Cir. 2001), Defendants’ assertion that the continuing violation doctrinc “does not encompass claims
brought under § 1981 and § 1983" is patently wrong and their claim to the contrary is frivolous.

Plaintiffs’ characterization of the doctrine is nearly as inaccurate as that of the Defendants.
Plaintiffs argue, without citing any legal authority, that “[a] continuing violation means exactly
that—the violation . .. has not stopped.” But that is not at all what the continuing violations
doctrine stands for. Merely because the violation is ongoing does not allow a plaintiff to reach back
to breath life into otherwise untimely claims. Instcad, a “violation is called ‘continuing’... when
it would it would be unreasonable to requite or even permit [a plaintiff] to sue separately over every
incident of the defendant's unlawful conduct.” Heard, 253 F.3d at 319. In other words, the
continuing violation doctrine applies when the unlawfulness of defendant’s actions becomes apparent
only after the cumulation of a series of related events; it does not apply to a series of related, but
discrete, discriminatory acts. Clark, 318 F.3d at 767; Tinnerv. United Ins. Co, of Am., 308 F.3d 697,
708-09 (7th Cir. 2002). As the Supreme Court explained, each discrete, discriminatory actisa fresh
wrong, and “discrete acts that fall within the stacutory times period do not make timely acts that fall
outside the time period.” National R.R. Passenger Corp. v. Morgan, 122 S. Ct. 2061, 2071 (2002).
“(Discrete discriminatory acts are not actionable if time barred, even when they are related to acts
alleged in timely filed charges.” Id. at 2072.

Unfortunately, boch parties have failed to muster accurate legal arguments necessary to
support their respective positions. In so failing, both parties have left to the Court the task of sifting
through Plaintiffs’ 48-page, 328-paragraph, third amended complaint to determine whether the
statute of limitations bars Plaintiffs’ §§ 1981 and 1983 claims. But it is not the court's responsibility

“to scour the party's vatious submissions to piece together appropriate arguments." Litdle v. Cox's


reasonable to read Paragraph 316 to imply that the FLSA requires Defendants to compensate
Plaintiffs for overtime work. Furthermore, Plaintiffs go on to allege that Defendants also violated the
FLSA by requiring them to work in excess of 2,240 hours in a 52-week period and 171 hours in a 28-
day period without overtime compensation. The Court will not speculate on whether the CBA
governed the payment of overtime in such cases. Defendants’ motion to dismiss Count X is
DENIED. Defendants, of course, remain free to raise this issuc on summary judgment or at trial
should the factual record indicate that the CBA does specify the precise conditions under which
overtime pay should be distributed to Plaintiffs on a weekly, monthly, and yearly basis.
L Punitive Damages in Plaintiffs’ FMLA Claim (Count XI

Finally, Defendants point out to the Plaintiffs (for the sccond time, see Mem. in Supp. of
Defs.’ Mot. to Dismiss Pls.’ Second Am. Compl. at 7) that punitive damages are not an available
remedy under the FMLA. See 29 U.S.C, § 2617(a). Plaintiffs now concede that Defendants’
position is accurate, and the Court strikes the portion of Plaintiffs’ complaint seeking punitive
damages under the FMLA.
8 Rule 11

Ona final note, the Court issues a comment on the quality of the briefing by the parties. This
case is a poster-child for unnecessarily protracted litigation. The parties spent the first 16-months
of litigation engaging in a seemingly never-ending cycle of motions to dismiss followed by amended
complaints. When all was said and done the parties essentially agreed on 3 of the 7 issues raised by
the Defendants in the motion to dismiss—-and yet each of those three issucs were fully briefed,
unnecessarily wasting the Court’s time. But even with regard to those issues that the parties dispute,

the quality of the briefing is unacccptable—prolonging the process further. A few examples should



employ the McDonnell-Douglas burden shifting method when analyzing §§ 1981 and 1983 claims of
discrimination in the employment context, such as this. See Malacara v. City of Madison, 224 F.3d
727, 729 (7th Cir.2000); Dugan v. Ball State Univ., 815 F.2d 1132, 1135-6 (7th Cir.1987). Thus,
Higens could establish a prima facie case either through the direct method or the indirect method
(under which Higens would he required to establish she was a member of a protected class). But
regardless of the method of proof under which Higens proceeds, the central question “is whether the
employer would have taken the same action had the employee been of a different race... and
everything elsc had remained the same.” Carson v, Bethlehem Steel Corp., 82 F.3d 157, 158 (7th Cir.
1996). Higens has sufficiently alleged that if she were not Caucasian that Defendants would not have
discriminated against her—that is the essence of prohibited discrimination. Defendants’ motion to
dismiss Higens’ §§ 1981 and 1983 race discrimination claims is DENIED.

4. Plaintiff Williams’ Right-to-Sue Letter

Next in Defendants’ sights is Plaintiff Kevin Williams’ failure to allege that he received a
tight-to-sue letter. Defendants are correct that Title VII requires a plaintiff to exhaust his
administrative remedies before bringing suit. Zipes v. Trans World Airlines, 455 U.S, 385 (1982), But
the Supreme Court has observed generally that procedural technicalities should not be used to bar
a Title VII claim. Zipes, 455 U.S. at 397-98. The requirement that a plaintiff file EEOC charges
before filing suit is not intended to erect elaborate pleading requitements or allow form to prevail
over substance. Cable v. Ivy Tech. State Coll., 200 F.3d 467, 477 (7th Cir. 1999); Luckett v, Rent-A-
Center, Inc., 53 F.3d 871, 873 (7th Cir, 1995); see also Robinson v. Honeywell Microswitch Div., No.
98 C 50277, 2001 WL 13257, *5 (N.D. IIL. Jan. 3, 2001) (pleadings that plaintiff received a right-to-

suc letter in other cases cured deficiencies in pending complaint); Ichile v. City of Chicago, No. 95 C


Supermarkets, Inc., 71 F.3d 637, 641 (7th Cir.1995). Defendants’ motion to dismiss Plaintiffs’
untimely §§ 1981 and 1983 claims is therefore DENIED.

A final note on this matter is in order. A cursory review of the Plaintiffs’ complaint reveals
that toa large degree Plaintiffs’ allege a pattern of race- and gender- based discrimination comprised
of a series of events that, taken cumulatively, rise to an actionable level, but individually may not.
Thus, it appears, at least from the face of Plaintiffs’ complaint, that their complaincs are the very type
ofclaims intended to be covered by the continuing violation doctrine and it cannot be said that there
is no set of facts under which Plaintiffs could prove their complaints to be timely. At the same time,
Plaintiffs’ complaint also reveals that at least some of the Plaintiffs recognized the unlawfulness of
Defendants’ actions more than two years prior to the filing of the claim (for instance, on June 12,
1999, Plaintiff Samuel Scaife submitted a grievance alleging that his transfer was racially motivated,
but did not file this claim until December 14, 2001). Although the Court denies Defendants’ motion
to dismiss, Defendants are free to argue during summary judgment or trial, when the factual record
is more developed, that some Plaintiffs’ claims are untimely and that the continuing violations
doctrine does not save the untimely claims.

3. Plaintiff Higens’ Status as a Member of a Protected Class

Defendants’ next quarrel is that Plaintiff Debra Hligens failed to allege that she was a member
ofa protected class and so her §§ 1981 and 1983 claims alleging discrimination based on race should
be dismissed. Higens is Caucasian and alleges that the Defendants discriminated against her because
she is a Caucasian who had been marricd to an African American male. According to Defendants,
Higens thus failed to allege that she was a member of a protected class and instead alleged only

discrimination based on “familial associations.” Defendants’ argument is without merit. Courts



whether any of the narrow exceptions to the Garmon doctrine apply and if so replead their claim.

But Plaintiffs have already amended their complaint three (3) times. It was first filed on December

14,2001—18 months prior to the date of this order. Defendants have twice pointed out to Plaintiffs
the impact of the Garmon doctrine on this claim. See Mem. in Supp. of Defs.’ Mot. to Dismiss Pls.’
Second Am. Compl. at 5; Mem. in Supp. of Defs.’ Mot. to Dismiss Pls.’ Compl. at 3, Lawyers have
aduty to investigate the facts that support their claim before filing it. Mars Steel Corp. v. Continental
Bank N.A., 880 F.2d 928, 932 (7th Cir.1989). Plaintiffs have had more than sufficient time to
determine whether any exceptions to the Garmon doctrine exist. Defendants’ motion to dismiss
Count IX with prejudice is GRANTED.

6. Plaintiffs’ FLSA Claim (Count X)

Defendants argue that Plaintiffs’ FLSA claim is barred by the existence of the collective
bargaining agreement. Where a collective bargaining agreement provides for the payment of
overtime, the agreement “can and does outright preclude” a claim under the FLSA based on a
violation of that agreement. Leahy v, City of Chicago, 96 F.3d 228, 232 (7th Cir. 1996). The
reasoning is clear: if an employer agrecs to compensate its employees for overtime work, and that
agreement comports with (or in some cases exceeds) the requirements of the FLSA, the employer’s
failure to pay that overtime is not a violation of the FLSA, but a breach of the collective bargaining
agreement. See id. (noting that “the FLSA requires no morc.”). But a careful reading of Plaintiffs
claim shows that the facts they plead do not implicate Leahy, Plaintiffs plead that the partics have
a collective bargaining agreement (CBA). Plaintiffs also plead that “Defendants . .. are required to

compensate employees who work in excess of 40 hours per week.” (Pls.’ Third Am. Compl. 1316).

But Paragraph 316 does not state that che CBA requires Defendants to pay overtime—it is just as



Minute Order For (06/97)

United States District Court, Northern District of Ilinois

Name of Assigned Jud ATH 7 Sitting Judge if Other
a Magistrate Judge William J. Hibbler than Assigned Judge
CASE NUMBER 01-C-9557 DATE June 13, 2003
CASE Patterson et al. v. Sheahan ct al.
TITLE
[In the following box (@) indicate the party filing the motion, eg, plaintiff, defendant, 3rd party plaintiff, and (h) state briefly che
MOTION: nature of the motion being presented.)
Defendants’ Motion to Dismiss (doc. # 41)

DOCKET ENTRY;

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

(2) Brief in support of motion due

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

(4) ia} Ruling/Hearing on set for at

(5) o Status hearing [held/continued to] [set for/re-set for] on set for at

(6) B Pretrial conference [held/continued to] [set for/re-set for] on set for at

”) a Trial [set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continuedto at

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

OPRCP4(m) CO General Rule21 CFRCP41(a)(1) OFERCP4i()(2).

(10) @ [Other docket entry] Enter Memorandum Opinion and Order. Defendants’ Motion to Dismiss (doc..#42) is
GRANTED in part and DENIED in part. Count IX is dismissed with prejudice. All paragraphs in Count XI related to
punitive damages are stricken. As to all other counts, Defendants’ Motion 10 Dismiss is DENIED. Defendants are ordered
to answer the remaining portions of Plainciffs’ third amended complaint by 7/7/03, With regard to the pending motion
to sever, Plaintiffs are to respond by 7/7/03. Defendants’ reply is due 7/17/03. No extensions. Status hearing set for
7/30/03 at 9:15 a.m.

(11) Oo [For further detail sce order on the reverse side of the original minute order.]

v

No notices required, advised in open court.
No notices required,

Notices mailed by judge’s staff. y
Norified counsel by telephone.

Dockering to mail notices.

Mail AO 450 form, tan wat q dockeyfog depdty initials

Copy co judge/magistrare judge.

3

number of notices

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docket

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dave mailed notice

courtoom 91:9 Rd OLRM EU

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that rule, their argument with regards to Plaintiffs’ continuing violation theory arguably runs afoul
of these two tules. Plaintiffs skate on thin ice as well. Lawyers must make reasonable investigations
of the law in support of their claim. Fed. R. Civ. P. 11; Senese v. Chicago Area [.B. of T. Pension Fund,
237 F.3d 819, 822 (7th Cir. 2001); Mars Steel Corp., 880 F.2d at 932, In Plaintiffs’ third amended
complaint, they advance two claims that they now admit have no basis under the law— their NLRA
claim, which as explained above is barred by the Garmon doctrine, and their claim for punitive
damages under the FMLA. Plaintiffs speculate that the “punitive damages” portion of their claim
was “included in error.” But Plaintiffs amended their complaint three times. Defendanes filed two
previous motions to dismiss—both of which informed the Plaintiffs that the
Garmon doctrine preempted their NLRA claim and one of which informed them that punitive
damages were not available under the FMLA. And yet Plaintiffs nonetheless never corrected the
alleged “crrors” and continued to include the meritless (and frivolous) claims in each of their
amended complaints.

The quality of work, from both parties, is worse than simply careless or sloppy. It is
sanctionable. The Court warns counsel that should fucure pleadings continue to take positions that

so flagrantly violate the rules of professional conduct it will impose sanctions under Rule 11.

IT IS SO ORDERED,
bf is fos ma,
Dated The Honorfpte William J. Hibbler

United States District Court

ll



suffice, Each parties’ brief are littered with typographical errors. Carelessness can have a dramatic
impact on the claim. For example, what if Plaintiffs’ failure to mention Williams’ tight-to-sue lecter
in the complaint was a typographical error? Ifso, that typographical crror caused Defendants to move
to dismiss Williams’ claim—ultimately wasting the resources of both the litigants in bricfing the
motion and the Court in ruling on it. Defendants’ typographical errors are morc problematic.
Defendants argue that paragraph 274 of Plaintiffs’ third amended complaint admits that Defendants
are required to compensate employees who work in excess of 40 hours per week. But Paragraph 274
of Plaintiffs’ third amended complaint is a paragraph of incorporation relating to Plaintiffs’ equal
protection ¢ laim, not their unfair wage claim. The Court counted no less than three such
errors—each of which required the Court to scour Plaintiffs’ third amended complaint to locate the
paragraph to which the Defendants referred. No doubt Defendants merely recycled one of the
previous motions to dismiss chat referred to a paragraph in an earlicr complaint. Such work is sloppy
to say the least (and yet another reason why the monotonous cycle of motions to dismiss followed by
amended complaints served little purpose other than to needlessly protract the litigation). A second
example, alluded to earlier in the opinion: both partics’ representations of the continuing violation
doctrine are horribly inaccurate. Indeed, Defendants’ representation is plain wtong. Local Rule
83.53.3 requires that a lawyer “ [iJn appearing in a professional capacity before a tribunal. . . shall not:
(1) make a statement of material fact of law to a tribunal which the lawyer knows or reasonably should
know is false.” Local Rule 83.53.1 mandates that “a lawyer shall not bring or defend a proceeding .
. .unless there is a basis for doing so that is not frivolous.” Because Defendants’ knew (they were told
once before: Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001)) that the continuing violation doctrine
does apply to §§ 1981 and 1983 claims and because Defendants made no argument to modify or reverse

10



3507, 1996 WL 264708, *4 (N.D. IIL May 16, 1996) (attaching right-to-sue letter to a complaint
is not required to survive motion to dismiss). In response to Defendants’ motion, Plaintiffs argue that
Williams has indeed received a right-to-sue letter, dated October 16, 2002. A complaint should not
be dismissed unless no reticf may be granted under any set of facts that could be proved consistent with
the allegations of the complaint. Hishon v. King & Spalding, 467 U.S, 69 (1984) (emphasis added); see
also Conley, 355 U.S. at 45-46, Further, a complaint need not anticipate defenses (and failure to
exhaust administrative remedies is an affirmative defense), Luckett, 53 F.3d ac873, Thus, a “plaintiff
need not put all of the essential facts in the complaint. He may add them by affidavit or brief.”
Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 963 (7th Cir. 1992). Of course, Plaintiffs
would have been better served to settle the matter clearly by attaching a copy of that letter as an
exhibit to their pleading. See Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991) (subsequent
receipt of right-to-sue letter cured deficiencies of complaint). Nevertheless, based on Plaintiffs’
representation in their response brief that Williams has received a right-to-sue letter, Defendants’
motion to dismiss Williams’ Title VI] claim is DENIED.
5. Plaintiffs’ Unfair Labor Practices Claim (Count 1X

Tn Count IX of their third amended complaint, Plaintiffs allege that Defendants committed
unfair labor practices in violation of 29 U.S.C. §§ 157 & 158. Asa general rule, however, the NLRB
has exclusive jurisdiction to determine whether given conduct falls within the NLRA. San Diego
Building Trades Council v, Garmon, 359 U.S, 236 (1959); United States v. Palumbo Bros., Inc., 145 F.3d
850, 861 (7th Cir. 1998); Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 659 (7th Cir. 1992).

Plaintiffs concede that che Garmon doctrine likely precludes their claim, but request that the Court

make the dismissal without prejudice, ostensibly so the Plaintiffs can have time to investigate



Iinois is a necessary patty in any suit seeking damages from an independently elected county officer
(sheriff, assessor, clerk of court, and so on) in an official capacity,” because the office of sheriff is
funded by the county, Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir. 2003).
Defendants admit that under Carver the County of Cook thus is a proper party defendant in this suit.

2. § 1981 & § 1983 Statute of Limitations

Defendants next argue that many of Plainciffs’ § 1981 and § 1983 claims should be dismissed
because they are untimely. Claims arising under § 1981 and § 1983 are governed by the forum state’s
statute of limitations applied to personal injuty actions, in this case two years, Owens v, Okure, 488
U.S. 235,249-50 (1989); Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001). Plaintiffs respond
that their $§ 1981 and 1983 claims allege an ongoing pattern and practice of racial discrimination
and therefore cvents falling outside the two-year limitations period are saved by the continuing
violations doctrine. According to Plaintiffs, because they have alleged a continuing pattern of
prohibited conduct any and all acts occurring outside the proscribed limitations period are fair game.
In their reply, Defendants argue that the continuing violations doctrine does not apply to §§ 1981
and 1983 actions because, unlike actions brought under Title VJ, the statute of limitations in
§§ 1981 and 1983 actions derives from state law.

Both parties’ interpretations of the continuing violations doctrine are grossly inaccurate. The
Seventh Circuit recently explained (to a subset of the Defendants no less) chat the continuing
violations doctrine is not a tolling doctrine (which thus would be subject to Illinois law governing
the statute of limitations), but a doctrine governing accrual. Heard v. Sheahan, 253 F.3d 316, 318-19
(7th Cit. 2001) (applying continuing violation doctrine to § 1983 cases); see also Clark v, City of

Braidwood, 318 F.3d 764, 767 (7th Cir. 2003); Pitts v, City of Kankakee, Il, 267 F.3d 592, 595 (7th


discriminated against the Plaintiffs because of their race, gender, and disabiliries in violation of 42
US.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg. Plaintiffs also
raise equal protection claims based on race and gender, 42 U.S.C. § 1983. Next, Plaintiffs claim that
the Defendants retaliated against them for opposing discrimination in violation of Title VII and
retaliated against them for exercising their First Amendment rights in violation of 42 U.S.C. § 1983.
Finally, Plaintiffs raise a trio of claims related to the Department's labor practices, alleging that the
Department committed unfair labor practices, 29 U.S.C. § 157, violated the Fair Labor Standards
Act (FLSA), 27 U.S.C. § 207, and violate the Family Medical Leave Act (FMLA), 29 US.
§ 2615(a)(2). Defendants move to dismiss portions of the Plaintiffs’ complaint on a varicty of
grounds.

In deciding a Rule 12(b)(6) motion to dismiss or strike a pleading che Court assumes the
truth of all well-pleaded allegations, making all inferences in the non-moyant's favor. Sidney S. Arst
Co. v. Pipefitters Welfare Educ. Pund, 25 F.3d. 417, 420 (7th Cir.1994). A court should dismiss a claim
only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). With this standard
in mind, the Court turns to the various grounds under which Defendant moves to dismiss portions
of Plaintiffs’ claims.

L The County of Cook as a Party Defendant

Defendants initially argue that the County of Cook is not a proper party defendant because
the Plaintiffs did not allege that the Sheriff was instituting an official policy or custom of the County
that resulted in the offense alleged. See Monell v. New York City Dep't of Sac. Serv., 436 U.S. 658

(1978), After Defendants filed their motion, the Seventh Circuit announced that “a county in



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

CHERYL PATTERSON, JEFFREY ANTONE,
SAMUEL SCAIFE, BERNARD LITTLETON,
DARLENE JAMES, ROSA PRICE, DEBRA
HIGENS, LARRY PARKER, DAVID WALKER,
FLOYD BEATTY, DENNIS MICNERSKIL,
SEAN ROBERTS, KEVIN WILLIAMS,

and RUBEN HASSAN,

Plaintiffs
No, O1-C-9557
ve

The Honorable William J. Hibbler

)

)

)

)

)

)

)

)

)

)

)

)

)

THE COUNTY OF COOK, MICHAEL J. J

SHEAHAN, in his official capacity as Sheriff )
of Cook County, Tllinois, RANDY PIETROWSKI,_) “O6ieErey

in his individual and official capacities, )

HENRIQUE CAMPILLO, in his individual and)

official capacities, WILLIAM WALLACE, )

in his individual and official capacities, )

MICHAEL RICCL, in his individual and official J

capacities, DAVID DEVANE, GREG SHIELDS +)

THOMAS DOURDY, WILLIAM PELLEGRINI, )

KENNETH TWOREK, JOSEPH LOGUE, )

EDWARD HEALY, ROBERT HELSON, )

JOSEPH RANZINO, JAMES MALINOWSKI, )

THOMAS FITZGERALD, and MATHEW )

MCNAMARA, )

)

)

Defendants.
MEMORANDUM OPINION AND ORDER
A group of fourteen Cook County, Illinois, Sheriff's Department employees sucd Sheriff
Michael Sheahan and other Sheriff's Department supervisors and employees, raising a host of claims

related to discriminatory practices in the Department. According to the Plaintiffs, Defendants a

| y