The opinion of the court was delivered by: Grady, District Judge.
Plaintiff Shirley Yarbrough, brings this action against her
former employer, the Illinois Department of Mental Health
("IDMH"), for race discrimination. Yarbrough claims that IDMH
subjected her to untrue charges of being late or absent,
derogatory remarks, oral and written reprimands, suspensions,
constant and continuous surveillance, and retaliatory
punishment for complaining of acts of discrimination. IDMH
also allegedly berated her in front of patients, family and
co-workers, and maintained employment policies that limited
employment and promotional opportunities for black employees.
Yarbrough claims that IDMH has violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981,
1983 and 1985. She asks that this court enjoin IDMH from
engaging in any further discriminatory acts and compel the IDMH
to institute a non-discriminatory disciplinary policy. She also
asks for compensatory and punitive damages and attorney's fees.
In October 1980, Yarbrough filed a complaint with the Equal
Employment Opportunity Commission ("EEOC") charging employment
discrimination. She brought her action in this court on August
10, 1981. IDMH asks dismissal of the complaint, claiming that
(1) the Eleventh Amendment bars this action against IDMH; (2)
IDMH is not a "person" within the meaning of the Civil Rights
Acts of 1871; (3) plaintiff has not timely filed this action
as required by Title VII; (4) the allegations are conclusory;
and (5) the complaint fails to state a cause of action. IDMH
filed a brief in support of its motion; the plaintiff has not
filed a response.
Yarbrough does not meet the jurisdictional prerequisites of
a Title VII suit. No party can be the subject of a Title VII
suit unless he has been previously named in a timely EEOC
charge. Alexander v. Gardner Denver Co., 415 U.S. 36, 47, 94
S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). If the EEOC cannot
secure a conciliation agreement from the respondent and does
not file a civil action, then it will notify the aggrieved
person, and within 90 days after notice, the individual may
bring a civil action. 42 U.S.C. § 2000e-5(f)(1). The 90-day
time limitation is akin to a statute of limitations, Zipes v.
Trans World Airlines, ___ U.S. ___, 102 S.Ct. 1127, 71 L.Ed.2d
234 (1982), and failure to bring timely suit will preclude the
complainant's cause of action. Archie v. Chicago Truck Drivers,
Helpers and Warehouse Workers Union, 585 F.2d 210, 214 (7th
Cir. 1978). Here, Yarbrough received a Notice of Right to Sue
on May 8, 1981, but she did not commence this suit until 94
days later, and therefore did not meet the 90-day time
Yarbrough also attempts to state a cause of action under
42 U.S.C. § 1981, 1983, and 1985. It is clear that she fails to
state a conspiracy under § 1985. Indeed, the word "conspiracy"
is not even in the complaint. We will not gratuitously find a
conspiracy where no allegations support its existence. Barr v.
Hardiman, Mem.Op., No. 80 C 6867 (N.D.Ill. April 15, 1982), at
The § 1983 claims raise the question of whether a state
agency should be considered a "person" for the purposes of §
1983. In Monell v. New York City Dep't of Social Services,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme
Court held that a municipality can be held liable under § 1983
for unconstitutional actions which "implement or execute a
policy statement, ordinance, regulation or decision officially
adopted and promulgated by that body's officers," or which
constitute a "governmental `custom' even though such a custom
has not received a formal approval through the body's official
decision-making channels. . . ." Id. 436 U.S. at 690-91, 98
S.Ct. at 2035-36.
In Monell, the Court explicitly limited its holding to "local
government units which are not considered part of the State for
Eleventh Amendment purposes." 436 U.S. at 690 n. 54, 98 S.Ct.
at 2035 n. 54. In its next term, the Court appeared to reject
extending Monell to allow § 1983 suits against states. In Quern
v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 39 L.Ed.2d 358 (1979),
the Court held that the Eleventh Amendment did not prohibit a
district court from ordering state officials to inform members
of a class of applicants for welfare benefits that their
federal suit had ended and that there were existing
administrative procedures by which they could receive a
determination of eligibility for past benefits. In its
discussion of the Eleventh Amendment, the Court stated that it
was "unwilling to believe . . . that Congress intended by the
general language of § 1983 to override the traditional
sovereign immunity of the States." Id. 99 S.Ct. at 1144. In
support of this conclusion, the Court cited Alabama v. Pugh,
438 U.S. 781, 98 S.Ct. 3057, 56 L.Ed.2d 1114 (1978), in which
it held that a § 1983 suit "against the State and its Board of
Corrections is barred by the Eleventh Amendment, unless Alabama
has consented to the filing of such a suit." 440 U.S. at 341,
99 S.Ct. at 1145 (quoting id. 438 U.S. at 782, 98 S.Ct. at
3057). The Court did not expressly hold that a state is not a
person for purposes of § 1983, but Justice Brennan in his
that the majority reached exactly that conclusion. 440 U.S. at
350, 99 S.Ct. at 1150. However, because he believed that the
Court need not have reached that conclusion in-deciding
Quern, Justice Brennan labeled the majority's determination
that a state was not a person under § 1983 as "patently dicta."
Since Quern, at least one court has adopted an interpretation
of Quern that allows § 1983 actions against states, Marrapese
v. State of Rhode Island, 500 F. Supp. 1207, 1210-12 (D.R.I.
1980), and a pre-Quern decision supported the proposition that
state agencies are persons within the meaning of § 1983,
Atchison v. Nelson, 460 F. Supp. 1102 (D.Wyo. 1978). In light of
Quern and the Monell footnote, however, we hold that a state
agency cannot be sued under § 1993. See American Civil
Liberties Union v. State of Tennessee, 496 F. Supp. 218
(M.D.Tenn. 1980); Savage v. Commonwealth of Pennsylvania,
475 F. Supp. 524, 528-29 (E.D.Pa. 1979), aff'd, 620 F.2d 289 (3d
Cir. 1980); Bailey v. Ohio State University, 487 F. Supp. 601,
602-603 (S.D.Ohio 1980).
Even if we were to hold that a state agency is a person
within the meaning of § 1983, Yarbrough has not sufficiently
alleged an IDMH custom or policy as required under Monell. Barr
v. Hardiman, supra, at 4-8.
In support of her § 1981 claim, Yarbrough alleges that IDMH
acted to injure her "solely because and on account of her race,
said course of conduct not having been directed against white
employees by the defendant." Complaint, p. 3, ¶ 11. Yarbrough
alleges sufficient facts to support her claim of
discrimination. Her litany of grievances is so unusual that it
seems unlikely that, if true, there is no discrimination.
Unlike § 1983, § 1981 includes IDMH as a person within its
ambit. Section 1981 is not based on the Fourteenth Amendment
but on the Thirteenth. Waters v. Wisconsin Steel Works for
International Harvester Co., 427 F.2d 476 (7th Cir. 1970),
cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151
(1970).Consequently, the extensive analyses of legislative
history undertaken by Justices Brennan and Rehnquist in Monell
and Quern are inapposite.
The court in Skyers v. Port Authority of N.Y. and N.J.,
431 F. Supp. 79, 83 (S.D.N.Y. 1976), in holding that a municipal
corporation was a person within the meaning of § 1981,
recognized the differences in the derivation of the two
Unlike § 1983, . . . § 1981 as well as § 1982, were
originally derived from § 1 of the Civil Rights Act
of 1866. The Supreme Court has recognized the
universal application of this section of the 1866
act, which prohibits "interference from any source
whatever, whether governmental or private," Jones
v. Mayer Co., 392 U.S. 409 [88 S.Ct. 2186, 20
L.Ed.2d 1189] . . . (1968), and has reviewed § 1982
as "an `absolute' has to all [racial]
discrimination, private as well as public, federal
as well as state." District of Columbia v. Carter,
409 U.S. 418 [93 S.Ct. 602, 34 L.Ed.2d 613] . . .
(1973). Because of the common genesis of §§ 1981
and 1982, the common language of these two sections
[sic] have been consistently construed.
Although some courts have found state agencies not to be
persons within the meaning of § 1981, see, e.g., Percy v.
Brennan, 384 F. Supp. 800 (S.D.N.Y. 1974), those courts relied
on § 1983 cases to support their holdings. In light of the
different derivations of the statutes and the legislative
history of ...