This is creative and clever but incorrect. Mr. Cleaves' contention, in
effect, is that if the City extends bereavement benefits to unmarried
same-sex couples who cohabit, then Title VII requires those same benefits
to be extended to unmarried opposite-sex couples who cohabit. Title VII,
like most federal civil rights laws, is "silent on the issue of
marital-status discrimination." Thomas v. Anchorage Equal Rights Comm'n,
165 F.3d 692, 716 (9th Cir. 1999) (dictum). It is true that the Seventh
Circuit , has held that discrimination on the basis of marriage plus sex
violates Title VII. See Sprogis v. United Air Lines, 444 F.2d 1194, 1198
(7th Cir. 1971) (A no-marriage rule directed against only female flight
attendants is sex discrimination.).
However, the Ordinance does not involve treating men less favorably
than women on the basis of marital status, but only treating unmarried
same-sex couples differently from unmarried opposite-sex couples. It
treats men and women exactly the same: if Mr. Cleaves' nonmarital partner
were male and they otherwise met the criteria for domestic partnership,
he would have been eligible for any benefits available to same-sex female
couples, including bereavement benefits if these were included. The
Ordinance is therefore legal discrimination on the basis of marital
status, not sex discrimination involving discrimination, against men (or
women) because of marital status. As the Tenth Circuit said, "Title VII
prohibits employers from treating married women differently than married
men, but it does not protect marital status alone." Coleman v. B-G
Maintenance Mgt. of Colorado, Inc., 108 F.3d 1199, 1204 (10th Cir.
1997). Accordingly, Mr. Cleaves has not stated a claim for sex
discrimination merely because he was not allowed to take advantage of
bereavement policies available under the Ordinance.
Mr. Cleaves argues, second, that the City violated the Equal Pay Act
because the City would have granted him paid leave due to the death of
his partner's father. Because the Ordinance does not cover opposite-sex
married couples, Mr. Cleaves argues that it illegally discriminated
against him in unjustifiably using sex as a criterion in its domestic
partner compensation program. But, for one, the Ordinance, as explained,
does not discriminate on the basis of sex but only on the basis of
marital status. For another, Mr. Cleaves offers no authority for the
proposition that paid leave would constitute "wages" under the Equal Pay
Act, and I can find no case law supporting that claim. Finally, even if
paid bereavement leave counted as "wages" under the Equal Pay Act, Mr.
Cleaves would have no cause of action under that statute. Even if the man
and woman are doing the same work for different pay, if the difference is
due to a factor unrelated to gender, there is no violation. Lindale v.
Tokheim Corporation, 145 F.3d 953, 957 (7th Cir. 1998); 29 U.S.C. S 206
(d)(1)(iv). For the reasons already set forth, Mr. Clegves would be
denied paid bereavement leave, under the Ordinance because of his marital
status and not because of his sex.
Finally, Mr. Cleaves contends that he was the victim of illegal
retaliation for speaking out in the sexual harassment incident, on the
basis of which, in part, he contends that he was terminated. Mr. Cleaves
has stated a claim under a Title VII "participation" theory. Title VII
forbids an employer to "discriminate against any individual . . . because
he has made a charge . . . or participated in any manner in an
investigation, proceeding; or hearing under" Title VII.
42 U.S.C. § 2000e-3 (a). In order to. state a prima facie case of
Title VII retaliation, Mr. "Cleaves must have: (1) engaged in statutorily
protected expression; (2) suffered an adverse action by his employer; and
(3) asserted a causal link between his protected expression and the
adverse action. See McKenzie v Illinois Dep't of Transportation,
92 F.3d 473, 483 (7th Cir. 1996). Mr. Cleaves' report that IAD satisfies
the requirement that
he participated in some manner in an investigation.*fn3 He certainly
suffered adverse employment consequences. And his pleadings contain a
statement that these are causally linked: Mr. Cleaves asserts that he was
fired because of his protected participation. Accordingly, he has stated
a retaliation claim on which he may proceed.
Mr. Cleves also frames his retaliation claim in terms of a violation of
the First Amendment. This can be read as a claim for violation of his
constitutional rights under 42 U.S.C. § 1983. In order to establish a
First Amendment retaliation claim, the facts alleged in the complaint
must show that (1) the speech in which the plaintiffs engaged was
constitutionally protected under the circumstances, and (2) the
defendants retaliated against them because of it. Gustafson v. Jones,
117 F.3d 1015, 1018 (7th Cir. 1997). In deciding whether the government
has wrongfully deprived an employee of his right to freedom of speech,
the threshold question is whether the speech at issue addressed a matter
of public concern. See Button v. Kibby-Brown, 146 F.3d 526, 529 (7th
Cir. 1998) (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684,
75 L.Ed.2d 708 (1983)). The issue of sex discrimination in public
employment is, "of course, a matter of public concern." Kokkinis v.
Ivkovich, 185 F.3d 840, 843-44 (7th Cir. 1999). Since Mr. Cleaves' speech
addressed itself to sexual harassment and not merely to remedy a personal
problem, contrast Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987),
he passes the first hurdle. He passes the second because he states that
he was subject to retaliation for this speech.
The City replies that Mr Cleaves' § 1983 claim should be dismissed
because he has not alleged that the City had a policy of firing employees
in retaliation for speech. See Monell v. Department of Social Services,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, Mr. Cleaves
was pro se when he filed the pleadings under consideration, and district
courts have a "special responsibility to construe pro se complaints
liberally." Donald v. Cook County Sheriffs Dep't, 95 F.3d 548, 555 (7th
Cir. 1996). No magic words are required as long as it is not "beyond
doubt that petitioner can prove no set of facts in support of his claim
which would entitle him to relief." Id. at 555 n. 2. It is not beyond
doubt that he might do so. Moreover, were magic words required, Mr.
Cleaves' response to the City's present motion to dismiss, drafted by
counsel, expressly alleges that there was and is such a policy or
practice in existence.
The City argues that Mr. Cleaves' race discrimination claim should be
dismissed as time barred because he did not file a complaint alleging
race discrimination until June 1998, more than 300 days after he was
terminated in October 1997. In order to bring suit in federal court under
Title VII for discrimination, a plaintiff must have filed a charge with
the EEOC detailing the basis of the plaintiff's allegations within 300
days of the date of its occurrence. 42 U.S.C. § 2000e-5 (e); EEOC v.
Harvey L. Walner & Assocs., 91 F.3d 963, 970 (7th Cir. 1996) ("Illinois
is a `deferral state,' and so the limitation period runs for 300 days
from the date of the alleged discrimination."). When a plaintiff fails to
do so, the complaint is untimely. Hentosh v. Herman M. Finch University
of Health Sciences/the Chicago Medical School, 167 F.3d 1170, 1173-1174
(7th Cir. 1999).
Mr. Cleaves filed in a timely way a complaint with his sex
discrimination and retaliation claims and also alleging "other"
discrimination, but he did not then state any facts which would put
anyone on notice that race discrimination was an issue. He filed a
complaint alleging race discrimination outside the 300 day period. I have
already held that the race claim was not within the scope of the "other"
claim. Mr. Cleaves states that he does not know why his initial complaint
did not allege race discrimination and that the boxes were checked by the
EEOC intake officer.
Unfortunately for him, that does not excuse late filing. A limitations
period may be suspended under the doctrine of equitable tolling "when the
prospective plaintiff simply does not have and cannot with due diligence
obtain information essential to bringing a suit," Anderson v. Rd. of
Regents of the University of Wisconsin System, 140 F.3d 704, 706 (7th
Cir. 1998), but that is not the case here. Mr. Cleaves had all the
information he needed. Likewise the Supreme Court has allowed equitable
tolling "where the complainant has been induced or tricked by his
adversary's misconduct into allowing the filing deadline to pass." Irwin
v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d
435 (1990). Mr. Cleaves makes no such allegation.
Mr. Cleaves suggests that he may be allowed to maintain the claim under
a continuing violation theory. This allows a time-barred act of
discrimination to be linked with acts that fall within the statutory
limitations period. See Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.
1992). Courts will then treat the series of acts as one continuous act
ending within the limitations period. Id. The continuing violation
doctrine is applicable, however, only if it would have been unreasonable
to expect the plaintiff to sue before the statute ran on the conduct, for
example if the conduct could constitute, or be recognized, as actionable
only in the light of events that occurred later, within the period of the
statute of limitations. Filipovic v. K & R Express Systems, Inc.,
176 F.3d 390, 396 (7th Cir. 1999). That is not the case here. Mr.
Cleaves' race discrimination claim is therefore dismissed as time
Finally, the City moves that Mr. Cleaves prayer for punitive damages be
stricken because they are not available for the causes of action he has
stated. Title VII provides that parties may recover punitive damages
"against a respondent (other than a government, government agency or
Political subdivision)." Baker v. Runyon, 114 F.3d 668, 669 (7th Cir.,
1997) (quoting 42 U.S.C. S 1981a(b)(1)), and the City is clearly a
political subdivision. Moreover, the Supreme Court has held that
municipalities are not liable for punitive damages in a 1983 action. See
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct.
2748, 69 L.Ed.2d 616 (1981).
The City's motion to dismiss Mr. Cleaves' Title VII sex discrimination
and Equal Pay Act claims for faliure to state a claim is GRANTED, as is
its motion to strike Mr. Cleaves' claim for punitive damages. The City's
motion to dismiss Mr. Cleaves' retaliation claims under Title VII and
§ 1983 for failure to state a claim is DENIED. The City's motion to
dismiss Mr. Cleaves' race discrimination claim as time barred is