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May 7, 2004.

VILLAGE OF MOKENA, STEPHEN J. POLLAK CHIEF OF THE VILLAGE OF MOKENA POLICE DEPARTMENT, in his official and individual capacity, DONALD DREESBACH, in his individual capacity, JOHN GORMAN, in his individual capacity. Defendants

The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge


Defendant, Sergeant John Gorman, has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Counts l and ll of plaintiff, Suzanne Barth's, complaint. For the reasons stated below, defendant's motion to dismiss is denied.

In considering a motion to dismiss, the Court must accept as true all well-pleaded facts and must draw all reasonable inferences from those allegations in plaintiffs favor. MCM Partners, Inc. v. Andrews-Barlett & Assoc., Inc., 62 F.3d 967, 972 (7th Cir. 1995), According to the allegations in the complaint, plaintiff was a police officer employed by the Village of Mokena from September 18, 1998 to August 23, 2002. During that period, defendant Gorman, a Mokena police sergeant, was one of plaintiffs direct supervisors. The complaint alleges that starting in September, 1998, and continuing until her constructive discharge in August, 2002, plaintiff was subjected to sexual harassment and discrimination. The complaint further alleges that the sexual harassment and discrimination created a hosfile work environment and that all of the defendants contributed to and failed to remedy the hosfile work environment. The complaint also alleges that defendant Gorman and the other named defendants retaliated against plaintiff when she complained about the sexual harassment and discrimination.

  On September 22, 2003, plaintiff initiated this action pursuant to 42 U.S.C. § 1983 by filing a complaint alleging that defendant Village of Mokena, Police Chief Stephen Pollak, and Sergeant Donald Dreesbach violated her right to equal protection under the Fourth Amendment of the United States Constitution (Count I), and that they retaliated against her for exercising her First Amendment rights under the United States Constitution (Count II). Defendant Village of Mokena moved to dismiss plaintiff's entire complaint and the remaining defendants moved to dismiss Count II. The defendants' motions to dismiss were denied on February 24, 2004.

  On March 17, 2004, plaintiff filed an amended complaint, which added Sergeant Gorman as an additional defendant and included two additional Title VII counts against the Village of Mokena. Counts I and II of plaintiff's amended complaint are substantially similar to Counts I and II of her original complaint.

  When ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we must consider "whether relief is possible under any facts consistent with the allegations of plaintiff's complaint." Pokuta v. Trans World Airlines Inc., 191 F.3d 834, 839 (7th Cir. 1999). That is, if it is possible to hypothesize a set of facts consistent with the allegations in the complaint that would entitle plaintiff to relief, dismissal under Rule 12(b)(6) is inappropriate. Graehling v. Village of Lombard, 58 F.3d 295, 297 (7th Cir. 1995).

  Defendant Gorman argues that Counts I and II should be dismissed as to him because they are barred by the statute of limitations. The applicable statute of limitations for plaintiff's § 1983 claims (Counts I and II) is two years. Licari v. City of Chi., 298 F.3d 664, 667-68 (7th Cir. 1998). The Seventh Circuit has repeatedly held that the statute of limitations on these types of claims accrues when the plaintiff knows or has reason to know of the injury which is the basis of her action. Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992).

  Gorman was named as a defendant in this case on March 17, 2004*fn1 In paragraph 20 of plaintiffs amended complaint, she alleges that "[o]n a continuing and ongoing basis since in or about September, 1998, [plaintiff] was subjected to pervasive verbal and physical sexual advances, suggestive sexual comments, and degrading and derogatory remarks, which were unwelcome and offensive, by [d]efendants because of her gender, and in retaliation for her protests of gender discrimination." As to Gorman, individually, plaintiff alleges, inter alia, that on February 2, 2002, he "made reference to making homemade mayonnaise and simulated masturbation in front of The plaintiff. . ." Plaintiff further alleges that Gorman "laughed out loud when she told him that was sexual harassment." ¶ 40. Defendant Gorman, therefore, argues that Counts I and II against him should be dismissed because they are time barred. Gorman argues that plaintiffs claims are time barred because she knew of the injury which is the basis of her claims by February 2, 2002, yet did not name Gorman as a defendant until March 17, 2004, more than two years later.

  Plaintiff disagrees citing National Railroad Passengers Corp. v. Morgan for the proposition that "[a] hosfile work environment claim is comprised of a series of separate acts that collectively constitute one `unlawful employment practice,'" and therefore, "the entire period of the hosfile work environment may be considered by the court for the purposes of determining liability." 536 U.S. 101, 117 (2002). Plaintiff argues that she has alleged acts to support her claims that occurred after March 17, 2002, so even if the statute of limitations began to run at that point, her claims would not be barred.

  In his reply, Gorman argues that plaintiffs reliance on Morgan is misplaced because Morgan addressed a Title VII claim in which the plaintiff sought recovery for racial discrimination. Gorman argues that Morgan "did not address the issue of when a sexual harassment claim accrues for the purposes of a 1983 action." While true, defendant failed to address Hildebrandt v. Illinois Department of Natural Resources, which found that "the Supreme Court's ruling in [Morgan] . . . applies equally to § 1983 cases." 347 F.3d 1014, 1036 fn 18 (7th Cir. 2003). The Seventh Circuit in Hildebrandt further held that "under Morgan, any discrete acts that [plaintiff] alleges occurred outside of the limitations period for § 1983 actions are barred, but acts that contribute to a hosfile work environment may be considered so long as one of the contributing acts occurred within the limitations period." Id.

  Plaintiff named Gorman as a defendant on March 17, 2004. Therefore, the applicable statute of limitations began to run on March 17, 2002. Plaintiff alleges harassing and discriminating events that she contends constituted a hosfile work environment until she was constructively terminated on August 23, 2002. Allegations from March 17, 2002 until August 23, 2002 fall within the limitations period. Viewing the evidence in the light most favorable to the plaintiff, as we must, plaintiff's complaint alleges acts within the limitations period which she claims contributed to the hosfile work environment. Specifically, plaintiff alleges that on April 15, 2002 defendant Gorman participated in a conversation plaintiff found offensive and which she alleges contributed to the hosfile work environment. Paragraph 47 of plaintiff's complaint further alleges general conduct by defendant Gorman that she contends contributed to the hosfile work environment, which may have occurred within the limitations period. Because plaintiff has alleged at least one act within the limitations period that contributed to the hosfile work environment, her claim against Gorman is not time barred. See Hildebrandt, 347 F.3d at 1036.

  Therefore, defendant Gorman's motion to dismiss Counts I and II of plaintiff's ...

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