The opinion of the court was delivered by: BUCKLO
Plaintiff, Linda Mohr, brought suit against the Chicago School Reform Board of Trustees of the Board of Education of the City of Chicago (the "Board") and its employees, Alfred Clark, Lynn St. James, and Marie Jernigan. In the complaint Ms. Mohr alleges race discrimination under Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and 42 U.S.C. § 1983. Defendants move to strike or dismiss Counts II, III, and IV of Ms. Mohr's complaint. For the reasons set forth below, the motion is denied in part and granted in part.
Ms. Mohr is a Caucasian/white certified teacher employed by the Board. From 1978 to 1995, she was a permanent regularly assigned tenured teacher at Austin High School ("Austin")--one of the Chicago public schools managed by the Board. She was also Chairperson of the Art Department at Austin from 1988 to 1994 and Chairperson of the Fine Arts Department from 1994 until September 1, 1995. During her tenure at Austin, she consistently received superior performance evaluations.
The individual defendants are all African American and are employed by the Board. Mr. Clark is the principal at Austin, Ms. St. James is the chief education officer for the Board, and Ms. Jernigan is the remediation coordinator at Austin. Ms. Mohr brings her Section 1981 and Section 1983 claims against the Board and Mr. Clark, Ms. St. James, and Ms. Jernigan in their individual and official capacities.
Ms. Mohr alleges that on September 1, 1995, Mr. Clark, Ms. St. James, and Ms. Jernigan removed 14 white teachers, including Ms. Mohr, from their positions at Austin because they were white. They delivered a letter to Ms. Mohr stating that her services were no longer needed at Austin and demoted her from her permanent, tenured position to a non-tenured, substitute teacher position. They further ordered the police to escort Ms. Mohr off school premises and prohibited her from taking her personal property. Ms. Mohr alleges that these actions were taken pursuant to a widespread Board policy and custom of removing teachers because of their race. She says that Ms. St. James stated that the goal was to "turn over 1/3 of the staff to reculture the school." Black teachers with less seniority, qualifications, and professional abilities were not removed or demoted.
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.
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 ...