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DUHART v. FRY

March 26, 1997

JAKE J. DUHART, Plaintiff,
v.
RITA FRY, individually and in her official capacity as Cook County Public Defender, EDWIN BURNETT, individually and in his official capacity as First Assistant Cook County Public Defender, SHELTON GREEN, individually, SU HORN, individually, and COUNTY OF COOK, Defendants.



The opinion of the court was delivered by: ALESIA

 I. BACKGROUND2

 Plaintiff Jake J. Duhart ("Duhart"), a black male, was hired by the Cook County Public Defender as a law clerk on November 1, 1990. He served in that position until approximately March 30, 1991. During that service, Duhart's supervisors, Ken Fletcher and defendant Su Horn ("Horn"), gave Duhart assignments that were less desirable than those offered to white law clerks.

 On March 30, 1991, Duhart was offered a Grade II Assistant Public Defender position and was assigned to the Felony Division, Evening Narcotics Court. Although he requested a Grade III designation, he was told that he needed additional jury trial experience before he could obtain a Grade III designation.

 Duhart's supervisors in the Evening Narcotics Court position were Phil Mullane ("Mullane") and Frank Marino ("Marino"). During Duhart's service in the Evening Narcotics Court position, Mullane and Marino consistently failed to provide Duhart with the training and professional development comparable to that which they gave Duhart's white peers. In August 1991, Duhart received a performance evaluation from Marino that contained a number of inaccuracies. While Marino gave evaluation interviews to white attorneys under his supervision, he failed to keep appointments with Duhart to discuss his evaluation. In June 1992, two white attorneys with less seniority than Duhart were transferred ahead of Duhart to the Day Division, which was a more desirable assignment. In August 1992, Mullane gave Duhart an inaccurate performance evaluation.

 That same month, Duhart filed a grievance with his union, protesting the evaluation that he had received from Mullane and the fact that less senior white attorneys had been transferred to the Day Division. After filing this grievance, Duhart was transferred to the Day Division. After he was transferred to the Day Division, Duhart was not promoted to Grade III, although white attorneys with similar experience were promoted to Grade III soon after they were transferred to the Day Division. Then, in December 1992, Horn once again became Duhart's supervisor. In the spring of 1993, Horn gave Duhart a mediocre and inaccurate performance evaluation.

 In May 1993, Duhart submitted a complaint of race discrimination to defendant Rita Fry ("Fry"). Fry did not take prompt remedial action. Rather, between May 1993 and March 1995, Duhart was repeatedly denied opportunities for training, transferred to undesirable courtrooms, and assigned caseloads that were far more demanding than those of his white peers.

 In August 1993, Duhart met with defendant Edwin Burnette ("Burnette"), the First Assistant Cook County Public Defender, to discuss Duhart's complaints of discrimination. Burnette acknowledged that there was a problem of racism in the Cook County Public Defender's Office. Burnette also falsely told Duhart that he would assist Duhart in obtaining the training necessary to be promoted to Grade III or IV by January 1995. In February 1995, Duhart learned that throughout 1994, several white Grade II attorneys with similar or lesser qualifications had been promoted to Grade III while Duhart continued to be denied promotions.

 In March 1995, Duhart was advised by his physician that his blood pressure had risen to an unhealthy level due to the ongoing discrimination by defendants. Duhart then resigned from the office. On September 15, 1995, Duhart filed a charge with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued Duhart a Notice of Right to Sue, which Duhart received on March 2, 1996.

 On December 5, 1996, Duhart, through his attorney, filed a three-count second amended complaint. (Id.) Count I alleges violations of Title VII and is against Rita Fry in her official capacity as Cook County Public Defender and the County of Cook. Count II alleges violations of 42 U.S.C. § 1981. Count III alleges violations of 42 U.S.C. § 1983 and the Fourteenth Amendment of the United States Constitution. Both Count II and Count III are against Fry individually and in her official capacity, Burnette individually and in his official capacity, Shelton Green individually, Horn individually, and the County of Cook. Defendants have moved the court to dismiss Duhart's second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

 II. DISCUSSION

 A. Standard for deciding a motion to dismiss

 When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F. Supp. 1283, 1285 (N.D. Ill. 1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED. R. CIV. P. 12(b)(6); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). However, the court may dismiss the case only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).

 B. Challenges to Count I -- Title VII claims

 1. 300-day limitations period

 Defendants first contend that Duhart is time-barred from basing his Title VII claims on any acts that occurred more than 300 days before the date on which Duhart filed his EEOC charge. Duhart filed his complaint with the EEOC on September 15, 1995. (See 2d Am. Compl. Count I P 8; Ex. A.) Thus, according to defendants, Duhart cannot bring his complaint based on acts that took place prior to November 19, 1994.

 It is true that a plaintiff in Illinois must file an EEOC charge within 300 days after the allegedly unlawful employment practice occurred. Moore v. Allstate Ins. Co., 928 F. Supp. 744, 750 (N.D. Ill. 1996) (citing Koelsch v. Beltone Elec. Corp., 46 F.3d 705, 707 (7th Cir. 1995)). What is also true, however, is that standard principles of limitations law, including the continuing violation theory, the discovery rule, equitable tolling, and equitable estoppel, apply to Title VII cases. Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1166 (7th Cir. 1996).

 a. Continuing violation doctrine

 Duhart contends that he can base his claims on acts occurring prior to November 19, 1994, because he has pled sufficient facts to support a claim of a continuing violation. The continuing violation doctrine allows a plaintiff to base a claim on a time-barred act by linking the time-barred act with an act that is within the limitations period. Moore, 928 F. Supp. at 750. To succeed under the continuing violation theory, a plaintiff must show that the alleged acts of discrimination were part of an ongoing pattern of discrimination and that at least one of the alleged acts of discrimination occurred within the relevant limitations period. Id. (citing Young v. Will County Dep't of Pub. Aid, 882 F.2d 290, 292 (7th Cir. 1989)). If the plaintiff makes such a showing, the court will treat the combination of the acts as one continuous act within the limitations period. Id. (citing Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992)).

 Duhart has sufficiently alleged that certain discriminatory acts occurred within the 300-day period. For example, Duhart alleges that "from November 1990 through April 1995, Defendants ... subjected [him] to an ongoing pattern of intentional discrimination and disparate treatment." (2d Am. Compl. Count I P 14.) Duhart also alleges that throughout his employment with the Cook County Public Defender, he repeatedly was denied opportunities for training, transferred to undesirable courtrooms, and assigned caseloads far more demanding than those assigned to his white peers. (Id. PP 14(H), (L).) Thus, the question is whether the court should apply the continuing violation doctrine to link the acts that allegedly took place prior to November 19, 1994, to the alleged acts that took place after November 19, 1994, which would allow Duhart to base his Title VII claim on all of those acts.

 As the Seventh Circuit recently pointed out, the case law on the continuing violation doctrine is "complex and diffuse." Galloway, 78 F.3d at 1167. Recognizing this problem, the Seventh Circuit took the opportunity in Galloway to attempt to organize the case law and to clarify when a plaintiff should be allowed to invoke the continuing violation doctrine. Id. at 1165-67. The Seventh Circuit explained that the guiding principle in applying the continuing violation doctrine is that a Title VII plaintiff "may not base her ... suit on conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct." Id. (emphasis added); see also Selan, 969 F.2d at 565-56; Moore, 928 F. Supp. at 751.

 The Seventh Circuit explained that one type of case in which it would be unreasonable to expect the plaintiff to sue is when the conduct can be recognized as discrimination "only in the light of events that occurred later, within the period of limitations." Id. This is in contrast to a case where the plaintiff is subjected to a "long-continued series" of discriminatory acts that "definitely are a series, a pattern, and not merely a set of discrete events," but "it was evident long before the plaintiff finally sued" that he or she was the victim of unlawful discrimination. Id. In such a case, while the plaintiff can still sue "provided that the last of harassment occurred within the statute of limitations," the plaintiff "cannot reach back and base her suit on conduct that occurred outside the statute of limitations." Id. That is, the plaintiff's lawsuit can be based only on the conduct that occurred within the limitation period. See id.

 The court presented three reasons that justified preventing the plaintiff in the latter case from "reaching back" to the time-barred acts. Id. First, the plaintiff "had no excuse for waiting that long." Id. Second, the bringing of the suit is "almost certain to stop" the unlawful conduct; thus, the plaintiff "will not be put to the expense of bringing successive suits." Id. Finally, the plaintiff can "seek injunctive relief against a continuation of the unlawful conduct." Id.

 In Duhart's second amended complaint, Duhart alleges that in August 1992, he "filed a grievance with his union protesting the evaluation he had received from Phil Mullane and the fact that less senior white attorneys had been transferred to Day Division." (2d Am. Compl. Count I P 14(F).) Duhart further alleges that he "submitted a written complaint of race discrimination to Rita Fry in May, 1993." (Id. P 14(J).) Finally, Duhart alleges that in August 1993, Duhart met with "Edwin Burnette ... to discuss his [Duhart's] complaints of discrimination; Burnette acknowledged that there was racism in the Office of the Cook County Public Defender." (Id. P 14(K).)

 Based on the above allegations, which are assumed true for the purposes of this motion, the court finds that the continuing violation doctrine does not apply in Duhart's case. It is clear that as of at least August 1993, after Duhart had filed the written complaint of discrimination with Fry and after Duhart had spoken with Burnette, Duhart believed that he was the victim of racial discrimination. Thus, it was evident long before Duhart filed his complaint with the EEOC on September 15, 1995, that he believed he was the victim of racial discrimination. At the point in 1992 or 1993 that Duhart believed he was a victim of racial discrimination, it would not have been unreasonable to expect Duhart to file an EEOC charge before the 300-day time limitation period ran on the conduct. Accordingly, while Duhart is free to base his ...


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