MEMORANDUM OPINION AND ORDER
Before the court are defendant Harry Beaty's motion to dismiss Count I and defendant Northwestern University's motion to dismiss Count III of plaintiff Rahim Behnia's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted. For the reasons that follow, the court grants both defendants' motions.
Plaintiff Rahim Behnia filed a three-count complaint against defendants Barry Shapiro, M.D., Scott Greene, M.D., Harry Beaty, M.D., Northwestern University, Northwestern University Medical School
, and the Northwestern Medical Faculty Foundation. Count I, directed against all six defendants, alleges ancestry discrimination in violation of section 1981 of the Civil Rights Act of 1870 ("section 1981"), 42 U.S.C. § 1981. Count II, directed against Northwestern University, Northwestern University Medical School, and Northwestern Medical Faculty Foundation, alleges national origin discrimination in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Count III, also directed against Northwestern University, Northwestern University Medical School, and Northwestern Medical Faculty Foundation, alleges age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634.
The following background is drawn from Behnia's complaint, and is taken as true for purposes of these motions. Since 1973, Behnia has been employed as a faculty member in the department of anesthesiology at Northwestern University Medical School. Behnia, age 59 and of Iranian ancestry, has both an M.D. and a Ph.D. in physiology, and is one of only two practicing M.D., Ph.D.s in the department. He received tenure in September 1979, and has consistently received leadership positions and salary increases based on his performance at the medical school.
Shapiro, Greene, and Beaty all hold supervisory capacities over Behnia. Shapiro is chair of the department of anesthesiology at the medical school, while Greene is associate chair of the department. Beaty is dean of the medical school and chair of the board of directors of the Northwestern Medical Faculty Foundation (NMFF). NMFF, a not-for-profit entity composed of a majority of physicians at Northwestern Memorial Hospital, collects the income of its member physicians and distributes this income as salary to the physicians.
Behnia alleges that Shapiro and Greene dislike him because of his Iranian ancestry, and discriminate against him based upon his ancestry and his age. He also alleges that Shapiro made salary and incentive pay recommendations to the NMFF for the fiscal year 1997 based upon his personal friendships, rather than upon merit. According to Behnia, Shapiro, in an attempt to ensure that Behnia did not receive the highest salary under the salary schedule, refused to promote Behnia to any leadership position, even though Behnia is one of the most qualified persons in the department. Behnia claims that, although he is one of the most senior members of the faculty, his salary is lower than that of even the most junior faculty members. Behnia also alleges that Shapiro has consistently treated him in a degrading manner, and has incorrectly described his competence and performance.
As a result of these actions, allegedly taken on the basis of ancestry, national origin, and age, Behnia has suffered public humiliation, been denied incentive payments, experienced a reduction in salary, and been denied any leadership position within the anesthesiology department. Additionally, Behnia and his family have suffered mental anguish, pain, and suffering as a result of this intentional discrimination.
Defendant Beaty now moves to dismiss Count I of Behnia's complaint for failure to allege that Beaty was personally involved in any discriminatory actions against Behnia. Defendant Northwestern University moves to dismiss Count III of Behnia's complaint for failure to allege facts sufficient to demonstrate that Northwestern University engaged in any direct or indirect age discrimination against Behnia. Northwestern University claims that dismissal is warranted due to Behnia's failure to allege adverse employment action on the part of Northwestern University itself and to demonstrate that younger individuals were treated more favorably than himself.
A. Standard for deciding a Rule 12(b)(6) motion to dismiss
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept as true all the factual allegations in the complaint, as well as all the reasonable inferences drawn therefrom. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996); Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988). A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim 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). All ambiguities are resolved in favor of the plaintiff. Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992). Although a plaintiff does not need to lay out in detail the facts upon which his claim is based, he must at least allege sufficient facts to establish a cause of action. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985). If it appears that, 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 should 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).
B. Failure to state a claim under Section 1981
Section 1981(a) provides:
All persons within the jurisdiction of the United States shall have the same right in every State and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981(a). Additionally, section 1981(b) clarifies the meaning of the phrase "make and enforce contracts" in subsection (a) to include the "making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b).
Individual liability under section 1981 can be found only where the individual himself has participated in the alleged discrimination against the plaintiff. Daulo v. Commonwealth Edison, 892 F. Supp. 1088, 1091 (N.D. Ill. 1995); see also Musikiwamba v. Essi, Inc., 760 F.2d 740, 753 (7th Cir. 1985) (to recover damages under section 1981, a plaintiff always must prove that the defendant intentionally discriminated against him); Johnson v. Resources for Human Development, Inc., 843 F. Supp. 974, 978 (E.D. Pa. 1994) (individual liability under section 1981 can be found only where there is an "affirmative link" to connect the actor with the discriminatory action). In order to state a claim under section 1981 against the defendant in his individual capacity, the plaintiff must sufficiently allege that the defendant himself possessed an "intent to discriminate on the basis of race." Allen v. City of Chicago, 828 F. Supp. 543, 562 (N.D. Ill. 1993) (citing Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 583 n.16, 104 S. Ct. 2576, 2590 n.16, 81 L. Ed. 2d 483 (1984); Watson v. Pathway Financial, 702 F. Supp. 186, 187 (N.D. Ill. 1988)).
Behnia's complaint is devoid of any allegations that Beaty participated himself in any acts of discrimination against Behnia. Behnia alleges in his complaint that it was Shapiro and Greene who discriminated against him on the basis of his Iranian ancestry. (Compl. PP 11, 13-14). Behnia alleges that Greene once referred to him as "that worthless, son-of-a-bitch Arab." (Compl. P 11). Behnia also alleges that Shapiro and Greene denied him substantial incentive payments and salary increases, and refused to appoint him to a leadership position in the anesthesiology department. (Compl. PP 13-14).
The sole allegation in the complaint connecting Beaty to the alleged discrimination is that Behnia "notified" Beaty of Shapiro and Greene's actions, and that Beaty failed to take any remedial action in response to this notification. (Compl. P 17). This knowledge alone does not equate to an allegation that Beaty himself participated in the illegal acts. See Daulo, 892 F. Supp. at 1091-92. For example, in Daulo, this court held that the plaintiff, by alleging that he notified the defendant of discrimination against plaintiff through letters informing the defendant of the treatment plaintiff was receiving on the job, failed to state a section 1981 claim against the defendant in his individual capacity. Id. The court held that these allegations were insufficient to show any personal participation by the defendant in the discrimination. Id. at 1092.
Beaty, in his capacity as dean of the medical school and chair of the board of directors of the NMFF, is not alleged to have participated in any discrimination against Behnia. He is merely alleged to have some knowledge of Shapiro's and Greene's actions from the "notice" given by Behnia of their conduct. Thus, because Behnia has failed to allege any personal involvement by Beaty in the alleged discrimination against Behnia, Count I is dismissed as to Beaty. However, because it is conceivable, though not likely, that Behnia can amend his complaint to allege direct participation by Beaty in the alleged discrimination, Count I is dismissed as to Beaty without prejudice, and Behnia is given leave to amend his complaint in accordance with this opinion.
C. Failure to state a claim for age discrimination
Section 623(a) of the Age Discrimination in Employment Act ("ADEA") provides:
It shall be unlawful for an employer:
1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;