The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Plaintiff Detlef Sommerfield brought this action under 42 U.S.C. §§ 1981 and 1983 against the City of Chicago ("the City") and Sergeant Lawrence Knasiak. All claims against the City having been dismissed, see Sommerfield v. City of Chicago, No. 08 C 3025, 2009 WL 500643 (N.D. Ill. Feb. 26, 2009), only the two counts against Knasiak remain. Sommerfield alleges that Knasiak repeatedly harassed him on the basis of his race, religion, and national origin, and that Knasiak retaliated against him after he complained about the harassment. Count VI is a § 1983 claim for violations of the First and Fourteenth Amendments, and Count VII is a § 1981 claim for racial discrimination. Knasiak has moved for summary judgment on both counts. For the reasons stated below, the court denies Knasiak's motion.
Sommerfield is a German Jew who immigrated to the United States. He has worked at the Chicago Police Department since 1994. Sommerfield alleges that Knasiak, his direct supervisor, would often make offensive and discriminatory comments to Sommerfield about his racial heritage and religion. Sommerfield further alleges that when he complained, Knasiak retaliated by assigning him to high crime areas without a partner and to other unsavory duties.
In June 2006, Sommerfield filed his first lawsuit against the City of Chicago and Knasiak. He brought claims under Title VII, § 1981, and § 1983 against the City, and a claim for "intentional infliction of emotional harm" against Knasiak. The case was initially assigned to Judge Filip, who dismissed the claim against Knasiak because that claim was barred by the applicable statute of limitations. See Sommerfield v. City of Chi., No. 06 C 3132, 2008 WL 4542954, at *2 (N.D. Ill. Apr. 29, 2008). In September 2010, this court (the case having been reassigned) resolved various cross-motions for summary judgment, denying Sommerfield's motions and granting in part the City's motion. See Sommerfield v. City of Chi. (Sommerfield I), No. 06 C 3132, 2010 WL 3786968 (N.D. Ill. Sept. 20, 2010). The 2006 case continues to progress, with the City as the only remaining defendant.
In May 2008, Sommerfield filed a second lawsuit, again naming both the City and Knasiak. This court dismissed the claims against the City because the claims were duplicative of those filed in 2006; the claims against Knasiak, in which Sommerfield alleged violations of §§ 1981 and 1983, remain. See Sommerfield, 2009 WL 500643, at *6. Knasiak now moves for summary judgment, arguing that this court's rulings in Sommerfield I bar Sommerfield from
(1) arguing that Knasiak acted as a supervisor, or (2) presenting any evidence of discrimination or retaliation outside of Knasiak's alleged verbal attacks. As a result, Knasiak claims that Sommerfield cannot prevail on his §§ 1983 and 1981 claims, the theory being that because Knasiak was not a supervisor, he could not be a policymaker or decisionmaker; and because he was not a policymaker or decisionmaker, he could not have been acting under color of state law as required for liability. Knasiak further argues that Sommerfield cannot prevail on his § 1981 theory because there is no individual liability under § 1981, and because Sommerfield (forced to rely solely on evidence of Knasiak's alleged verbal attacks) cannot meet his burden of proof in establishing discrimination.
Issue preclusion, or collateral estoppel, bars successive litigation of the same issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment. See Taylor v. Sturgell, 553 U.S. 880, 892 & n.5 (2008). The Seventh Circuit has held that issue preclusion applies if four factors are satisfied:
(1) the issue sought to be precluded is the same as that involved in the prior action; (2) the issue was actually litigated; (3) the determination of the issue was essential to the final judgment; and (4) the party against whom estoppel is invoked was fully represented in the prior action.
Dexia Credit Local v. Rogan, 629 F.3d 612, 628 (7th Cir. 2010) (citations omitted).
1. Whether Sommerfield is barred from arguing that Knasiak was Sommerfield's supervisor Knasiak claims that because this court resolved the issue of Knasiak's supervisory status in Sommerfield I, Sommerfield is collaterally estopped from arguing that Knasiak was Sommerfield's supervisor for purposes of §§ 1981 and 1983. Sommerfield responds that the issue in Sommerfield I was limited to Title VII, and that in any event, the relevant inquiry under §§ 1981 and 1983 is whether Knasiak was acting under the color of state law, not whether he was a supervisor. The court agrees with Sommerfield.
"Because there is no theory of respondeat superior for constitutional torts, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009) (internal quotation marks omitted and emphasis added)). Thus, "an equal protection claim against a supervisor requires a showing of intentional discrimination. . . . [i.e.,] that the supervisor, like the subordinate, intended to discriminate on the basis of a protected class." Id. at 588 (citing Iqbal, 129 S.Ct. at 1948-49); see Smith v. Husz, 384 F. App'x 514, 515 (7th Cir. 2010) (citing Grindle for the proposition that § 1983 does not allow actions against persons merely because of their supervisory roles); Rojas v. Town of Cicero, No. 08 C 5913, 2010 WL 4065483, at *10 (N.D. Ill. Oct. 14, 2010) (citing Grindle and noting the same discriminatory intent standard applies for claims rooted in the First Amendment). In other words, intentional discrimination is a required element of a § 1983 claim, just as it is a required element ...