5-6. Thus, all claims against the Sheriff's Department are dismissed.
§ 1983 CLAIMS
Plaintiff has sued both Frossard, acting in his official capacity, and the County. As the § 1983 claim against Frossard in his official capacity operates as a claim against the County, Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986), nothing was added by suing Frossard in his official capacity. Jungels v. Pierce, 825 F.2d 1127, 1129 (7th Cir. 1987). While a county may be subject to § 1983 liability, Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), respondeat superior does not apply. Polk County v. Dodson, 454 U.S. 312, 325, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981); Iskander v. Village of Forest Park, 690 F.2d 126 (7th Cir. 1982). Municipal liability occurs where the violation results from conduct pursuant to an official custom or policy. Monell, 436 U.S. at 689-90. Pleading the existence of a "custom" or "policy" requires setting forth a specific factual basis, rather than mere boilerplate allegations. Strauss v. City of Chicago, 760 F.2d 765, 768-69 (7th Cir. 1985).
Municipal liability may also result from a single act of a high ranking governmental official where the official is a policy maker for the government - i.e. his official conduct is in effect that of the governmental entity. Pembaur v. City of Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986); Webb v. City of Chester, 813 F.2d 824, 829 (7th Cir. 1987); Malak v. Associated Physicians, Inc., 784 F.2d 277, 283-84 (7th Cir. 1986). However, the Supreme Court has held that "only those municipal officials who have 'final policy making authority' may by their actions subject the government to § 1983 liability." City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 924, 99 L. Ed. 2d 107 (1988).
Plaintiff's amended complaint alleges § 1983 violations based upon official policies of racially discriminatory conduct and denial of procedural due process. Plaintiff also raises in his Response, but not in his Amended Complaint, the unconstitutionality of Sheriff's Department Rule § 3 para. 3.1, the alleged violation of which provided the grounds for plaintiff's termination. The court will not consider plaintiff's "vagueness" claim as a basis for his § 1983 claim since it has not been pled.
Plaintiff's specific factual allegations of racially discriminatory conduct target only Frossard. It is Frossard who allegedly (1) "engaged in a pattern and practice of harassment and humiliation of Washington", (2) "reprimanded and disciplined Washington in a fashion disparate to that of similarly situated white co-workers", (3) "caused and motivated others to reprimand and harass Washington in a fashion disparate to that of similarly situated white employees" and (4) "issued or caused to be issued numerous department correspondences that were negative to and critical of Washington and were false, misleading and unsubstantiated." Complaint para. 11B, C, D, E.
While the Sheriff's Department, allegedly through Chief Deputy Clinton O. Grimmel, discharged Washington, there are absolutely no specific allegations that anyone of higher rank than Lt. Frossard acted with a discriminatory intent. See Smith v. Rowe, 761 F.2d 360, 361-62 (7th Cir. 1985). Presumably, Frossard's superiors acted in good-faith on Frossard's representations and on the contents of Washington's file in terminating Washington. Plaintiff has not alleged otherwise, nor provided the grounds for a reasonable inference to the contrary. Since, Lt. Frossard is not a municipal official with "final policy making authority" his conduct cannot subject the County to potential § 1983 liability. The § 1983 claim based on racial discrimination against the County is dismissed. Similarly, plaintiff's claim of racial discrimination against Frossard, acting in his official capacity, being a claim of racial discrimination against the County, is also dismissed. Thus, the § 1983 claim based upon racial discrimination survives solely as to Frossard acting in his individual capacity.
Plaintiff also claims a denial of procedural due process rights resulting from the failure to provide a pretermination hearing. Of course, the due process claim can only be brought against the County, which may have been required to provide a hearing, and not against Frossard. Plaintiff has not specifically alleged a property interest in his job. Given his short tenure with the County, he may have merely been a probationary employee. Yet, defendants have not asserted the lack of a protected interest. Plaintiff asserts that he was not given a hearing. However, he fails to indicate whether departmental rules do not require a hearing or whether they do, but were not followed. Plaintiff also fails to indicate whether a hearing, though possibly not mandated, was available upon request and, if so, whether he requested one. Nevertheless, plaintiff has pled enough to withstand dismissal at this stage, as it does not appear beyond doubt that plaintiff could prove no set of facts in support of his § 1983 due process claim which would entitled him to relief.
The § 1981 claim is dismissed in its entirety. The Title VII claim is dismissed to the extent it is brought against Frossard. All claims against the Sheriff's Department are dismissed. The § 1983 claim based on racial discrimination is dismissed as to the County. The § 1983 claim based upon denial of due process is dismissed as to Frossard. Surviving are the Title VII claim against the County, the § 1983 claim against the County, based upon denial of procedural due process, and the § 1983 claim against Frossard, based upon racial discrimination.
IT IS SO ORDERED.
DATED: July 5, 1989
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