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SIMMONS v. CHICAGO PUB. LIBRARY

June 15, 1994

MELNEE SIMMONS, Plaintiff,
v.
CHICAGO PUBLIC LIBRARY and CITY OF CHICAGO, a Municipal Corporation, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 On September 4, 1992, George Gill ("Gill"), an employee of the Chicago Public Library ("CPL") physically assaulted plaintiff Melnee Simmons ("Simmons"). As a result of the assault, and in response to alleged racial discrimination in employment, Simmons filed a four-count complaint against defendants Gill, the CPL, and the City of Chicago ("City") alleging assault and battery (Count I), intentional infliction of emotional distress (Count II), negligent retention of an employee (Count III), and racial discrimination under 42 U.S.C. §§ 1981 and 1983 (Count IV). Although originally filed in state court against all three defendants, the action has been removed to this Court and has been winnowed down to two claims against the City. *fn1" Presently before us is the City's motion 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.

 II. Discussion

 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.

 1. Timeliness

 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. *fn2"

 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 ...


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