letter on November 22, 2003. In the absence of any evidence to the
contrary, this is sufficient. See Saxton v. American Telephone and
Telegraph Co., 10 F.3d 526, 532 n.11 (7° Cir. 1993). If IDHS
wishes to disprove this allegation, it is free to investigate the
matter further, but at this stage, I am satisfied that plaintiff
has filed within the statutorily prescribed time frame. The motion
to dismiss Ms. Blalock’s Title VII and ADA claims as untimely filed

is denied.

Il.

IDHS next argues that Ms. Blalock’s ADA claim is barred by the
Eleventh Amendment and must be dismissed.*? The Eleventh Amendment
states that “Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the States by citizens of another
State....”3 U.S. CONST. amend. XI. There are two well recognized
exceptions to a State’s Eleventh Amendment immunity. First,

Congress may abrogate the states' Eleventh Amendment immunity under

2? IDHS, appropriately, does not argue that Ms. Blalock’s Title
VII claim is barred by the Eleventh Amendment. See Nanda v. Bd. of
Trs., 303 F.3d 817, 831 (7 Cir. 2002) (Title VII claims for
disparate treatment against states and state agencies validly
abrogate Eleventh Amendment immunity).

> Although the text of the Eleventh Amendment refers only to
suits against a State by citizens of another State, the Amendment
has been interpreted to provide immunity for states from suits
brought against it by its own citizens. See e.g. Tennessee v.
Lane, 124 S.Ct. 1978, 1985 (May 17, 2004); Bd. of Trs. of Univ. of
Ala. v. Garrett, 531 U.S. 356, 363 (2001).


assertion is correct. 42 U.S.C. § 198la exempts government agencies
from judgments for punitive damages, with respect to both Title VII
and ADA claims, 42 U.S.C. § 198ia(b) (1), provides in relevant part:
A complaining party may recover punitive damages under this
section against a respondent (other than a government,
government agency, or political subdivision) if the
complaining party demonstrates that the respondent engaged in
a discriminatory practice or discriminatory practices with
malice or with reckless indifference to the federally
protected rights of an aggrieved individual.
For purposes of this statute, a state agency is considered a
governmental agency. Hudson, v. JIll. Dept. of Human Services,
2003 WL 22839819 *4 (N.D. Ill. 2003) (citing Krawczyk v. Re, 37
F.Supp.2d 1106, 1109 (N.D.I11.1999)). Because IDHS is a state
agency, it is exempt from judgments for punitive damages in this

context. Hudson, 2003 WL 22839819, at *4. Ms. Blalock’s prayer for

punitive damages is therefore stricken.

Iv.

IDHS finally argues that Ms. Blalock’s state law
discrimination claim under the Illinois Human Rights Act (“IHRA”)
must be dismissed for lack of subject matter jurisdiction where
there are no viable federal claims to which supplemental
jurisdiction may attach. IDHS’s stated basis for dismissing Ms.
Blalock’s IHRA claim fails in light of the survival of Ms.
Blalock’s Title VII claim. IDHS’s motion to dismiss is denied with

respect to her Title VII and IHRA claims and is granted without


No. 94-C-1065, 1994 WL 687540, at *1 (N.D.Il1. 1994). After
receiving this letter, she has ninety days in which to file suit.
Id, (citing 42 U.S.C. § 2000e-5(f)). These are statutory, not
jurisdictional requirements, akin to a statute of limitations. Id.
(citing Zipes v. Trans World Airlines, Inc., 455 U.S. 285, 393
(1982)). The ninety-day period does not begin to run until the
plaintiff or her attorney actually receives the right-to-sue
letter. Saxton v. American Telephone and Telegraph Co., 10 F.3d
526, 532 n.11 (7 Cir. 1993). Here, Ms. Blalock has alleged that
her attorney received notice of her right to sue on November 22,
2003. This suit was filed on February 17, 2004, eighty-seven days
after Ms. Blalock purportedly received the letter.

IDHS contends that because the right-to-sue letter indicates
that it was mailed to Ms. Blalock on November 7, 2003, she must
plead an explanation for this two-week delay in receiving the
letter from the time it was purportedly sent, and that failing to
do so makes her claim defective. Ms. Blalock confuses the issue
further in her response by stating that her mail was often mis-
delivered and that she received “notice from the EEOC” just two
days prior to filing the present action. On August 18, 2004 I
issued a minute order giving Ms Blalock twenty-one days to submit
an affidavit stating when she received her right-to-sue letter from
the EEOC. On August 30, 2004, Ms. Blalock submitted her own signed
affidavit and an accompanying letter signed by her former attorney

stating that her attorney did in fact receive her right-to-sue


§ 5 of the Fourteenth Amendment. Bd. of frs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001) (citing Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 73 (2000)). Second, a State may waive its
immunity and consent to suit brought by a private citizen. Kimel,
528 U.S. at 73. To abrogate the Eleventh Amendment by Congressional
action, Congress must unequivocally intend to do so and "act
pursuant to a valid grant of constitutional authority.” Id. The
Supreme Court in Garrett held that Title I of the ADA was not a
valid exercise of Congress' power to abrogate the states' Eleventh
Amendment immunity. Garrett, 531 U.S. at 360. Therefore, federal
courts do not have jurisdiction to hear these types of claims
unless the state waives its immunity. Id.; see also Velasco v. Ill.
Dept. of Human Services, 246 F.3d 1010, 1016 (7th Cir. 2001).

The second question, whether Illinois has waived immunity with
respect to ADA claims is slightly more complicated. “A State may
effectuate a waiver of its constitutional immunity by a state
statute or constitutional provision, or by otherwise waiving
immunity to suit in the context of a particular federal program.”
Bartley v. U.S. Dept. of the Army, 221 F.Supp.2d 934, 950 (N.D.I11.
2002) (quoting Nelson v. Illinois, 36 F.3d 684, 690 (7th Cir.
1994)). Under the recently enacted amendment to the Illinois State
Lawsuit Immunity Act, which became effective on January 1, 2004,

Illinois expressly waived its immunity from suit by State employees


prejudice as to Ms. Blalock’s claims under the ADA and for punitive

damages.

ENTER ORDER:

Lone C Buhl

Elaine E. Bucklo
United States District Judge

Dated: November J% , 2004



Minute Order Foren (06/97)

a

United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Elaine E. Bucklo than Assigned Judge
CASE NUMBER 04 € 1180 DATE 11/23/2004
CASE Blalock vs. Illinois Dept. of Human Services
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

MOTION: of the motion being presented.]

DOCKET ENTRY:

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

(2) o Brief in support of motion due

@) Oo Answer brief to motion due. . Reply to answer brief duc.

(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) o 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) o [Bench/Jury trial] [Hearing] held/continued to at

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

OOFRCP4(m) ClLocal Rule 41.1 CUFRCP41(a)(1) CFRCP41(a)(2).

Ce [Other docket entry] | Defendant’s motion to dismiss is granted in part and denied in part. The
motion to dismiss plaintiff's Title VII and ADA claims as untimely filed is denied. The motion as to
plaintiff's ADA claim is granted. Plaintiff's prayer for punitive damages is stricken. Enter Memorandum
Opinion and Order. Status hearing set for 12/10/04 at 10:15 a.m.

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

No notices required, advised in open court.
2
No notices required, umber of ries
o | Notices mailed by judge's staff.
Notified counsel by telephone, NOV_2 4.2004...
Docketing to mail notices.
Mail AO 450 form, dockoing dbp y Mi
Copy to judge/magistrate judge. 2D v
11/23/2004
courtroom date mailed notice
MPI deputy’s Ps
initials ——
Date/timie received in
central Clerk's Office ailing deputy iiits



for violations of the ADA in federal court.’ 745 ILCS 5/1.5(d

(2004). It appears clear however, that this statutory amendment is
not retroactive.® The State’s subsequent waiver of immunity does
not apply to Ms. Blalock’s claims to the extent that they pertain
to conduct that occurred in 2002.° Thus, the state and its agencies
are immune from Blalock's claim under the ADA. Bottoms v. Iil

Dept. Of Human Services, 03-C-1881, 2004 WL 1403811 *3 (N.D.I1l.
2004). Accordingly, I grant the motion to dismiss Ms. Blalock’s ADA

claim.

TIT.
IDHS next contends that Ms. Blalock’s prayer for punitive
damages must be dismissed because IDHS, as a state agency, is not

subject to punitive damages under either the ADA or Title VII. This

4 Ms. Blalock does not raise this statute as a basis for this
court’s jurisdiction. I address the issue because it bears on this
court’s jurisdiction over the ADA claim and in light of the
plaintiff’s pro se status.

5 See Bottoms v. Ill. Dept. Of Human Services, No. 03-C-1881,
2004 WL 1403811, at *3 (N.D,I11. June 22, 2004) (Plunkett,
J.) (applying the retroactivity test adopted in Illinois in Foster
Wheeler Energy Corp. v. LSP Equip, LLC, 805 N.E.2d 688, 692 (Ill.
Ct. App. 2004} from Landgraf v. USI Film Prods., 511 U.S. 244, 280
(1994), finding these amendments are not retroactive).

® Although Ms. Blalock states in the narrative attached to her
complaint that the discrimination she suffered has continued from
"April 10, 2002 to the present," that statement is inconsistent
with the statement earlier in her complaint that the discrimination
occurred from April 10, 2002 to May 1, 2002. Moreover, it makes
little difference because Ms. Blalock received her right to sue
letter from the EEOC on November 22, 2003, and the scope of the
charges for which she has properly exhausted her administrative
remedies ended at the latest in 2003.


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

ELAINE W. BLALOCK,
Plaintiff,

v. No. 04 C 1180

ILLINOIS DEPARTMENT OF HUMAN
SERVICES,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Blaine W. Blalock filed a complaint for employment
discrimination against her employer, the Illinois Department of
Human Services (“IDHS”), asserting claims of sex discrimination in
violation of Title VII of the Civil Rights Act of 1967 (“Title
VII”) and the Illinois Human Rights Act (“IHRA”) and disability
discrimination in violation of Title I of the Americans with
Disabilities Act of 1990 (“ADA”). IDHS now moves to dismiss the
complaint pursuant to Fed. R. Civ. P. 12(b) (1) and 12 (b) (6). I
grant the motion in part and deny the motion in part.

On a motion to dismiss, I take all allegations in the
complaint as true. Wilczynski v. Lumbermens Mut. Cas. Co., 93 F.3d
397. 401 (7% Cir. 1996). Because Ms. Blalock is proceeding pro se,
her complaint must be liberally construed and is entitled to less
stringent scrutiny than those prepared by counsel. Gutierrez v.

Peters, 111 F.3d 1364, 1369 (7% Cir. 1997). The facts as alleged


by Ms. Blalock are as follows. Ms. Blalock has been employed as a
case worker with the IDHS and its predecessor agency since 1974.
From April 10, 2002 to May 1, 2002, Ms. Blalock claims that she was
subjected to a series of unpleasant encounters with supervisors and
co-workers in which she was confronted, yelled at, threatened with
termination, given poor performance reviews, and referred to by co-
workers as “crazy.” There is no indication in the complaint that
Ms. Blalock was ever terminated, suspended, demoted, or that she
suffered a reduction in pay related to her complaints. On May 23,
2002, Ms. Blalock filed a charge with the Equal Employment
Opportunity Commission (“EEOC”), allegedly stating that she had
been discriminated against on the basis of her sex and perceived
disability.’ The BEOC subsequently issued a right-to-sue letter to
Ms. Blalock on November 7, 2003. The notice was received by Ms.
Blalock’s former attorney on November 22, 2003. Ms. Blalock filed

this action on February 17, 2004.

I.

IDHS claims that Ms. Blalock failed to file her complaint
within the ninety-day limitation period from the time the EEOC gave
notice of her right to sue. Before a plaintiff can bring an action
under Title VII or the ADA, she must first receive a right~to-sue

letter from the BEOC. Flaherty v. Illinois Dept. Of Corrections

'Ms. Blalock did not attach a copy of her EEOC charge to her
complaint.