as true. Jd.


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CLINT SHIELDS, ) AUG 07 2003
)
Plaintiff, ) Case No. 02 C 3712
v. )
)
PROPERTY MANAGEMENT ONE, LTD., )
etal., ) Judge Joan B. Gottschall
)
Defendants. )

MEMO D PINION AND ORD!

Clint Shields has brought this suit against his former employer Property Management One,
LTD (“PMOne”), his former supervisor Marlene Dau, and the Chicago Housing Authority (“CHA”),
for claims arising out of his employment with PMOne. In his complaint, Shields asserts: a claim
against PMOne and CHA under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000¢, et seq.,
for sexual harassment (count I); a claim against all defendants under 42 U.S.C. § 1983 for sexual
harassment (count II); a claim against all defendants under Title VII for retaliation (count III); and
aclaim against all defendants under § 1983 for retaliation (count IV). Shields further asserts claims
against Dau under Illinois state law for intentional infliction of emotional distress and negligent
infliction of emotional distress (counts V and VI, respectively). Lastly, Shields asserts a claim
against all defendants for wrongful discharge under Illinois state law (count VII). Defendants
PMOne and Dau have moved separately to dismiss counts II, III, IV, and VII of Shields’ complaint.
Defendant CHA has moved to dismiss counts I, II, II, IV, and VII of Shields’ complaint. For the

reasons set forth below, defendants’ motions to dismiss are granted.

WD