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April 29, 2003


The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge.


Plaintiff Mohammed Miraki filed a three count complaint against defendant Chicago State University ("CSU"), alleging national origin and religious discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq., and Section 1981, 42 U.S.C. § 1981, and retaliatory discharge in violation of Title VII. CSU now moves to dismiss the complaint. I grant the motion in part and deny the motion in part.

On a motion to dismiss, I take all allegations in the complaint as true. Wilczynski v. Lumbermans Mut. Cas. Co., 93 F.3d 397, 401 (7th Cir. 1996). The facts as alleged by Mr. Miraki are as follows. Mr. Miraki is a United States citizen of Afghan descent, and a follower of Islam. Mr. Miraki was employed as a non-tenured lecturer at CSU, beginning in the fall of 1998. In the spring of 2000, he applied for a tenured faculty position. In August 2000, he was denied a tenured position and was not recalled to teach for the fall 2000 semester. Mr. Miraki was given a half workload for the spring 2001 semester, but has not been offered any further employment since. He alleges that during his employment with CSU, the chair of his department made discriminatory comments about him, and that CSU's employment decisions were discriminatory. In August 2001, Mr. Miraki filed charges with the EEOC and the Illinois Department of Human Rights. In September 2002, he received a right to sue letter from the EEOC. In November 2002, Mr. Miraki filed suit in this court. CSU now makes several arguments for dismissal.

I. Eleventh Amendment

CSU argues that plaintiff's section 1981 claim is barred by the Eleventh Amendment.*fn1 The Eleventh Amendment states that "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States." U.S. Const. amend. XI.*fn2

Mr. Miraki argues that, though a state university, CSU is not entitled to the protection of the umbrella of immunity enjoyed by the State of Illinois. "[T]he Eleventh Amendment protects the state and its agencies; it does not shield political subdivisions." Kashani v. Purdue Univ., 813 F.2d 843, 845 (7th Cir. 1987). The question in a case such as this is whether CSU "is more like a county or city than it is like an arm of the State." Id. Numerous Seventh Circuit cases have found state universities to be entitled to Eleventh Amendment protection. See, e.g., Id. (Purdue University); Osteen v. Henley, 13 F.3d 221, 223-24 (7th Cir. 1993) (Northern Illinois University); Davidson v. Bd. of Governors, 920 F.2d 441, 442 (7th Cir. 1990) (Western Illinois University); Cannon v. Univ. of Health Sciences, 710 F.2d 351, 356 (7th Cir. 1983) (University of Illinois and Southern Illinois University). Although courts reexamine the issue with regard to the facts of each case, "it would be an unusual state university that would not receive immunity." Kashani, 813 F.2d at 845. Mr. Miraki bears the burden of persuading me that CSU is somehow different from these other universities, even at this early stage in the litigation. See Osteen, 13 F.2d at 223-24 (affirming dismissal on Eleventh Amendment grounds of suit against Northern Illinois University because plaintiff failed to distinguish circuit precedent that other state universities received immunity). Mr. Miraki's citations to cases in other circuits finding various state universities not entitled to Eleventh Amendment immunity does not satisfy this burden.*fn3 CSU is entitled to the same degree of state sovereign immunity as the State of Illinois.

There are two well-established exceptions to the rule of state sovereign immunity: (1) a state may waive the protections of the Eleventh Amendment and thereby consent to suit in federal court, or (2) Congress may use its enforcement powers under the Fourteenth Amendment to abrogate the states' Eleventh Amendment immunity. Kroll v. Bd. of Trs., 934 F.2d 904, 907 (7th Cir. 1991). Mr. Miraki argues that Congress abrogated Eleventh Amendment immunity to states receiving federal financial assistance when it enacted 42 U.S.C. § 2000d-7, which provides that

A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
Technically, Mr. Miraki's section 2000d-7 argument should be phrased in terms of state waiver of sovereignty, rather than Congressional abrogation of sovereignty. Section 2000d-7 was enacted in response to the Supreme Court's decision in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), which held that "mere receipt of federal funds" does not establish waiver of sovereign immunity, and that if Congress wishes to condition receipt of federal funds on waiver of immunity, it must make that intent "clear." Id. at 246-47. Section 2000d-7 establishes "an unambiguous waiver of the States' Eleventh Amendment immunity." Lane v. Pena, 518 U.S. 187, 200 (1996). Thus, section 2000d-7 is not a Congressional abrogation of state sovereign immunity in cases to which section 2000d-7 applies; it instead establishes that states who receive federal funds have waived their sovereign immunity in those cases.*fn4

Regardless, Mr. Miraki argues that the catch-all provision of section 2000d-7 allows suit against a state that receives federal money and discriminates in violation of section 1981. This argument misreads section 2000d-7. The catch-all provision of section 2000d-7 does not apply to immunity against suits for violation of all federal statutes prohibiting discrimination (such as section 1981). It applies to immunity against suits for violation of only those federal statutes that specifically prohibit discrimination by recipients of federal financial assistance. While the statutes enumerated in section 2000d-7 all refer to discrimination specifically by recipients of federal financial assistance, 29 U.S.C. § 794; 20 U.S.C. § 1681; 42 U.S.C. § 6101; 42 U.S.C. § 2000d, section 1981 does not. Section 1981 does not fall within the catch-all provision of section 2000d-7, and thus, regardless of whether CSU receives federal financial assistance, section 2000d-7 does not establish that it has waived its Eleventh Amendment immunity to suits under section 1981. Cf. Kaimowitz v. Bd. of Trs., 951 F.2d 765, 768 (7th Cir. 1992) (42 U.S.C. § 1983 does not fall within catch-all provision of section 2000d-7 because it does not specifically prohibit discrimination by recipients of federal financial assistance). As Mr. Miraki fails to present any other basis for Illinois' waiver or Congressional abrogation of sovereign immunity against his section 1981 claim, it is dismissed as barred by the Eleventh Amendment.

II. Punitive Damages

CSU argues that Mr. Miraki may not sue it for punitive damages under Title VII. 42 U.S.C. § 1981a(a)(1) provides that "[i]n an action brought . . . under [Title VII] . . . and provided that the complaining party cannot recover under section 1981 of this title, the complaining party may recover compensatory and punitive damages as allowed in subsection (b)." Subsection (b) provides that in various circumstances "[a] complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision)." 42 U.S.C. § 1981 (b)(1) (emphasis added). CSU argues that the parenthetical exception for governmental bodies in section 1981(b)(1) means that Mr. Miraki may not recover punitive damages from it. See, e.g., Baker v. Runyon, 114 F.3d 668 (7th Cir. 1997) (reversing award of Title VII punitive damages against United States Post Office). Mr. Miraki argues that CSU is not a government "agency," and therefore does not fall anywhere within the exception. In support of his contention, Mr. Miraki cites a district court case from Nevada, Cleveland v. Runyon, 972 F. Supp. 1326 (D. Nev. 1997). In that case, the court noted that "the plain language of [section 1981a(b)] exempts `agencies,' not `entities.'" Id. at 1328. Even if this distinction is relevant and non-agency entities are not exempt from punitive damages, CSU is a government agency. 30 ILCS 5/1-7 (defining "State agencies" as including universities). Mr. Miraki's claim for punitive damages is dismissed.

III. 300 Day Limitations Period

CSU next argues that Mr. Miraki is barred from recovering for any alleged acts of discrimination or retaliation that occurred more than 300 days prior to his filing of charges with the EEOC. See, generally, E.E.O.C. v. Harvey L. Walner & Assocs., 91 F.3d 963, 970 (7th Cir. 1996) (because Illinois is a "deferral state," the limitations period of 42 U.S.C. § 2000e-5 (e) requires filing an EEOC charge within 300 days of the alleged discrimination). Mr. Miraki alleges that he filed charges with the EEOC on August 22, 2001. (Compl. ¶ 14.) According to CSU's calculations, 300 days prior to August 22, 2001 is October 27, 2000. Mr. Miraki alleges that after the spring 2001 semester, he was taken off the reemployment roster because of his national origin and religion. (Compl. ¶ 13.) Mr. Miraki has thus alleged discriminatory conduct falling within the 300 day limitations period and his Title VII claims cannot be dismissed on that ground. If CSU is seeking dismissal on the ground that Mr. Miraki's claims are barred by the statutory limitations period, it is denied. If CSU is simply requesting a declaration that Mr. Miraki may not recover for conduct occurring prior ...

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