The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant City of Chicago's
partial motion to dismiss. For the reasons stated below, we grant
in part and deny in part the partial motion to dismiss.
Plaintiff Thomas L. Gross ("Gross") alleges that he was
employed by Defendants in Chicago, Illinois as a machinist
foreman. Gross alleges that in November of 2003 he requested to
be transferred to an open day shift position and that his request
was denied. Gross alleges that a "white male" with less seniority
than Gross was placed in the open shift position. (Compl. 4).
Gross claims that he complained that he was being discriminated against by Defendants
and that after he complained, the "white male" who was
transferred to that shift began harassing Gross. (Compl. 4-5).
Gross claims that he was subjected to continual harassment, such
as being denied tools and manuals that he needed in order to
perform his job properly. Gross filed a pro se complaint
indicating that he was discriminated against because of his race
and retaliated against because he complained about the alleged
discrimination in violation of Title VII of the Civil Rights Act
of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.,
42 U.S.C. § 1981 ("Section 1981"), and 42 U.S.C. § 1983 ("Section 1983").
Defendants have moved for a partial dismissal.
In ruling on a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), the court must draw all reasonable
inferences that favor the plaintiff, construe the allegations of
the complaint in the light most favorable to the plaintiff, and
accept as true all well-pleaded facts and allegations in the
complaint. Thompson v. Illinois Dep't of Prof'l Regulation,
300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein,
939 F.2d 463, 466 (7th Cir. 1991). The allegations of a complaint should
not be dismissed for a failure to state a claim "unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); See also Baker v.
Kingsley, 387 F.3d 649, 664 (7th Cir. 2004) (stating that
although the "plaintiffs' allegations provide[d] little detail . . . [the court could not] say at
[that] early stage in the litigation that plaintiffs [could]
prove no set of facts in support of their claim that would
entitle them to relief."). Nonetheless, in order to withstand a
motion to dismiss, a complaint must allege the "operative facts"
upon which each claim is based. Kyle v. Morton High School,
144 F.3d 448, 445-55 (7th Cir. 1998); Lucien v. Preiner,
967 F.2d 1166, 1168 (7th Cir. 1992). Under current notice pleading
standard in federal courts a plaintiff need not "plead facts
that, if true, establish each element of a "cause of
action. . . .'" See Sanjuan v. American Bd. of Psychiatry and
Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)
(stating that a "[a]t this stage the plaintiff receives the
benefit of imagination, so long as the hypotheses are consistent
with the complaint" and that "[m]atching facts against legal
elements comes later."). The plaintiff need not allege all of the
facts involved in the claim and can plead conclusions. Higgs v.
Carter, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455.
However, any conclusions pled must "provide the defendant with at
least minimal notice of the claim," Id., and the plaintiff cannot
satisfy federal pleading requirements merely "by attaching bare
legal conclusions to narrated facts which fail to outline the
bases of [his] claim." Perkins, 939 F.2d at 466-67. The Seventh
Circuit has explained that "[o]ne pleads a `claim for relief' by
briefly describing the events." Sanjuan, 40 F.3d at 251.
Federal Rule of Civil Procedure 12(b)(1) requires a court to
dismiss an action when it lacks subject matter jurisdiction.
United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003). If the concern of the
court or party challenging subject matter jurisdiction is that
"subject matter jurisdiction is not evident on the face of the
complaint, the motion to dismiss pursuant to Rule 12(b)(1) would
be analyzed as any other motion to dismiss, by assuming for
purposes of the motion that the allegations in the complaint are
true." Id.; see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th
Cir. 1995) (stating that when reviewing a motion to dismiss
brought under Rule 12(b)(1), this court "must accept as true all
well-pleaded factual allegations, and draw reasonable inferences
in favor of the plaintiff."). However, if the complaint appears
on its face to indicate that the court has subject matter
jurisdiction, "but the contention is that there is in fact no
subject matter jurisdiction, the movant may use affidavits and
other material to support the motion." Id. For the purpose of
determining subject matter jurisdiction, this court "may properly
look beyond the jurisdictional allegations of the complaint and
view whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction exists."
Ezekiel, 66 F.3d at 897 (quoting Capitol Leasing Co. v.
Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir.
1993)). The burden of proof in regards to a Rule 12(b)(1) motion
is "on the party asserting jurisdiction." United Phosphorus,
Ltd., 322 F.3d at 946. DISCUSSION
I. Collective Bargaining Agreement
Defendants argue that Gross cannot proceed on a claim based
upon a breach of the collective bargaining agreement ("CBA")
formed between his union and the City. A plaintiff union employee
generally is required to "exhaust the CBA's grievance procedures
before pursuing judicial remedies. . . ." McLeod v. Arrow Marine
Transport, Inc., 258 F.3d 608, 616 (7th Cir. 2001). A court
may allow such a plaintiff to proceed in court without exhausting
his union remedies if: "(1) resorting to the grievance procedure
would be futile; (2) the employer through its conduct repudiated
the grievance procedure itself; or (3) the union breached its
duty of fair representation." Id. In the instant action,
Defendants contend that Gross has not filed a grievance to
address any matters that fall within the scope of the CBA. Gross
does not allege that he exhausted any such remedies. Neither does
he indicate in his answer to the instant motion that he ever
filed a grievance. Further, Gross has not provided any basis to
the court that would warrant waiving the exhaustion requirement.
Therefore, we grant Defendants' motion to dismiss any claims
based upon an alleged violation of the provisions of the CBA.
II. Municipal Policy Claims
Defendants argue that the court should dismiss the Section 1981
and Section 1983 policy claims against the City because Gross has not
pled sufficient facts that indicate that a municipal policy or
practice was responsible for the alleged misconduct. In order to
state a claim for municipal liability under Section 1981 or
Section 1983, a plaintiff must allege that a municipal policy or
practice caused the alleged misconduct. McCormick v. City of
Chicago, 230 F.3d 319, 324 (7th Cir. 2000). In the instant
action, Gross has not provided any allegations that would
indicate that a City policy or custom was responsible for any of
the alleged discrimination. Therefore, we grant Defendants'
motion to dismiss the Section 1981 and Section 1983 policy
III. Race Discrimination Claims
Defendants argue that the court should dismiss the race
discrimination claims because Gross has not alleged that he
suffered an adverse employment action. In order to defeat a
summary judgment motion on a Title VII discrimination claim under
the indirect method of proof, a plaintiff must first show that:
(1) ?he is a member of a protected class; (2) ?he performed her
job satisfactorily; (3) ?he suffered an adverse employment
action; and (4) defendants treated similarly situated employees
outside h[is] class more favorably." O'Neal v. City of Chicago,
392 F.3d 909, 911 (7th Cir. 2004). The indirect method of
proof and the prima facie elements utilized in regards to a
Title VII discrimination claim are also utilized in the analysis
for a Section 1983 discrimination claim and a Section 1981
discrimination claim. Williams v. Seniff, 342 F. 3d 774, 788 n. 13 (7th Cir.
2003); Alexander v. Wisconsin Dept. of Health and Family
Servs., 263 F.3d 673, 682 (7th Cir. 2001) (stating that "a
Plaintiff alleging race discrimination under Title VII and § 1981
can prove such discrimination either by providing direct evidence
of an employer's discriminatory intent or by showing disparate
treatment using indirect evidence and the burden-shifting method
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).").
In the instant action, it is not apparent on the face of the
complaint whether or not the failure to transfer Gross to the day
shift constituted an adverse employment action. In fact, the
Seventh Circuit has made it clear that there is no set list of
actions that do or do not constitute adverse employment actions.
See Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1044-45
(7th Cir. 2002) (explaining that "[r]ather than setting forth
a finite list of what actions constitute adverse employment
actions," the Seventh Circuit has "instead provided a range of
examples from economic injuries to other actions that are not as
easily quantifiable, but nonetheless are enough to qualify as an
adverse change in the terms and conditions of someone's
employment."). The refusal by Defendants to assign Gross to the
day shift might constitute an adverse employment action and it
might not. However, in order to resolve that issue and determine
whether or not Defendants took an adverse employment action
against Gross, we would have to enter into an inquiry into the
facts and evidence in this case which is well beyond the scope of
the complaint and the scope of a motion to dismiss. See Conley, 355 U.S. at 45-46
(stating that the allegations of a complaint should not be
dismissed for a failure to state a claim "unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief."). This
point is clearly illustrated by the fact that the element that
Defendants are arguing before the court in their motion to
dismiss is an element put forth by the Seventh Circuit for the
analysis employed to address a summary judgment motion. See e.g.
O'Neal, 392 F.3d at 911. Defendants acknowledge themselves that,
in determining whether an action is a material adverse employment
action, factors must be considered such as whether the action was
minor or was merely an inconvenience to the employee rather than
a significant alteration of job responsibilities. (Mot. 7).
Defendants also acknowledge that the court must consider whether
or not benefits or wages were impacted by the employment action
and in general whether the decision by Defendants resulted in a
"quantitative or qualitative change in the conditions of [Gross']
employment." (Mot 8). See Patt v. Family Health Systems, Inc.,
280 F.3d 749, 753 (7th Cir. 2002) ...