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Velazquez v. Office of the Ilinois Secretary of State

November 2, 2009

NELSON VELAZQUEZ, PLAINTIFF,
v.
OFFICE OF THE ILINOIS SECRETARY OF STATE, THOMAS BENIGNO, BRAD DEMUZZIO, STEPHAN ROTH, MIKE PIPPIN AND STEVE NASH, DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

Plaintiff Nelson Velazquez is an adult Hispanic male and was formerly employed as a law enforcement officer for the Illinois Secretary of State. Plaintiff filed a complaint in this Court alleging race discrimination, a due process violation, and unlawful arrest.*fn1 Specifically, Plaintiff alleges in Count I that he was discriminated against because of his race on three occasions: (1) On September 26, 2007 when he was placed on administrative leave; (2) on November 16, 2007 when he was suspended from his employment without pay; and (3) on April 30, 2008 when he was involuntarily terminated.*fn2 Plaintiff seeks a declaratory judgment that these actions are unlawful, a mandatory injunction reinstating Plaintiff to his former position, compensatory damages and attorneys' fees. Count II alleges a violation of his due process rights under the Fourteenth Amendment to the Constitution by Defendants Benigno, Demuzzio and Roth. In this Count, Plaintiff alleges that on November 16, 2007 he was suspended without pay for a period of time exceeding thirty days without being provided with written charges of the allegation and without having an opportunity to be heard in violation of the Merit Employment Code. Plaintiff seeks a declaratory judgment determining the actions complained of are unlawful under 42 U.S.C. §§ 1983 and 1988, a mandatory injunction reinstating his position, compensatory damages and attorneys' fees. Count III alleges unlawful arrest in violation of the Fourth Amendment to the Constitution against Defendants Pippin and Nash. Plaintiff alleges that on or about September 26, 2007 he was placed under arrest by Pippin and Nash with no evidence that would establish probable cause. Plaintiff seeks a declaratory judgment that the actions complained of are unlawful under 42 U.S.C. §§ 1983 and 1988, compensatory damages, assessment against each defendant and the cost of attorneys' fees.

Defendants now move to dismiss all counts of Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f). For the following reasons, Defendants' motion to dismiss Plaintiff's complaint is denied.

II. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) requires that I analyze the legal sufficiency of the complaint, and not the factual merits of the case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). I must take all facts alleged in Plaintiff's complaint as true and draw all reasonable inferences from those facts in favor of the Plaintiff. Caldwell v. City of Elwood, 959 F.2d 670, 671 (7th Cir. 1992). Plaintiff, for his part, must do more than solely recite the elements for a violation; he must plead with sufficient particularity so that his right to relief is more than a mere conjecture. Bell Atl., Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must plead his facts so that, when accepted as true, they show the plausibility of his claim for relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plaintiff must do more than plead facts that are "consistent with Defendants' liability" because that only shows the possibility, not the plausibility, of his entitlement to relief. Id. (internal quotations omitted).

III. DISCUSSION

A. Count I

Under Title VII of the Civil Rights Act of 1964, it is unlawful "for an employer to fail or refuse to hire or to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Plaintiff's Count I alleges that because of his race, Plaintiff is Hispanic, he was placed on administrative leave, suspended, and involuntarily terminated.

Prior to the Supreme Court cases of Twombly and Iqbal, the Seventh Circuit allowed those asserting Title VII discrimination to plead "quite generally." Tamayo v. Blagojevich, 526 F.3d 1074, 1084-85 (7th Cir. Ill. 2008). Even after Twombly, the Seventh Circuit noted, that "[P]eople have reasonably clear ideas of how a racially biased person might behave" (Equal Employment Opportunity Commission v. Concentra Health Services Inc., 496 F.3d 773, 782 (7th Cir. 2007)) and that "once a plaintiff alleging illegal discrimination has clarified that it is on the basis of her race, there is no further information that is both easy to provide and of clear critical importance to the claim." Id. The allegation, "I was turned down a job because of my race," is sufficient to state a claim upon which relief can be granted. Id. at 781. Although Concentra was decided just after Twombly, the Seventh Circuit later reexamined the pleading standard for Title VII discriminations cases in the wake of Twombly. Blagojevich, 526 F.3d at 1084-85. Prior to the Supreme Court's decision in Ashcroft v. Iqbal*fn3 the Seventh Circuit expressed that they intended neither to "over-read nor under-read" the holding of Twombly. Id. at 1082. Given this intent, however, the Seventh Circuit proceeded to analyze the Title VII pleading standard according to the new, heightened Twombly standard.

In Blagojevich, the Seventh Circuit acknowledged that Twombly required a two-prong approach to establishing a complaint in federal court. Blagojevich, 526 F.3d at 1084. First, the complaint must provide "sufficient detail" of the asserted claims to give the defendant fair notice of the claim and the grounds upon which it rests. Id. Second, the allegations must rise above the level of speculation and "plausibly suggest that the plaintiff has a right to relief." Id.

Acknowledging "that a complaint must contain something more than a general recitation of the elements of the claim," the Seventh Circuit reaffirmed the minimal pleading standard for simple claims of race or sex discrimination set forth in Bennett v. Schmidt and affirmed in Concentra. Id. at 1084-85; Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998); Concentra, 496 F.3d at 781-82. This standard acknowledged that "racial discrimination in employment is 'a claim upon which relief can be granted,'" and stated that no detail beyond the clarifying allegation that discrimination is on the basis of race is necessary. Bennet, 153 F.3d at 518. Furthermore, the Seventh Circuit recognized that although a Title VII claim requires proof of intentional discrimination, "this is implied by a claim of racial 'discrimination.'" Id.

Defendants argue that Plaintiff has failed to state a claim of discrimination under Title VII because Plaintiff has made no "non-conclusory allegation that he was discriminated against" (emphasis omitted). Plaintiff's complaint states that he is "an adult Hispanic" and therefore a member of a protected class under the terms of the Civil Rights Act of 1964, that he was "formerly employed as a law enforcement officer for the Secretary of State," and that he was discriminated against because of this race on three separate occasions: (1) on September 26, 2007 when he was placed on administrative leave; (2) on November 16, 2007 when he was suspended from his employment; and (3) on April 30, 2008 when his employment was involuntarily terminated. Although Plaintiff's Count I is sparse, given the ...


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