Counts IX and XII. Plaintiff is given thirty days from the entry of this order to amend Counts I,
IV through VI, X, and XII; failure to do so will result in their dismissal with prejudice. The
City’s and Mitts’ motion to hold their answers in abeyance is granted as to Count III and denied

as moot as to the remaining counts. Plaintiff's request for judgment to be entered on Count III is

denied.
ENTER:
(4
George W. Lindberg
United States District Judge
AUG 17 2007
DATED:

13


throughout his employment with the City.

II. Motion to Dismiss Standard

When ruling on a motion to dismiss, the court must consider “whether relief is possible
under any set of facts consistent with the allegations of the plaintiff's complaint.” Pokuta v.

Trans World Airlines, Inc., 191 F.3d 834, 839 (7" Cir. 1999). That is, if it is possible to

hypothesize a set of facts that would entitle the plaintiff to relief, consistent with the allegations
in the complaint, dismissal under Rule 12(b)(6) is inappropriate. See Graehling v. Village of
Lombard, IIL, 58 F.3d 295, 297 (7" Cir. 1995). “[A]lthough plaintiffs can plead conclusions, the
conclusions must provide the defendant with at least minimal notice of the claim.” Jackson v.
Marion County, 66 F.3d 151, 154 (7" Cir. 1995). A plaintiff can “plead himself out of court by
alleging facts which show that he has no claim.” Id.

Ill. Section 1983 Claims (Counts I and If,' IV through VI)

As to Count I, alleging that defendant City of Chicago discriminated against plaintiff on
the basis of his political affiliation in violation of 42 U.S.C. § 1983, the City argues that plaintiff
fails to allege facts supporting a discriminatory City custom or policy. A municipality may not
be held liable under Section 1983 under a theory of respondeat superior. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978). Rather, to state a claim against the City, plaintiff must allege
that: (1) the City had an express policy that, when enforced, caused a constitutional deprivation;
or (2) the City had a widespread practice that was so permanent and well-settled as to constitute a
custom or usage with the force of law, although not authorized by written lew or express :

municipal policy; or (3) the constitutional injury was caused by a person with final policymaking

' Mitts does not move to dismiss Count IIT.

4


employment relationship, such as plaintiff and the City had here, constitutes a contract. Rather,
he contends that plaintiff’s claims fail because he does not allege that he is a member of a racial
minority and because the discriminatory acts plaintiff alleges do not involve interference with
contract rights. Brewster’s contentions are misplaced.

Section 1981 prohibits racial discrimination in the “making, performance, modification,
and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions
of the contractual relationship.” 42 U.S.C. 1981(b). Contrary to Brewster’s contention, plaintiff
does allege that he is a member of a racial minority, albeit somewhat obliquely, when he alleges
that his “rights as a Caucasian citizen are protected by the provisions of § 1981.” Moreover,
plaintiff does allege racial discrimination in the enjoyment of the benefits, privileges, terms, and
conditions of the contractual relationship. Plaintiff alleges that Brewster intentionally subjected
plaintiff to unequal and discriminatory terms and conditions during his employment based on
race, and that Brewster terminated plaintiff's employment several days after plaintiff filed a
written grievance with Brewster complaining of discrimination and retaliation. Plaintiff
adequately states claims of discrimination and retaliation under Section 1981.4

Mitts argues that Counts IX and XII, alleging race discrimination and retaliation in
violation of Section 1981, fail to adequately state claims against her. Relevant to these counts,
plaintiff alleges that Mitts was a floating supervisor who covered the district where plaintiff

worked; that Mitts intentionally subjected plaintiff to unequal and discriminatory terms and

4 Brewster also argues that Count XI should be dismissed because plaintiff claims that he
was retaliated against for filing his EEOC complaint, when that coinplaint was filed after he was
terminated. However, it is clear from the complaint that plaintiff claim at he was ‘retaliated
against for filing his grievance before he was terminated.

9


Section 1983, should be dismissed because Section 1983 does not confer substantive rights? All
the defendants make the same argument regarding Counts IV through VI, which allege retaliation
jn violation of Section 1983. However, while plaintiffs characterization of his claims as
violations of Section 1983 may be somewhat inartful, it is clear from reading the complaint as a
whole that he is raising First Amendment claims under Section 1983.

Brewster then argues that Count II fails to state a claim under the First Amendment. To
state a Section 1983 claim based on a First Amendment violation, a plaintiff must allege that: (1)
his conduct was constitutionally protected, and (2) his conduct was a substantial or motivating
factor in the defendant’s challenged action. Kelly v. Municipal Courts, 97 F.3d 902, 911 (7" Cir.
1996). An employee’s decision to refuse to participate in political activity is constitutionally
protected conduct. Id. Conduct by an employer that has been held to violate the First
Amendment includes firing a nonpolicymaking public employee based on his political affiliation,

see, ¢.g., Elrod v. Burns, 427 US. 347 (1976); Cusson-Cobb v. O’Lessker, 953 F.2d 1079, 1080

(7" Cir. 1992), as well as discriminating against an employee based on his political affiliation in
promotion, transfer, recall, and hiring decisions. See. ¢.g., Rutan v. Republican Party of IL, 497
U.S. 62 (1990). Here, plaintiff has alleged that he refused to support aldermanic candidate
Carouthers by purchasing tickets for a political fundraiser and using vacation time to work on
Blection Day at Brewster’s request. Plaintiff further alleges that his refusal to participate in these
political activities resulted in his being discriminated against in his work activities and in being

terminated by Brewster. Plaintiff has stated a cause of action in Count II sufficient to withstand a

2 Brewster also argues that all claims made against him in his official capacity should be
dismissed. However, it is clear from the caption of the case that he is being sued as an
individual. nO ESE


authority. McTigue v. City of Chicago, 60 F.3d 381, 382 (7" Cir. 1995). Plaintiff relies on the
second method of stating a claim, alleging that the City, “by the actions alleged herein, has
intentionally discriminated against Fogarty on the basis of his political affiliation as a matter of
custom by subjecting him to unequal and discriminatory terms and conditions of employment as
well as terminating his employment because he refused to support Carouthers.”

There is no heightened pleading standard in civil rights cases alleging Section 1983

municipal liability. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit,

507 U.S. 163, 164 (1993); see also McCormick v. City of Chicago, 230 F.3d 319, 323 (7° Cir.

2000). However, a complaint must set forth sufficient allegations to allow the court and
defendants to understand the gravamen of the complaint. See McCormick, 230 F.3d at 323-24.
Here, plaintiff has alleged that following his refusal to support political candidate Carouthers, the
City moved plaintiff to a less desirable location; gave him the least desirable work assignments;
refused to allow him to work overtime; and ultimately discharged him. At the same time,
according to plaintiff, other employees who supported Carouthers were treated more favorably.
Plaintiff then concludes that by these actions, the City discriminated against him on the basis of
his political affiliation “as a matter of custom.” The addition of the allegation of a “custom,”
designed, no doubt, as an attempt to clear the liberal notice pleading hurdle, is inconsistent with
plaintiff's allegations that are limited to what City employees did to him, ‘Indeed, the complaint
contains no allegations of any kind that support plaintiff's conclusion that the City had a custom
of discrimination. While the federal notice pleading rules do not require much, they require more
than appears in this complaint. Accordingly, Count J is dismissed without prejudice.

Brewster initially argues that Count I, alleging political affiliation discrimination under


of public interest but the expression addresses only the personal effect upon the employee.” Cliff

v. Bd, of School Comm’rs, 42 F.3d 403, 410 (7 Cir. 1994) (quoting Marshall v. Porter County

Plan Comm’n, 32 F.3d 1215, 1219 (7" Cir. 1994)) (emphasis in original). While there are
circumstances in which a complaint of discrimination raised in a grievance may well be a matter
of public concern, in this case plaintiff fails to allege that his grievance implicated such a public
concern. Indeed, his complaint of discrimination against him based on his failure to support a
political candidate indicates that his motivation was purely private — to vindicate his rights and
resolve a private dispute. Plaintiff's claims of retaliation under Section 1983 brought in Counts
IV through VI are dismissed without prejudice.

IV. Section 1981 Claims (Counts VII through XII)

The City next contends that Count VII, alleging race discrimination under 42 U.S.C. §
1981, and Count X, alleging retaliation under Section 1981, should be dismissed because Section
1981 does not provide a direct cause of action against a municipality. However, this court need
not reach that issue here because, as under Section 1983, there is no liability under the doctrine of

respondeat superior under Section 1981. Jett v. Dallas Indep, Sch. Dist., 491 U.S. 701, 735-36

(1989); see also, ¢.g., Looper Maint. Serv, Inc. v. City of Indianapolis, 197 F.3d 908, 913 (7" Cir.

1999); Federation of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1214-15 (9"
Cir. 1996). Counts VII and X suffer from the same deficiency as Count I, and therefore those
counts are dismissed without prejudice. . 7

Brewster argues that Counts VIII and XI, alleging yiolations of Section 1981 based on
discrimination and retaliation, should be dismissed because they do not allege an impairment of

plaintiff's right to make or enforce a contract. Brewster does not dispute that an at-will


Minute Order Sorm (06/97)

United States District Court, Northern District of Illinois

Nat f Assigned Jud; j Sit Judge if er
or Magistrate Jodge George W. Lindberg han Asigned Judge
CASE NUMBER 01 C2157 DATE 8/17/2001
CASE Brian Fogarty vs. City of Chicago
TITLE

[In the following box (a) indicate the party filing the motion, e-g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented}

MOTION:

DOCKET ENTRY:

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

(2) Oo Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due

(4) Oo Ruling/Hearing on___ssetfor___—_aat

(5) a Status hearing[held/continued to] [set for/re-set for]on___——ssetfor__—_at

(6) Qa Pretrial conference[held/continued to) {set for/re-set for]on__setfor___—at__

mM a Trial[set for/re-set for]on___at

(8) ira) [Bench/Jury tria!] [Hearing] held/continued toa

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) ClGeneral Rule 21 OFRCP41(a\(1) OOFRCP41(a)(2).

ao) [Other docket entry] Defendants’ motions (13-1, 16-1, and 17-1) to dismiss are granted in part and

denied in part. Enter memorandum opinion and order.

(1) @ {For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of otes
Notices mailed by judge’s staff. wi 20 200
Notified counsel by telephone. date docket
¥ | Docketing to mail notices.
Mail AO 450 form. docketng detphd Wits
Copy to judge/magistrate judge.
sane 7 pe oa
courtroom GY) AUS 7 vie Q3 date mailed notice
SLB deputy’s
initials
Date/time received in ; ;
central Clerk’s Office mailing deputy initials



1992). The doctrine may apply in three types of cases: (1) “where the employer’s decision-
making process takes place over a period of time, making it difficult to pinpoint the exact day the
‘violation’ occurred”; (2) where the employer has an express, openly-espoused discriminatory
policy of personnel management; or (3) where the employer has a covert practice of
discrimination so that “the challenged practice is evidenced only by a series of discrete, allegedly

discriminatory, acts.” Selan, 969 F.2d at 565; Stewart v. CPC Int’l, Inc., 679 F.2d 117, 120-21

(7" Cir, 1982). Itis this third situation that plaintiff contends applies here.
Generally, a continuing violation will be found if the plaintiff had no reason to believe he

was a victim of discrimination until after a series of adverse actions has occurred. Jones v.

Merchants Nat’] Bank & Trust Co., 42 F.3d 1054, 1058 (7" Cir. 1994). However, a continuing
violation will not be found “if the plaintiff knew, or ‘with the exercise of reasonable care would
have known after each act that it was discriminatory and had harmed’ her[.]” Id. Here, plaintiff
filed a grievance on October 29, 1999, complaining of racial discrimination in the terms and
conditions of his employment. Plaintiff's act of filing a grievance on October 29, 1999 belies his
argument that he was not aware of the discrimination until he was discharged on November 3,
1999. Accordingly, the court finds that plaintiff may not use the continuing violation doctrine to
base his Title VII discrimination claim on incidents occurring prior to Noyember 2, 1999.
Although plaintiff may have a difficult time prevailing on Count XIU, sigee no incident alleged
in the complaint other than his discharge falls within the 300-day limit, at this early stage the
court declines to dismiss this count completely. See Bennett v, Schmid it, 153 F.3d 516, 518 (7
Cir. 1998) (an allegation that “I was tamed down for ajob because of my race” would be

sufficient to withstand motion to dismiss under Rule 12(b)(6)).

il


conditions during his employment based on his race; that plaintiff complained of race
discrimination; that Mitts thereafter retaliated against plaintiff by terminating his employment,
and that the decision to terminate plaintiff was based on his race. These allegations are adequate
to withstand a Rule 12(b)(6) motion to dismiss. Therefore, Mitts’ motion to dismiss Counts IX
and XII is denied.

V. Title VII Claims (Counts XIII and XIV)

The City next argues that Count XI, alleging race discrimination under Title VIL, 42
U.S.C. § 2000e et. seq., and Count XIV, alleging retaliation in violation of Title VIL, should be
dismissed because the allegations contained in those counts are time-barred and outside the scope
of plaintiff's EEOC charge. In Illinois, a charge must be filed with the EEOC within 300 days
after the alleged unlawful employment practice occurred that forms the basis for the charge. 42
U.S.C. § 2000¢e-5(e). Plaintiff filed his EEOC charge on August 28, 2000. The City maintains
that any acts occurring prior to November 2, 1999 — the 300" day before August 28, 2000 — are
time-barred. According to the City, only plaintiff's termination on November 3, 1999 would fall
within the limitations period.*

Plaintiff invokes the continuing violation doctrine to support his argument that allegations
arising outside the 300-day limit may form a basis for relief under Title vil. Under the
continuing violation doctrine, otherwise time-barred acts may form the basis for Title VII relief if
they are linked to a discriminatory act that occurred within the limitations period. Speer v. Rand

McNally & Co., 123 F.3d 658, 663 (7" Cir. 1997); Selan i. Kiley, 969 Ee 2d 360, 564 (7" Cir,

5 Although the City contends that the allegation of plaintiff's termination cannot be
considered in an evaluation of Count XIII because plaintiff f failed to reallege ‘the pafagraph
containing that allegation in Count XII, the court reviews the complaint as a whole.

10


Rule 12(b)(6) motion to dismiss.

Defendants next contend that plaintiff's claims of retaliation under Section 1983 should
also be dismissed for failure to state a claim under the First Amendment. In Counts IV through
VI, the complaint alleges that plaintiff “engaged in activity protected by the provisions of § 1983
by complaining of discrimination based on his political affiliation,” and that the City, Brewster,
and Mitts then retaliated against him by terminating his employment. Presumably the complaint
of discrimination referenced in these claims is the written grievance plaintiff filed with Brewster,
complaining “that he was being discriminated against in the terms and conditions of his
employment based on his race, nationality and sex,” and “that he was being retaliated against
because of his refusal to support Brewster and Mitts’ choice of political candidates.” Thus, the
issue is whether retaliation based on the filing of a grievance complaining of political affiliation
discrimination states a claim under the First Amendment?

As the first step in the analysis of an allegation of retaliation for a violation of the
First Amendment, the court must determine whether the speech at issue implicates amatter of
public concern. Connick v. Myers, 461 US. 138, 146 (1983). To determine whether a grievance
touched on a matter of public concern, the court considers the content, form, and context of the

grievance. See id, at 147-48; Gray v. Lacke, 885 F.2d 399, 412 (7" Cir. 1989), cert. denied, 494

U.S. 1029 (1990). The public concern element is lacking where the conduct “concerns a subject

3 Curiously, even while emphasizing the disti
yetaliation claims, in his response to the motions to di
retaliation claims as claims of retaliation based on plaintiff's political a
this recharacterization is that plaintiff's retaliation claims essentially duplicate his discrimination
claims. The plain language of the complaint, by contrast, alleges claims of retaliation based on
plaintiff's act of filing a grievance, that is, retaliation for exercising his tight to speak. The court
evaluates what is contained in the complaint. . ees



In September 1999, Brewster called plaintiff into his office to speak with the personnel
director, John Hornecki, regarding Thomas. Brewster suggested to plaintiff that plaintiff tell
Hornecki what he wanted to hear, because Hornecki would take plaintiff’s job. Plaintiff told
Hornecki the same things he had said at the hearing. Hornecki told plaintiff that “this isn’t
something that is going to wash away,” that he would give plaintiff three days to think about
things, and that Hornecki had better like what plaintiff had to say then. After the meeting with
Hornecki, Brewster told plaintiff that he had better have a new story for Hornecki, because
“someone has to hang for this.”

On October 28, 1999, the day following plaintiff's release from medical care, Brewster
issued plaintiff a written reprimand for infractions including insufficient effort; failing to report
actions of Rick Rundle, an employee who had also refused to support Brewster’s candidate;
leaving a work site without authorization; failing to return to work on time from breaks, lunch, or
rest periods; making false, inaccurate, or deliberately incomplete statements in an official
inquiry; and failing to take necessary action to complete an assignment. When plaintiff asked to
speak to his union representative, Brewster told him that he would have plaintiff fired if he spoke
with anyone in the union or the 11" Ward about the reprimand,

On October 29, 1999, plaintiff filed a written grievance with Brewster, claiming
discrimination based on his race, nationality, and gender, Plaintiff also claimed retaliation based
on his refusal to support Brewster’s and Mitts’ choice of political candid at.

On November 3, 1999, the City terminated plaintige Ss employment, citing plaintiff's
attendance. According to plaintiff, at the time of his termination, he had not used all the days

allocated to him by the City, and his performance always met or exceeded the City’s expectations


responsibilities. Brewster and Mitts are active in 29" Ward politics, where Mitts was the
campaign manager for aldermanic candidate Isaac Carouthers.

In December 1998, Brewster asked plaintiff to purchase tickets to a political fundraiser
for Carouthers. Plaintiff declined. In March or April 1999, Brewster and Mitts asked plaintiff to
use a vacation day to work in the 29" Ward on Election Day. At that time, Brewster told plaintiff
that “job security and clout are good things to have.” Plaintiff again declined. During 1999, the
City moved plaintiff to a less desirable location, gave him the least desirable work assignments,
and refused to allow him to work overtime, while other employees who supported Carouthers or
were not white were treated more favorably.

On June 22, 1999, plaintiff was injured at work. The next day, plaintiff met with
Brewster to give him a doctor’s report. At that time, Brewster told plaintiff that he should
consider transferring when he returned from his medical leave because plaintiff did not support
Carouthers, and indicated that plaintiff was not the right color to work in District 3, Plaintiff
returned to work at District 3 on August 16, 1999, but remained under medical care, Shortly
after plaintiff retumed, Brewster told plaintiff that plaintiff was scheduled to testify at a hearing
the next day, on a subject not known to Brewster. At the hearing, plaintiff learned that his work
assignment partner, Willie Thomas, was accused of taking payments for work done with city
equipment on City time. Plaintiff also learned that Mitts had claimed that plaintiff had informed
her of Thomas’s activities. Plaintiff stated at the hearing that Mitts’ Statement was false, and that
he had never observed Thomas accepting money for wark. When ordered by the hearing officer
and the personnel director to transfer plaintiff to another work assignment partner for plaintiff's

safety, Brewster assigned plaintiff to work with Thomas’ brother,


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

EASTERN DIVISION
BRIAN FOGARTY, )
)
Plaintiff, )
) 01 C2157
v. )
) Judge George W. Lindberg
CITY OF CHICAGO, a municipal corporation, )
PAUL BREWSTER and EMMA MITTS, )
individually, )
)
Defendants. ) DOCKETED

AUG 2 9 200
MEMORANDUM OPINION AND ORDER

Defendants City of Chicago (“City”), Paul Brewster, and Emma Mitts, have each moved
pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss portions of plaintiff Brian Fogarty’s complaint,
which alleges claims of political affiliation discrimination, race discrimination, and retaliation.
The court consolidates its rulings on all three motions. For the reasons stated below, the motions
are granted in part and denied in part.

I. Factual Background

The court must accept as true all well-pleaded factual allegations in the complaint and

draws all reasonable inferences in favor of the plaintiff. Jewel Marshall-Mosby v. Corporate

Receivables, Inc., 194 F.3d 830, 833 (7" Cir. 1999). According to the allegations in. the
complaint, plaintiff began working for the City on March 23, 1995 as a laborer in the Department
of Streets and Sanitation, Bureau of Street Operations, Graffiti Removal, District 3. Plaintiff is
white, and is active in 11" Ward politics. Defendant Brewster was the District Supervisor of

District 3, and defendant Mitts was a floating supervisor who covered District 3 as part of her


The result of this analysis is somewhat different when applied to plaintiff's claim of
retaliation in violation of Title VII alleged in Count XIV. There, plaintiff could not have known
of any retaliation based on his act of filing a grievance until he was discharged. As to that claim,
plaintiff may be able to support a continuing violation argument. The City’s motion to dismiss
Count XIV as time-barred is denied.

The City also maintains that the Title VII claims alleged in Counts XIII and XIV must be
dismissed because they exceed the scope of plaintiff's EEOC charge. A plaintiff may not make a
claim under Title VII that he did not include in his underlying EEOC charge. McKenzie v.
Illinois Dept. of Transp., 92 F.3d 473, 481 (7" Cir. 1996). This rule, however, does not require a

Title VII plaintiff to have included in the EEOC charge every fact supporting his claim. Cheek v.

Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7" Cir. 1994). Rather, the claim in the
complaint must simply be “like or reasonably related to the allegations” of the underlying EEOC
charge, and grow out of those allegations. Jenkins v. Blue Cross Mut. Hosp. Ins.. Inc., 538 F.2d
164, 167 (7" Cir.), cert. denied, 429 U.S. 986 (1976). In plaintiff's EEOC charge at issue here,
while he did not allege some of the incidents alleged later in his complaint, he did charge
retaliation and race discrimination. The claims in his complaint are reasonably related to that
charge.

ORDERED: The City of Chicago’s motion to dismiss is granted as to Counts I, IV, VI,
and X; is granted in part and denied in part as to Count XIII; and is denied as to Connt XIV, The
City of Chicago’s motion to dismiss Counts XV and XVTis denied as moot, since plaintiff has
withdrawn those counts. Brewster’s motion to dismiss is granted as to Count V and denied as to

Counts II, VIII, and XI. Mitts’ motion to dismiss is granted as to Count VI and denied as to

12