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BLUMENTHAL v. MURRAY

February 11, 1998

ELI BLUMENTHAL, Plaintiff,
v.
GEORGE MURRAY, individually and as the former Chief of Police for the Chicago Housing Authority Police Department, SHARON CRUSE-BOYD, individually and as Director of Human Resources for the Chicago Housing Authority, and the CHICAGO HOUSING AUTHORITY, Defendants.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff, Eli Blumenthal, has filed a four count complaint against his former employer, the Chicago Housing Authority ("CHA"), George Murray ("Murray"), former Chief of Police of the CHA's Police Department, and Sharon Cruse-Boyd ("Cruz-Boyd"), Director of Human Resources for the CHA. In Count I, plaintiff alleges violations of Title VII for discrimination on the basis of race and for retaliation against Blumenthal for complaints made to the United States Department of Housing and Urban Development ("HUD") and to the Equal Employment Opportunity Commission ("EEOC"). Count II alleges that defendants violated 42 U.S.C. § 1981 by denying Blumenthal his right to be free from racial discrimination in exercising his employment contract with the CHA. Count III alleges that defendants violated the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) et. seq., by subjecting plaintiff to discrimination resulting from defendant's belief that plaintiff's heart surgery and physical condition caused him to be disabled from his job. Count IV alleges that defendants violated plaintiff's First Amendment rights under 42 U.S.C. § 1983 by retaliating against him for complaints made to the U.S. Department of Labor.

 Defendants have moved to dismiss all counts under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the following reasons, Murray and Cruz-Boyd's motion is granted as to Counts I and III and denied as to Counts II and IV. The CHA's motion is granted without prejudice as to Count II, III and IV and denied as to Count I.

 FACTS

 Plaintiff's compliant alleges that he was employed as a supervisor with the CHA Police Department from March of 1990 after leaving a position with the Chicago Police Department. Plaintiff was assigned to the office of the General Counsel, but also reported to the Chief Operating Officer and the Chairman of the CHA. While working in the office of the General Counsel, plaintiff's performance evaluations from his supervisors, with the exception of Murray, were highly satisfactory.

 In December of 1994, plaintiff suffered a myocardial infarction and underwent cardiac bypass surgery. On September 6, 1996, plaintiff commenced paid medical leave from his job. Plaintiff was subsequently terminated from the CHA.

 In response to the harassment, plaintiff complained of employment discrimination to HUD and to the EEOC. Thereafter, plaintiff alleges that defendants took retaliatory actions against him in response to these complaints. These actions included threatening plaintiff with termination, threatening elimination of his position, threatening reassignment to a more demeaning position, and denial of plaintiff's medical leave.

 Plaintiff additionally filed a complaint with the U.S. Department of Labor in January of 1996, contending that the CHA had not complied with mandatory provisions of the Family Medical Leave Act ("FMLA") 29 U.S.C. § 2601, et seq. The U.S. Department of Labor subsequently determined that the CHA had violated the FMLA and ordered corrective measures. Following the complaints to the Department of Labor, plaintiff contends the defendants again retaliated against him by arbitrarily denying him FMLA leave and by sending him numerous letters threatening termination.

 The complaint alleges that plaintiff was terminated on or about April 22, 1996, as a result of the alleged harassment and retaliation. It also alleges that plaintiff began paid medical leave on September 9, 1996, leaving some confusion as to the actual date of termination. Plaintiff alleges that after his termination, the CHA and Cruse-Boyd continued to harass him by terminating or modifying his benefits without notice or justification, intentionally withholding information from him concerning his rights under COBRA, and refusing to pay his medical expenses.

 Defendants have moved to dismiss all counts for failure to state a claim pursuant to Fed. R. Civ. P 12(b)(6). In determining whether a motion to dismiss should be granted, the court shall look only at the four corners of the complaint and not the merits of the case. Mescall v. Burrus, 603 F.2d 1266, 1268 (7th Cir. 1979). The complaint should be construed liberally and all well pleaded facts are assumed to be true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). Dismissal is proper only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts in support his claim which entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).

 DISCUSSION

 COUNT I

 In Count I, plaintiff asserts that the actions of defendants were based in part on race, in violation of 42 U.S.C. § 2000e-2(a)(1) and (a)(2), and in part as retaliation for complaints made by the plaintiff to HUD and the EEOC, in violation of 42 U.S.C. § 2000e-3(a). The CHA, Murray and Cruse-Boyd seek to dismiss Count I on the basis that plaintiff has not established a prima facie case because he has not established that his job performance met the CHA's expectations and because he has not alleged that the CHA ...


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