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GOLSTON v. GENOVA

March 19, 2003

FRED GOLSTON AND GREGORY SCOTT, PLAINTIFFS,
v.
JEROME P. GENOVA, BOTH IN HIS INDIVIDUAL CAPACITY AND IN HIS CAPACITY AS MAYOR OF THE CITY OF CALUMET CITY, ILLINOIS, CITY OF CALUMET CITY, AN ILLINOIS MUNICIPAL CORPORATION, ROLAND QUALKINBUSH, BOTH IN HIS INDIVIDUAL CAPACITY AND IN HIS CAPACITY AS SUPERVISOR OF PUBLIC WORKS FOR THE CITY OF CALUMET CITY, ROB GARRISON, BOTH IN HIS INDIVIDUAL CAPACITY AND IN HIS CAPACITY AS SUPERVISOR OF PUBLIC WORKS FOR THE CITY OF CALUMET CITY, JOSEPH T. WILHELM, BOTH IN HIS INDIVIDUAL CAPACITY AND IN HIS CAPACITY AS CHIEF OF STAFF FOR THE MAYOR OF THE CITY OF CALUMET CITY, DEFENDANTS



The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge

MEMORANDUM OPINION AND ORDER

Before this court is a nine-count first amended complaint of plaintiffs, Fred Golston ("Golston") and Gregory Scott ("Scott") against Aefendants, City of Calumet City ("Calumet City"), Rob Garrison ("Garrison"), Jerome P. Genova ("Genova"), Roland Qualkinbush ("Qualkinbush") and Joseph T. Wilhelm ("Wilhelm"). Plaintiffs claim under 42 U.S.C. § 1983 that defendants violated their First Amendment rights to freedom of speech and freedom of association (Counts I and II) and under 42 U.S.C. § 1985 that defendants conspired to violate said rights (Counts III and IV). Plaintiffs also allege that defendants are liable for retaliatory discharge against them in violation of Illinois law (Count V); unfair labor practices in violation of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 157 and 158 (Count VI); race discrimination and harassment in violation of the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (Count VII); and race discrimination in violation of 42 U.S.C. § 1981 (Count VIII). Moreover, plaintiffs allege Calumet City, Genova and Wilhelm retaliated against them for complaining about race discrimination in violation of Title VII (Count IX). Pursuant to Federal Rule of Civil Procedure 12(b)(6), Calumet City, Garrison, Qualkinbush and Wilhelm file a motion to dismiss plaintiffs' first amended complaint. Jurisdiction is invoked pursuant to 28 U.S.C. § 1331, 1343(a), 1367 and 42 U.S.C. § 2000e-5 (f)(3).*fn1 For the reasons set forth below, the court denies the motion in part and grants it in part.

MOTION TO DISMISS STANDARDS

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if it appears beyond a doubt that the plaintiffs can prove no facts in support of their claim that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v. Nat'l Juvenile Det. Assoc., 187 F.3d 690, 695 (7th Cir. 1999). In ruling on the motion, the court accepts as true all well-pleaded facts alleged in the complaint, and it draws all reasonable inferences from those facts in the plaintiffs' favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002); Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999).

ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

Plaintiffs' first amended complaint includes more than 40 pages of allegations, many of which are conclusional and repetitive, and is difficult to follow at times. Nonetheless, the court distills the following facts, which are taken as true for purposes of this motion:

A. The parties

Calumet City is a municipality incorporated under the laws of the State of Illinois. One of its departments is the Public Works Department. At all relevant times, Genova was the Mayor of Calumet City and served as chief and principal policy-maker of Calumet City. At all relevant times, Wilhelm was Genova's Chief of Staff and Personnel Director. At all relevant times, both Garrison and Qualkinbush were supervisors in Calumet City's Public Works Department. Furthermore, all defendants occupied final decision-making positions.

Garrison, Qualkinbush and Wilhelm, whom the court will collectively refer to as the "individual defendants" where appropriate, reported to Genova. Furthermore, the individual defendants were responsible for management, operations and policy-making within the Public Works Department. (First Am. Compl. at 9-10 ¶ 37.) The individual defendants also were plaintiffs' immediate supervisors. (Id.)

Plaintiffs are African American men. (Id. at ¶ ¶ 36.) At all relevant times, they worked as the only part-time employees in the garbage collection division within the Public Works Department. (Id.) In their respective jobs, Golston worked from 1999 until his termination in July 2001 and Scott worked from 1999 until his termination in May 2001 or 2002. (Compare id. at 6 ¶ 17 with 17 ¶ 62.)

B. Events leading to the instant law suit

While plaintiffs worked at the Public Works Department, defendants had a "pattern and practice of refusing to hire African American men to full time positions while mandating they work full time" hours. (Id. at 14 ¶ 53(e).) Defendants also subjected plaintiffs to a more rigid promotion criteria and different pay scale and provided plaintiffs with lesser benefits than white employees with the same background and experience. (Id. at 17 ¶ 60(b), 32 ¶ 78(b)(c).) Furthermore, defendants gave "certain white employees" preferential treatment because of work they did on city time for the Director of Public Works, James Stack, and for Genova. (Id. at 13 ¶ 53(b).) In addition, defendants awarded promotions and raises to "less qualified white employees" who agreed to work specifically for Genova on city time. (Id. at 13 ¶ 53(c).)

In 2000, Golston requested of an unspecified individual that he receive a promotion to a full-time position but his request was denied. (Id. at 6-7 ¶ 22.) Moreover, both plaintiffs repeatedly asked Garrison and Qualkinbush if they could receive the necessary training for them to become full-time employees but their requests were denied. (Id. at 10 ¶ 38, 36 ¶ 85.) Plaintiffs also repeatedly complained to Garrison and Qualkinbush about the unfair treatment of black men within the Public Works Department. (Id. at 7 ¶ 23.)

Plaintiffs began to speak out about defendants' unfair treatment of employees at the Public Works Department. On February 10, 2000 Golston spoke at a City Council open forum to express his concerns and objections about defendants' treatment of employees. Moreover, plaintiffs organized a campaign for union representation of part-time employees, who were not ...


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