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June 21, 2004.


The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge


Carolyn Bottoms has brought this suit against the Illinois Department of Human Services ("IDHS") and the Chicago-Read Mental Health Center ("Chicago-Read") (collectively "defendants") pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1983, 42 U.S.C. § 1981 and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging discrimination based on race, color and disability. She also asserts a retaliation claim. Defendants move to dismiss these claims under Federal Rules of Civil Procedure ("Rule") 12(b)(1), 12(b)(2) and 12(b)(6). For the following reasons, the motion is granted in part and denied in part. Factual Background

The parties have litigated variations of this case in administrative proceedings, Illinois state court and in federal court. The following recitation is taken from Bottoms' complaint, court documents and the briefs submitted to us in connection with defendants' motion to dismiss. Bottoms began working for IDHS in 1991 as an office assistant in Chicago-Read's staff development department. In April 1998, she took a leave of absence under an IDHS family leave program. When she returned in October 1998, Bottoms was transferred to an office assistant position in the general stores department because her previous position had been abolished. Her supervisor in the general stores department was Marilyn Targos ("Targos").

  Bottoms alleges that she was discriminated against on numerous occasions. She claims that in October 1998, defendants resisted her request for an air purifier for her work area. Chicago-Read was cited by the Illinois Department of Labor for conditions that were detrimental to Bottoms' health. After an unreasonable delay of four months, she was eventually provided with an air purifier. She also alleges that on three separate occasions in January 1999 she was denied access to her workplace to conduct union business even though she was, at that time, a union steward. Bottoms says she received racial hate mail through the interoffice mail system on February 4, 1999. She also alleges that she failed to receive a promotion that should have been hers because she was the only bidder and was qualified.

  Bottoms alleges that defendants have retained in her personnel file documents relating to disciplinary action even though the documents should have been expunged under two settlement agreements. Bottoms was asked to submit to twice-weekly supervision meetings, which she refused to attend. She says she was disciplined many times for insubordination: she received two twenty-nine day suspensions, a one-day suspension and two written reprimands for her alleged refusal of supervision. Bottoms filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") in June 1999.

  Bottoms also claims that Targos hit her and was aggressive towards her on at least three occasions. Targos was not disciplined, investigated or asked to submit to a fitness-for-duty evaluation for her behavior. In May 1999, Bottoms was placed on administrative leave without a hearing or without the opportunity for reassignment pursuant to policy.*fn1 While on this leave, Bottoms was informed by mail in September 1999 that she was to report to Chicago-Read's psychiatrist for a fitness-for-duty evaluation. She did not comply with this directive. Bottoms was discharged by IDHS on November 16, 1999. She filed a charge of discrimination with the Illinois Department of Human Rights on May 15, 2000, where she claimed she was discharged "in retaliation for opposing unlawful discrimination." (Compl. Ex. A.) She said in the charge of discrimination that Chicago-Read's reason for the termination was insubordination. (Id.)

  Bottoms litigated her discharge before the Illinois Civil Service Commission ("Civil Service Commission"). An administrative law judge ("ALJ") held that Bottoms's discharge was warranted. (Mot. to Dismiss Ex. A at 30.) On September 20, 2000, the Civil Service Commission adopted the ALJ's findings and conclusions and upheld IDHS's decision to discharge Bottoms. (Id. Ex. B.) Bottoms filed a petition for administrative review in the Circuit Court of Cook County, Chancery Division. The circuit court upheld the decision of the Civil Service Commission. (Id. Ex. D at 2.) The Illinois Appellate Court affirmed. (Id. Ex. D at 21.) Bottoms sued IDHS, Chicago-Read and two individuals in federal court, alleging violations of Title VII, 42 U.S.C. § 1981 and 42 U.S.C. § 1983 ("Bottoms I"). (Id. Ex. E.) On September 11, 2000, Judge Conlon granted defendants' motion to dismiss in part and denied it in part. (Id. Ex. F at 10.) On April 24, 2001, Judge Conlon granted IDHS and Chicago-Read's motion for summary judgment on the remaining claims. (Id. Ex. G at 12.)

  In March 2003, Bottoms filed the complaint before us now. Defendants have filed a motion to dismiss, asserting many grounds for dismissing the complaint, including: the Eleventh Amendment, the Rooker-Feldman doctrine, res judicata and collateral estoppel, and the statute of limitations.


  1. Eleventh Amendment

  Bottoms has brought her claims under a number of federal statutes. The claims brought under 42 U.S.C. § 1981 and 1983 and the ADA, however, are barred by the Eleventh Amendment. See Velasco v. Illinois Dep't of Human Servs., 246 F.3d 1010, 1016 (7th Cir. 2001) (ADA); Hearne v. Board of Educ. of City of Chicago, 185 F.3d 770, 776 (7th Cir. 1999) (42 U.S.C. § 1981 and 1983). In general, a state may claim immunity from suit in federal court under the Eleventh Amendment. Kroll v. Board of Trustees of the Univ. of Ill., 934 F.2d 904, 907 (7th Cir. 1991). A state agency is treated the same as the state. Id. A state's sovereign immunity is not absolute, however; in some cases, a suit may continue against a state or its officials. Ameritech Corp. v. McCann, 297 F.3d 582, 585 (7th Cir. 2002). A state may waive its sovereign immunity and consent to suit in federal court or "Congress may use its enforcement powers under the fourteenth amendment to abrogate a [state's] eleventh amendment immunity." Id. (quoting MSA Realty Corp. v. Illinois, 990 F.2d 288, 291 (7th Cir. 1993)).

  Bottoms argues that the state of Illinois has waived its sovereign immunity with respect to suits under 42 U.S.C. § 1981 and 1983 as well as suits under the ADA.*fn2 She says that section 5 of Public Act 93-0414, which amended the State Lawsuit Immunity Act ("Immunity Act"), 745 ILCS 5/1 et seq., removed the sovereign immunity barrier to suits brought under various federal laws, including the ADA and Title VII. (Response at 12.) There are a few problems with this argument, as defendants point out. First, while the Immunity Act amendments do create exceptions to the state's sovereign immunity, the only exceptions relevant here are for Bottoms' claims brought under the ADA and Title VII. See 745 ILCS 5/1.5 (new section to Immunity Act created by section 5 of Public Act 93-0414). There is no mention in the amendments of the state's waiver of sovereign immunity for claims brought under 42 U.S.C. § 1981 and 1983.

  In addition, the Immunity Act amendments became effective January 1, 2004, and they are not retroactive. Illinois has adopted the retroactivity test articulated by the Supreme Court in Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). See Foster Wheeler Energy Corp. v. LSP Equip., LLC, 805 N.E.2d 688, 692 (Ill.App. Ct. 2004) (applying retroactivity analysis of Landgraf). The first step in the Landgraf analysis is to determine whether the legislature has clearly indicated the temporal reach of an amended statute. Id. Illinois courts have said that the Illinois legislature always indicates the temporal reach of an amended statute because, where, as in this case, the legislature fails to clearly indicate in the amended statute itself its position on retroactive application, then the default provisions of the Statute on Statutes, 5 ILCS 70/4, apply.*fn3 Id. (citing Caveney v. Bower, 797 N.E.2d 596, 601 (Ill. 2003)). Section 4 of the Statute on Statutes prohibits retroactive application of substantive changes to statutes. See Caveney, 797 N.E.2d at 602 (citing People v. Glisson, 782 N.E.2d 251 (Ill. 2002)). The Immunity Act amendments created by section 5 of Public Act ...

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