The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge
In this § 1983 action, Larry J. Evans alleges that he is employed as a bricklayer by the City of Chicago Department of Water Management, that he applied for five promotions from June 1999 through April 2004, that he was not selected for any promotion even though his qualifications were superior to those who were selected, and that he was not selected in each instance because the City, acting through a conspiracy among its officials, made its decision based on political connections rather than qualifications of the applicant. He claims that his First Amendment rights to freedom of association and freedom of speech have been violated. He filed his law suit on May 24, 2007.
The City asserts the defense of the statute of limitations and moves to dismiss. Evans responds that his claim did not accrue until he knew or should have known that his constitutional rights had been violated, or when he knew or should have known that his injury stemmed from an unconstitutional municipal custom; or, if the claim did accrue more than two years before he filed his law suit, the running of statute of limitations was tolled because of the City's fraudulent concealment of facts that would have given Evans reason to believe he had a claim.
"[W]hen a motion to dismiss is based on a statute of limitations defense, it is irregular to dismiss a claim as untimely. That is because the statute of limitations is an affirmative defense, and a complaint need not anticipate or overcome affirmative defenses such as the statute of limitations. That said, dismissal based on the statute of limitations is appropriate when the plaintiff effectively pleads herself out of court by alleging facts that are sufficient to establish the defense." Zitzka v. Village of Westmont, No. 07 C 0949, 2007 WL 3334336, at *2 (N.D. Ill. Nov. 6, 2007)(citing Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006)) (internal quotation marks and citations omitted). As on a motion to dismiss for failure to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6), the court here accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff. McMillan v. Collection Prof'ls Inc., 455 F.3d 754, 758 (7th Cir. 2006).
The parties agree on basic principles: Illinois' two year statute of limitations applies to § 1983 claims arising in Illinois. Licari v. City of Chicago,298 F.3d 664, 667-68 (7th Cir. 2002) (citing Wilson v. Giesen, 956 F.2d 738, 741 (7th Cir. 1992)). A §1983 claim accrues when the plaintiff knows or should know that his or her constitutional rights have been violated. Id. at 668. The "first task in determining the accrual date of a section 1983 case is to identify the injury," and next, the court determines the date when the plaintiff could have sued for that injury. Kelly v. City of Chicago,4 F.3d 509, 511 (7th Cir. 1993). This date "should coincide with the date the plaintiff 'knows or should have known' that his rights were violated." Id.; see also Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990) ("Accrual . . . is not the date on which the wrong that injures the plaintiff occurs, but the date-often the same, but sometimes later-on which the plaintiff discovers that he has been injured."). This is the date the statute of limitations began to run.
Applied to Evan's complaint, the first determination is easy: Evans was injured each time he was passed over for promotion for lack of political clout. As for when Evans could have sued for his injury, the City argues that he could have sued immediately upon notice of his non-selection, citing Kelly, 4 F.3d 509(§1983 due process claim based on police officers' allegedly false allegations of narcotics violations resulting in revocation of liquor license accrued on the date of revocation, not on the date the bar was actually closed after legal proceedings were completed); Ferrante v. City of Chicago, No. 06 C 5024, Dkt. No. 23 (N.D. Ill. Jan. 10, 2007) (time for filing complaint alleging contempt of "Shakman decree" began to run on date plaintiff became aware that an adverse decision was made); and Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 (7th Cir. 1995)*fn1 (ADEA action accrued when the plaintiff discovered that he has been injured, not when he determined that the injury was unlawful).
In response, Evans makes two arguments under the "discovery rule" of accrual, which postpones accrual from the date the party is injured to the date when the party, exercising reasonable diligence, discovers or should have discovered the injury. Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 717 (7th Cir. 1994) (citing Cada, 920 F.2d at 450). First, he argues that he could not have discovered his injury because he did not have access, at the time of his non-selection, to information about the employees that were selected for the positions. At least, he contends, this cannot be decided on a motion to dismiss. Second, he argues that he could not have discovered his injury because he had no access to facts revealing the unconstitutional acts of the City's officials.
The first argument lacks support in case law, particularly after Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007), which held that a Title VII plaintiff's claim based on recently received pay was time-barred even though the plaintiff at the time the discriminatory compensation was initiated lacked access to facts supporting a claim. Even before Ledbetter, the law was settled for employment discrimination cases involving hiring, promotion and terminations. See Thelen, 64 F.3d at 267; Ledbetter, 127 S.Ct. at 2181 (Ginsburg, J., dissenting) (arguing that a different rule should apply to discrimination in compensation, stating that a worker knows immediately if she is denied a promotion or transfer, fired, or refused employment, whereas compensation disparities are often hidden from sight). Evans' effort to distinguish Thelen and Ledbetter on the basis that they are employment discrimination cases entailing a fact-finding administrative procedure is unavailing in the face of Delaware State College v. Ricks, 449 U.S.250 (1980) (claims pursuant to both Title VII and § 1981 accrued on date plaintiff was denied tenure, not date he left his job), as well as Kelly and Cathedral of Joy, which are § 1983 cases that apply the same rule, as do Ferrante (contempt of consent decree), and Teumer v. General Motors Corp., 34 F.3d 542, 550 (7th Cir. 1994) (rejecting plaintiff's "meritless argument" that ERISA claim did not accrue until he first discovered the information from which he ascertained the alleged unlawful nature of the layoff).
Evans' second argument is also unpersuasive. Acknowledging the holding in Kelly that the § 1983 claim was time barred, Evans attempts to distinguish it on the facts. Evans relies on the portion of the opinion (after finding the date of accrual as the date when the plaintiffs learned the liquor license was revoked) where the court also rejected the plaintiffs' argument that their claim did not accrue until they discovered the police officers' perjury once they were acquitted on state criminal charges. The court reasoned that if plaintiffs were not involved in narcotics, they knew the officers' allegations were false when they were uttered; thus, they had reason to know at the time of revocation that the defendants' conduct was unconstitutional. Kelly, 4 F.3d at 513. Evans argues that he, by contrast to the Kelly plaintiffs, "was not aware that fraudulent conduct was afoot" at or about the times he was not promoted; as such, his claim did not accrue until he was through reasonable diligence able to discover the Shakman violation supporting his claim.*fn2
The cited language in Kelly merely leaves open the possibility that if the plaintiffs at the time of the revocation believed they were involved in narcotics but later learned through the acquittal they were not (an implausible scenario to say the least), accrual might have been postponed until they learned the truth that they had been injured. The cases cited above demonstrate abundantly that a plaintiff in Evans' shoes would have discovered his injury each time he learned he was not selected for promotion, even though he did not learn the reason for his non-selection.
Evans' argument that his custom and practice allegations under the Monell doctrine*fn3 point to a different result is also unavailing. Evans relies on dictum in Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir. 1995), where the plaintiff claimed that a county, through a series of wrongful acts occurring over a period of years, maintained a custom and practice that denied him his civil rights. Id. The court stated that a Monell claim against a municipality "does not necessarily accrue upon the occurrence of a harmful act, but only later when it is clear, or should be clear, that the harmful act is the consequence of a county 'policy or custom.'" Id. at 1157. It held, in any event, that the suit was untimely. Id. Because accrual looks at discovery of the injury not the cause of it, Pinaud does little to explain why a Monell claim should be viewed differently from any other civil rights claim. Indeed, a dissenting opinion took issue with the majority's dictum on the basis that it was inconsistent with Second Circuit precedent. See id. at 1162 (Jacobs, J., concurring in part and dissenting in part) ("The majority's statute-of-limitations view is not consonant with our most recent pronouncement on the issues addressed by Monell . . . . [A] § 1983 cause of action accrues when the plaintiff becomes aware that [s]he is suffering from a wrong for which damages may be recovered in a civil action.") (internal citations and quotation marks omitted). Inasmuch as there is no subsequent Second Circuit case relying on Pinaud's dictum and nothing in Seventh Circuit case law supporting it, Evans' argument lacks persuasive force.
Evans must turn to his equitable tolling argument. Equitable tolling stops the statute of limitations from running once the accrual date has passed because the defendant takes active steps to prevent the plaintiff from suing in time. Cada, 920 F.2d at 450--51. This doctrine "presupposes that the plaintiff has discovered, or, as required by the discovery rule, should have discovered, that the defendant injured him, and denotes efforts by the defendant-above and beyond the wrongdoing upon which the plaintiff's claim is founded-to prevent the plaintiff from suing in time." Id. at 451.
Evans contends that because the City fraudulently concealed their acts from the plaintiff and the public by signing Shakman certifications stating that hiring was based on merit and not political considerations, it concealed the patronage scheme, causing tolling until he could have discovered the truth. This argument must fail because the fraudulent conduct of the defendant is part of the wrongdoing that constitutes the constitutional violation. See id. at 451 (the wrongdoing for tolling must be "above and beyond the wrongdoing upon which the plaintiff's claim is founded"); see also Thelen, 64 F.3d at 268 ("It is the view of this court that [concealment of facts revealing the alleged discrimination as a basis for tolling] would eviscerate the concept of a limitations period because [i]t implies that a defendant is guilty of fraudulent concealment unless it tells the plaintiff, 'We're firing you because of your age.'") (internal quotation marks omitted).
Because the City has demonstrated that Evans filed his suit more than two years after his claim accrued, and because Evans has not proffered a plausible basis for equitable tolling, this appears to be the exceptional case where dismissal of the complaint, even ...