Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786, 791 (7th Cir. 1996).
Reading Duhart's complaint liberally, the court finds that Duhart has alleged sufficient facts to survive defendants' Rule 12(b)(6) motion to dismiss Horn as a defendant. While paragraph 13(L) of Counts II and III alleges conduct that occurred both inside and outside the statute of limitations, at this stage, the court cannot say that Duhart can prove no set of facts that would entitle him to relief and are consistent with the allegations. See Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). Thus, defendants' Rule 12(b)(6) motion to dismiss Horn as a defendant is denied.
D. Preemption challenge to Count III -- section 1983 claim
The substantive basis of Count III is that defendants intentionally deprived and interfered with "Duhart's federally protected right to equal protection under the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States of America." (2d Am. Compl. Count III P 7.) Defendants argue that the court should dismiss Count III because allegations of employment discrimination that form the basis of a Title VII claim cannot also form the basis of a second claim under section 1983. The court rejects this argument.
Prior to the 1991 Civil Rights Act, the established law in the Seventh Circuit was that Title VII did not preempt a plaintiff's section 1983 claim for a constitutional violation. See, e.g., Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 862 (7th Cir. 1996); Trigg v. Fort Wayne Community Schs., 766 F.2d 299, 301 (7th Cir. 1985). This position was "consistent with the great weight of authority." Trigg, 766 F.2d at 302 (citations omitted).
The Seventh Circuit has not expressly considered the implications of the 1991 Act on this rule of law; however, the Fourth Circuit and several district courts have. Those courts have uniformly held that the 1991 Act did not change the rule that Title VII does not preempt a plaintiff's section 1983 claims for a constitutional violation. Beardsley v. Webb, 30 F.3d 524, 527 (4th Cir. 1994); Carpenter v. City of Northlake, 948 F. Supp. 759, 762 (N.D. Ill. 1996); Blatnicky v. Village of Shorewood, 1995 U.S. Dist. LEXIS 11814, 1995 WL 493474, at *5-6 (N.D. Ill. Aug. 16, 1995); Houck v. City of Prairie Village, 912 F. Supp. 1438, 1443 (D. Kan. 1996); Ribot Espada v. Woodroffe, 896 F. Supp. 69, 71 (D.P.R. 1995); Mummelthie v. City of Mason City, 873 F. Supp. 1293, 1323 (N.D. Iowa 1995), aff'd, 78 F.3d 589 (8th Cir. 1996); Stoner v Department of Agric., 846 F. Supp. 738, 739-42 (W.D. Wis. 1994). The court agrees with this conclusion. Accordingly, the court rejects defendants' preemption argument and denies defendants' motion to dismiss Count III of Duhart's complaint on that ground.
E. Challenge to the sufficiency of Duhart's pleading of a hostile environment claim
Defendants' final argument is that Duhart has not alleged sufficient facts to support a claim of a racially hostile environment. The gist of defendants' argument is that Duhart does not have a hostile environment claim because Duhart has not alleged that anyone in the Cook County Public Defender's Office ever directed a racial epithet or slur at Duhart.
The Supreme Court has recognized that Title VII allows a cause of action for racial harassment that creates a hostile or offensive working environment. Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 65-66, 106 S. Ct. 2399, 2404-05, 91 L. Ed. 2d 49 (1986). Racial harassment can also form the basis of a section 1981 claim. North v. Madison Area Ass'n for Retarded Citizens-Developmental Centers, 844 F.2d 401, 408 (7th Cir. 1988). Actionable harassment "encompasses all forms of conduct that unreasonably interfere with an individual's work performance or create an intimidating, hostile, or offensive working environment." McKenzie, 92 F.3d at 479; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994).
There is no requirement that the hostile environment claim be based on verbal insults, slurs, or derogatory remarks; rather, a hostile environment claim can be based on either verbal or nonverbal behavior. Carr v. Allison Gas Turbine Div. Gen. Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994); Feltner v. Partyka, 945 F. Supp. 1188, 1195 (N.D. Ind. 1996); Zorn v. Helene Curtis Inc., 903 F. Supp. 1226, 1239 (N.D. Ill. 1995); Al-Dabbagh v. Green Peace, Inc., 873 F. Supp. 1105, 1111 (N.D. Ill. 1995). As long as the plaintiff's "working conditions have been discriminatorily altered" because of membership in a protected category, Title VII is implicated. Curde v. Xytel Corp., 912 F. Supp. 335, 340 (N.D. Ill. 1995); see R.R. Donnelley & Sons, 42 F.3d at 443.
In this case, Duhart has alleged that defendants' conduct "substantially interfered with [his] employment and created an intimidating, hostile and offensive work environment." (2d Am. Compl. Count I P 16; Count II P 15). Duhart based this hostile environment claim on his allegations that defendants repeatedly denied him promotions and training, assigned him to undesirable courtrooms, and gave him more demanding caseloads than his white peers. Under notice-pleading standards, Duhart has alleged sufficient facts to survive a Rule 12(b)(6) challenge to his hostile environment claim.
For the reasons set forth above, the court grants in part and denies in part defendants' motion to dismiss, as follows:
1. The court grants defendants' motion to dismiss Count I -- Duhart's Title VII claims -- insofar as the claims are based on the specific conduct alleged in paragraphs 14(A-G) and 14(J-K), and on any conduct alleged in paragraphs 14(H-I) and 14(L) that occurred and of which Duhart was or should have been aware prior to November 19, 1994.
2. The court grants defendants' motion to dismiss Counts II and III -- Duhart's section 1981 and 1983 claims -- insofar as the claims are based on the specific conduct alleged in paragraphs 13(A-G) and 13(J-K), and on any conduct alleged in paragraphs 13(H-I) and 13(L) that occurred and of which Duhart was or should have been aware prior to May 30, 1994.
3. The court denies defendants' motion to dismiss in all other respects.
Date: MAR 26 1997
JAMES H. ALESIA
United State District Judge