The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants' motion to
dismiss. For the reasons stated below, we grant the motion in
part and deny the motion in part as moot.
Plaintiff Gayle D. Harris ("Harris") alleges that she worked
for the Chicago Public Schools ("CPS") and that she was promoted
to a permanent position as a payroll clerk in the late summer
2002. Harris claims that in early March 2003, she started to ask
questions regarding individuals that she thought were overpaid by
the CPS and she stated that she objected to the overpayments.
Harris claims that on March 19, 2003, she received a "harassing email" from her
supervisor. (Compl. Par. 12). Harris alleges that on April 1,
2003, she was "further harassed further [sic] via email." (Compl.
Par. 12). According to Harris she subsequently asked her
supervisor about certain payroll practices and thereafter Harris
was "again harassed via email." (Compl. Par. 13). Harris claims
that afterwards she "was informed" that her manager was
attempting to fire her because the "manager felt that [Harris]
was not loyal." (Compl. 14). Harris further claims that, around
this time, she expressed her disapproval of a variety of other
conduct by the various employees working for the CPS. Harris
claims that she was singled out because of her complaints about
the conduct of the CPS employees and was given the "silent
treatment" at work. (Compl. Par. 16). On June 30, 2004, the CPS
terminated Harris' employment, indicating that the reason for the
termination was that workers needed to be laid off in order to
reduce the workforce and meet budgetary constraints. Harris
brought the instant action in Illinois state court and includes
in her complaint a claim alleging a retaliatory discharge in
violation of 42 U.S.C. § 1983 ("Section 1983") (Count I), a state
law retaliatory discharge claim (Count II), a claim brought
pursuant to the Illinois Whistleblower Protection Act, Act,
5 ILCS 395/1, (Count III), an intentional of infliction of
emotional distress claim (Count IV), and a Section 1983 due
process and equal protection claim (Count V). This action was
subsequently removed to federal court. LEGAL STANDARD
In ruling on a motion to dismiss, brought 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, 454-55 (7th Cir. 1998); Lucien v.
Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). Under current
federal notice pleading standard 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]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] claims." 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.
1. Section 1983 Claims Against Duncan and Juarez
Defendants argue that the complaint fails to allege any
personal involvement by Defendant Arne Duncan ("Duncan") or
Defendant Ascencion Juarez ("Juarez") in the alleged
constitutional deprivations. The Seventh Circuit has made it
clear that "[t]he doctrine of respondeat superior does not
apply to § 1983 actions. . . ." Sanville v. McCaughtry,
266 F.3d 724, 740 (7th Cir. 2001). Thus, an individual cannot be held
liable under Section 1983 in his individual capacity unless he
"participated directly in the constitutional violation."
Hildebrandt v. Illinois Dept. of Natural Resources,
347 F.3d 1014, 1039 (7th Cir. 2003) (stating that "Section 1983 creates a
cause of action based on personal liability and predicated upon
fault; thus, liability does not attach unless the individual defendant caused or
participated in a constitutional deprivation"). For a supervisor
to be held liable under Section 1983 for acting in his
supervisory role, a plaintiff must show that the supervisor
directed the constitutional deprivation or that it occurred with
his "knowledge and consent." Id. (indicating that a plaintiff
must show that the supervisor knew "about the conduct and
facilitate[d] it, approve[d] it, condone[d] it, or turn[ed] a
In the instant action, the complaint provides that Duncan is
the Chief Executive Officer of the CPS and that Juarez is the
Chief Human Resources Officer of the CPS. (Compl. Par. 2).
However, there are not any specific allegations in the complaint
of misconduct on the part of Duncan or Juarez. In fact, other
than the initial reference in the complaint to Duncan and Juarez
and the mention of their job titles, they are not mentioned at
all in the complaint. Harris specifically alleges in the
complaint that her "supervisor" harassed her, (Compl. Par. 12),
but Harris identifies her supervisor as Defendant Nancy Slavin
("Slavin"). (Compl. Par. 2). Harris also alleges that she was
told that her "manager" was trying to get her fired, (Compl. Par.
14), but Harris also refers to Slavin as her manager. (Compl.
Par. 4, 7).
Harris, recognizing the lack of allegations concerning personal
involvement by Duncan and Juarez, argues that it is "certainly a
fair inference" that Duncan and Juarez were involved in the
budget layoffs. (Ans. 5). However, such an inference in the
absence of other evidence is not reasonable. Harris cannot
attribute personal involvement in the alleged constitutional
violations to Duncan and Juarez simply because of their titles. See Alexander v. Sheahan, 1995 WL
573632, at *1 (N.D. Ill. 1995) (stating that the plaintiff's
Section 1983 claim was improperly based upon the defendants'
"positions and titles and not from any personal involvement in
the incidents in question" and that "[t]here must be individual
participation and involvement by the defendants"). In addition,
even if the court inferred that Duncan and Juarez took some role
in the layoff process, there are no allegations upon which one
could reasonably infer that Duncan and Juarez were doing anything
other than performing their jobs lawfully during the layoff
process. Harris has not alleged that Duncan or Juarez in any way
took part in the alleged plot to unlawfully terminate Harris'
employment. The allegations of wrongdoing in the complaint point
solely toward Slavin. Since Harris has not alleged any personal
involvement on the part of Duncan or Juarez in the alleged
constitutional deprivations, we grant Defendants' motion for
summary judgment on the Section 1983 claims brought against
Duncan and Juarez.
II. Individual Capacity Section 1983 Claim Against Slavin
Defendants argue that the court should dismiss the individual
capacity claim against Slavin because Harris has failed to
specify that Slavin is being sued in her individual capacity. A
plaintiff bringing a Section 1983 claim is required to "specify
whether suit is brought against the defendant in his official
capacity or in his individual capacity." Hill v. Shelander,
924 F.2d 1370, 1372 (7th Cir. 1991). If the plaintiff fails to specify the capacity in which the defendant is
being sued, the court must determine, after reading the complaint
"in its entirety," what was intended by the plaintiff. Id. The
Seventh Circuit has explained that a court should "ordinarily
assume that [a defendant] has been sued in his official capacity
and only in that capacity, . . . [and] [i]f a plaintiff intends
to sue public officials in their individual capacities or in both
their official and individual capacities . . . he should
expressly state so in the complaint." Kolar v. Sangamon County
of State of Ill., 756 F.2d 564, 568-69 (7th Cir. 1985). In
the instant action, Harris did not specify whether she is suing
Slavin in her individual capacity, official capacity, or in both
capacities. (Compl. 5-8). Harris alleges wrongdoing by Slavin in
the performance of her official duties for the CPS. Harris' focus
in the complaint is upon Slavin's alleged abuse of her official
authority. Harris specifically alleges, for example, that
Defendants acted "under color of state law." (Compl. Par. 17).
Based on a reading of the complaint in its totality we conclude
that Harris intended to sue Slavin solely in her official
capacity. Harris complains that such a determination is premature
but, as is indicated above, a plaintiff is obligated to plead the
capacity in which a defendant is being sued and, in the absence
of such a designation, the court must make this determination.
Harris chose not to include any designation of the capacity for
the claim against Slavin and thus Harris cannot now justly
complain when the court makes this determination. Given this
determination, there is no need to dismiss an individual capacity
claim brought against Slavin as Defendants request because, based on the court's determination, Harris did not bring
an individual capacity claim against Slavin to begin with.
Therefore, we deny Defendants' motion to dismiss the individual
capacity claim against Slavin as moot.
III. Section 1983 Claim against CPS
Defendants argue that the Section 1983 claim against CPS must
be dismissed because Harris bases her claims against the CPS
solely upon the doctrine of respondeat superior. The doctrine
of respondeat superior cannot be utilized to hold local
governmental units liable for Section 1983 violations. Monell v.
Department of Social Services, 436 U.S. 658, 691 (1978). A
municipal governmental unit cannot be held liable under Section
1983 "unless the deprivation of constitutional rights is caused
by a municipal policy or custom." Kujawski v. Board of Comm'rs.
Of Bartholomew County, Indiana, 183 F.3d 734, 737 (7th Cir.
1999). A claim regarding a local governmental unit's
unconstitutional policy, practice, or custom can be based upon:
"(1) an express policy that causes a constitutional deprivation
when enforced; (2) a widespread practice, that, although
unauthorized, is so permanent and ...