United States District Court, N.D. Illinois
February 2, 2004.
CLIVE W. NEISH, Plaintiff,
CITY OF CHICAGO, CHICAGO DEPARTMENT OF REVENUE, BEA REYNA-HICKEY, in her official capacity, and CATHERINE MURRAY in her official capacity, Defendants
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Clive W. Neish, an African-American male, was employed by
defendant Chicago Department of Revenue from February 16, 1991 until his
termination on March 1, 2003. Mr. Neish was employed as an attorney and
was allegedly terminated for violating the defendant City of Chicago's
policy regarding secondary employment. Defendant Bea Reyna-Hickey is the
Director and Chief Administrative Officer of the Department of Revenue
and defendant Catherine Murray is the Deputy Director of the Department
of Revenue and the Chief Administrative Officer of the Cost Recovery and
Collection Division, a sub-division of the Department of Revenue. Mr.
Neish claims that defendants have violated his rights under Title VII,
42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, the First
Amendment, and the Due Process clause of the Fourteenth Amendment. Mr.
Neish moves to dismiss the Department of Revenue
and amend his complaint. Defendants also move to partially dismiss
the complaint. I GRANT Mr. Neish's motion and GRANT defendants' motion.
Mr. Neish moves to dismiss the Department of Revenue as a defendant,
stating that the Department of Revenue is not a proper defendant as it is
not a separate legal entity from the City of Chicago. Defendants make no
objection to this dismissal, and I GRANT this portion of Mr. Neish's
Mr. Neish also moves to add Bea Reyna-Hickey and Catherine Murray in
their individual capacities. The complaint identifies both Ms.
Reyna-Hickey and Ms. Murray in their official capacities. Mr. Neish's
motion to add Ms. Reyna-Hickey and Ms. Murray in their individual
capacities is GRANTED. The amended complaint shall be filed within 14
Defendants move to dismiss portions of Mr. Neish's complaint. On a
motion to dismiss, I accept all well-pleaded allegations in the complaint
as true, Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1319 (7th
Cir. 1997), and grant the motion only if the plaintiff can prove no set
of facts to support the allegations in her claim. Strasburger v. Bd.
of Educ., 143 F.3d 351, 359 (7th Cir. 1998).
Counts III and IV allege sex discrimination for Mr. Neish's termination
and race discrimination for failure to promote Mr.
Neish, respectively, both in violation of Title VII,
42 U.S.C. § 2000e et seq. Defendants move to dismiss these claims on
the basis that the claims go beyond the scope of Mr. Neish's Equal
Employment Opportunity Commission ("EEOC") charge. Title VII claims are
generally limited to those included in the complainant's EEOC charge.
Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500
(7th Cir. 1994). The lawsuit claims must be "like or reasonably related
to the allegations of the charge and growing out of such allegations."
Id. (citing Jenkins v. Blue Cross Mut. Hosp. Ins.,
Inc., 538 F.2d 164, 167 (7th Cir. 1976)).
Mr. Neish's EEOC charge alleges race discrimination on the part of the
City of Chicago for terminating him. No mention is made of sex
discrimination, nor of Mr. Neish being passed over for a promotion. Mr.
Neish did not even check the box on the EEOC charge that would indicate
sex discrimination. See, e.g., Bruce v. City of Chicago, No.
96-C5420, 1997 WL 201558, at *2 (N.D. Ill. Apr. 17, 1997). Counts III and
IV do not even involve the same conduct or individuals as Mr. Neish's
EEOC charge; failure to promote is not the same conduct as termination
and sex discrimination `is not the same conduct as race discrimination.
Cheek, 31 F.3d at 501. The motion to dismiss Counts III and IV
Count V alleges race discrimination for failure to promote Mr. Neish,
in violation of 42 U.S.C. § 1981. Defendants move to
dismiss this claim, arguing that it is untimely. While § 1981
does not contain its own statute of limitations, it borrows the state
period for personal injury tort claims. Goodman v. Lukens Steel
Co., 482 U.S. 656 (1987). In Illinois, that period is two years.
See, e.g., Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 807
(7th Cir. 2000). Mr. Neish alleges in his complaint that defendants
failed to promote him on November 15, 2000, and did not allow him to even
interview for the position in question. While Mr. Neish argues that the
time period for his claim did not begin to run until some much later
time, his pleading of the date he was allegedly passed over and the fact
that he was not permitted to interview places the beginning date for the
statute of limitations at November 15, 2000. As Mr. Neish did not file
his complaint until September 19, 2003, this claim is untimely. The
motion to dismiss Count V is GRANTED.
Defendants move to dismiss the allegations with respect to Ms.
Reyna-Hickey and Ms. Murray ("individual defendants") in Counts I, II,
III, IV, and V. Defendants argue that individuals are not subject to suit
under Title VII, and Mr. Neish concedes. The motion to dismiss Counts I,
III, and IV with respect to the individual defendants is GRANTED.
Defendants also argue that, with respect to Counts II and V, allegations
against the individual defendants are duplicative of the charges against
the City of Chicago. See, e.g., Leahy v. Bd. of Trustees of Comm.
No. 508, 912 F.2d 917, 922 (7th Cir. 1990). I agree. The motion to
dismiss Counts II and V with respect to the individual defendants is
Finally, defendants move to strike Mr. Neish's prayer for punitive
damages, with respect to the City of Chicago. See, e.g., Newport v.
Fact Concerts, 453 U.S. 247, 271 (1981). Mr. Neish concedes this
point, and the prayer for punitive damages with respect to the City of
Chicago is stricken.
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