Motion to Dismiss
A. Section 1981 Claims
The defendants first claim that Ms. Mohr inappropriately combined two claims under 42 U.S.C. §§ 1981 and 1983 in Count II of the complaint. Count II, however, does not bring two separate claims but rather asserts a Section 1981 claim by and through Section 1983. In Jett v. Dallas Independent School District, 491 U.S. 701, 735, 105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989), the Supreme Court held that Section 1983 "provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor." Ms. Mohr followed the Jett requirement and brought her Section 1981 claim against the Board through Section 1983.
The defendants further claim that Count IV's Section 1981 claim is duplicative of the Section 1981 claim in Count II. The claims against the Board are duplicative, largely due to the disagreement over the impact of the 1991 amendment to Section 1981.
The Ninth Circuit and one court in this district found that Congress' amendment overruled the Jett holding that required a plaintiff to bring a Section 1981 claim through Section 1983. A plaintiff could bring a direct cause of action against state actors under Section 1981. Federation of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir. 1996); Ford v. City of Rockford, 1992 U.S. Dist. LEXIS 15825, 1992 WL 309603, *2 (N.D. Ill. 1992). On the other hand, the Fourth Circuit and the Eleventh Circuit hold that the amended Section 1981 does not overrule the Jett holding. Dennis v. County of Fairfax, 55 F.3d 151, 156 n.1 (4th Cir. 1995); Johnson v. City of Fort Lauderdale, 903 F. Supp. 1520, 1522-23 (S.D. Fla. 1995), aff'd, 114 F.3d 1089 (11th Cir. 1997). Since the Seventh Circuit has not addressed this issue, Ms. Mohr filed both Counts II and IV to ensure that she pled a viable Section 1981 claim against the Board. Ms. Mohr, however, cannot bring two counts alleging the same claims against the Board. Until the law is settled, it is prudent for Ms. Mohr to bring her Section 1981 claim against the Board through Section 1983 and strike the Board from Count IV. Ms. Mohr, however, may still plead the Section 1981 claim in Count IV against the individual defendants in their individual capacities.
Defendants next assert that Ms. Mohr did not state a violation of Section 1981 because she did not satisfy the "new and distinct relation" test, the contract test, the outsider test, or the job requirements test. The Supreme Court in Patterson v. McLean Credit Union, 491 U.S. 164, 185, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), held that Section 1981 only applied to new and distinct relationships. The Seventh Circuit developed the contract test, the outsider test, and the job requirements test to determine when a new and distinct relationship exists. Harper v. Godfrey Co., 45 F.3d 143, 146 (7th Cir. 1995). Patterson and its progeny, however, were subsequently overruled by 42 U.S.C. § 1981(b). Bush v. Commonwealth Edison Co., 990 F.2d 928, 933 (1993), cert. denied, 511 U.S. 1071, 128 L. Ed. 2d 367, 114 S. Ct. 1648 (1994). Section 1981 now covers "the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b).
Finally, defendants argue that Ms. Mohr does not sufficiently allege a violation of Section 1981. To state a Section 1981 claim against the individual defendants, Ms. Mohr must allege: (1) that she is a member of a racial minority, (2) that defendants intended to discriminate on the basis of race, and (3) that the discrimination concerned one or more of the activities enumerated in Section 1981. Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996). To state a Section 1981 claim against the Board, Ms. Mohr must further allege that the individual defendants acted under color of state law pursuant to the Board's custom or policy.
Jett, 491 U.S. at 735-36. Ms. Mohr has sufficiently pled all the above elements.
B. Section 1983 Claims
Defendants claim that Ms. Mohr did not sufficiently plead a claim under Section 1983. They state (1) that she did not identify which constitutional right was violated, (2) that she made boilerplate policy allegations, (3) that one incident of discrimination is insufficient to establish a policy, (4) that she attempts improperly to hold the Board liable under the doctrine of respondeat superior, (5) that the allegations against the individual defendants are conclusory, and (6) that there are no facts to support her fourteenth amendment claim. These contentions are without merit.
First, Ms. Mohr alleged that her constitutional right to equal protection was violated. Second, her policy allegations were not boilerplate. She stated that the Board's widespread practice of assigning and removing teachers because of their race constituted a custom or policy. Third, Ms. Mohr did not claim that her demotion alone constituted a policy, but that the Board's widespread practice before 1995 as well as the demotion of the 14 white teachers on September 1, 1995 constituted a policy. Fourth, Ms. Mohr does not seek to hold the Board liable under the doctrine of respondeat superior, but rather seeks to hold the Board accountable for its policies as implemented by the individual defendants. Fifth, her allegations against the individual defendants are anything but conclusory. She identified the statements and actions taken by the individual defendants which deprived her of her constitutional and statutory rights. Finally, she did allege facts to support her equal protection claim. She stated that she was demoted because she was white even though African American teachers with less experience were not fired and were even hired to replace her.
C. Statute of Limitations
The statute of limitations for Section 1981 and Section 1983 claims is the state statute of limitations for personal injury actions: two years in Illinois. Smith v. City of Chicago Heights, 951 F.2d 834, 839 (7th Cir. 1992); 735 ILCS 5/13-202. The statute of limitations period for Ms. Mohr's Section 1981 and 1983 claims began when she discovered or should have discovered that her statutory or constitutional rights were violated. Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1991). Ms. Mohr discovered that her rights were violated on September 1, 1995, when the defendants demoted her from her tenured teaching position at Austin. Since Ms. Mohr filed her complaint on August 29, 1997, it is within the limitations period.
D. Punitive Damages
The defendants claim that Ms. Mohr inappropriately seeks punitive damages against the Board. A reading of the complaint reveals that Ms. Mohr only seeks punitive damages against the three individual defendants.
Defendants' motion to dismiss Counts II, III and IV in their entirety is denied. The motion to strike the Board from Count IV is granted.
Elaine E. Bucklo
United States District Judge
Dated: February 9, 1998