Tn the instant case, Plaintiff does not allege that Collins is an employer as defined by Title
VIL The Complaint states that “Collins is employed by the County of Cook as Superintendent of
CCITDC, Collins is Paxson’s supervisor.” (P|. Compl. at 13) (emphasis added), Even with the
deference given to the Plaintiff in reviewing a motion to dismiss, no reading of the Complaint
permits a reasonable inference that Collins is an employer, as required by Title VI. Instead, Plaintiff
has pled to the contrary. Therefore, Collins is dismissed from Count I and IT.
Motion to Dismiss Count I (Violation of Civil Rights Act) for Failure to State a Cause of Action

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to discriminate
against any individual with respect to ... compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). Plaintiffs may mcet their burden of proof under Title VII by either offering direct
proof of discriminatory intent or by showing disparate treatment using indirect evidence, Contreras
v, Suncast Corp., 237 F.3d 756, 759 (7th Cir.), cert. denied, 122 §.Ct. 62 (2001). Indirect evidence
is used to prove disparate treatment through the burden-shifting method outlined by the Supreme
Court in McDonnell Douglas Corp. vy. Green, 411 U.S. 792, 802 (1973).

In order to establish a prima facie case under the McDonnell Douglas burden-shifting
method, a defendant must establish: (1) that he was a member of a protected class, (2) that he was
performing his job satisfactorily, (3) that he experienced an adverse employment action, and (4) that

similarly situated individuals were treated more favorably. See Hoffman-Dombrowski v. Arlington

Int'l Racecourse, Inc., 254 F.3d 644, 650 (7th Cir. 2001).



In Geise, the Illinois Supreme Court found that the circuit court did not have jurisdiction over
plaintiff's claims of negligent hiring and retention of a manager who sexually harassed the plaintiff
because there was “no independent basis [outside the IHRA’s prohibition of sexual harassment] for
imposing liability on [Plaintiff's] former employer .” Geise, 159 Ill. 2d at 517. That the plaintiff’s
claims were framed in terms of “negligent hiring” and “negligent retention” did not “alter the
fundamental nature of [plaintiff's] cause of action”. Geise, 159 Ill, 2d at 518,

Three years later, in Maksimovic v. Tsogalis, 177 IM. 2d 511, 519 (1997) (Tsogalis), the
Illinois Supreme Court clarified its ruling in Geise. The plaintiffin Tsogalis filed a complaint with
the Nllinois Human Rights Commission, alleging that she was a victim of sexual assault. Several
months later, the plaintiff filed an action for damages, alleging assault, battery, and false
imprisonment. The trial court ruled that the plaintiff’s claims were barred by the IHRA under Geise;
the appellate court affirmed. The Illinois Supreme Court, however, reversed the decision, holding:

that a common law tort claim is not inextricably linked with a civil rights violation where a

plaintiff can establish the necessary elements of the tort independent of any legal duties

created by the Illinois Human Rights Act. Tn such a case, the plaintiff has established a basis
for imposing liability on the defendant independent of any statutory cause of action under the

Act, and therefore the circuit court does have jurisdiction to adjudicate the plaintiff's

common law tort claim.

Tsogalis,177 Mil. 2d at 518. Thus, to ascertain whether a tort claim is “inextricably linked” to the
discrimination claims, it must be determined whether the plaintiff alleged the elements of the tort

claim “without reference to the legal duties created by the IHRA”. Westphal y. City of Chicago, &

F.Supp.2d, 809, 812 (N.D. Ill. 1998). The tort claim must be independent of the civil rights laws.

Rapier v. Ford Motor Co., 49 F.Supp.2d. 1078, 1080 (N.D. Ill. 1999). The question for this Court



circumstances necessary to allow Plaintiff to proceed with the Complaint at this stage of the
proceedings.

Second, Paxson must allege that he was performing his job satisfactorily. In the Complaint,
Paxson states that Collins did not initiate any employee disciplinary actions against him. (Pl. Compl.
at 710). Under the 12(b)(6) standard of review, and drawing all reasonable inferences in favor of the
Plaintiff, Paxson has alleged facts sufficient to support an allegation that his job performance was
satisfactory.

Third, Paxson must allege that he suffered a “materially adverse employment action”.
Haugerud v. Amery School District, 259 F.3d 678, 691 (7th Cir. 2001) (Haugerud). Defendants
argue that Paxson has not suffered an adverse employment action under the standard laid out in
Haugerud, where the Seventh Circuit found that the plaintiff in that case had not experienced any
materially adverse change in the “terms, conditions, or privileges of plaintiff's employment”. In
making this determination, the Seventh Circuit noted that the plaintiff “has not been disciplined,
demoted or terminated; has not been denied wage or employee benefit increases or been given less
opportunity for such increases; and has not had her job responsibilities reduced or been made to
perform more menial tasks.” Haugerud, 259 F.3d at 692.

At this stage of the proceedings, this case is easily distinguishable from Haugerud. Under
the 12(b)(6) standard, as noted above, plaintiffs need not allege all facts underlying their claims.
Instead, a plaintiff need only plead the bare minimum facts necessary to put a defendant on notice
of the claim so that the defendant can file an answer. See Swierkiewicz, 122 8.Ct. at 996; Higgs, 286
F.3d at 439. In the Complaint, Plaintiff alleges that he has “becn deprived of the opportunity for

promotion and advancement within CCJTDC and other opportunities within the County of Cook.”



First, Paxson must allege that he was a member ofa protected class. Defendant contests that
Plaintiff's pleadings, even when construed in the light most favorable to the Plaintiff, are insufficient
to allow this Court to find that Paxson belongs to a protected class.

As the Seventh Circuit has noted, if strictly applied, Paxson, and all other plaintiffs in
“reverse discrimination” suits, would not meet the requirements of the prima facie test. As such, the
Seventh Circuit has held that a reverse discrimination plaintiff must make a showing of background
circumstances sufficient to demonstrate that they are members ofa protected class. Such background
circumstances includes allegations that the particular employer at issue has some inclination or
reason to discriminate against the majority or allegations that indicate that there is something “fishy”
about the facts of the case. Mills v. Health Care Services Corp., 171 F.3d 450, 455-457 (7th Cir,
1999) (Mills). Background circumstances “support an inference that the defendant is one of those
unusual employers who discriminates against the majority.” Mills, 171 F.3d at 455, quoting Taken
v. Oklahoma Corp. Comm'n, 125 F.3d 1366, 1369 (10th Cir. 1997).

The Seventh Circuit also noted in Mills that “if a plaintiff cannot show background
circumstances, but ‘has established a logical reason to believe that the [employer’s] decision rests
on a legally forbidden ground,”... he may shift the burden to the defendant to prove the challenged
employment action was actually based on legitimate, non-discriminatory reasons.” Mills, 171 F.3d
at 457; quoting Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).

In the instant case, Paxson has sufficiently pled the minimum facts necessary to place
Defendants on notice of his claim. The facts alleged, including that he was treated differently than

all similarly situated non-white employees and that his allegations of reverse race discrimination and

harassment did not get investigated, are enough to provide this Court with the background



‘As noted above, when ruling on a 12(b)(6) motion to dismiss, this Court may only dismiss

_ the claim if the Plaintiff can prove no set of facts in support of its claims that would entitle it to

relief. Conley, 355 U.S. at 45-46. Paxson must only plead the bare minimum facts necessary to put

Defendants on notice of the claim such that Defendants can file an answer. See Swierkiewicz, 122
S.Ct. at 996.

In the instant case, Plaintiff alleges that racial epithets were painted on the walls of his office
at CCJTDC’s Chicago facility, This factual allegation provides ample support to Paxson’s claim of
racial harassment. As such, Count III sufficiently states a cause of action.

Motion to Dismiss Count TIT (Intentional Infliction of Emotional Distress) for Lack of
Jurisdiction

The Illinois Human Rights Act (“IHRA”) contains an exclusive remedy provision, stating:
“Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject
of an alleged civil rights violation.” 775 ILCS §5/8-111(C). Asaresult of this provision, Defendants
argue that Illinois state courts and federal courts lack subject matter jurisdiction over Plaintiff's
Illinois common law tort claim that is based on the same conduct that constitutes Plaintiff's race
discrimination and harassment claims pled in Counts | and Ll, respectively. Instead, Defendants
argue that this tort claim must be brought before the Illinois Human Rights Commission.

Pursuant to Illinois law, the court lacks subject matter jurisdiction to hear tort claims that are
inextricably linked to civil rights violations under the IURA. Geise v. Phoenix Co. of Chicago, Inc.,
159 Ill, 2d 507, 515-516 (1994) (Geise). The THRA includes race-based discrimination in its

definition of civil rights violations in the employment context. 775 TLCS 5/2-102(A); 775 LLCS S/1-

103(Q).



Miaute Order Korm 10697)

United States District Court, Northern District of Hlinois

Name of Assigned Jud, Sitting Judge If Oth
or Magistrate Judge John W. Darrah ‘than Asclgued Judge
CASE NUMBER 02 C 2028 DATE 8/21/2002
CASE REID M. PAXSON vs. COUNTY OF COOK, ILL
TITLE

Lin the following box (a) indicate the party filing the mation, 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) ao Brief in support of motion due

Q) Oo Answer brief to motiondue____—.. Reply to answer briefdue,

(4) Oo Ruling/Hearingon set for at.

(3) a Status hearing[held/continued to] [set for/re-set for]on__—setfor__—_att

(6) ao Pretrial conference[held/continued to] [set for/re-set for]on__———ssetfor_—— at
(7) qa Trial[set for/re-set for]on at.

(8) oO [Bench/Jury trial] [Hearing] held/continucd to ____at

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

OFRCP4(m) (C)Local Rule 41.1 OFRCP41(a)(1) 1) FRCP41(a)(2),

(10) MM [Otherdocketentry] Status hearing held and continued to 9/11/02 at 9:00 a.m, Enter Memorandum
Opinion And Order. Defendants’ motion to dismiss is granted in part and denied in part. Defendant Cook
County Juvenile Temporary Detention Center is dismissed; Defendant Clara Collins is dismissed; and

Plaintiff's request for punitive damages is dismissed from Counts I and II.

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

No notices required, advised in open court,

No notices required. number uf notices

Notices mailed by judge's staff.

MUG 23 2002

Notitied counsel by telephone. date dacketed

ox | Docketing to mail notices

DUO ane

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom dave mailed norice

LG deputy's
initials

Date/time reecived in -
central Clerk’s Office Bailing deputy initials



Under the 12(b)(6) standard repeatedly discussed above, dismissal of the complaint for
failure to state a claim is proper only if the plaintiff can prove no set of facts in support of the claim
that would entitle him to relief. Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001).

As noted above, Illinois law requires the following elements for an IIED claim: (1) the
defendant’s conduct was extreme and outrageous, (2) the defendant intended to inflict severe
emotional distress or knew that there was at least a high probability that his conduct would inflict
severe emotional distress, and (3) the defendant’s conduct did in fact cause severe cmotional distress.
Harriston v. Chicago Tribune Co., 992 F.2df 697, 702 (7th Cir. 1993), quoting McGrath v. Fahey,
126 IIl.2d 78, 86 (1998).

Tn his Complaint, Paxson alleges facts that, if proven, could support an ITED claim. (PI.
Compl. at 924-26), As such, the Motion to Dismiss Count III is denied.

Motion to Dismiss Plaintiff's Prayer for Punitive Damages

As part of his prayer for relief following both Count I and Count II, Plaintiff asks this Court
to grant punitive damages. Defendants have moved to dismiss Plaintiff's request for punitive
damages, arguing that such damages may not be recovered against government entitics.

As codified, Title VI permits a plaintiff to recover punitive damages “against a respondent
(other than a government, government agency or political subdivision) ....” 42 U.S.C, § 1981a(b)(1)
(emphasis added); See Baker v. Runyon, 114 F.3d 668, 671 (7th Cir. 1997) (holding that punitive
damages in Title VII cases are unavailable against government agencies). Accordingly, Plaintiff's
request for punitive damages in Counts | and II are dismissed.

For the reasons stated above, Defendants’ Motion to Dismiss is granted in part and denied

in part. Defendant Cook County Juvenile Temporary Detention Center is dismissed; Defendant

11



is whether Plaintiff has sufficiently pled a cause of action for ITED, separate and distinct from any
duties created by the IHRA.

Under Illinois law, the elements ofa claim for intentional infliction of emotional distress are:
(1) the defendant’s conduct was extreme and outrageous, (2) the defendant intended to inflict severe
emotional distress or knew that there was at least a high probability that his conduct would inflict
severe emotional distress, and (3) the defendant’s conduct did in fact cause severe emotional distress.
Harriston y. Chicago Tribune Co., 992 F.2df 697, 702 (7th Cir. 1993), quoting McGrath v. Fahey,
126 Tll.2d 78, 86 (1998), In Count [I of the Complaint, Paxson alleges that Collins’ actions in
“covering up illegal and threatening actions undertaken by unknown other parties constitute[s]
extreme and outrageous conduct.” (Pl. Compl. at j24). Additionally, Paxson alleges that these
actions “were intentional, and Collins should reasonably have known that such actions would result
in Paxson’s severe emotional distress.” (P1. Compl. at 26). Included in the allegations of conduct
by the unknown parties was the “painting of racial epithets and allegations of Klu Klux Klan
involvement on the walls of his office at CCJTDC’s Chicago facility.” (Pl. Compl. at 20). While
the painting of racial epithets is inextricably linked to Plaintiff's Title VIL race harassment claim,
Defendants’ harassing behavior in relation to his allegations of his involvement in the KKK does not
fall under a Title VII protection. Thus, the facts alleged for Plaintiff's I[ED claim are distinct from.
those that arise under the duty created by Title VII. As such, Count ITT is not dismissed.
Motion to Dismiss Count III for Failure to State a Cause of Action

Defendants argue that Plaintiff has insufficiently pled Count IIT so as to fail to state a claim

for intentional infliction of emotional distress.

10



Taking all allegations in the Complaint as true, and making all reasonable inferences therefrom, this
Court finds that Paxson has sufficiently alleged that he suffered a materially adverse employment
action.

Finally, Paxson must allege that similarly situated individuals were treated differently. In the
Complaint, Paxson states that he “has been treated differently than non-white employees who are
similarly situated by fellow employees.” This allegation is sufficient to place Defendants on notice
of this aspect of the claim for race discrimination.

Plaintiff has alleged facts sufficient to place Defendants on notice of a claim for race
discrimination, and Count | sufficiently states a claim for such discrimination.

Motion to Dismiss Count II (Ractal Harassment)

Defendants argue that Plaintiff’s pleadings insufficiently allege a claim for racial harassment
under Title VL because Plaintiff does not plead facts sufficient to establish that any harassment he
suffered was based on his race.

Title VI allows a plaintiff to bring a cause of action for racial harassment that creates a
hostile or offensive work environment. See Duhart y. Fry, 957 F.Supp. 1478, 1491 (N.D. Ill. 1997).
For harassment to be actionable under Title VI, the employer’s actions must be sufficiently severe
or pervasive so as to “alter the conditions of [the plaintiff's] employment and create an abusive
working environment.” Faragher v. City of Boca Raton, 477 U.S. 57, 67 (1986). Title VIL is not
directed against unpleasantness per se but rather against discrimination in the conditions of
employment. Drake v. Minnesota Mining & Mfg. Co., 143 F.3d 878, 885 (7th Cir. 1998),

quoting Carr y, Allison Gas Turbine, 32 F.3d 1007, 1009 (7th Cir. 1994).



On February 7, 2002, Paxson received a Notice of Right to Sue from the United States
Department of Justice.

Motion to Dismiss CCJTDC

Defendants’ argue that the claim against CCJTDC should be dismissed because it is a non-
suitable entity. Plaintiff does not contest the dismissal of the CCJTDC in his response brief.

Capacity to be sued is determined by the forum state’s law. Fed. R. Civ. P. 17(b). Since
CCITDC is located in Mlinois, the court must look to Ulinois law to determine whether it is a suable
entity. Pursuant to Illinois law, defendants must have “legal existence, either natural or artificial.”
Glass v. Fairman, 992 F.Supp. 1040, 1043 (N.D. Hl. 1998) (quoting Bailes v. Streator Police Dept.,
No. 96 C 5610, 1997 WL 162907, at *3 (N.D. Ill, Mar. 27, 1997)). The CCJTDC is a department
within Cook County, with no legal existence, and, therefore, is not a suable entity. Accordingly, the
CCITDC is dismissed.

Motion to Dismiss Title VLE Claims Against Clara Collins

Defendants argue that the Title VII claim against defendant Collins should be dismissed
because Collins is an improper defendant under Title VII.

For liability for cmployment discrimination to be imposed on an individual under Title VIL,
the individual must independently qualify as an cmployer under Title VII. See Patel v. Board of
Governors of State College and Universities, No. 92 C 8300, 1997 WL 399644 at *2 (N.D. Il. July
11, 1997), In Williams v. Banning, 72 F.3d 552 (7th Cir. 1995), the Seventh Circuit held that a
supervisor is not a proper defendant in a Title VII action; the suit must proceed against the employer
as an entity rather than against a natural person. See Carver v. Sheri{fof LaSalle County, Illinois, 243

F.3d 379, 381 (7th Cir. 2001).



relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Plaintiffs are not required to allege all of
the facts underlying their claims in the complaint. Instead, a plaintiff need only plead the bare
minimum facts necessary to put a defendant on notice of the claim so that the defendant can file an
answer. See Swierkiewicz v. Sorema, 122 §.Ct. 992, 996 (2002) (Swierkiewicz); Higgs v. Carver,
286 F.3d 437, 439 (7th Cir. 2002) (Higgs).

A reading of the Complaint supports the following summary of the alleged conduct of the
parties.

In July 1997, Paxson, a white male, commenced employment with Cook County as a
“Business Manager Il” and was assigned to CCJTDC at its Chicago facility. Approximately four
years later, in June 2001, Paxson began recciving different treatment than similarly situated, non-
white employees. Specifically, he alleges that he was subjected to racial harassment, including being
accused of conducting Klu Klux Klan (“KKK”) activities at the CCITDC. Plaintiff alleges that
Collins conveyed false accusations of his alleged KKK activities to numerous other employees and
CCJTDC administrators. Additionally, unknown coworkers at CCJTDC painted racial epithets and
allegations of KKK involvement on the wall of his office at CCITDC’s Chicago facility. Atno point
did Collins either investigate Paxson’s alleged KKK connections, nor did she initiate any disciplinary
actions against the perpetrators.

As a result of the behavior of his coworkers and supervisor at CCITDC, Paxson suffered
severe cmotional distress, requiring medical treatment and a medical leave of absence from his
employment. Paxson filed a grievance pursuant to intemal departmental procedure and made

requests for Cook County officials to investigate his allegations. At the time of the filing of the

Complaint, Paxson has not received a response to any of his grievances or investigation requests.



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RELD M. PAXSON

DOCKETED

Plaintiff, AUG 2 3 2002

Y.
No. 02 € 2028
COUNTY OF COOK, ILLINOIS

COOK COUNTY JUVENILE TEMPORARY
DETENTION CENTER, and CLARA B.
COLLINS, as an individual and in her
Official Capacity.

Judge John W. Darrah

Defendants.

weve eee veererervee ee

MEMORANDUM OPINION AND ORDER

Plaintiff, Reid Paxson (“Paxson”), filed suit against Defendants, County of Cook, Hlinois,
(“Cook County”), Cook County Juvenile Temporary Detention Center (“CCJTDC”), and Clara B.
Collins (“Collins”). Count I alleges a violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000 et seg (“Title VI”). Count II alleges racial harassment under Title VII. Count I
alleges the common law tort of intentional infliction of emotional distress (“ITED”). Currently
before the Court is Defendants’ Motion to Dismiss Plaintiff's Complaint, pursuant to Rules 12(b)(1)
and 12(b)(6) of the Fedcral Rules of Civil Procedure, as well as Defendants’ Motion to Dismiss
Plaintiff's prayer for punitive damages.

Inreviewing a motion to dismiss, the court reviews all facts alleged in the complaint and any
reasonable inferences drawn therefrom in the light most favorable to the plaintiff. See Marshall-

Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). Dismissal is only

warranted if the plaintiff can prove no set of facts in support of its claims that would entitle it to



Clara Collins is dismissed; and Plaintiff's request for punitive damages is dismissed from Counts

Tand II, .

Dated: wd 2), aC ~

Q JO! W. DARRAH
United States District Judge

12