United States District Court, Northern District of Illinois, E.D
August 7, 1985
MARY ANN J. STRAMA, PLAINTIFF,
CITY OF CHICAGO, AN ILLINOIS MUNICIPAL CORPORATION, JAMES MAURER, AND PAUL LEWIS, DEFENDANTS.
The opinion of the court was delivered by: Plunkett, District Judge.
MEMORANDUM OPINION AND ORDER
In this suit, Mary Ann J. Strama ("Plaintiff") alleges that the
City of Chicago (the "City"), James Maurer ("Maurer"), the
Executive Director of the Office of Municipal Investigation (the
"OMI"), and Paul Lewis ("Lewis"), Assistant to Maurer
(collectively, "Defendants"), violated her rights by firing her
for sexual and political reasons. Plaintiff sues under 42 U.S.C. § 1983
for violations of her rights under Title VII, 42 U.S.C. § 2000e-5,
the Fourteenth Amendment, the First Amendment, and the
Shakman decree. Presently before us is Defendants' motion to
dismiss Plaintiff's first amended complaint or sections thereof.
For the reasons set forth below, Defendants' motion is granted in
part and denied in part.
For purposes of the motion to dismiss we take as true the
limited allegations in Plaintiff's amended complaint. Plaintiff
was employed as an investigator in the OMI, a municipal
corporation, for an unspecified period of time until she was
discharged on September 16, 1983. The decision to terminate her
employment was made by Maurer and Lewis, who set or approved
policy and custom regarding employment in the OMI. Other
discharged OMI investigators were recalled, but Plaintiff was
not. Plaintiff had properly performed the duties of her office.
Her refusal to interact sexually with Maurer, Lewis and others in
the OMI and politics were substantial motivating factors in
Defendants' decisions to terminate her employment and not to
recall her. Plaintiff suffered financial loss and emotional
distress as a result of her termination and failure to be
reinstated, and seeks $70,000 in compensatory damages, additional
punitive damages against Maurer and Lewis, and attorney's fees.
Defendants maintain that this suit is barred by laches, citing
Kadon v. Bd. of Fire and Police Commissioners, 45 Ill. App.2d 425,
430, 195 N.E.2d 751, 754 (1st Dist. 1964), and several other
cases in which Illinois courts have required certain actions
challenging employment terminations to be brought within six
months of the date of termination. This suit was filed
approximately eleven months after Plaintiff's discharge.
Defendants properly look to state law to determine the
timeliness of this § 1983 action. See Wilson v. Garcia, ___ U.S.
___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The state rules
governing laches, however, generally apply only where equitable
relief is sought. See Mother Earth, Ltd. v. Strawberry Camel,
Ltd., 72 Ill. App.3d 37, 28 Ill.Dec. 226, 239, 390 N.E.2d 393, 406
(1st Dist. 1979); Kadon, 45 Ill.App.2d at 430, 195 N.E.2d at 754
(reinstatement and back pay). Here, Plaintiff seeks damages only.
Defendants request that we specially apply the laches doctrine to
suits involving government employment so as not to disturb
government services more than necessary. We see no reason to
treat suits at law involving governmental employment decisions
differently than § 1983 suits at law involving any other form of
governmental action. Furthermore, delay is more likely to be
prejudicial where suits seek reinstatement and back pay, which
become more difficult to accord over time, than damages resulting
from termination, which are relatively fixed. Accordingly, we
apply the state statute of limitations for personal injury
actions, see Garcia, ___ U.S. at ___, 105 S.Ct. at 1947, which in
Illinois is two years, Ill.Rev.Stat. ch. 110, § 13-202 (1983).
Under this rule, Plaintiff's suit is timely.
2. Municipal Liability
Municipalities are § 1983 "person[s]" and can be sued for
deprivations of federally secured rights where such deprivations
are caused by the municipalities' official policies or customs.
Monell v. New York City Dept. of Social Services,
436 U.S. 658,
694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). The causation
requirement "provides a fault-based analysis for imposing
municipal liability." City of Oklahoma City v. Tuttle, ___ U.S.
___, ___, 105 S.Ct. 2427, 2434, 85 L.Ed.2d 791 (1985) (plurality
opinion) (footnote omitted). "Monell's `policy or custom'
requirement . . . was intended to prevent the imposition of
municipal liability under circumstances where no wrong could be
ascribed to municipal decisionmakers." Id.
This case presents the question of a municipality's liability
for the acts of its decisionmakers. Plaintiff has alleged that
Maurer and Lewis were municipal decisionmakers. At issue are
whether Plaintiff has successfully pled that their alleged acts
reflected their policy or custom, and if not, whether an isolated
act by individuals with the power to create city policy or custom
is caused by the city for § 1983 purposes.
Plaintiff has not sufficiently pled that Maurer and Lewis acted
pursuant to a policy or custom. While the complaint states that
Maurer and Lewis set policy for OMI, "[n]othing in the complaint
suggests that the incident was other than an isolated one
unrelated to municipal policy. . . ." Strauss v. City of Chicago,
760 F.2d 765, 767 (7th Cir. 1985). A policy need be applied only
once to give rise to § 1983 liability, see Tuttle, ___ U.S. at,
___, 105 S.Ct. at 2435 (plurality opinion), at 2439-41 (Brennan,
J., concurring), but here Plaintiff has provided no allegations,
such as of intended future discrimination against other women
employed by OMI, to suggest the existence of a policy.
This raises the second issue, namely, whether the Monell policy
or custom requirement applies when the city has delegated
policy-making authority to the person who performs the unlawful
act. The Monell standard is based on the § 1983 requirement that
the city have caused the deprivation of a constitutional or other
right in order to be held liable. Respondeat superior liability
for low level employees' acts which are not taken pursuant to a
policy or custom would nullify the causation requirement. Acts
taken pursuant to an official policy or custom, on the other
hand, are directly, not merely vicariously, attributable to the
city. See Monell, 436 U.S. at 691-694, 98 S.Ct. at 2036-2038. In
Monell itself, for example, the Court found that the city could
be liable where the plaintiff class members claimed they were
fired pursuant to a pre-existing, but newly invoked, official
discriminatory policy. Id. at 660-661, 694-695, 98 S.Ct. at
2020-2021, 2037-2038. Where as here no official policy exists,
the question is whether the city caused the alleged deprivations
by delegating authority over the OMI's employment decisions to
Maurer and Lewis, which authority they exercised unlawfully.
A number of courts addressing this issue have found that a city
can be found liable under Monell on the basis of an
unconstitutional employment decision of one of its officials if
the city has delegated final authority over such employment
decisions to that official. See, e.g., Williams v. Butler,
746 F.2d 431, 434-439 (8th Cir. 1984), and decisions of Second,
Third, Fourth, Ninth, and Eleventh Circuits cited therein. At
least one district court within the Seventh Circuit declined to
follow these authorities, however, because of the seemingly
contrary decision in Bell v. City of Milwaukee, 746 F.2d 1205,
1272 (7th Cir. 1984). See Perry v. Larson, 599 F. Supp. 727, 731
In Bell, plaintiffs contended that a defendant district
attorney was an authoritative decision-maker for Milwaukee County
and that the County should therefore be held liable under § 1983
for his participation in a conspiracy to cover up the facts
relating to a fatal shooting by a Milwaukee police officer. The
Seventh Circuit disagreed, stating:
This Court has acknowledged that at some level of
authority, there must be an official whose acts
reflect governmental policy, since the government
necessarily acts through its agents. Reed v. Village
of Shorewood, 704 F.2d 943, 953 (7th Cir. 1983). Yet,
as the district court observed, [the district
in the conspiracy was simply conduct in a single
case. A custom, policy, or practice of a county
under Monell cannot normally be inferred from a
single incident of unconstitutional behavior of a
district attorney . . . Plaintiffs presented no
evidence that [the district attorney's] conduct in
[this] matter was indicative of a multi-case pattern
of unconstitutional activity on his part, or evidence
linking his conduct with the policy of County
746 F.2d at 1272 (citations omitted). This discussion led the
Perry court to conclude:
In this circuit, then, the focus is not upon
whether there exists a policy of delegating final
authority to local officials who may then exercise
that authority in a manner that occasionally reaps an
unlawful result. Rather, the focus is on whether the
act or decision alleged to be unlawful in a
particular case is part of a pattern of activity that
can be characterized as a policy or custom.
599 F. Supp. at 731.
We are less certain as to Bell's meaning. As quoted above, Bell
relied on Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir.
1983) for the proposition that "at some level of authority, there
must be an official whose acts reflect governmental
policy. . . ." In Reed, the court wrote, "The plaintiffs contend
that interference with their business was a policy orchestrated
at the highest level of government in the Village of Shorewood.
If so . . . the Village would be liable." Id. at 953. This
conclusion about acts pursuant to an "orchestrated" "policy" is
directed by Monell. The court continued in broader terms,
however, "The official acts of municipal policy makers are acts
of the municipality for purposes of Section 1983 liability. See
Schneider v. City of Atlanta, 628 F.2d 915, 920 (5th Cir. 1980);
Black v. Stephens, 662 F.2d 181, 191 (3d Cir. 1981)." Id.
The Schneider case cited by Reed presents the position of the
circuits reflected in Williams v. Butler, rather than the Bell
position. In Schneider, a jury found that the plaintiff, a former
correctional officer, was constructively discharged by one
Hudson, the Director of the Bureau of Corrections, in retaliation
for exercising her first amendment rights. Discussing the
liability of the city, the court wrote, "At least in those areas
in which Director Hudson, alone, `is the final authority or
ultimate repository of [city] power his official conduct and
decisions must necessarily be considered those of one "whose
edicts or acts may fairly be said to represent official policy"
for which the [city] may be held responsible under § 1983.'" 628
F.2d at 920 (citations omitted).
Granting the difficulty of harmonizing the holding in Bell with
that of Schneider, our best judgment as to how to interpret the
controlling law dictates that we not dismiss the City of Chicago
at this stage of the case. The Seventh Circuit has twice, in Bell
and Reed, stated that "at some level of authority" an official's
acts are attributable to the city. Schneider, one of the cases
cited for that proposition, identifies that level of authority as
that of an official who is the "final authority or ultimate
repository of [city] power" in a given area. Moreover, the
Supreme Court's statements in Tuttle suggest by negative
implication that a municipality is liable when "wrong [can] be
ascribed to municipal decisionmakers" regardless of whether a
policy or custom exists. Accordingly, Plaintiff is entitled to
relief from the city if she can prove that Maurer and Lewis
deprived her of federally-secured rights and that they were final
authorities or repositories of the city's power with regard to
employment decisions for OMI.
We note that the Supreme Court has granted certiorari to
address this issue of municipal liability for discrete acts of
policymakers. Pembaur v. City of Cincinnati, 746 F.2d 337 (6th
Cir. 1984), cert. granted, ___ U.S. ___, 105 S.Ct. 3475, 87
L.Ed.2d 611 (1985). Should the Court's decision affect the
validity of our holding, we will of course reconsider at that
3. Title VII
It is undisputed that Plaintiff has not met the jurisdictional
prerequisites to bringing a suit under Title VII for sexual
harassment. Plaintiff contends, though, that she can bring a §
1983 claim to redress the violation of her rights under Title
VII, and thereby avoid the requirements of Title VII. We
disagree, for the reasons discussed with respect to the
relationship between 42 U.S.C. § 1985(3) and Title VII in Great
American Federal Savings & Loan Assoc. v. Novotny, 442 U.S. 366,
99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). From the comprehensive
nature of Title VII's jurisdictional prerequisites and remedial
scheme, we presume congressional intent to preclude recovery for
Title VII violations under § 1983. See Middlesex County Sewerage
Authority v. Nat'l Sea Clammers Assoc., 453 U.S. 1, 20, 101 S.Ct.
2615, 2626, 69 L.Ed.2d 435 (1981). Accord Woerner v. Brzeczek,
519 F. Supp. 517, 519 n. 2 (N.D.Ill. 1981); Le Boeuf v. Ramsey,
503 F. Supp. 747, 754 (D.Mass. 1980), rev'd on other grounds,
677 F.2d 158 (1st Cir.), rev'd en banc, 706 F.2d 1 (1st Cir. 1982);
cert. denied, 464 U.S. 1017, 104 S.Ct. 547-548, 78 L.Ed.2d 722
(1983). But see Huebschen v. HHS, 547 F. Supp. 1168, 1173-1175
(W.D.Wis. 1982), rev'd on other grounds, 716 F.2d 1167 (7th Cir.
4. Fourteenth Amendment
A plaintiff may sue under § 1983 for violations of the
fourteenth amendment without suing under Title VII even though
the facts suggest a violation of Title VII as well. Trigg v. Fort
Wayne Community Schools, 766 F.2d 299, 301-302 (7th Cir. 1985).
Defendants maintain, however, that Plaintiff's allegations of
sexual harassment do not state a claim under the Equal Protection
Clause of the fourteenth amendment.
In Huebschen v. HHS, 716 F.2d 1167, 1171-1172 (7th Cir. 1983),
the Seventh Circuit held that sexual harassment does not violate
the equal protection clause when it is aimed at a plaintiff
merely as an individual. Specifically, in Huebschen the
defendant, a female supervisor, harassed the plaintiff not
because he was a male but because he was a former lover who had
spurned her. Id. at 1172. The court's reasoning dictates that
Plaintiff can prevail, nonetheless, if she can prove that
Defendants harassed her sexually as a way of discriminating
against her because she is a woman. Indeed the court
distinguished Woerner v. Brzeczek, 519 F. Supp. 517 (N.D.Ill.
1981), which held to that effect, from the case before it as an
example of a cognizable fourteenth amendment claim of sexual
harassment. Cf. Geduldig v. Aiello, 417 U.S. 484, 496 n. 20, 94
S.Ct. 2485, 2492 n. 20, 41 L.Ed.2d 256 (1974) (distinctions
between pregnant women and "nonpregnant people" violate equal
protection clause only where they are pretexts for gender-based
discrimination). Accordingly, Plaintiff must be given an
opportunity to prove that Defendants sexually harassed her in
order to discriminate against her as a woman.
5. Conclusory Allegation
In Count II, Plaintiff alleges only the following fact in
support of her allegation that Defendants violated the first and
fourteenth amendments and the Shakman decree: "Political reasons
were a substantial motivating factor in the defendants' decision
to terminate the plaintiff's employment, and not to recall
plaintiff to work in 1983." Defendants move to dismiss,
contending that Plaintiff's allegation is conclusory and fails to
state a claim. We agree. While it is true that dismissal is
improper unless "it appears beyond doubt that the plaintiff can
prove no set of facts in support of [her] claim which would
entitle [her] to relief," Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted),
Plaintiff must make a "`short and plain statement of the claim'
that will give the defendant[s] fair notice of what plaintiff's
claim is and the grounds upon which it rests." Id. at 47, 78
S.Ct. at 103 (footnote omitted). Plaintiff's statement makes
clear what her claim is, but not the grounds upon which it rests.
omission requires dismissal. See Strauss v. City of Chicago,
760 F.2d 765, 767-768 (7th Cir. 1985). Whereas Plaintiff's Count I
allegation of sexual harassment is just barely adequate to
suggest underlying facts, namely, that Plaintiff resisted sexual
overtures made by Defendants and others in the OMI, Count II
provides no similar indication of what role politics played in
Plaintiff's alleged discharge. As a result, we dismiss Count II
without prejudice. Accordingly, we need not consider the
remainder of Defendants' contentions with regard to Count II.
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