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David Graham v. Village of Dolton

January 6, 2011

DAVID GRAHAM, PLAINTIFF,
v.
VILLAGE OF DOLTON, AN ILLINOIS MUNICIPALITY;
ROBERT FOX INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS POLICE CHIEF;
AND ROBERT SHAW, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS INSPECTOR GENERAL OF VILLAGE OF DOLTON, DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzman

MEMORANDUM OPINION AND ORDER

David Graham, a former police officer for the Village of Dolton, has sued the Village of Dolton, Robert Fox in his individual and official capacity as Police Chief, and Robert Shaw in his individual and official capacity as Inspector General, for their alleged violations of Title VII and 42 U.S.C. §§ 1981 and 1983. Defendants have moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons provided herein, the Court grants in part and denies in part the motion.

Facts

David Graham, a Caucasian male, began working at the Village of Dolton as a police officer in 2002. (Compl. ¶ 1.) On or near June 9, 2008, Police Sergeant Curtis Rempson, Graham's supervisor, began to refer to him and other Caucasian police officers as "white boys." (Id. ¶ 15.) Police Sergeant Rempson continued to refer to Graham as a "white boy" through May 2009, when Graham filed his charge with the Equal Employment Opportunity Commission ("EEOC"). (Id. ¶ 16.) Since June 15, 2008, plaintiff alleges that Police Chief Robert Fox ("Fox") refused to give him overtime assignments and, instead, gave such assignments to less-qualified African-American police officers. (Id. ¶ 17.) On August 20, 2008, Fox asked Graham in the presence of Inspector Michael Signator, "why don't you like locking up niggers like them white boys in Riverdale? You're [sic] kind has been doing it for over 500 years." (Id. ¶ 18.)

In 2008, Graham was the only Caucasian member of the Village of Dolton's tactical squad. (Id. ¶ 20.) On August 22, 2008, Fox said at a staff meeting "this is a predominantly African-American department, with the exception of you white speckles." (Id. ¶¶ 10, 19.) Then, at the same meeting, Fox told Graham that he was no longer allowed to wear black gloves like the other tactical squad officers because he was "not black" and "was not in the projects." (Id. ¶ 21.) After the meeting, Graham complained to Sergeant Spigalone about Fox's comments and glove mandate, but neither he, nor defendant Shaw, investigated or acted on the complaint. (Id. ¶ 25.) Subsequently, Graham complained about Fox's actions to Inspector Signator, who replied: "[Y]ou need to get a lawyer for that one. I'm your witness." (Id. ¶ 27.)

In late fall of 2008, Graham applied for a promotion to the South Suburban Major Crimes Task Force. (Id. ¶ 28.) Fox denied Graham's application and offered the promotion to a less-qualified, African-American officer. (Id.) Sometime prior to December 1, 2008, Graham applied for another promotion to the South Suburban Emergency Response Team, and Fox again denied his application and offered the promotion to a less-qualified African-American officer. (Id. ¶ 29.) On December 11, 2008, Fox walked into a meeting between Graham and two other Caucasian officers and said, "what is this, a Klan meeting?" (Id. ¶ 31.) Fox has also denied Graham other work-related awards, while giving them to less deserving African-American applicants. (Id. ¶ 32.) In January 2009, Police Sergeant Lacy, who is African-American, called Graham a "white speckle" in the presence of Graham's watch commander. (Id. ¶ 33.) On March 22, 2009, Fox demoted Graham from the tactical unit to the patrol unit after learning that Graham intended to file a charge of discrimination with the EEOC. (Id. ¶ 34.)

In 2009, plaintiff filed an EEOC charge alleging that defendants discriminated and retaliated against him based on race. (Defs.' Mot., Ex. B, EEOC Charge at 2.) The EEOC issued plaintiff a right-to-sue letter on December 30, 2009. (Compl., Ex. A.) On March 9, 2010, plaintiff filed the complaint in this case asserting claims of race discrimination and retaliation in violation of Title VII and §§ 1981 and 1983.

Discussion

On a Rule 12(b)(6) motion to dismiss, the court accepts as true all well-pleaded allegations in plaintiff's complaint, drawing all reasonable inferences in plaintiff's favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007). The complaint should give the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "[D]etailed 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" and raise the possibility of relief above the "speculative level." Id. at 555, 570.

Plaintiff concedes that the punitive damage claims against the Village of Dolton should be dismissed from Counts I and V. (Pl.'s Resp. Defs.' Mot. 2); see City of Newport v. Fact Concert, Inc., 453 U.S. 247, 271 (1981) (holding that municipalities and government officials sued in an official capacity are immune from liability for punitive damages). Graham also concedes that the Title VII claims against Fox and Shaw in their individual capacities should be dismissed from Counts I, II and V. (Pl.'s Resp. Defs.' Mot. 4); see Gastineau v. Fleet Mortg. Corp., 137 F.3d 490, 494 (7th Cir. 1998) (holding that Title VII does not impose individual liability on employees and other agents of employer). The Court, therefore, dismisses these claims with prejudice. Additionally, any claims against Fox and Shaw in their official capacities are to be treated as a suit against the Village of Dolton. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (holding that "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity"). Thus, the Court dismisses the official capacity claims as redundant of those asserted against the Village.

A. Title VII

1. Disparate Impact

Defendants first argue that plaintiff's disparate impact claim under Title VII is outside the scope of his EEOC charge. Generally, a plaintiff cannot bring claims in a lawsuit that were not included in his EEOC charge. Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). Accordingly, a plaintiff can pursue claims not included in his EEOC charge only if they are "like or reasonably related" to those in the charge, and can be reasonably expected to grow out of an EEOC investigation of the claims in the charge. Id.

In his EEOC charge, plaintiff alleges that Fox made a series of derogatory comments to or about Graham and other white officers and treated African-Americans officers more favorably. (Defs.' Mot., Ex. B, EEOC Charge at 2.)*fn1 In other words, plaintiff alleges that ...


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