The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Clara Simms-Johnson ("Simms-Johnson"), now proceeding pro se, filed an employment discrimination suit against the Illinois Department of Human Services ("IDHS") and AFSCME Council 31 Union Local 2806 ("AFSCME") (collectively "Defendants"). Simms-Johnson's "Corrected Third Amended Complaint" alleges that she was improperly discharged from her job as a Human Services Caseworker. She brings claims against the Defendants under Title VII, the Age Discrimination in Employment Act ("ADEA"), and 42 U.S.C. §§ 1981 and 1983. IDHS moves to dismiss the claims brought under 42 U.S.C. §§ 1981 and 1983 because it is not a "person" under these statutes. AFSCME moves to dismiss all of Simms-Johnson's claims under Rule 12 for lack of jurisdiction and failure to state a claim upon which relief can be granted. For the reasons stated below, the Court grants IDHS' Partial Motion to Dismiss and grants AFSCME's Motion to Dismiss.
Simms-Johnson was a Human Services Caseworker with the IDHS from January 16, 2008 to May 14, 2008. (Corrected Third Am. Compl. ¶¶ A, 4.) Upon starting the job on January 16, 2008, Simms-Johnson was to work as a probationary employee. (Corrected Third Am Compl. ¶ J.) Simms-Johnson claims that she received a lower salary than the amount she deserved under the collective bargaining agreement ("CBA") because of her race and age. (Corrected Third Am. Compl. ¶ C.) IDHS apparently classified Simms-Johnson as an "emergency" employee based on her employment status in her previous job, and as a result she did not fall under the collective bargaining agreement. (Corrected Third Am. Compl. ¶ 3.) Simms-Johnson alleges that she was discharged on May 14, 2008 in retaliation for writing a May 9, 2008 letter complaining of IDHS's discriminatory actions. She then turned to AFSCME for representation, but did not receive help because she was only a probationary employee. (Corrected Third Am. Compl. ¶¶ 8, 13.)
Simms-Johnson filed a Complaint against IDHS and Michelle Saddler, the Secretary of IDHS, on January 27, 2010. She filed an Amended Complaint against IDHS, Saddler, and AFSCME on February 8, 2010. She also filed her Third Amended Complaint on July 1, 2010, and a "Corrected" Third Amended Complaint on July 2, 2010 against defendants IDHS and AFSCME.
While Simms-Johnson is now proceeding pro se, that was not always the case. The Court provided her appointed counsel on February 8, 2010, and appointed counsel filed their appearance on February 16, 2010. (R. 6, 9, 10.) At a status hearing June 24, 2010, this Court granted appointed counsel's motion to withdraw from the case because of an irreconcilable conflict over how Simms-Johnson's case should proceed. While being represented by counsel, Simms-Johnson filed her Second Amended Complaint without consulting counsel, and counsel advised her that, based on their assessment of the facts of the case and federal pleading procedures, she should file instead their proposed second complaint, which would not include claims against AFSCME. (R.31.)
Specifically, Simms-Johnson stated at the status hearing that her counsel "asked that I dismiss Title VII discrimination against AFSCME" but she decided to file her Second Amended Complaint anyway.*fn1 Based on this conflict the Court granted counsel's motion to withdraw. Simms-Johnson later received another appointed attorney, but on October 12, 2010 the Court also granted this counsel's motion to withdraw for similar reasons-Simms-Johnson failed to "agree with the legal advice" of counsel. Simms-Johnson went forward pro se and filed subsequent amended complaints, including the most recent Corrected Third Amended Complaint.
Pro se complaints should be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true . . . 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. Id.
Simms-Johnson's Corrected Third Amended Complaint asserts a variety of claims but does not distinguish specifically which claims apply to the IDHS and which ones apply to AFSCME. On the form Complaint Simms-Johnson put a check in the following boxes: (1) "Age (Age Discrimination Employment Act)"; (2) "Race (Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981)"; and (3) "Sex (Title VII of the Civil Rights Act of 1964)." A later question also noted that (4) she experienced discrimination based on race under 42 U.S.C. § 1983. Finally, she claimed (5) retaliation under Title VII.
First, as to the IDHS, Simms-Johnson claims discrimination in violation of the ADEA, Title VII (race, sex, and retaliation), and 42 U.S.C. §§ 1981 and 1983. Second, as to AFSCME, Simms-Johnson also claims discrimination in violation of the ADEA and Title VII (race, sex, and retaliation). But she cannot assert a Section 1983 action against AFSCME, which is a labor union and private party-Section 1983 claims apply only to alleged constitutional violations by state actors. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 817-18 (7th Cir. 2009) (unions are private actions and therefore not valid Section 1983 claim). As a result, in addition to the ADEA and Title VII claims, Simms-Johnson also asserts a Section 1981 claim against AFSCME.
I. AFSCME's Motion to Dismiss
AFSCME claims that the Court should dismiss Simms-Johnson's Corrected Third Amended Complaint for lack of subject matter jurisdiction because Simms-Johnson has failed to file suit against AFSCME within 90 days of receiving the right-to-sue letter from the EEOC. In the alternative, AFSCME contends that Simms-Johnson ...