legitimately, but held that the ordinance at issue was unconstitutional because it singled out particular expressive conduct for punishment based solely on the viewpoints that the conduct expressed.
In the case now before this court, the fact that Werthman's rights as a public employee were more limited than the rights of private citizens does not mean that she has to admit to the speech that prompted her employer's retaliation. Like the Supreme Court in R.A.V., this court must concentrate on the state's response to the alleged speech, not on the alleged speaker. That is precisely how the Sixth Circuit approached a very similar set of facts in Meyers v. City of Cincinnati, 934 F.2d 726, 728-30 (6th Cir. 1991). In Meyers, a firefighter sued city officials for coercing his early retirement in retaliation for critical comments he allegedly made about the city fire department's affirmative action policies. The plaintiff denied making the statements, but in upholding his claim the court focused on what city officials thought he said, not on whether he actually said it. Because there was no genuine disagreement over whether city officials retaliated against him for what they thought he said, and because the comments attributed to him concerned issues of public significance, the court concluded that the city had abridged his First Amendment rights. In light of Meyers, and the other cases cited, this court will allow Werthman to proceed with her First Amendment claim.
Title VII Claims
Plaintiff may proceed on her Title VII claims in federal court only if they are like or reasonably related to the allegations contained in the charges she filed with the EEOC. Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985). Because Plaintiff did not include or even hint at allegations of gender discrimination in her EEOC charges, she may not proceed on a gender discrimination claim now. This court therefore will regard count II as a race discrimination claim, even though plaintiff presents it as a claim for "race and/or sex" discrimination. The court would point out, however, that plaintiff still may be entitled to relief on a pure race discrimination claim if she can prove that race discrimination was a motivating factor in defendants' decision to demote and then discharge her, even if race discrimination was not the only motivating factor. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (plurality opinion).
Defendant Pavkovic contends that the Title VII claims against him should be dismissed for similar reasons. None of the EEOC charges name him or allude to any role he might have played in Werthman's troubles. See Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989). The court agrees. The Title VII claims against Pavkovic are dismissed. In all other respects, however, plaintiff's Title VII claims for discriminatory demotion and termination and for retaliation are properly pleaded.
Intentional Infliction of Emotional Distress
Defendants contend that the facts alleged are insufficient to support a claim for intentional infliction of emotional distress. Because plaintiff need not plead all of the facts on which she will later rely to prove her claim, their argument is premature. After discovery, when facts have been collected by both sides, the court will consider arguments on the sufficiency of plaintiff's claims.
All § 1983, § 1985 and state law claims against DMHØ and Arnold and Pavkovic in their official capacities are dismissed, except for the § 1983 and § 1985 claims for injunctive relief against Arnold and Pavkovic, which survive. The § 1983 and § 1985 claims for money damages against Arnold and Pavkovic in their individual capacities also survive. All Title VII claims against Pavkovic, and all gender claims are dismissed, but all Title VII race claims against DMHØ and Arnold survive. The state law claims survive against Arnold and Pavkovic in their individual capacities.
JAMES B. MORAN,
Chief Judge, U.S. District Court
August 24, 1993.
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