relief in federal court. Surely, Congress did not intend such a
result. See Wilson, 471 U.S. at 275, 105 S.Ct. 1938; Heart of
Atlanta Motel, 379 U.S. at 253, 85 S.Ct. 348. While Illinois may
bar a complainant's administrative claim if he fails to file
within the IDHR's 180-day limitations period, it cannot strip him
of his Title II rights on those grounds.
Because plaintiffs have satisfied § 2000a-3(c)'s 30-day state
notice rule, and are not subject to the IDHR's 180-day
limitations period, we find that they have met the jurisdictional
requirements of Title II. Accordingly, defendants' motions to
dismiss the Title II claims for lack of subject matter
jurisdiction are denied.
II. Allegations of Racial Discrimination
Defendants move to dismiss Counts I and II for failure to state
a claim. Fed. R.Civ.P. 12(b)(6). The purpose of a motion to
dismiss is to test the sufficiency, not the merits, of the
action. Triad Associates, Inc. v. Chicago Housing Authority,
892 F.2d 583, 586 (7th Cir. 1989), cert. denied, 498 U.S. 845,
111 S.Ct. 129, 112 L.Ed.2d 97 (1990). Therefore, no claim will be
dismissed unless "it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104
S.Ct. 2229, 81 L.Ed.2d 59 (1984). In order to withstand a motion
to dismiss the plaintiffs must allege facts sufficiently setting
forth the cause of action. Gray v. Dane County, 854 F.2d 179,
182 (7th Cir. 1988). However, "mere vagueness or lack of detail
does not constitute sufficient grounds for a motion to dismiss."
Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985).
Of course, all well-pleaded allegations must be taken as true,
with all reasonable inferences drawn in plaintiffs' favor.
Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir.
Defendants argue that plaintiffs fail to state a claim in a
variety of respects. They contend that plaintiffs have failed to
show 1) a pattern or practice of discrimination, 2) the requisite
discriminatory intent, or 3) abrogation of a federally-protected
right. We disagree with defendants' arguments and therefore deny
their motions to dismiss for failure to state a claim.
A. Pattern or Practice of Discrimination
In both Counts I and II, plaintiffs claim that Shell, Equilon
and the dealer defendants "have maintained a pattern or practice
of requiring African-American customers, but not white customers,
to prepay for gas purchases" (cplt, ¶¶ 24, 27). In their briefs,
plaintiffs have clarified that they do not bring
pattern-or-practice claims against the dealer stations, but only
against Shell and Equilon. Therefore, the pattern-or-practice
claims against the dealer defendants are dismissed.*fn10
Shell and Equilon argue that a pattern-or-practice claim must
be supported by allegations that racial discrimination was the
defendants' standard operating procedure. Teamsters v. United
States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)
(plaintiff has to prove "more than the mere occurrence of
isolated or `accidental' or sporadic discriminatory acts"). They
point out that even though plaintiffs are frequent purchasers of
Shell-brand gasoline and engaged in a two-year, five-State
testing expedition for discrimination, they could only assert 17
pre-pay incidents at 12 stations. Defendants argue that this is
sporadic, not systemic, discrimination, and therefore the
specific allegations defeat the generally pleaded
We disagree. Our notice pleading requirements do not demand
extensive factual support of the allegations. See Kirksey v.
R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999).
characterization of the basis of this lawsuit as a two-year
testing expedition belittles the extent of the discrimination
alleged. It appears that all of the acts complained of occurred
on eleven dates, with multiple incidents at different stations
occurring on the same date (cplt, ¶ 9) By our count, this amounts
to more than one discriminatory incident per day. Furthermore,
this case is a purported class action and class discovery may be
necessary to determine the viability of the pattern-or-practice
allegations. At the motion-to-dismiss stage of the litigation we
are satisfied that the pre-pay incidents detailed in plaintiffs'
complaint are sufficient to state a pattern-or-practice claim
against Shell and Equilon.
B. Discriminatory Intent
To state a claim of discrimination under federal law plaintiffs
must allege that 1) they are members of a racial minority, 2)
defendants intended to discriminate against plaintiffs on the
basis of race, and 3) the discrimination concerned an activity
protected by the statutes. See Morris v. Office Max, Inc.,
89 F.3d 411, 413 (7th Cir. 1996). Defendants challenge plaintiffs'
complaint under the second and third prongs of this standard.
Some defendants argue that plaintiffs have not alleged
discriminatory intent on the part of defendants. This argument
requires little analysis. Defendants rely on the absence of any
allegations that plaintiffs were referred to in a racially
derogatory manner or otherwise were subject to racial animosity.
This is of no consequence, for racial epithets are not required
to state a claim. Plaintiffs' allegations of unequal treatment
are sufficient. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
C. Violation of Federally Protected Rights
The crux of defendants' Rule 12(b)(6) argument is that
plaintiffs have failed to allege violation of any rights
protected by federal law. Specifically, defendants argue that
even if plaintiffs were required to pre-pay because of their
race, such discrimination, though unfortunate, would not be a
violation of 42 U.S.C. § 1981, 1982, or 2000a. Thus, we are
faced with the question whether a gas station's practice of
requiring African-American customers to pre-pay for their
gasoline purchases, while allowing white customers to pay after
pumping gas, is actionable under these federal statutes.
Count I of plaintiffs' complaint is brought under 42 U.S.C. § 1981
and 1982. Section 1981 bars discrimination in the making and
enforcing of contracts. As amended by the Civil Rights Act of
1991, it provides in relevant part:
(a) All persons within the jurisdiction of the
United States shall have the same right in every
State and Territory to make and enforce contracts . .
. as is enjoyed by white citizens. . . .
(b) For purposes of this section, the term "make
and enforce contracts" includes the making,
performance, modification, and termination of
contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual
42 U.S.C. § 1981. Section 1981 protects against discrimination by
nongovernmental entities and has been applied to cover retail
transactions. See 42 U.S.C. § 1981(c); Morris, 89 F.3d at
413. The Civil Rights Act of 1991 added subsection (b), among
other provisions, and intended § 1981 to bar racial
discrimination in "all phases and incidents of the contractual
relationship." Rivers v. Roadway Express, Inc., 511 U.S. 298,
302, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994).
Section 1982 bars racial discrimination in transactions
involving real or personal property. It states:
All citizens of the United States shall have the same
right, in every State and Territory, as is enjoyed by
white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property.
42 U.S.C. § 1982. Courts construe § 1982 as
coextensive with § 1981. See, e.g., Runyon v.
McCrary, 427 U.S. 160, 169-74, 96 S.Ct. 2586, 49
L.Ed.2d 415 (1976); Morris, 89 F.3d at 413.
Relying on Morris v. Office Max, Inc., 89 F.3d 411 (7th Cir.
1996), defendants argue that because plaintiffs were admitted
into the gas stations and ultimately were able to purchase gas,
there has been no tangible deprivation of rights protected by §§
1981 and 1982.