The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendants' motion to dismiss Count II. For the reasons stated below, the court denies the motion to dismiss.
Plaintiff Frank Pope contends that he was employed by the Office of the Clerk of the Circuit Court of Cook County (Clerk's Office) as an investigator. Pope alleges that he is Caucasian and that Defendant Dorothy Brown (Brown), Clerk of the Circuit Court of Cook County (County Clerk) is African-American. Pope allegedly began working for the Clerk's Office in 1987. In May 2006, Pope allegedly submitted a letter directly to Brown requesting that he be considered for a promotion to the position of Deputy Chief, and the promotion request was denied. In October 2007, Pope allegedly made a request directly to Brown for a promotion to a grade 18 position, which had been recently vacated. In November 2007, Brown allegedly rejected Pope's promotion request, indicating that there was a hiring freeze. Pope claims that, later in November 2007, he learned that the vacant grade 18 position had been offered to a new employee who was African-American, had significantly less experience than Pope and substantially inferior qualifications when compared to Pope. On January 10, 2008, Pope allegedly wrote a letter to Richardo Lugo, Chief of Investigations for the Clerk's Office, and complained about not being promoted to the vacant grade 18 position and about being discriminated against because of his race. Pope was allegedly subsequently informed in a letter from Gail Lutz (Lutz), the Executive Clerk for Public Policy and Human Resources, that Brown could hire employees solely at her discretion and that the Clerk's Office maintained a racial preference policy to hire or promote members of protected classes when possible, which Brown used in her decision to hire and promote employees. Pope brought the instant action against Brown and the County Clerk.
Pope includes in his amended complaint a claim alleging discrimination because of his race in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. (Count I), and a claim alleging racial discrimination in violation of 42 U.S.C. § 1981 (Section 1981) (Count II). Defendants move to dismiss Count II.
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 (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).
Defendants argue that to the extent that Pope is suing Brown in her official capacity, Pope improperly seeks damages as relief. Defendants also contend that Pope has not alleged sufficient allegations to state a claim against Brown in her individual or official capacity.
I. Damages Sought Against Brown in Her Official Capacity
Defendants argue that the Eleventh Amendment bars the recovery of damages against Brown in her official capacity. The Illinois Supreme Court has held that "the clerks of the circuit courts in this State are not county officials, but are non-judicial members of the judicial branch of State government." Drury v. McLean County, 433 N.E.2d 666, 667 (Ill. 1981). The Eleventh Amendment acts as a bar to "actions in federal court against a state, state agencies, or state officials acting in their official capacities." Indiana Protection and Advocacy Services v. Indiana Family and Social Services Admin., 603 F.3d 365, 370 (7th Cir. 2010). However, as stated in Ex parte Young, 209 U.S. 123, 159-60 (1908), under one exception to the Eleventh Amendment bar, "a plaintiff may file suit[ ] against state officials [acting in their official capacities] seeking prospective equitable relief for ongoing violations of federal law." Indiana Protection, 603 F.3d at 371 (internal quotations omitted)(quoting Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997)). Pope has not alleged facts that would indicate that Brown is other than a state official, and Pope has not alleged facts indicating that any exceptions to Eleventh Amendment immunity are applicable in this case. Indiana Protection, 603 F.3d at 371. Thus, Pope cannot recover damages from Brown in her official capacity, and the court strikes the requests for damages to the extent that they are sought against Pope in her official capacity.
II. Sufficiency of Allegations
Defendants argue that Pope has not alleged sufficient facts to indicate that Brown is liable under Section 1981 in her ...