DISCUSSION
Legal Standard

A motion to dismiss the complaint under Federal Rule of
Civil Procedure 12(b) (6) does not test whether the plaintiff will
ultimately prevail on the merits; the motion tests whether the
plaintiff has properly stated a claim. Scheuer v. Rhodes, 416
U.S. 232, 236 (1974). The court can only properly dismiss a
motion for failure to state a claim if it appears beyond doubt
that the plaintiff cannot set forth any set of facts which would
entitle the plaintiff to relief. fobin for Governor v. Illinois
State Bd. of Elections, 268 F.3d 517, 521 (7th Cir. 2001). For
the purposes of a motion to dismiss, the well-plead allegations
of a complaint will be accepted as true. Sampson v. Federal
Republic of Germany, 250 F.3d 1145, 1148 (7th Cir. 2001).

Defendants’ Motion to Dismiss

At issue in this case is whether Donoghue’s cause of action,
the interference and termination of her employment contract in
violation of § 1981(b), is governed either by the Illinois two-
year personal injury statute of limitations or the four-year
statute of limitations from 28 U.S.C. § 1658. If Illinois two-
year statute of limitations governs, Defendants’ Motion to
Dismiss will be granted because Donoghue’s suit becomes time-
barred. As a result, it fails to state a claim upon which relief

may be granted. If the four-year statute of limitations applies,


states, Adams is unique in its application of § 1658’s four-year
statute of limitations. See Id.; Campbell, 163 F.Supp.2d 19
(applying a two-year statute of limitations); Jones, 2001 WL
864273, at *4 (indicating a preference for a two-year statute of
limitations); Davis v. Smithkline Beecham Corp., 2001 WL 1530365,
at *2 (D.Del. November 28, 2001) (applying Delaware’s two-year
personal injury statute of limitations); But see Turner v.
National Railroad Passenger Corp., 181 F.Supp.2d 122, 126-30
(N.D.N.Y. 2002) (holding that § 1658’s four-year statute of
limitations does cover § 1981 claims).

Two circuit courts have directly ruled on the statute of
limitations for § 1981(b) claims. The Third Circuit in Zubi held
that the customary two-year statute of limitations applies.

Zubi, 219 F.3d at 226. As in Hardin, the Third Circuit ruled the
language of § 1658 was “ambiguous.” Id. at 222. The court
highlighted three different approaches taken by courts when faced
with § 1981(b) claims. The first approach applies a four-year
statute of limitations for claims arising under subsection (b).
Id. The second approach, a variation on the first, applies the
four-year statute of limitations not to all claims arising out of
subsection (b), but only those claims not previously actionable
under § 1981. Id. Favoring the third approach, the Third
Circuit held that any Act of Congress, passed after December 1,

1990 that amends a statute in existence prior to December 1,


At the time of its passage, § 1658 was not applicable to §
1981, however. A year after the passage of § 1658, Congress
passed the Civil Rights Act of 1991. Amongst the provisions of
the new Act was a clarification of the phrase “to make or enforce
contacts” contained in § 1981. Subsection (b) clarifies “make
and enforce contracts” as including “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).

The inclusion of the language in subsection (b) was a direct
reaction to the United State’s Supreme Court’s holding in
Patterson v. McLean Credit Union, 491 U.S. 164 (1989). In
Patterson, the Court held that, generally, to “make and enforce
contracts” did not include discrimination occurring after the
formation of an employment contract. Id. at 176-77. This
included, according to Patterson, post-formation discriminatory
harassment or termination. Id. at 185. The holding in Patterson
was not a bright-line, however, as the Court noted that certain
post-formation discrimination could fall under § 1981 if it gave
rise to a new and distinct relation between the employee and
employer. Id.

Since the 1991 changes to § 1981, courts have yet to form a
consensus regarding the appropriate statute of limitations. As

aptly put in Campbell v. National Railroad Passenger Corporation


Donoghue’s claims survive, provided the alleged facts give rise
to a claim not barred by the Rooker-Feldman Doctrine.
Statute of Limitations for § 1981(b) Claims

Section 1981 does not specify a statute of limitations. As
a result, the statute of limitations for claims alleging
violations of § 1981 is borrowed from the state’s relevant law.
Goodman v. Lukens Steel Co., 482 U.S. 656, 662 (1987). Courts
have used the forum state’s statute of limitations governing
personal injuries as it is considered the most analogous to
employment discrimination. Id. at 661; Jones v. Merchants Nat’l
Bank & Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994). In
Illinois there is a two-year statute of limitations for personal
injury claims. 735 Inu. Comp. Stat. 5/13-202 (2000); Kalimara v.
Illinois Department of Corrections, 879 F.2d 276, 277 (7th Cir.
1989). However, Donoghue contends this Court should adopt the
four-year statute of limitations provided for in § 1658 as
adopted in Adams v. R.R. Donnelley & Sons, 149 F.Supp.2d 459
(N.D. Ill. 2001).

Congress established § 1658 in late 1990, which provided
that “a civil action arising under an Act of Congress enacted
after the date of the enactment of this section may not be
commenced later than 4 years after the cause of action accrues.”

This “catch-all” was meant to apply to Acts enacted after 1990

not containing their own statute of limitations. fd. at 461.


creating. Section 1981(b) was therefore governed by the
Indiana’s two-year personal injury statute of limitations. [Id.
at 1094-96.

By contrast, Adams applied the four-year statute of
limitations in the consolidated suits brought by current and
former African~American employees who alleged facial
discrimination in violation of § 1981(b) and Title VII of the
Civil Rights Act of 1964. Relying on the perceived plain meaning
of § 1658, the court held that Congress’ amendments to § 1981
defined “make and enforce contracts” so as to create new causes
of action not previously enjoyed by plaintiffs prior to 1991.
Adams, 149 F.Supp.2d at 461-64. Therefore, the court reasoned
that claims falling under § 1981(b) were subject to the four-year
statute of limitations provided by § 1658. Id. at 464,

The conflicting results of Hardin and Adams turn on whether
the language of § 1658 is ambiguous. If ambiguous, the
legislative history becomes determinative (i.e. Hardin).
Otherwise, the plain meaning of the statutory language governs
(i.e. Adams).

However, when Adams was decided there were clear indicators
that the language of § 1658 was indeed not “unambiguous.” Id. at
463. While reaching varying results, the majority of the courts
faced with the issue applied the state’s personal injury statute

of limitations to § 1981 claims. Id. at 463. Outside of a few


Minute Order Form (06/97)

United States District Court, Northern District of Minois

Name of Assigned Judge
or Magistrate Judge

Harry D. Leinenweber

Sitting Judge if Other
than Assigned Judge

St

CASE NUMBER 01 C 7696 DATE 6/24/2002
CASE Cecilia Donoghue vs. Lynn Doherty, et al
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
von bei ‘
MOTION: of the motion being presented.}
DOCKET ENTRY:
(ld) im Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Qo Answer brief to motion due Reply to answer brief due
(4) Oo Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for __at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) Qo Trial[set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to _ at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OGeneral Rule21 CFRCP41(a)(1) ) FRCP41(a)(2).
(10) =< [Other docket entry} ENTER MEMORANDUM OPINION AND ORDER: Defendants’ Motion
to Dismiss is granted.
(dl) ol [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
. a Number
No notices required, numberof notices ss
Notices mailed by judge’s staff, ;
— JUN 27
Notified counsel by telephone. date docketed
Y | Docketing to mail notices.
¥ | Mail AO 450 form. 1 \ Ss oof Aritials
ait AO 450 fn yunod } 4.510 sn coh MMos
Copy to judge/magistrate judge. yao
courtroom sy Hg OS NAT 20 ssn mts
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arising under § 1981(b), this Court (1)ensures continued
certainty in the law, (2)maintains equity amongst plaintiffs, and
(3) conforms with the intent of the Civil Rights Act of 1991.

Because Illinois’ two-year statute of limitations for
personal injury claims applies to § 1981(b), Donoghue’s federal
suit, filed four years after her termination from DES, is time-
barred and therefore fails to state a claim upon which relief may
be granted.

Rooker-Feldman Doctrine

Because this Court grants Defendants’ Motion to Dismiss on
the grounds that Donoghue did not file her suit in a timely
manner, we find it unnecessary to determine whether Donoghue’s
claim would otherwise be barred by the Rooker-Feldman Doctrine.

CONCLUSION

Befendany’s Motion to

For the reasons set forth above,
Dismiss is granted.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

bate: Bt ALD

-11-


1990, results in “all claims accruing after passage of the
amendment arise under an Act of Congress enacted before December
1, 1990.” Id. at 222 (emphasis in the original). The effect
holds § 1658’s four-year statute of limitations inapplicable to
claims arising under § 1981, a statute in existence since 1870.
The Third Circuit choose the third approach over the first two
“because the resulting uncertainties of application . . . would
be inconsistent with Congress’ wish to avoid unnecessary
uncertainty.” Id. at 225.

The Eighth Circuit later addressed the applicable statute of
limitations for § 1981(b) in Madison v. IBP, INC., 257 F.3d 780
(8th Cir. 2001). In Madison, an employee brought suit alleging
racial and sex discrimination, harassment, retaliation, and
constructive demotion in violation of Title VII and § 1981.
Relying on the same legislative history examined in Hardin and
the reasoning of the Third Circuit in Zubi, the Eighth Circuit
held “the Civil Rights Act of 1991 was not the type of enactment
Congress intended to include in the § 1658 four year limitations
period and that the Iowa two year statute therefore applies to
Madison's § 1981 claims.” Id. at 798.

This Court follows the prudent approach taken by the Third
and Eighth Circuits, as well as in Hardin, by continuing to use
the state’s personal injury statute of limitations. By holding §

1658's four-year statute of limitations inapplicable to claims

-10-


(AMTRAK): “A review of the ways in which this pea has been split
highlights the difficulty of the issue.” 163 F.Supp.2d 19, 22
(D.D.C. 2001) (citations omitted). Although a number of courts
in other circuits have examined the interplay between § 1658 and
§ 1981(b), the Seventh Circuit has yet to do so. In fact, only
two of our sister courts within this circuit have directly
addressed the issue, reaching conflicting results. Hardin v. CNA
Insurance Companies, 103 F.Supp.2d 1091 (S.D. Ind. 1999) (deciding
in favor of the personal injury two-year statute of limitations);
Adams, 149 F.Supp.2d 459 (applying the four-year statute of
limitations of § 1658).

In Hardin, Chief Judge Barker held that § 1658's four-year
statute of limitations did not apply to claims arising under §
1981(b). Hardin, 103 F.Supp.2d at 1096. Due to the ambiguity in
the phrase included in § 1658, “a civil action arising under an
Act of Congress enacted,” the court looked to the legislative
intent of the Act. Id. at 1093. The court concluded that the
four-year statute of limitation was meant to apply only to
‘“claims-creating statutes.” Id. at 1094 (citation omitted).
Reconciling the legislative record and history behind the
enactment of the Civil Rights Act of 1991 and the resulting
changes to § 1981 -- specifically Congress’ use of such language
as “resorting” and “reaffirming” -- Chief Judge Barker concluded

that the changes made were merely clarifications and not claims-


level. At Donoghue’s request, the Illinois Civil Service
Commission (“CSC”) reviewed her discharge and upheld her
termination. Donoghue then filed suit in state court in May of
1998. Pursuant to the Illinois Human Rights Act, which excludes
Illinois state courts from exercising jurisdiction over civil
rights claims, the circuit court dismissed Donoghue’s suit for
lack of subject matter jurisdiction. See 775 ILL. Comp. STAT.
5/8-111(C) (1998). The appellate court affirmed the circuit
court’s ruling and the Illinois Supreme Court denied Donoghue’s
Petition for Leave to Appeal in December, 2001.

Donoghue brought suit in federal court on October 4, 2001,
alleging that her termination and the failure of her supervisors
to define and address her disabilities due to her dark complexion
was an interference with her contract of employment in violation
of § 1981(b). Although in state court Donoghue alleged
violations under the Rehabilitation Act of 1973 (29 U.S.C. § 974
(1996)), the Age Discrimination in Employment Act of 1967 (29
U.S.C. § 621 et seq. (1996)), Americans with Disabilities Act (42
U.S.C. § 12101 et seg. (1996)), and Title VII fo the Civil Rights
Act of 1964 (42 U.S.C. § 2000e et seg. (1996)), she does not do
so in this Court. Now pursuing an alternative legal theory,
Donoghue’s federal complaint relies exclusively on alleged

violations of § 1981(b).


Rooker-Feldman Doctrine precludes this Court from reviewing
Donoghue’s claim because of previous state court litigation
involving the same set of facts.

BACKGROUND

Donoghue worked in a number of administrative positions
during her nearly twenty-five years as an employee of the
Illinois Department of Employment Security (“DES”). On October
7, 1997, either Doherty or Schwartz terminated Donoghue’s
employment. At the time of her termination, Donoghue was
employed as a certified Employment Security Representative. Her
position required extensive interaction, both in person and on
the telephone, with unemployed members of the community seeking
information or assistance from DES. Defendants assert her
discharge was predicated on repeated violations of the DES Code
of Ethics, specifically those pertaining to courtesy to clients
and co-workers. Donoghue alleges she was singled out for
discipline solely because of her “dark complexion.”

Donoghue further avers that she verbally notified her
supervisors at DES of her disabilities resulting from asthma,
arthritis, and depression. She contends that because of her dark
complexion, her supervisors failed to address her disabilities
or make reasonable accommodations regarding these disabilities.

Prior to bringing suit in this Court, Donoghue fully

exhausted both her administrative and legal remedies at the state


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

CECILIA DONOGHUE,

Plaintiff,
Case No. 01 C 7696
v.
Hon. Harry D. Leinenweber
LYNN DOHERTY, in her official
and individual capacities,
MICHAEL SCHWARTZ, in his
official and individual E Das
capacities, and MICHAEL MORY, Ik Eb
in his official and individual

capacities, JGUN 24 om

Defendants. Ndidge be
ray Ae Leinenwebap DOCKET,
ict Court ED
YUN 2 7 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Cecilia Donoghue (“Donoghue”) brings this
complaint against Lynn Doherty (“Doherty”), Director of the

Department of Employment Security, Michael Schwartz (“Schwartz”),
Director of the Department of Central Management Services, and
Michael Mory, Executive Secretary of the Illinois State Employees
Retirement System, for alleged discrimination based on her race
and national origin as a Columbian national in violation of 42
U.S.C. § 1981(b). Before this Court is the Defendants’ Motion to
Dismiss pursuant to Rule 12(b) (6). Defendants raise two issues
in their motion: (1) Donoghue’s § 1981(b) claim is time-barred

due to a two-year statute of limitations, and (2) that the