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TABOR v. CITY OF CHICAGO

July 10, 1998

HAROLD H. TABOR, Plaintiff,
v.
CITY OF CHICAGO; GENE DANGLER, individually, and as agent of City of Chicago; STAN KADERBEK, individually, and as agent of City of Chicago; and RON BIAMONTE, individually, and as agent of the City of Chicago, Defendants.



The opinion of the court was delivered by: GETTLEMAN

MEMORANDUM OPINION AND ORDER

 Plaintiff Harold H. Tabor has filed a four-count amended complaint against defendants City of Chicago ("the City"), and City employees Gene Dangler ("Dangler"), Stan Kaderbek ("Kaderbek"), and Ron Biamonte ("Biamonte"). Plaintiff sues Dangler, Kaderbek, and Biamonte both in their individual and official capacities. In Count I, plaintiff alleges discrimination on the basis of race in violation of the Civil Rights Act of 1964, ("Title VII"), 42 U.S.C. § 2000(e), et seq., against the City. In Count II, plaintiff alleges discriminatory interference with the right to contract in violation of 42 U.S.C. § 1981 against the City and the individual defendants. In Count III, plaintiff alleges that the City and the individual defendants, acting under color of state law, intentionally deprived him of his right to be free from racial discrimination and attempts to state claims against them under Title VII, the Fourteenth Amendment, and 42 U.S.C. § 1983. In Count IV, plaintiff alleges that the City and the individual defendants conspired under color of state law to deprive him of his civil rights, and attempts to state claims against them under 42 U.S.C. § 1983 and § 1988. Defendants have moved pursuant to Fed. R. Civ. P. 12 (b)(6) to dismiss Counts II, III, and IV. For reasons stated below, defendants' motion is granted. Plaintiff is granted leave to file a second amended complaint.

 BACKGROUND

 For purposes of a motion to dismiss, the court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of the plaintiff. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996). Plaintiff, an African-American male, was hired by the City of Chicago around October 1, 1990, as a carpenter for the Department of Transportation. Plaintiff continued in this position until he was promoted to carpenter sub-foreman around July 16, 1993. He worked as a carpenter sub-foreman until November 1, 1995, at which time he was demoted to his prior position. While plaintiff worked as a carpenter sub-foreman, his performance met or exceeded the expectations of the Department of Transportation. Moreover, he had as much or more seniority than other, non-African-American employees who were not demoted. *fn1" Plaintiff contends that the City and individual defendants Dangler, Kaderbek, and Biamonte intentionally demoted him on the basis of his race. On February 16, 1996, plaintiff filed a charge with the EEOC in which he alleged racial discrimination against the City based on his demotion. The EEOC issued a Notice of Right to Sue on July 23, 1997. Plaintiff filed this suit on August 14, 1997.

 DISCUSSION

 I. Standard for a Motion to Dismiss

 A complaint should not be dismissed pursuant to Rule 12(b)(6) unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 125 L. Ed. 2d 612, 113 S. Ct. 2891 (1993); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In reviewing a motion to dismiss, the court tests the sufficiency of the complaint, not the merits of the suit. Triad Assoc., Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). Additionally, a plaintiff in federal court need not plead facts; he can plead conclusions so long as those conclusions provide the defendant with at least minimal notice of the claim. Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995).

 In their motion to dismiss, the defendants contend: (1) that the claims against the individual defendants in their official capacities should be dismissed with prejudice because they are redundant; (2) that Counts II, III, and IV should be dismissed with prejudice to the extent that they are barred by the statute of limitations; (3) that Counts II, III, and IV should be dismissed because plaintiff has failed to state a claim against the City under § 1981 or § 1983; (4) that Count IV should be dismissed because the intracorporate conspiracy doctrine bars plaintiff's claim; and (5) that Count IV should be dismissed because it fails to state a valid conspiracy claim. *fn2" The court will address these issues in turn.

 II. Claims Against Individual Defendants in Their Official Capacities

 Plaintiff sues the City and the individual defendants in their official capacities. Plaintiff's claims against the individuals in their official capacities are redundant because suits against municipal agents in their official capacities are actually suits against the municipality. Kentucky v. Graham, 473 U.S. 159, 167 n.14, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). To allow plaintiff to sue both the City and its agents would essentially allow the plaintiff to sue the City twice for the same set of allegations. Accordingly, courts have routinely dismissed claims against municipal agents in such cases. David v. Village of Oak Lawn, 1996 U.S. Dist. LEXIS 5624, 1996 WL 210072, at *5 (N.D. Ill. April 29, 1996); Amati v. City of Woodstock, 829 F. Supp. 998, 1011 (N.D. Ill. 1993). The court therefore dismisses plaintiff's claims against the individual defendants in their official capacities with prejudice. Similarly, the court dismisses plaintiff's prayers for punitive damages against the individual defendants in their official capacities.

 III. Statute of Limitations

 Plaintiffs have moved to dismiss Counts II, III, and IV to the extent that they are barred by the statute of limitations. The statute of limitations for both § 1981 and § 1983 claims is two years. Harris v. City of Chicago, 1998 U.S. Dist. LEXIS 1466, 1998 WL 59873, at *9 (N.D. Ill. Jan. 28, 1998). Plaintiff has alleged that he was demoted on the basis of his race and that after he complained about it, he was harassed and retaliated against by the defendants. Plaintiff's demotion occurred on November 1, 1995. Because plaintiff filed this lawsuit on August 14, 1997, all of the injuries alleged in Counts II, III, and IV fall within the two-year period. Therefore, his claims are not barred by the statute of limitations.

 IV. Section 1981 Claim Against the City

 In Count II, plaintiff attempts to state a claim against the City under 42 U.S.C. § 1981(a), which provides that all persons within the jurisdiction of the United States shall have the freedom to make and enforce contracts without being discriminated against on the basis of race. Although neither party has raised the issue, the first question the court must address is whether plaintiff may bring a § 1981 claim directly against the City. In Jett v. Dallas Indep. School Dist., 491 U.S. 701, 105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989), the Supreme Court held that a plaintiff may not proceed directly against a municipality under § 1981 for its violations of that section, but instead must bring such claims under § 1983. Id. at 735. ...


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