The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge
MEMORANDUM OPINION AND ORDER
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
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