result from random and unauthorized acts violate due process only if state post-deprivation remedies
are inadequate. Id. at 115.

As defendant points out, it is not clear whether plaintiff is alleging that his termination was
arandom and unauthorized act or the product of defendant’s established procedures. To the extent
he alleges that it was the former, his claim must be dismissed. Plaintiff has not alleged that his post-
deprivation remedies — any grievance procedure available under the collective bargaining agreement
ora state tort suit for wrongful termination— are inadequate. Absent such allegations, any claim that
plaintiff's termination was a random and unauthorized act that violated his procedural due process
tights is not viable under section 1983.

Thatis not, however, the only plausible reading of plaintiff's complaint. Plaintiff's allegation
that defendant routinely “discharg[es] employees without notice of charge, fair, prompt hearing, and
due process of law,” Compl. ¥ 9, supports the inference that his due process rights were violated
because of defendant’s established procedures, not in spite of them. This species of due process
claim is viable regardless of the adequacy of post-deprivation remedies. See generally, Zinermon.

In short, plaintiff's allegations that he had a property interest in his job and that defendant
terminated him from it without giving him any kind of pre-termination notice or hearing states a
section 1983 procedural due process claim.

Whether plaintiff can succeed on that claim is another matter entirely. As our court of
appeals has noted, the scope and formality of the required pre-termination hearing “depends on the
other pre- and post-termination procedures available to the employee.” Schacht v. Wisconsin Dep’t

of Corr,, 175 F.3d 497, 503 (7" Cir. 1999), abrogated on other grounds, Higgins v, Mississippi, 217

F.3d 951 (7" Cir. 2000). If there are elaborate post-termination procedures in place, a pre-

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allege that: “(1)} [he is a] member[] of a racial minority; (2) the defendant had an intent to
discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities
enumerated in the statute.” Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996). Plaintiff
has not alleged that he was terminated because of his race. Accordingly, his section 1981 claim must
be dismissed.

Section 1983 provides redress for constitutional deprivations that occur at the hands of
certain government actors. 42 U.S.C. § 1983. Municipalities are among the class of “persons”
subject to suit under section 1983, but states and agencies that function as arms of the state are not.
Will y. Michigan Dep’t of State Police, 491 U.S. 58, 64, 70-71 (1989); Monell v. New York City
Dep’t of Soc, Servs., 436 U.S. 658, 690 (1978). Because defendant does not argue that it is exempt
from section 1983 liability, we assume that it functions more like a municipality than an arm of the
State of Illinois. To plead a viable section 1983 claim against a municipality or, as in this case, an
agency that acts like one, plaintiff must allege that he was deprived of a constitutional right pursuant
to one of defendant’s policies, customs or practices. Monell, 436 U.S. at 694.

Defendant does not contest plaintiff s “policy” allegations, but says that he has not adequately
alleged that he was deprived of his procedural due process rights. As a general rule, the government
cannot terminate a vested property interest, which plaintiff alleges he had in his job, without
providing some kind of pre-deprivation hearing. Zinermon v, Burch, 494 U.S. 113, 127 (1990).
When the deprivation is the result of random and unauthorized acts of government employees rather
than established state procedure, however, it is impossible for the government to provide such a
hearing. In those circumstances, the Supreme Court has said, a post-deprivation hearing, or a state

tort remedy for wrongful deprivation, will suffice. Id, at 128-29. Thus, property deprivations that

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termination “hearing” that consists only of notice of the charges and an informal opportunity to
respond to them passes constitutional muster. Id,

Defendant claims that is precisely the situation here. It says that plaintiff was given notice
and an opportunity to be heard before he was terminated and the opportunity for full administrative
review after the termination decision was made. Moreover, defendant has submitted a number of
documents in support of its contention. But defendant did not attach the documents to its opening
brief and request that its motion to dismiss be converted to one for summary judgment, the
appropriate method for seeking a merits review of this case. Instead, it attached them to its reply
brief in support of its motion to dismiss. To the extent defendant’s submission of these documents

constitutes a belated invitation to examine the merits of this case, the Court declines it.”

Conclusi
For the reasons set forth above, defendant’s motion to dismiss plaintiff's complaint is granted
in part and denied in part. Plaintiff has fourteen days from the date of this Order to amend his
complaint in accordance with this Order, if he can do so and remain in compliance with Rule 11.

Defendant has twenty-one days thereafter to answer or otherwise plead to any amended complaint.

ENTER: CO a

UNITED STATES DISTRICT JUDGE

patep: _/- 7-03

Though we did not consider those documents in deciding this motion, the Court urges
plaintiff to review them and cautions him that any amended complaint he files must comport with
Rule 11.

-S-


Mig Order FormyQe97)

United States District Court, Northern District of Illinois

Name of Assigned Jud
enor Magatrate Judge Paul E. Plunkett “Than Austgned Judge
CASE NUMBER 02 C 2062 DATE 1/9/2003
CASE RONALD BERRYHILL vs. STATE OF ILLINOIS TOLL HWY. AUTHORITY
TITLE
[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintif¥, 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) Oo Brief in support of motion due

(3) Q 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) a Pretrial conference[held/continued to] [set for/re-set for} on set for at :

(7) oO Trial[set for/re-set for} on at

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

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

OOFRCP4(m) ClLocal Rule 41.1 CIFRCP41(a)(1) OO FRCP41(a)(2).

(10) EM [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: defendant’s motion to
dismiss plaintiff's complaint is granted in part and denied in part. Plaintiff has fourteen days from the
date of this Order to amend his complaint in accordance with this Order, if he can do so and remain in
compliance with Rule 11. Defendant has twenty-one days thereafter to answer or otherwise plead to any
amended complaint.

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

No notices required, advised in open court.

No notices required. umber of nties

Notices mailed by judge's staff.

Notified counsel by telephone. JAN io 2003
af | Docketing to mail notices.

Mail AO 450 form. 44009 Laie sia’s‘a docketing depuy niin

VY | Copy to judge/magistrate judge. Wa

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DOCKETED

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS JAN 10 2003
EASTERN DIVISION
RONALD BERRYHILL, )
| )
Plaintiff, )
)
v. ) No. 02 C 2062
i ) Paul E. Plunkett, Senior Judge
i STATE OF ILLINOIS TOLL )
i HIGHWAY AUTHORITY, )
)
Defendants. )
i
Mi PINI E,
Ronald Berryhill has sued the Illinois State Highway Toll Authority pursuant to 42 U.S.C.

§§ (“section”) 1981, 1983 for its alleged violations of his civil rights. Defendant has filed a Rule
12(b)(6) motion to dismiss the complaint.’ For the reasons set forth below, the motion is granted

in part and denied in part.

‘Though neither party raised the issue, the Court has concluded that, to the extent defendant
functions as an arm of the State of Illinois, the State has expressly waived its Eleventh Amendment
immunity for civil rights suits in federal court. See 605 ILL. Comp. STAT. § 10/31(b) (permitting
“[aJny person . . . {to] bring a civil action to recover damages for injury to his person or property
caused by any act of the [Toli Highway] Authority or by any act of any of its officers, agents or

employees done under its direction.”).

-l-



Facts
Plaintiff started work as a toll collector for defendant on April 7, 1996 pursuant to a
collective bargaining agreement. (Compl. {] 5-6.) On April 7, 2000, defendant terminated
plaintiff's employment. (Id. 6.) Though plaintiff had a property interest in his job, defendant
terminated him without giving him notice or an opportunity to contest it. (Id. 7-8.) Moreover,
plaintiff says, defendant has an established practice of terminating employees without pre-
termination notice and hearing. (Id. ] 9.) Plaintiff contends that defendant’s actions violated his

rights under sections 1981 and 1983 and seeks damages and reinstatement.

The Legal Standard
On a Rule 12(6)(6) motion to dismiss, the Court accepts as true all well-pleaded factual

allegations of the complaint, drawing all reasonable inferences in plaintiff's favor. Forsethv. Village
of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). No claim will be dismissed unless “it is clear that no

relief could be granted under any set of facts that could be proved consistent with the allegations.”

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

Discussion
Section 1981 prohibits racial discrimination in 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 (a)-(b); Saint Francis College v. Al-Khazraji, 481 U.S.
604, 609 (1987) (“[This] Court has construed . . . section [1981] to forbid all ‘racial’ discrimination

in the making of private as well as public contracts.”), To state a section 1981 claim, plaintiff must

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