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Atterberry v. Cook County Sheriff

February 23, 2010

WANDA ATTERBERRY, PLAINTIFF,
v.
COOK COUNTY SHERIFF, DEFENDANT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant's motion to dismiss and Defendant's motion for sanctions. For the reasons stated below, we grant the motion to dismiss and deny the motion for sanctions.

BACKGROUND

Plaintiff Wanda Atterberry (Atterberry) alleges that from December 1995 to August 2006 she was employed by Cook County Department of Corrections (DOC) as a prison guard at the Cook County Jail. Atterberry claims that she filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) in June 2006 (First EEOC Charge). Subsequently, Atterberry was allegedly subjected to harassment, and the terms and conditions of her employment were altered in retaliation for the filing of the First EEOC Charge. On June 21, 2006, Atterberry allegedly filed a complaint with the Inspector General's Office of the Cook County Sheriff's Office (IG's Office), complaining about the alleged harassment. Atterberry claims that the harassment then worsened, and that on August 29, 2006, she was suspended for having an unauthorized no-pay status.

Defendant indicates that on August 29, 2006, a written complaint was filed with the Cook County Sheriff's Merit Board (Merit Board) alleging that Atterberry failed to report for duty on April 22, 2006. The complaint also alleged that Atterberry violated certain rules and regulations of the DOC by calling in to take a medical day even though she knew that she had no medical leave time accumulated and was in unauthorized no-pay status. According to Defendant, Atterberry had called in sick on prior occasions twenty times without having sick leave. Atterberry was accorded hearings before the Merit Board on June 7, 2007, and June 22, 2007 (Administrative Proceedings), and on October 25, 2007, the Merit Board issued a written ruling finding that the charges against Atterberry were meritorious and ordering termination of her employment, effective August 28, 2006.

Atterberry also contends in her complaint that on November 8, 2007, she was denied an opportunity to return to work despite the fact that an unrelated prior arbitration ruling had ordered Defendant to allow Atterberry and others to return to work. On November 26, 2007, Atterberry filed a second EEOC Charge (Second EEOC Charge) alleging further retaliation. On October 21, 2009, Atterberry filed the instant action and includes in her complaint claims alleging race discrimination and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I), and race discrimination in violation of 42 U.S.C. § 1981 (Section 1981) (Count II). Defendant moves to dismiss all claims and moves for sanctions.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), a court must "accept as true all of the allegations contained in a complaint" and make reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (U.S. 2009)(stating that the tenet is "inapplicable to legal conclusions"); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A complaint that contains factual allegations that are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).

DISCUSSION

I. Proper Defendant

Defendant Cook County Sheriff (Sheriff) moves to dismiss the instant action.

We note that DOC was named as the sole defendant in the complaint. However, the DOC is not a suable entity. Castillo v. Cook County Mail Room Dept., 990 F.2d 304, 307 (7th Cir. 1993). The Sheriff is the proper Defendant in this case and Atterberry has not objected to the Sheriff's substitution as the Defendant in ...


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