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LITTLE v. STATE DEP'T OF REVENUE

December 8, 1995

GREGORY LITTLE, Plaintiff,
v.
STATE OF ILLINOIS DEPARTMENT OF REVENUE, BUREAU OF CRIMINAL INVESTIGATION; STEVEN HIRSCH, Individually and as Bureau Manager for the Bureau of Criminal Investigation; and MICHAEL FULLMAN, Defendants.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff Gregory Little filed this employment discrimination action under Title VII, 42 U.S.C. § 2000(e), et. seq., and 42 U.S.C. § 1983, against defendants State of Illinois Department of Revenue (the "Department"), Steven Hirsch ("Hirsch"), and Michael Fullman ("Fullman"). Plaintiff alleges that defendants: (1) retaliated against plaintiff for objecting to defendants' alleged racially discriminatory employment practices, in violation of Title VII (Count I); (2) engaged in racially discriminatory conduct against plaintiff, in violation of Title VII (Count II); and (3) retaliated against plaintiff for his opposition to discriminatory practices in violation of his rights as secured by the due process clause of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983 ("§ 1983") (Count III). Defendant Hirsch has moved to strike Counts I and II of the complaint against him under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Additionally, defendants Hirsch and Fullman have moved to dismiss Count III in its entirety pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the court grants in part and denies in part defendants' motion.

 FACTS1

 Plaintiff is an African-American male who was employed with the Department's Bureau of Criminal Investigation (the "Department") as a Revenue Special Agent. Hirsch, the Bureau Manager, and Fullman, the Special Agent in Charge, supervised plaintiff at all times relevant to the complaint. Beginning in June 1992, plaintiff objected to defendants' alleged racially discriminatory practices. These practices included the denial of travel expenses and promotions to African-American agents within the Department. Plaintiff advised defendants he would be filing formal employment discrimination charges if the discriminatory practices against African-American agents continued.

 In August 1993, plaintiff applied for a supervisory position. Following plaintiff's application, defendants added a new job requirement to the position, which disqualified plaintiff. When plaintiff requested an interview for the position in January 1994, he was told he would not be interviewed because he failed to meet the job's new requirements. Plaintiff advised Hirsch that this new requirement unfairly discriminated against African-American agents who were otherwise qualified for the position. Hirsch accused plaintiff of being a "race-baiting" agitator and selected a white male for the position.

 That same month, defendants transferred plaintiff from his office in Evergreen Park to the Illinois Gaming Board, another Department division, in Joliet, Illinois. Defendants ignored plaintiff's formal objections to the transfer.

 In February and May of 1994, plaintiff continued to complain to Hirsch about the Department's racially discriminatory hiring and promotion practices. Following these complaints, defendants transferred plaintiff again on June 3, 1994. This time, plaintiff was transferred to a different office of the Illinois Gaming Board, and given mainly ministerial duties. On June 16, 1994, less than two weeks after this transfer, defendants told plaintiff his credentials to act as a peace officer were being revoked. At that time, they also denied his request for a leave of absence. Defendants offered no explanation for either action.

 Four days later, on June 20, 1994, defendants denied plaintiff the use of a state vehicle for work-related matters. Other similarly situated agents retained use of their state vehicles. That same day, defendants ordered plaintiff to undergo a psychological "fitness for duty" examination before he could continue to work. Defendants delayed scheduling this evaluation several weeks, preventing plaintiff from working. On June 23, 1994, defendants informed plaintiff he would no longer be reimbursed for travel and transportation expenses when using his personal car for work matters, while other agents continued to be reimbursed.

 In July 1994, defendants refused to promote plaintiff to Senior Special Agent, although pursuant to a Union agreement, the Department had agreed to promote all Special Agents of a certain seniority to the position of Senior Special Agent and promoted other less qualified and less senior agents.

 On August 5, 1994, plaintiff filed a formal charge of race discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"). Defendants threatened to initiate termination charges against plaintiff if he failed to withdraw all complaints and grievances. Plaintiff did not withdraw his complaints. In September 1994, shortly after receiving notice of the EEOC charge and after plaintiff passed his psychological examination, defendants filed allegedly false charges of misconduct against plaintiff. At a pre-disciplinary hearing on these charges, defendants refused to permit plaintiff's attorney to remain at the hearing, despite plaintiff's entitlement to have his representative present. Following the pre-disciplinary hearing, defendants persisted in these charges, manufacturing false evidence against plaintiff, despite plaintiff's demonstration that the charges were baseless.

 Defendants notified plaintiff in November that he would be suspended pending discharge based on these charges. Defendants terminated plaintiff in December 1994.

 DISCUSSION

 Under Rule 12(b)(6), a complaint can be dismissed for failure to state a claim "only if the plaintiff can not prove any set of facts upon which relief may be granted." Rankow v. First Chicago Corp., 870 F.2d 356, 357 n. 1 (7th Cir. 1989). Further, in considering a motion to dismiss, the court must "accept as true all facts alleged in the . . . complaint and . . . draw all reasonable inferences from the pleadings in favor of the [plaintiff]." Gillman v. Burlington Northern Railroad Co., 878 F.2d 1020, 1022 (7th Cir. 1989). It is unnecessary that a plaintiff correctly identify the governing legal theory of a claim, if the facts alleged in the complaint support a claim. Teumer v. General Motors Corp., 34 F.3d 542, 545 (7th Cir. 1994).

 In defending against a motion to dismiss, a plaintiff may "allege without evidentiary support any facts he pleases that are consistent with the complaint, in order to show that there is a state of facts within the scope of the complaint that if proved (a matter for trial) would entitle him to judgment." Early v. Bankers Life and Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992). Moreover, the Seventh Circuit recently held that in responding to a motion to dismiss, the nonmoving party may clarify ...


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