United States District Court, N.D. Illinois
February 2, 2004.
LENORE BLANCHARD, LANITA GRAY, KENNETH JOHNSON, CHRISTOPHER LAWSCH, DEBRA McCARROLL, BRUCE POLK, ISABELLA SMITH, KERRY STEWART, and PERRY WHITESIDE, Plaintiffs
SPEEDWAY SUPERAMERICA, LLC, Defendant
The opinion of the court was delivered by: ELAINA E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs are African-American customers of defendant Speedway
Superamerica, LLC ("Speedway"), a gas station chain, who were allegedly
obliged to pay for gasoline before filling their tanks ("pre-payment")
while white customers were allowed to fill their tanks and pay
afterwards. The plaintiffs seek relief on behalf of themselves and a
yet-to-be-certified class of African-American customers under
42 U.S.C. § 1981-1982 (Count I) and 42 U.S.C. § 2000a (Count II).
Speedway moves to dismiss the § 2000a claims of all plaintiffs other than
Perry Whiteside for failure to comply with state notice requirements, to
strike the class allegations corresponding to that claim, and to dismiss
plaintiff Debra McCarroll's claim under Count I under the statute of
limitations. I GRANT the motions to dismiss, but DENY the motion to
§ 2000a states that no civil action may be brought under the section
"before the expiration of thirty days after written notice of such
alleged [discriminatory] act or practice has been given to the
appropriate state or local authority." Named plaintiffs in class action
suits must meet notice and exhaustion requirements, even though class
members need not. Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1156
(7th Cir. 1999) (class member who never filed a discrimination charge
with the EEOC could not serve as class representative in a Title VII
case). Both Illinois and Indiana, where the incidents alleged in this
case took place, have laws prohibiting racial discrimination and agencies
designed to investigate and remedy such discrimination. Stearnes v.
Baur's Opera Opera House, 3 F.3d 1142, 1144-5 (7th Cir. 1993); Swam v.
Pizza King, No. IP 01-1150-C-T/K, 2001 WL 1712507, at *2 (S.D. Ind. Dec.
It is undisputed that of the named plaintiffs, only Mr. Whiteside filed
a notice with a local anti-discrimination agency before this lawsuit was
filed. Plaintiffs argue that this notice from Mr. Whiteside is sufficient
to notify the state as to all named plaintiffs, but do not cite to a
single case where a court has waived the notice requirement. The purpose
of the notice requirement is to provide the state with an opportunity to
remedy the discrimination before costly and time-consuming litigation is
pursued. Hill v. Shell Oil Co., 78 F. Supp.2d 764, 770 (N.D. Ill.
1999) (Moran, J.). Notice of one incident of discrimination against one
individual is not the same as notice of an ongoing, widespread pattern of
disparate treatment based on race, such as the plaintiffs allege here. As
the notice requirement was not met, the plaintiffs other than Mr.
Whiteside cannot sustain their individual claims, and thus they cannot
serve as class representatives, though it is possible that they may
recover as class members if the plaintiff class is certified. See Halton
v. Great Clips, Inc., 94 F. Supp.2d 856, 861 (N.D. Oh. 2000) (holding
that named plaintiffs who did not file claims with the state civil rights
commission could not seek relief in federal court under § 2000a and thus
could not serve as class representatives). The motion to dismiss the
claims brought by Ms. Blanchard, Ms. Gray, Mr. Johnson, Mr. Lawson, Ms.
McCarroll, Mr. Polk, Ms. Smith, and Kerry Stewart under § 2000a is
One named plaintiff is all that is required to pursue a class action.
Defendants offer no explanation why Mr. Whiteside could not potentially
serve as that representative. Therefore, the motion to strike class
allegations is DENIED.
Plaintiffs admit that Ms. McCarroll's action for damages under §§
1981-1982 is time-barred, but argue that the claim need not be dismissed,
because she may still seek injunctive relief. Again, plaintiffs cite to
no authority to support the proposition that equitable relief is
available to a plaintiff whose claim for
damages is time-barred; the usual rule is that where both legal and
equitable remedies are available (as under §§ 1981 and 1982), and the
legal claim is barred, so too is the equitable claim. Nemkoy v. O'Hare
Chicago Corp., 592 F.2d 351 (7th Cir. 1979). The motion to dismiss Ms.
McCarroll's claim under §§ 1981-1982 is GRANTED.
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