The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter is before the Court on Defendants' Motion to Dismiss (d/e 14). Plaintiffs Janice Draper, Brad Clearwater, and Julie Neposchlan are former employees of the Illinois Department of Transportation (IDOT). They filed the instant two-count Complaint (d/e 1) on June 30, 2006, alleging that Defendants violated their Constitutional rights in terminating their employment with IDOT. Count I alleges that Plaintiffs were terminated based on political considerations in violation of their First Amendment rights. Count II alleges that Plaintiffs were denied their property interest in their positions without due process of law. Defendants assert that dismissal is warranted pursuant to Fed. R. Civ. P. 12(b)(1) based on the fact that the Complaint is barred by the statute of limitations. Alternatively, Defendants contend that Court II fails to state a claim and should be dismissed under Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the Motion to Dismiss is denied.
For purposes of the Motion to Dismiss, the Court must accept as true all well-pleaded factual allegations contained in the Complaint and draw all inferences in the light most favorable to the Plaintiffs. Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996).
The following facts are taken from the allegations of the Complaint. Plaintiffs were technical employees with IDOT and were certified in their positions. Each of the Plaintiffs was employed in a position that IDOT determined to be protected from hiring or discharge based on political considerations. Such positions are commonly referred to as Rutan protected. See Rutan v. Republican Party of Illinois, 497 U.S. 62, 74 (1990).
In November 2002, Governor Rod Blagojevich was elected Governor of Illinois. He was sworn into office the following January. Blagojevich is affiliated with the Democratic party. The prior three Governors of Illinois were affiliated with the Republican party and served terms from 1977 to 2003.
According to the Complaint, a common scheme existed among Defendants and Governor Blagojevich to terminate State of Illinois employees who were perceived to be opponents of the Blagojevich administration and to create employment opportunities for political supporters of Governor Blagojevich. The Complaint alleges that, in furtherance of this scheme, Defendants terminated the Plaintiffs' employment under the pretense of an agency material reorganization. According to the Complaint, "[e]ach of the plaintiffs received a letter signed by Scott Doubet substantially in the form in Exhibit A or B, attached hereto asserting that the Department was 'undergoing material reorganizations' and informing the recipient plaintiff that his or her position 'is targeted for abolition.'" Complaint, ¶ 13.*fn1
The Complaint alleges that Defendants' conduct was a willful and deliberate attempt to deprive Plaintiffs of their employment in retaliation for the fact that they were not supporters of Governor Blagojevich and the Democratic Party of Illinois. The Complaint further alleges that Plaintiffs had a property interest in continued employment by virtue of the Illinois Personnel Code, Illinois Employee Personnel Rules, the IDOT Personnel Rules and/or Union Contract. Plaintiffs assert that their employment was terminated without any due process. Plaintiffs filed their two-count Complaint on June 30, 2006. Defendants move to dismiss arguing: (1) Plaintiffs' Complaint is barred by the statute of limitations and (2) Count II fails to state a claim.
A. STATUTE OF LIMITATIONS
Defendants assert that dismissal is appropriate pursuant to Fed. R. Civ. P. 12(b)(1) because Plaintiffs' Complaint is barred by the statute of limitations. The Court notes that the statute of limitations is an affirmative defense, which does not affect subject matter jurisdiction. Fed. R. Civ. P. 8(c). Therefore, Rule 12(b)(1) is not the appropriate vehicle for Defendants' argument. The Seventh Circuit has noted that it is:
"irregular" to dismiss a claim as untimely under Rule 12(b)(6). Under Federal Rule of Civil Procedure 8, a complaint need not anticipate or overcome affirmative defenses such as the statute of limitations. As a result, a federal complaint does not fail to state a claim simply because it omits facts that would defeat a statute of limitations defense. However, . . . dismissal under Rule 12(b)(6) on the basis of a limitations defense may be appropriate when the plaintiff effectively pleads herself out of court by alleging facts that are sufficient to establish the defense. Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006) (citations omitted). With this in mind, the Court analyzes Defendants' statute of limitations argument as a request for dismissal under Rule 12(b)(6).
The applicable statute of limitations for Plaintiffs' claims is two years. See Hileman v. Maze, 367 F.3d 694, 696 (7th Cir. 2004). Federal law governs the date of accrual. Id. The Seventh Circuit has held that "[a] § 1983 claim accrues when the plaintiff knows or should know that his or her constitutional rights have been violated." Id. (internal quotations and citations omitted). In analyzing accrual, the Court employs a two-step inquiry. "First, a court must identify the injury. Next, it must determine the date on which the plaintiff could have sued for that injury. That date should coincide with the date the plaintiff knows or should know that her rights were violated." Id. (internal quotations and citations omitted).
Defendants, citing numerous cases, assert that Plaintiffs' causes of action accrued at the time that they discovered that they were to be laid off, not at the time the layoffs became effective. Plaintiffs' Complaint was filed June 30, 2006. Defendants assert that Plaintiffs' claims accrued more than two years prior to this date. To support their argument, Defendants point the Court to Exhibits A and B, which are form letters dated June 1, 2004, and May 24, 2004, respectively. Defendants' Memorandum, Ex. A & B. Defendant's assert that "Plaintiffs were told that they were to be laid off prior to June 30, 2004." Id., p. 8. Plaintiffs argue that the discovery rule and equitable tolling apply to extend the deadline for filing suit. The Court need not reach Plaintiffs' arguments, however, because Defendants' assertion that Plaintiffs discovered that they were to be laid off prior to June 30, 2004, is not supported by the exhibits or the allegations of the Complaint.
The Complaint is devoid of allegations regarding the date on which Plaintiffs discovered that they were to be laid off. The Complaint alleges as follows: "Each of the plaintiffs received a letter signed by Scott Doubet substantially in the form in Exhibit A or B, attached hereto asserting that the Department was 'undergoing material reorganizations' and informing the recipient plaintiff that his or her position 'is targeted for abolishment.'" Complaint, ¶ 13. Exhibits A and B are blank form letters. Exhibit A bears the date June 1, 2004, and Exhibit B bears the date May 24, 2004. Defendants' Memorandum, Ex. A & B. The Court first notes that the Complaint alleges only that Plaintiffs received letters that were "substantially similar" to Exhibits A and B. Complaint, ¶ 13. Viewed in the light most favorable to Plaintiffs, this allegation is insufficient to allow the Court to conclude that Plaintiffs received letters bearing the dates June 1, 2004, and May 24, 2004. Moreover, there is nothing in the record to indicate when Plaintiffs received the letters notifying them of the layoff. See Hileman, 367 F.3d at 696 (holding that accrual ...