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Mitchell v. City of Chicago

May 13, 2010


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Before the Court is Defendant's motion to dismiss parts of Plaintiff's amended complaint [46]. Plaintiff's lawsuit invokes Title VII of the Civil Rights Act of 1964 ("Title VII"), as well as 42 U.S.C. §§ 1981 and 1983. The Court has subject-matter jurisdiction over this federal-question case pursuant to 28 U.S.C. §§ 1331 and 1343.

For the reasons set forth below, Defendant's motion is respectfully denied. In addition, the Court denies as moot Defendant's additional request to stay discovery while the motion to dismiss is resolved. See Def. Mot. at 5, 12.

I. Background

Plaintiff filed his lawsuit pro se in June 2009. Subsequently, Plaintiff retained counsel [14] and the Court granted leave for Plaintiff to amend his complaint [43]. Plaintiff amended his complaint [44], which Defendant now moves to dismiss. In a nutshell, Plaintiff's allegations are that (1) he was harassed, suspended, and denied a merit-based raise on account of his race and (2) Defendant retaliated against Plaintiff for filing discrimination charges with the Equal Employment Opportunity Commission ("EEOC").

Plaintiff, an African-American, began working for Defendant in 2003 in the City of Chicago's Department of Revenue, Tax Division. He started out as an "Auditor I" and was promoted in 2005 to the position of "Auditor II." He remains employed in that position. Compl. ¶ 4.

The trouble, according to Plaintiff, began in February 2006. That is when Defendant's managers began subjecting Plaintiff to "systematic and continuous harassment and racial discrimination." Compl. ¶ 5. The discrimination included "managers constantly watching over [Plaintiff] sign in and out for breaks," as well as placing the break-time sign-in and sign-out sheets on the manager's desk, something that was not done for other similarly situated non-black employees. The sign in sheet was placed on the manager's desk prior to the time when Plaintiff was to take his scheduled breaks as part of an effort to facilitate "intimidating" and "snide" remarks to Plaintiff. On August 16, 2007, for example, Plaintiff went to sign out and management stated, "I expect you to be back on time." Id. According to Plaintiff, that kind of remark created a hostile work environment and the statements were not made to similarly situated non-black employees. Id.

Plaintiff's workplace grievances continued the next day when he was sent home, allegedly for violating Defendant's dress code, by wearing a shirt that had print on it, "even though Plaintiff had a blazer in the office that covered the writing on the shirt." Compl. ¶ 6. Plaintiff alleges that the treatment created "a hostile and offensive work environment" and that no other similarly situated non-black employees were treated the same way. Id.

Four days later, Plaintiff presented management with a request for time off. But on the afternoon that Plaintiff submitted his leave request, he was summoned to the management office and told that on August 29, 2007 (the day he hoped to have off), he would be subjected to a disciplinary hearing. When Plaintiff informed Defendant that he already had requested that day off, he was told-with a "smirk"-that his time off request had been denied. Compl. ¶ 7. No other similarly situated non-black employees were treated like Plaintiff. Id. And on September 10, 2007, Plaintiff was suspended for violating Defendant's dress code policy (apparently the culmination of the printed-shirt incident) and for "failure to return to work." Id. ¶ 8. According to Plaintiff, no other similarly situated non-black employees have been suspended for violating the dress code policy. Both of these latter incidents are part of Plaintiff's harassment and hostile work environment claims.

September 2007 found Plaintiff filing an EEOC charge and, he says, subject to retaliation for filing that charge. Plaintiff's complaint alleges that he was suspended in retaliation for filing the EEOC charge, although the announced reason was insubordination and for having made intimidating statements the previous August. Plaintiff also says that he was denied merit pay increases even though he was meeting his employer's legitimate business expectations. Compl. ¶¶ 10-12, 17. At the end of September, Plaintiff filed another EEOC charge for continued discrimination and for retaliation. Id. ¶ 14. But that just spurred more retaliation, including a pretextual suspension for "alleged poor work performance and not performing * * * job duties" up to standards that were set solely for Plaintiff. Id. ¶¶ 15-16.

According to Plaintiff, he filed another EEOC charge, received a right to sue letter, and then filed his lawsuit in June 2009. Compl. ¶¶ 22-26. Subsequently, Plaintiff received a "poor" evaluation score on his six-month review, which prevented him from receiving a merit-based salary increase. Id. ¶¶ 27, 30. The complaint indicates that the supervisor was acting "according to the City's persistent and widespread custom and well settled practice of discriminating against black employees by disciplining and treating black employees differently than non-black employees." Id. ¶ 32.

Plaintiff's two count complaint seeks damages for lost wages, "monetary loss," emotional distress, mental anguish, and harm to his reputation. In Count I, Plaintiff appears to allege that at least some of the aforementioned acts constituted discrete acts of discrimination; Plaintiff also alleges that Defendant's conduct created a hostile work environment. In addition, Plaintiff alleges that the treatment that he suffered was part of a larger practice of discrimination against black employees-they have been subjected to unmerited write-ups, singled out for selective enforcement of the dress code policy, denial of pay increases, denial of time-off requests, and suspensions. See Compl. ¶¶ 34-39. Count I invokes Title VII of the Civil Rights Act of 1964 (codified at 42 U.S.C. § 2000e et seq.), as well as 42 U.S.C. § 1981 ("Section 1981") and 42 U.S.C. § 1983 ("Section 1983"). In Count II, Plaintiff alleges that he was retaliated against for filing his EEOC charges as well as for using internal grievance procedures, and he hangs his claim for relief on the same three statutory hooks as Count I.

II. Legal Standard for Rule 12(b)(6) Motions to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case.See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1965, 1973 n.14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts ...

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