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Ronald Green Sr., et al v. Scurto Cement Construction

October 27, 2011


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Ronald Green Sr. and Donald Green ("Greens") have sued Operative Plasterers & Cement Masons International Association, Local 11, Area 161 ("Union"), charging it with racial discrimination and retaliation in violation of 42 U.S.C. §1981 ("Section 1981"). Greens' action originally contained both the Section 1981 charges and assertions of race discrimination under Title VII. But on June 20, 2011 this Court issued a memorandum opinion and order ("Opinion") that (1) dismissed the Title VII claims, finding that Greens had brought suit too late (past the statutory 90-day time limit after Greens had received an EEOC right-to-sue letter), (2) held that any Section 1981 claim depending on acts that occurred before July 22, 2006 was barred by a four-year limitation period and (3) granted Greens leave to file an Amended Complaint ("AC") that removed the time-barred allegations. They did so on August 11.

Now Union has filed a motion to dismiss the AC under Fed. R. Civ. P. ("Rule") 12(b)(6), and the litigants have briefed the matter. For the reasons stated here, the motion is denied.

Rule 12(b)(6) Standards

Under Rule 12(b)(6) a party may move for dismissal of a complaint on the ground of "failure to state a claim upon which relief can be granted." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562--63 (2007) was the first case to repudiate, as overly broad, the half-century-old Rule 12(b)(6) formulation announced in Conley v. Gibson, 355 U.S. 41, 45--46 (1957) "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." And post-Twombly cases have further reshaped a new Rule 12(b)(6) standard.

First Twombly, 550 U.S. at 570 held that to survive a Rule 12(b)(6) motion a complaint must provide "only enough facts to state a claim to relief that is plausible on its face." Or put otherwise, "[f]actual allegations must be enough to raise a right of relief above the speculative level" (id. at 555). Then Erickson v. Pardus, 551 U.S. 89 (2007)(per curiam) and Ashcroft v. Iqbal, 556 U.S. ---, 129 S.Ct. 1937 (2009) provided further Supreme Court enlightenment on the issue.

Before Iqbal our own Court of Appeals, in Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007) described Twombly and Erickson as establishing "only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8." And more recently Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) has confirmed that the Airborne Beepers reading of pleading law post-Twombly and post-Erickson remains accurate after Iqbal. Brooks, id. describes Iqbal as "admonishing those plaintiffs who merely parrot the statutory language of the claims that they are pleading (something that anyone can do, regardless of what may be prompting the lawsuit), rather than providing some specific facts to ground those legal claims, that they must do more."

Familiar Rule 12(b)(6) principles--still operative under the new pleading regime--require this Court to accept as true all of Greens' well-pleaded factual allegations, with all reasonable inferences drawn in their favor (Christensen v. County of Boone, 483 F.3d 454, 457 (7th Cir. 2007)(per curiam)). What follows in the next Section adheres to those principles.


Greens are African-Americans and members of Union (AC ¶3),*fn1 which uses a referral system to dispatch its members to various job sites (id. ¶10). That system refers members for work based on the time since their last job, with the member who has been without work the longest being first in line for a new assignment (id. ¶11). But Union gerrymandered the referral system so that African-Americans such as Greens are given, because of their race, shorter jobs that pay less (id. ¶¶14-16). Greens filed grievances with Union, EEOC, the Illinois Department of Human Rights and the National Labor Relations Board ("NLRB"), because of which filings Union retaliated against Greens (id. ¶17).

Discrimination Claim

U. Mem. 4 contends that Greens failed to plead two elements of their Section 1981 claim adequately: intentional discrimination based on race and interference with an activity protected by Section 1981. But the AC passes muster in both respects.

First, as to intentional discrimination, AC ¶12 simply states:

Defendants, however, have been discriminatory in their application of the referral system on account of ...

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