evidentiary standard, a plaintiff need not plead a prima facie case to satisfy the liberal notice
pleading requirements under Rule 8. See Swierkiewicz v. Sorema, 534 U.S. 506, 510, 515 (2002)
(holding that the Federal Rules of Civil Procedure do not require a heightened pleading standard
for employment discrimination cases). Instead, for the same reasons plaintiffs plead facts that
show Calumet City is subject to municipal liability and the individual defendants are subject to
individual capacity claims, plaintiffs plead facts that show defendants discriminated and harassed
them on account of their race under Counts VII and.VIII and that Calumet City retaliated against
them under Count IX.
E. Supplemental jurisdiction

Because several of plaintiffs’ federal claims remain against defendants, the court
exercises supplemental jurisdiction over plaintiffs’ state law claims pursuant to 28 U.S.C. §
1367.

ORDER

Wherefore, for the reasons set forth above, the court denies in part and grants in part
Calumet City’s and the individual defendants’ motion to dismiss [#19]. The court dismisses
Count VI for lack of subject matter jurisdiction. The court dismisses plaintiffs’ claims against
Garrison, Genova, Qualkinbush and Wilhelm in their official capacities under Counts I, H and
VI although these defendants will remain liable under said Counts subject to plaintiffs claims
against them in their individual capacities. The court dismisses plaintiffs’ Title VI claims
against Garrison, Genova, Qualkinbush and Wilhelm under Count VII although these defendants
will remain liable subject to the Equal Protection Clause of the Fourteenth Amendment pursuant

to § 1983. The court dismisses plaintiffs’ Title VII claims against Genova and Wilhelm under

13


Garrison, Qualkinbush and Wilhelm, whom the court will collectively refer to as the
“individual defendants” where appropriate, reported. to Genova. Furthermore, the individual
defendants were responsible for management, operations and policy-making within the Public
Works Department. (First Am. Compl, at 9-10 37.) The individual defendants also were
plaintiffs’ immediate supervisors. (/d.)

Plaintiffs are African American men. (Id. at 9436.) At all relevant times, they worked
as the only part-time employees in the garbage collection division within the Public Works
Department. (/d.) In their respective jobs, Golston worked from 1999 until his termination in
July 2001 and Scott worked from 1999 until his termination in May 2001 or 2002. (Compare
id. at 6 J 17 with 174 62.)

B. Events leading to the instant law suit

While plaintiffs worked at the Public Works Department, defendants had a “pattern and
practice of refusing to hire African American men to full time positions while mandating they
work full time” hours. (/d. at 14 | 53(e).) Defendants also subjected plaintiffs to a more rigid
promotion criteria and different pay scale and provided plaintiffs with lesser benefits than white
employees with the same background and experience. (Id. at 17 | 60(b), 32 { 78(b)(c).)
Furthermore, defendants gave “certain white emplyees” preferential treatment because of work
they did on city time for the Director of Public Works, James Stack, and for Genova. (Jd. at 13 J
53(b).) In addition, defendants awarded promotions and raises to “less qualified white
employees” who agreed to work specifically for Genova on city time. (Jd. at 13 { 53(c).)

In 2000, Golston requested of an unspecified individual that he receive a promotion to a

full-time position but his request was denied. (Id. at 6-7 § 22.) Moreover, both plaintiffs


disregards these facts. Instead, plaintiffs’ facts are sufficient to provide Calumet City of notice of
its municipal liability subject to § 1983.
B. Liability of Calumet City under § 1985
Under 42 U.S.C. § 1985(3),? plaintiffs must show “(1) a conspiracy; (2) a purpose of
depriving, either directly or indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the
conspiracy; and (4) an injury to his person or property or a deprivation of any right or privilege of
a citizen of the United States.” Indianapolis Minority Contractors Ass'n, Inc. v. Wiley, 187 F.3d
743, 754 (7" Cir. 1999). Furthermore, plaintiffs “must allege a conspiracy motivated by a racial
or other class-based animus.” Kyle v. Morton High Sch., 144 F.3d 448, 457 (7" Cir. 1998).
Defendants assert that plaintiffs plead only conclusional allegations under § 1985(3)
against Calumet City. Plaintiffs, however, allege a conspiracy that the individual defendants met

and conspired with Genova to terminate plaintiffs “because of their political opposition to the

3gection 1985 states, in relevant part:
(3) Depriving persons of rights or privileges

If two or more persons in any State or Tervitory ¢ conspire or go in disguise on the highway or on the
premises of another, for the purpose of. depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal privileges and immunities under the
laws; or for the purpose of preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State or Territory the equal protection
of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any
citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner,
toward or in favor of the election of any lawfully qualified person as an elector for President or
Vice President, or as a Member of Congress of the United States; or to injure any citizen in person
or property on account of such support or advocacy; in any case of conspiracy set forth in this
section, if one or more persons engaged therein do, ¢ or cause to be done, any act in furtherance of
the object of such conspiracy, whereby another is s injured i in his person or property, or deprived of
having and exercising any right or privilege of a citizen of the United States, the party so injured or
deprived may have an action for the recovery of damages occasioned by such injury or deprivation,
against any one or more of the conspirators.



whom he supported, defendants met and decided to terminate Golston’s light duty status on
February 4, 2001. (dd. at 14 9 53G).)

On April 3, 2001, Genova was re-elected as Mayor. One week after his re-election,
defendants began a “‘campaign of harassment and intimidation” against plaintiffs. (Jd. at 13
53.) On April 11, 2001, the individual defendants, at Genova’s direction, disciplined Golston for
“abuse of his lunch period.” (Jd. at 14-15 § 53(1).) Golston was the only employee to receive
sanctions for such conduct although other white male employees were not disciplined for their
similar conduct. (Id.) On April 19, 2001, Golston received a one-day suspension from work.
(Ud. at 15] 53(m).) On July 3, 2001, defendants terminated Golston. (Id. at 15  53(n).) Scott
remained an employee until May 2001 or 2002 at which time defendants terminated him.
(Compare id. at 6 17 with 17 4 62.) Defendants terminated both plaintiffs because they are
African American (id. at 33  78(e)) and because of their union activities and opposition to

Genova (id. at 18 §{ 63, 64, 23 4 75).

DISCUSSION
Defendants argue the following grounds for dismissal: (1) plaintiffs fail to allege Calumet
City is subject to municipal liability under § 1983; (2) plaintiffs fail to state a claim against
Calumet City under § 1985; (3) plaintiffs fail to allege that the individual defendants are liable
under § 1983 (4) plaintiffs fail to allege race discrimination, harassment and retaliation; and (6)
should the court dismiss plaintiffs’ federal claims, then plaintiffs’ state law claims must be

dismissed for lack of supplemental jurisdiction.



repeatedly asked Garrison and Qualkinbush if they could receive the necessary training for them
to become full-time employees but their requests were denied. (Jd. at 10 | 38, 36 1 85.)
Plaintiffs also repeatedly complained to Garrison and Qualkinbush about the unfair treatment of
black men within the Public Works Department. (id. at 7 $23.)

Plaintiffs began to speak out about defendants’ unfair treatment of employees at the
Public Works Department. On February 10, 2000 Golston spoke at a City Council open forum to
express his concerns and objections about defendants’ treatment of employees. Moreover,
plaintiffs organized a campaign for union representation of part-time employees, who were not
covered by Calumet City’s collective bargaining agreement. (Ud. at 13 4 53(d), 29 4 69.)

At some unspecified point, Qualkinbush, at the direction of Genova and Wilhelm,
instructed plaintiffs to discontinue their union activities or face termination. (Jd. at 17 | 60(c).)
Because of “his refusal to stop his unionization campaign,” Golston received a demotion in
August 2000. (Jd. at 14 §53(f).) Subsequently, Golston was injured while working on the job
and was placed on “light duty” status. (/d. at 147 53(h).)

In 2001, Genova ran for re-election as Mayor of Calumet City. Ud. at 14 J 53(k).)
Defendants used the Public Works Department to provide jobs to Genova’s political supporters,
who had no prior work experience. Around January 2001, plaintiffs began to actively campaign
against Genova. In addition, Scott’s wife ran for alderman against a candidate supported by
Genova.

Plaintiffs began to notice that one of Genova’s personal bodyguards began to follow and
harass them so that they would not publicize political corruption within the Public Works

Department. Further, because of plaintiffs’ campaign work against Genova and the candidates

5



merits of plaintiffs’ argument as to the third approach because plaintiffs allege facts supporting
Calumet City’s liability under the second approach. Here, with respect to the Equal Protection
Clause violations, plaintiffs allege that Calumet City employed a “pattern and practice” of
refusing to hire African American men to full-time positions and gave preferential treatment to
less qualified white employees. Furthermore, with respect to the First Amendment violations,
plaintiffs allege that defendants used the Public Works Department as a source of political
patronage and retaliated against plaintiffs because of their union activities and opposition to
Genova. Moreover, with respect to both constitutional rights violations, plaintiffs allege that
defendants terminated them on account of their race, union activities and opposition to Genova.

Defendants, however, argue that plaintiffs’ allegations are conclusional because plaintiffs
fail to allege dates, locations, times or persons engaged in these patterns or practices. (Def.
Mem. at 5-6.) Furthermore, defendants argue that. the court should not ignore that their actions
were in response to plaintiffs’ “poor work performance.” (Jd. at 5.)

Defendants’ arguments are without merit.. Defendants urge this court to require plaintiffs
to allege their § 1983 claims with specificity, which plaintiffs need not do. See Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 169 (1993)
(holding a plaintiff is not required to meet a heightened pleading standard for municipal liability
under § 1983). In any event, plaintiffs allege specific facts such as that defendants’ unlawful
activities took place at the Public Works Department and that the individual defendants met on
February 4, 2001 to terminate Golston’s “light duty” status and terminated Golston in July 2001
and Scott in May 2001 or 2002. Moreover, where defendants ask this court to consider

ora

plaintiffs’ “poor work performance,” such facts are not within the pleadings and thus this court


~Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Joan H. Lefkow Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C9713 DATE 3/19/2003
CASE Golston, et al. vs. Genova, et al.
TITLE _
[In the following box (a) indicate the party fi Tiling the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Qa Answer brief to motiondue___. Reply to answer briefdue___.
(4) qo Ruling/Hearingon____ssetfor__— ss at_
(5) Oo Status hearing{held/continued to] [set for/re-set for] on setfor______at
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__setfor__——sat__
(2) Oo Trial[set for/re-set for]on__at
(8) o [Bench/Jury trial] [Hearing] held/continued to_____at
(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) CLocal Rule 41.1 CFRCP41(a)(1) O FRCP4I(a)(2).

(10) tj {Other docket entry] The court denies in part and grants in part Calumet City’s and the individual defendants’
motion to dismiss [#19]. The court dismisses Count VI for lack of subject matter jurisdiction. The court dismisses plaintiffs’ claims
against Garrison, Genova, Qualkinbush and Wilhelm in their official capacities under Counts I, II and VII. The court dismisses
plaintiffs’ Title VII claims against Garrison, Genova, Qualkinbush and Wilhelm under Count VII. The court dismisses plaintiffs’ Title
Vil claims against Genova and Wilhelm under Count IX. Defenc are directed to answer plaintiffs’ first amended complaint by April
9, 2003. A scheduling conference is set for April 24, 2003 at 9: =3¢ ..In the meantime, the parties are directed to make Rule 26(a)(1),
Fed. R. Civ. P., disclosures.

ql) a [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required

VY | Notices mailed by judge's staff.

Notified counsel by telephone, MARS 1)

Docketing to mail notices.

Mail AO 450 form. LYNOI LOSI ‘S'N
Muay

Copy to judge/magistrate judge.

3/19/2003

courtroom 00:8 WY OZ wHeU suenuit iz
MD deputy’s
inlials 0793-93414 MD
‘Dateltinne roeetved it
central Clerk’s Office mailing deputy initials

ealipal



To establish an individual capacity claim under section 1983 against a supervisory
official, there must be a showing that the official was directly responsible for the
improper conduct . . . and knowingly, willfully, or at least recklessly caused the
alleged deprivation by [her] failure to act... .

However, a defendant’s direct participation in the deprivation is not
required. An official satisfies the personal responsibility requirement of section
1983 if she acts or fails to act with a deliberate or reckless disregard of plaintiff's
constitutional rights, or if the conduct causing the constitutional deprivation
occurs at her direction or with her knowledge or conduct... .

The plaintiff must also show that,the supervisor acted (or failed to act)
because of the plaintiff’s race.

226 F.3d 558, 566 (7" Cir. 2000) (internal citations and quotations omitted).

Here, plaintiffs allege sufficient facts to hold the individual defendants liable subject to
their individual capacities under the First Amendment and the Equal Protection Clause of the
Fourteenth Amendment pursuant to § 1983. Plaintiffs allege that the individual defendants
managed the Public Works Department. Plaintiffs also allege that both Garrison and
Qualkinbush repeatedly denied plaintiffs’ requests to receive more training so that they would be
promoted to full-time positions and that these defendants refused their requests. Moreover,
plaintiffs allege that they complained to these defendants about race discrimination. It also may
be inferred, however, that the individual defendants did not respond to plaintiffs’ complaints but
rather gave preferential treatment to less qualified white employees based on race and a political
patronage system. Furthermore, plaintiffs allege that Qualkinbush, at the direction of Genova
and Wilhelm, instructed plaintiffs to discontinue their union activities or face termination.
Moreover, plaintiffs allege that defendants met on February 4, 2001 to terminate Golston’s light
duty status due to his union activities and that Golston was subject to harsher discipline than his

white male counterparts. Finally, plaintiffs allege that the individual defendants terminated them

11



mayor,” their union activities and their race. (First Am. Compl. at 18 §¥[ 63, 64, 23 1 75, 33 1
78(e)) These facts are sufficient to meet the liberal notice pleading requirements under Rule 8.

Nevertheless, the court recognizes that plaintiffs’ conspiracy claims concern disfavorable
treatment for engaging in First Amendment expression and activities, which generally are not
sustainable under § 1985(3). See Grimes v. Smith, 776 F.2d 1359, 1366, n.12 (7" Cir. 1985)
(Section 1985(3) does not cover alleged victims of nonracial political conspiracies). It may be
reasonably inferred, however, that defendants’ conspiracy against plaintiffs arose from plaintiffs’
complaints concerning defendants’ refusal to hire African American men in full-time positions
and decision to hire less qualified white Genova supporters to such positions. Thus, the court
will allow plaintiffs to proceed with their conspiracy claims.
Cc Liability of individual defendants under § 1983

Plaintiffs sue the individual defendants in both their official and individual capacities
pursuant to § 1983 under Counts I, Il and VI. With respect to plaintiffs’ claims against the
individual defendants in their official capacities, a suit against a public official in his “official
capacity” is a suit against the entity of which that official is an agent. Richman v. Sheahan, 270
F.3d 430, 439 (7" Cir. 2001). Thus, to the extent that plaintiffs sue each of the individual
defendants in his official capacity, as well as Calumet City, the court will dismiss the official
capacity claims under Counts I, I and VII against the individual defendants and Genova as
redundant.

With respect to plaintiffs’ claims against the individual defendants in their individual

capacities, the Seventh Circuit in McPhaul v. Bd. of Comm. of Madison Co. states:

10


A, Liability of Calumet City under § 1983

42 U.S.C. 1983? “is not itself a font for substantive rights; instead, it acts as an instrument
for vindicating federal rights conferred elsewhere.” Spiegel v. Rabinovitz, 121 F.3d 251, 254 (7"
Cir. 1997). In order to prevail on a § 1983 claim, a plaintiff must establish that the defendant
deprived him of a constitutional or federal right and that the defendant acted under color of state
law. Brokaw v. Mercer County, 235 F.3d 1000, 1009 (7" Cir. 2000) (internal citations omitted).
“Although a municipality [or other local governmental entity] is subject to suit under § 1983,
respondeat superior liability will not suffice to impose § 1983 liability.” Baskin v. City of Des
Plaines, 138 F.3d 701, 704 (7" Cir. 1998). Instead, a local governmental entity may be held
liable under § 1983 in one of three ways: et

(1) an express policy that, when enforced, causes a constitutional deprivation;

(2) a widespread practice that, although not authorized by written law or express

municipal policy, is so permanent and well settled as to constitute a custom or

usage with the force of law; or (3) an allegation that the constitutional injury was

caused by a person with final policymaking authority.
Vela v. Vill. of Sauk Vill., 218 F.3d 661, 665 (7" Cir. 2000), quoting Baxter v. Vigo County Sch.
Corp., 26 F.3d 728, 734-35 (7" Cir, 1994) (internal citations omitted). Plaintiffs argue that they

allege sufficient facts to meet the second and third approaches. It is unnecessary to address the

"Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for redress, except that in any action
brought against a judicial officer for an act or.omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief
was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to

the District of Columbia shall be considered to be a statute of the District of Columbia.

7


MOTION TO DISMISS STANDARDS

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the
sufficiency of the complaint for failure to state a claim upon which relief may be granted.
General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7" Cir, 1997).
Dismissal is appropriate only if it appears beyond a doubt that the plaintiffs can prove no facts in
support of their claim that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46
(1957); Kennedy v. Nat'l Juvenile Det. Assoc., 187 F.3d 690, 695 (7" Cir. 1999). In ruling on the
motion, the court accepts as true all well-pleaded facts alleged in the complaint, and it draws all
reasonable inferences from those facts in the plaintiffs’ favor. Dixon v. Page, 291 F.3d 485, 486
(7" Cir, 2002); Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7" Cir, 1999).

ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

Plaintiffs’ first amended complaint includes more than 40 pages of allegations, many of
which are conclusional and repetitive, and is difficult to follow at times. Nonetheless, the court
distills the following facts, which are taken as true for purposes of this motion:
A. The parties

Calumet City is a municipality incorporated under the laws of the State of Illinois. One
of its departments is the Public Works Department. At all relevant times, Genova was the Mayor
of Calumet City and served as chief and principal policy-maker of Calumet City. At all relevant
times, Wilhelm was Genova’s Chief of Staff and Personnel Director. At all relevant times, both
Garrison and Qualkinbush were supervisors in Calumet City’s Public Works Department.

Furthermore, all defendants occupied final decision-making positions.



Count IX. Defendants are directed to answer plaintiffs’ first amended complaint by April 9,
2003. A scheduling conference is set for April 24, 2003 at 9:30 a.m. In the meantime, the

parties are directed to make Rule 26(a)(1), Fed. R. Civ. P., disclosures.

ENTER:

United States District Judge

Dated: March 19, 2003

14



said rights (Counts III and IV). Plaintiffs also allege that defendants are liable for retaliatory
discharge against them in violation of Illinois Jaw (Count V); unfair labor practices in violation
of the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 157 and 158 (Count VJ); race
discrimination and harassment in violation of the Equal Protection Clause of the Fourteenth
Amendment pursuant to 42 U.S.C. § 1983 aye Title VII of the Civil Rights Act of 1964 (“Title
VID’), 42 U.S.C. §§ 20006 et seg. (Count vm; and race discrimination in violation of 42 U.S.C.
§ 1981 (Count VIII). Moreover, plaintiffs allege Calumet City, Genova and Wilhelm retaliated
against them for complaining about race discrimination in violation of Title VIL (Count IX).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Calumet City, Garrison, Qualkinbush and
Wilhelm file a motion to dismiss plaintiffs’ first amended complaint. Jurisdiction is invoked
pursuant to 28 U.S.C. §§ 1331, 1343(a), 1367 and 42 U.S.C. § 2000e-5(£)(3).' For the reasons

set forth below, the court denies the motion in part and grants it in part.

'The court lacks jurisdiction to adjudicate plaintiffs’ unfair labor practice claims under Count VI. Kaiser
Steel Corp. v. Mullins, 455 U.S. 72, 83 (1982) (The National Labor Relations Board “is vested with primary
jurisdiction to determine what is or is not an unfair labor practice. As a general rule, federal courts do not have
jurisdiction over activity which ‘is arguably subject to §§ 7 or §§ 8 of the [NLRA],’ and they ‘must defer to the
exclusive competence of” the NLRB, quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245
(1959)); McCarthy v. Sunset Food Mart, Inc., No. 94 C 6459, 1994 WL 692606, at *4 (N.D. Ill. Dec. 1, 1994)
{recognizing that courts have jurisdiction over claims involving unfair labor practices only where the plaintiff also
asserts a claim involving enforcement of a collective bargaining agreement under § 301 of the Labor Management
Relations Act, 29 U.S.C. §§ 141 et seq.).

Furthermore, as an aside, the court recognizes that defendants are not “employers” under the NLRB. See 29
USC. § 152(2) (“The term ‘employer’ includes any person acting as an agent of an employer, directly or indirectly,
but shall not include . . . any State or political subdivision thereof’); accord, D’Acquisto v. Washington, 640 F.
Supp. 594, 624 (N.D. Ill. 1986) (stating that federal preemption of state law in interpreting collective bargaining
agreements “does not apply here since municipal governments, as arms of the state, are not employers under the
Labor Management Relations Act and so are not covered by it[,]” citing 29 U.S.C. § 152). Accordingly, the court
will dismiss Count VI for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(h){3).

2


UNITED STATES DISTRICT COURT

EASTERN DIVISION

FRED GOLSTON and
idee
GREGORY SCOTT, DOGKETED
Plaintiffs, MAR 2 0 2003
vs No. 01 € 9713

Judge Joan H. Lefkow
JEROME P. GENOVA, both in his individual
capacity and in his capacity as Mayor of the
City of Calumet City, Illinois, CITY OF
CALUMET CITY, an Illinois Municipal
Corporation, ROLAND QUALKINBUSH, both
in his individual capacity and in his capacity as
Supervisor of Public Works for the City of
Calumet City, ROB GARRISON, both in his.
individual capacity and in his capacity as
Supervisor of Public Works for the City of
Calumet City, JOSEPH T. WILHELM, both in
his individual capacity and in his capacity as
Chief of Staff for the Mayor of the City of
Calumet City,

Nee SS SS SS SS SS eer

Defendants.

MEMORANDUM OPINION AND ORDER

Before this court is a nine-count first amended complaint of plaintiffs, Fred Golston
(“Golston”) and Gregory Scott (“Scott”) against defendants, City of Calumet City (“Calumet
City”), Rob Garrison (“Garrison”), Jerome P. Genova (“Genova”), Roland Qualkinbush
(“Qualkinbush”) and Joseph T. Wilhelm (“Wilhelm”). Plaintiffs claim under 42 U.S.C. § 1983
that defendants violated their First Amendment rights to freedom of speech and freedom of

association (Counts I and I) and under 42 U.S.C. § 1985 that defendants conspired to violate

QS


based on their race, union activities and opposition to Genova. As such, plaintiffs sufficiently
allege facts that demonstrate § 1983 claims against the individual defendants in their individual
capacities.

D. Plaintiffs’ claims for race discrimination, harassment and retaliation

Plaintiffs sue all defendants for race discrimination and harassment pursuant to Title VI
and in violation of the Equal Protection Clause of the Fourteenth Amendment pursuant to § 1983
under Count VII and for race discrimination pursuant to § 1981* under Count VIL. Furthermore,
plaintiffs sue Calumet City, Genova and Wilhelm “officially” for retaliation pursuant to Title VI
under Count IX.

As a threshold matter, plaintiffs concede that the individual defendants, and Genova for
that matter, are not employers and thus are not liable under Title VII. See 42 U.S.C. § 2000e(b);
Williams v. Banning, 72 F.3d 552, 554 (7" Cir. 1995), (applying E.£.0.C. v. AIC Security
Investigations, Ltd., 55 F.3d 1276, 1279 (7" Cir. 1995), to hold that individuals who do not meet
Title VII’s definition of employer cannot be held liable under Title VID. Thus, the court will
dismiss plaintiffs’ Title VII claims against the individual defendants and Genova.

Defendants assert that plaintiffs fail to plead their prima facie case for race

discrimination, harassment and retaliation. Because a plaintiff's prima facie case concerns an

Section 198 1(a) states:

All persons within the jurisdiction of the United States shall have the same right in every State and
territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal

benefit of all laws and proceedings for the security of persons and property as is enjoyed by white

citizens, and shall be subject to like punishment, paitis, penalties, taxes, licenses, and exactions of

every kind, and to no other.

In addition, section 1981(b) provides that the meaning of the phrase “to make and enforce contracts” in § 1981(a)

includes the “making, performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms and conditions of the contractual relationship.”

12