to dismiss the remaining claims against it and Simmons' motion to remand. For the following reasons, we deny the City's motion in part, grant it in part, and deny Simmons' motion to remand.
I. Factual Background
On September 4, 1992, Simmons, an African-American, was working at the Pullman branch of the CPL, as was her co-worker Gill. While on duty, Gill "forcefully and physically assaulted" Simmons. After the attack, the City, by its agents, discouraged Simmons from pressing charges against Gill, telling her that they would take care of the situation. Notwithstanding these assurances, the City failed either to investigate the incident or to discharge Gill.
Simmons alleges that the City's failure to take any action against Gill after the attack constitutes racial discrimination. She goes on to charge the City with additional discriminatory acts, asserting that the City (1) promoted white employees over her despite her performance, (2) denied her staffing requests, (3) transferred her to a less desirable library location, claiming that she "was a problem they did not want to handle," and (4) denied her application for a supervisory position, giving the job to a white woman instead. Cmplt. at P 29.
A. Count IV -- §§ 1981 and 1983 Claims
Before addressing the City's motion to dismiss the remaining common-law claim or Simmons' motion to remand this matter to state court, we first determine the threshold question of whether Simmons' federal claims survive. The City argues that Simmons has failed to state a claim under either §§ 1981 or 1983, and that Count IV should be dismissed. We disagree.
In order to state a claim under § 1983, a plaintiff must allege that a state or municipal actor, acting under color of law, violated a federal law or infringed upon a constitutional right. As for § 1981, to prevail a plaintiff must demonstrate that she has been discriminated against in her employment. See Allen v. City of Chicago, 828 F. Supp. 543, 560 (N.D. Ill. 1993) (citing Von Zuckerstein v. Argonne Nat'l. Lab., 984 F.2d 1467, 1472 n.2 (7th Cir. 1993)). In order for a municipality itself to be held liable under either of these provisions for the acts of its employees, a plaintiff must demonstrate that her injury was the result of a municipal policy or custom. Moreover, § 1981 and § 1983 claims must be brought within two years. According to the City, Simmons (1) fails to allege that her federal claims are timely filed, (2) fails to identify the constitutional right at issue, and (3) fails to allege a custom or policy.
As the City correctly observes, both §§ 1981 and 1983 have two-year statutes of limitation. See, e.g., Smith v. Firestone Tire and Rubber Co., 875 F.2d 1325, 1326 (7th Cir. 1989) (Illinois' four-year statute of limitations for personal injury claims applies to § 1981 suits); Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993) ("section 1983 claims arising in Illinois are governed by a two-year statute of limitations"). By neglecting to allege when the asserted discriminatory acts took place, the City contends, Simmons has failed to plead a viable cause of action under either §§ 1981 or 1983.
A recent Seventh Circuit case laid to rest any notion that a plaintiff must plead facts in her complaint demonstrating that her claims fall within the statute of limitation. Declaring that this "rule [requiring such pleading] makes no sense that we can see," the Seventh Circuit, in Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (7th Cir. 1993), citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923-24, 64 L. Ed. 2d 572 (1980), made clear that "the statute of limitations is an affirmative defense, and a plaintiff is not required to negate an affirmative defense in his complaint." Because Simmons is not obliged to plead the timeliness of her claims, we will not dismiss Count IV on this basis.
2. Constitutional Right
The City next seeks dismissal of the § 1983 claim on the ground that Simmons fails to identify what federal law or constitutional right has been violated. Indeed, Simmons' complaint lacks any mention of the specific constitutional right at issue here. However, taking all reasonable inferences in her favor, as we must, Simmons has adequately pleaded that the City violated the Fourteenth Amendment guarantee of equal protection, and we thus decline to dismiss Count IV on this basis.
3. Custom or Policy
Finally, the City contends that Simmons' complaint fails to allege a municipal custom or policy, as required to state a claim for municipal liability under either §§ 1981 or 1983. It is beyond dispute that a plaintiff need not allege an express municipal policy in order to state a claim consistent with Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Instead, "a pattern of conduct by non-policy-making municipal employees may rise to the level of a city policy, custom or usage which is sufficient to give rise to municipal policy." McLin v. City of Chicago, 742 F. Supp. 994, 997-998 (N.D. Ill. 1990). Here, Simmons alleges that she fell prey to a series of discriminatory actions taken against her by CPL employees. Because Count IV describes a number of allegedly discriminatory incidents, rather than a single such event, it is possible to infer that the City was aware of the misconduct and tacitly authorized and/or condoned it. See. e.g., Jones v. Villa Park, 784 F. Supp. 533, 535 (N.D. Ill. 1992) ("By alleging a series or pattern of misconduct, it is possible to infer that the municipality was aware of a problem but acted with deliberate indifference by ignoring it. It is also possible to infer that the municipality has tacitly authorized the pattern or custom shown as its policy."). We therefore deny the City's motion to dismiss Count IV.
B. Count III -- Negligent Retention
The City next moves to dismiss Simmons' negligent retention claim on three grounds: (1) that the claim is preempted by the Illinois Workers Compensation Act ("IWCA"), 820 ILCS 305/1, et seq., (2) that it is untimely under the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"), 745 ILCS 10/8-101, et seq., and (3) that Simmons fails to state a claim for negligent retention. As a threshold matter, we address the City's contention that this claim is preempted by the IWCA.
The IWCA ensures that employees may recover from employers for accidental injuries arising out of and in the course of employment. In exchange, the IWCA provides the exclusive remedy for such injuries, and bars common-law actions by employees against employers unless the employee can establish that (1) the injury was not accidental, (2) the injury did not arise from his or her employment, (3) the injury was not received during the course of employment, or (4) the injury was not compensable under the Act. Meerbrey v. Marshall Field and Co., Inc., 139 Ill. 2d 455, 564 N.E.2d 1222, 1226, 151 Ill. Dec. 560, 564 (1990). As interpreted by Illinois courts, the exclusivity provisions may preclude negligence suits against employers, but they "will not bar a common law cause of action against an employer . . . for injuries which the employer or its alter ego intentionally inflicts upon an employee or which were commanded or expressly authorized by the employer." Id. at 564. See also Collier v. Wagner Castings Co., 81 Ill. 2d 229, 408 N.E.2d 198, 41 Ill. Dec. 776 (1980) (employer must have directed, encouraged, or committed alleged intentional torts to escape exclusive remedy provision of the IWCA). In other words, in order to avoid the exclusivity provisions of the IWCA, an employee must allege that an employer acted deliberately and committed an intentional tort. Copass v. Illinois Power Co., 211 Ill. App. 3d 205, 569 N.E.2d 1211, 155 Ill. Dec. 600 (4th Dist. 1991), appeal denied, 141 Ill. 2d 537, 580 N.E.2d 110, 162 Ill. Dec. 484 (1991). See also Russell v. PPG Industries, Inc., 953 F.2d 326, 333 (7th Cir. 1992) (although employee of subcontractor was "loaned employee" of plant owner, where complaint fell short of alleging intentional conduct, the IWCA barred employee's claim against owner for failing to address a factory hazard).
Here, Simmons has alleged that the City negligently retained Gill in its employ after learning about his assault on a co-worker. Although Illinois courts have never directly addressed the issue of whether a claim for negligent retention, or even for negligent hiring, is preempted by workers' compensation, because it is a negligence, rather than an intentional, tort, there is every reason to believe that they would deem such a cause of action barred by the exclusivity provisions. Indeed, the Seventh Circuit has ruled that an employee of an independent contractor cannot sue the contracting principal for, essentially, negligent retention. In Anderson v. Marathon Petroleum Co., 801 F.2d 936 (7th Cir. 1986), the court wrote as follows:
But suppose that a principal, having hired an independent contractor after a careful investigation which showed that the contractor was careful and responsible, discovers that he is careless yet takes no steps to correct his unsafe practices or terminate him; can the victim of the contractor's carelessness get damages from the principal? We assume the answer is "yes" if the victim is a third party, but Mrs. Anderson has cited no case in which an Illinois court has allowed an employee of the independent contractor to recover damages on this basis. The majority view is that he may not. Again, the reason is that the employee is protected by his workers' compensation rights; again there is a division of authority; again we have no reason to think that Illinois would adopt the minority view.