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NICOL v. LAVIN

August 12, 2004.

SUSAN E. NICOL, Plaintiff,
v.
JOHN LAVIN, in his Official Capacity as DIRECTOR, DEPARTMENT OF COMMERCE & ECONOMIC OPPORTUNITY; PAM McDONOUGH, in her Official and Individual Capacities as DIRECTOR, DEPARTMENT OF COMMERCE & COMMUNITY AFFAIRS; ROBERT L. HEARN, in his Official and Individual Capacities as SUPERVISOR, DEPARTMENT OF COMMERCE & COMMUNITY AFFAIRS; and ILLINOIS DEPARTMENT OF COMMERCE & ECONOMIC OPPORTUNITY (formerly DEPARTMENT OF COMMERCE & COMMUNITY AFFAIRS), Defendants.



The opinion of the court was delivered by: AMY J. ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Susan Nicol ("Nicol") filed a four-count second amended complaint against Defendants John Lavin ("Lavin") in his official capacity as Director of the Department of Commerce & Community Affairs ("DCCA"), Pam McDonough ("McDonough") in her individual and official capacities as the former Director of the DCCA, Robert Hearn ("Hearn") in his individual and official capacities as Supervisor in the Grant Monitoring Section of the DCCA, and the Illinois Department of Commerce & Economic Opportunity ("DCEO") formerly known as the DCCA. Specifically, Plaintiff alleged race discrimination creating a hostile work environment and retaliation in violation of 42 U.S.C. § 1981 against Lavin, McDonough, Hearn, and the DCEO (Count I); creation of a hostile work environment and retaliation in violation of Title VII of the 1964 Civil Rights Act against the DCEO (Count II); race, national origin, and skin color discrimination creating a hostile work environment in violation of 42 U.S.C. § 1983 against Lavin, McDonough, and Hearn (Count III); and race, national origin, and skin color discrimination in violation of the Illinois Civil Rights Act of 2003 against the DCEO (Count IV). Plaintiff seeks a declaratory judgment, damages, and injunctive relief. Defendants have moved to dismiss all four counts pursuant to Rules 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. For the reasons stated herein, Defendants' motion is granted in part and denied in part.

BACKGROUND*fn1

  Plaintiff Nicol is of Korean national origin, and was a grant monitor with the DCCA when the alleged discrimination occurred. (R. 20-1, Second Am. Compl. at 2, ¶ 2.) Defendant Hearn, an African-American, is a Supervisor with the DCCA and supervised Nicol. (Id. ¶¶ 6-8.) In July 2001, Nicol returned from maternity leave and over the course of several months Hearn made inappropriate oral remarks and physical gestures toward her, and exhibited a demeaning attitude toward her work performance because of her race, national origin, and skin color. (Id. ¶¶ 12-14.) Hearn's conduct adversely impacted Nicol's work environment. (Id. ¶¶ 12, 20.) After Nicol complained about Hearn's conduct, Hearn used his supervisory role to take reprisal actions against her. (Id. ¶¶ 12-13.) Despite Nicol's informal written complaint and EEOC charges, the DCCA — under McDonough's direction — never completed an internal investigation or resolved the complaints. (Id. ¶¶ 5, 15, 17-19.) Further, during the alleged discrimination and retaliation, the DCCA had a custom and practice of failing to adequately investigate and provide relief to employees' complaints. (Id. ¶ 24.) Moreover, McDonough knew about Hearn's discriminatory conduct, deliberately failed to investigate or remedy the situation, and ratified Hearn's actions. (Id. ¶ 22.) Consequently, Nicol resigned her position with the DCCA on May 22, 2002. (Id. ¶ 21.)

  LEGAL STANDARDS

  A Rule 12(b)(1) motion is a defense asserting a federal court's lack of subject matter jurisdiction over a lawsuit. See Fed.R.Civ.Proc. 12(b)(1). The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of a complaint, not the merits of the case. Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). The Court must view the allegations in the complaint "in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from those allegations in his or her favor." Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003). A complaint is not required to allege all, or any, of the facts entailed by the claim; the plaintiff can plead conclusions. Shah v. Inter-Continental Hotel Chicago Operating Corp., 314 F.3d 278, 282 (7th Cir. 2003). Consequently, the Court may grant the motion to dismiss "only if it appears beyond doubt that the plaintiff could prove no set of facts entitling him to relief." Triad Assocs., Inc., 892 F.2d at 586.

  ANALYSIS

  I. Count I: § 1981 Claim

  42 U.S.C. § 1981 provides, in part:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981(a) (2004).
Defendants argue that they are entitled to Eleventh Amendment immunity, that Plaintiff has failed to state a claim under § 1981, and that Plaintiff's § 1981 claim is barred by the statute of limitations. The Court will address the arguments in turn.

  A. Eleventh Amendment*fn2 Immunity

  Under the Eleventh Amendment, a state and its agencies are immune from private suits seeking damages or injunctive relief in federal court unless by express and unequivocal language the state or Congress waives the state's Eleventh Amendment immunity. Kroll v. Bd. of Trustees, 934 F.2d 904, 907 (7th Cir. 1991). Eleventh Amendment immunity shields state agencies from federal damages liability for § 1981 claims. Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1184 (7th Cir. 1982). In addition, a lawsuit against "a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office" and "is no different from a suit against the State itself." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citations omitted).*fn3

  The State of Illinois has not waived its Eleventh Amendment immunity for § 1981 claims. See 745 ILL. COMP. STAT. 5/1, 5/1.5 (2004). Also, Congress "has not expressed in unequivocal language intent to alter immunity" in § 1981 claims. Perkins v. Bd. of Trustees Univ. of Illinois, No. 95 C 4320, 1996 WL 308292, at * 1 (N.D. Ill. June 4, 1996). A state official, however, may be sued in his or her official capacity when injunctive relief is sought because "official-capacity actions for prospective relief are not treated as actions against the State." Kentucky v. Graham, 473 U.S. 159, 167, n. 14 (1985); Ex parte Young, 209 U.S. 123, 159-60 (1908). See also Edelman v. Jordan, 415 U.S. 651, 668-69 (1974) (stating that enjoining state officials' for past legal duty breach where its "practical effect" is indistinguishable from a retroactive damages award is barred by the Eleventh Amendment) (followed by Brazdo v. Illinois Dep't of Prof'l Regulation, No. 94 C 134, 95 C 2066, 1995 WL 733445, at *4 (N.D. Ill. Dec. 8, 1995)). A plaintiff must show a "real or immediate threat of future harm" to have standing to seek prospective equitable relief. Sierakowski v. Ryan, 223 F.3d 440, 443 (7th Cir. 2000) (citing City of Los Angeles v. Lyons, 461 U.S. 95 (1983)).

  Plaintiff Nicol alleges a § 1981 claim against the DCEO, Lavin, McDonough, and Hearn in their official capacities. The DCEO is entitled to Eleventh Amendment immunity. Because Plaintiff seeks prospective relief in her complaint, including reinstatement, her claim against Lavin and Hearn in their official capacities survives as to those only. Finally, McDonough as former Director of the DCCA is ...


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