United States District Court, N.D. Illinois, Eastern Division
December 16, 2005.
ARCHIE L. HIGH, Plaintiff,
CHICAGO WATER DEPARTMENT, Defendant.
The opinion of the court was delivered by: JOHN DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Archie L. High, filed suit, pro se, against
Defendant, the Chicago Water Department, alleging a race
discrimination violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C. §§ 1981 and 1983,
and age discrimination in violation of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 623, et seq. Presently
pending before the Court is Defendant's Partial Motion to
A reading of Plaintiff's Charge of Discrimination and Complaint
supports the following summary of the alleged conduct of the
Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission on March 25, 2005. Plaintiff's
charge alleged that he was employed with the Chicago Water
Department since March 1974. In June 2004, Plaintiff applied for
the position of a Construction Labor Foreman. On December 21,
2004, Plaintiff learned that the seven foreman positions had been
filled with other individuals. The individuals chosen had less
service than Plaintiff, were younger than Plaintiff, and most
were non African-American. The Charge of Discrimination states
that the earliest date of discrimination took place "06-02-2004"
and the latest discrimination took place "12-21-2004." On June
17, 2005, Plaintiff received a right-to-sue letter. On June 17, 2005, Plaintiff filed the instant Complaint.
Plaintiff's Complaint was drafted pro se on the court's
"Complaint of Employment Discrimination" form. On the form
complaint, Plaintiff indicated that the Defendant discriminated
against the Plaintiff on or about September 15, 1983. The
allegations summarized above are included in the Complaint. The
Complaint does not contain any allegations pertaining to a date
prior to June 2, 2004, when Plaintiff applied for the foreman
position. Plaintiff remains employed by the Defendant.
In reviewing a motion to dismiss, the court reviews all facts
alleged in the complaint and any inferences reasonably drawn
therefrom in the light most favorable to the plaintiff.
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323,
326 (7th Cir. 2000). A plaintiff is not required to plead the
facts or the elements of a claim, with the exception found in
Federal Rule of Civil Procedure 9. See Swierkiewicz v. Sorema,
534 U.S. 506, 511 (2002) (Swierkiewicz); Walker v. Thompson,
288 F.3d 761, 764 (7th Cir. 2002). A filing under Federal Rules
of Civil Procedure need not contain all the facts that will be
necessary to prevail. It should be "short and plain," and it
suffices if it notifies the defendant of the principal events.
See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003).
Dismissal is warranted only if "it appears beyond a doubt that
the plaintiff can prove no set of facts in support of its claims
that would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). If there are no set of facts that would entitle
the plaintiff to relief, dismissal is warranted. See Stachowski
v. Town of Cicero, 425 F.3d 1075, 1078 (7th Cir. 2005)
(Stachowski). Furthermore, pro se complaints are liberally
construed "and [are] not held to the stringent standards expected
of pleadings drafted by lawyers." McCormick v. City of Chicago,
230 F.3d 319, 325 (7th Cir. 2000). Defendant argues that the City of Chicago's Department of Water
Management should be dismissed as a party defendant because it is
not a proper defendant as it does not exist separately from the
City of Chicago. Instead, the City of Chicago should be
substituted as the proper Defendant. See Bonilla v. City Council
of the City of Chicago, 809 F. Supp. 590, 601 (N.D. Ill. 1992);
Dr. Martin Luther King, Jr. Movement, Inc. v. City of Chicago,
435 F. Supp. 1289, 1294 (N.D. Ill. 1977). The Chicago Water
Management is dismissed with prejudice as a non-suable entity,
and the City of Chicago is substituted as the proper
Defendant also argues that Plaintiff's Sections 1981 and 1983
claims should be dismissed because Plaintiff failed to plead a
constitutional injury resulting from a municipal policy.
A local governmental entity is liable for damages under
Sections 1981 and 1983 only if a plaintiff can show that the
alleged constitutional deprivation occurred as a result of an
official policy, custom, or practice. See Monell v. Department
of Social Serv., 436 U.S. 658, 692 (1978). Unconstitutional
policies or customs can take three forms: an express policy that,
when enforced, causes a constitutional deprivation; a widespread
practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to
constitute a usage or custom with the force of law; or an
allegation that the constitutional injury was caused by a person
with final policy-making authority. Brokaw v. Mercer County,
235 F.3d 1000, 1013 (7th Cir. 2000).
Here, Plaintiff alleges that he was passed over for a promotion
because of his race and age. Whether his failure to obtain the
promotion was because of a widespread practice or caused by a
person with final policy-making authority cannot be determined at
the present stage of the case. Defendant is not entitled to dismissal on this basis. See
Swierkiewicz, 534 U.S. at 511 (plaintiff need not plead facts or
elements of the claim); Johnson v. Sheahan, 2005 WL 2739183
(N.D. Ill. Oct. 24, 2005) (denying dismissal of Section 1983
claim for failure to plead Monell elements).
Defendant also seeks dismissal of any alleged discriminatory
acts that fall outside the applicable statute of limitations: (1)
four years for the Section 1981 claims, Jones v. R.R. Donnelley
& Sons Co., 541 U.S. 369, 383-84 (2004); (2) two years for the
Section 1983 claims, Licari v. City of Chicago, 298 F.3d 664,
667-68 (7th Cir. 2002); and (3) three hundred days prior to the
filing of the EEOC charge for the Title VII claims, Filipovic v.
K & R Express Sys., Inc., 176 F.3d 390, 396 (7th Cir. 1999).
Plaintiff's present Complaint does not contain any alleged
discriminatory acts outside the applicable limitations period.
While Plaintiff filled in the date of September 15, 1983, in one
section of the form complaint, all of the alleged conduct
pertains to Plaintiff's applying for the promotion in June 2004
and the denial of that promotion in December 2004. Accordingly,
there are no discriminatory acts pled to dismiss at this time
that fall outside the applicable limitations period.
Lastly, Defendant seeks to strike Plaintiff's request for
As codified, Title VII permits a plaintiff to recover punitive
damages "against a respondent (other than a government,
government agency or political subdivision). . . ."
42 U.S.C. § 1981a(b)(1) (emphasis added); See Baker v. Runyon,
114 F.3d 668, 671 (7th Cir. 1997) (holding that punitive damages in Title
VII cases are unavailable against government agencies). In
addition, a municipality is immune from punitive damages in a
42 U.S.C. § 1981 or § 1983 action. See Newport v. Facts Concerts,
Inc., 453 U.S. 247, 271 (1981) (precluding punitive damages
against a municipality under § 1983); Bell v. City of
Milwaukee, 746 F.2d 1205, 1270 (7th Cir. 1984), overruled on other grounds, Russ v. Watts, 414 F.3d 783, 791
(7th Cir. 2005) (precluding punitive damages against a
municipality under § 1981). Accordingly, Plaintiff's request for
punitive damages is stricken.
For the foregoing reasons, Defendant's Partial Motion to
Dismiss is granted in part and denied in part. The City of
Chicago is substituted as Defendant, and the Chicago Water
Management is dismissed. Plaintiff's request for punitive damages
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