The opinion of the court was delivered by: Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Stephen Seth Hosick, a former employee of Chicago State
University (CSU), brings this suit against CSU, the CSU Board of
Trustees, and individuals Leon Finney, Betsy Hill, Peggy Montes,
Richard Tolliver, Sandra Westbrooks (in both her individual and
official capacities), and Erma Brook Williams (in both her individual
and official capacities), alleging violations of federal and state
law. R. 39. Hosick's federal claims arise under Title VII of the Civil
Rights Act, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. Hosick's state
claims arise under the Illinois State Constitution, the Illinois Civil
Rights Act, the Illinois State Official and Employees Ethics Act, and
the law creating CSU, 110 ILCS 660/5 (the CSU Law).*fn1
Defendants have moved to dismiss most*fn2 of the second amended complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). R. 42. As
detailed below, the motion is granted in part and denied in part. All
claims against CSU, Hill, Montes, and Tolliver are dismissed. The
claims against Finney, Westbrooks, Williams, and the Board are
dismissed in part.
At this stage of the litigation, we accept Hosick's allegations as true and draw reasonable inferences in his favor. Ashcroft v. al-Kidd, - U.S. -, 131 S. Ct. 2074, 2079 (2011). From March 2, 2009 until his firing on October 15, 2009, Hosick, a white male, was employed as Director of Human Resources for CSU. R. 39 ¶¶ 13-14. Around March 11, 2009, the Board, which serves as the governing body for CSU, and Finney, the Board's chairman, asked Hosick whether any provisions of some employees' contracts would prohibit their termination. Id. ¶¶ 9, 11, 15. Hosick resisted this intervention into personnel matters. Id. ¶ 19.
On May 4, 2009, Williams, the Board's Associate President and liaison to CSU administration, called a meeting attended by Finney, Hosick, and Westbrooks (who was CSU's senior administrative officer). Id. ¶¶ 17, 25. During the meeting, Finney provided a letter to Hosick claiming that the Board had authorized Finney's involvement in everyday decisions regarding the University and reprimanding Hosick and Westbrooks for not informing him about personnel issues. Id. ¶¶ 16, 18. Hosick complained to the Board's Chief Legal Counsel, who responded on June 30, 2009, that the Board had granted Finney no such authorization. Id.
Through early June 2009, Hosick continued to oppose intervention into personnel matters by the Board, Finney, and Williams. Id. ¶ 19. Hosick then learned from co-workers that Finney was aiming to replace CSU administrators with African Americans, to match the ethnic makeup of CSU. Id. ¶ 20. Hosick relayed these concerns to Westbrooks, who told him, "What's wrong with diversity?" Id. On June 18, 2009, Williams relayed to Hosick that Finney was "furious" with him and that Finney thought Hosick was "stacking the deck against" the incoming CSU President by hiring employees without approval from the Board and Finney. Id. ¶ 22. Shortly thereafter, Hosick sent an e-mail to the Board and Westbrooks complaining about the information requests and general interference in his everyday personnel decisions by the Board and Finney. Id. ¶ 23. Hosick also informed Williams in writing that he would discharge employees only if directed through his chain of command and that he was lodging an ethics complaint with the Office of Executive Inspector General's Office and the State Auditor General's Office. Id. ¶ 25.
On July 1, 2009, Westbrooks assumed the role of acting President and shortly thereafter notified Hosick of his termination without cause, effective October 15, 2009. Id. ¶¶ 26, 29. In November 2009, an African-American female was hired to replace Hosick. Id. ¶ 32.
Hosick's complaint sets forth several claims. First, he alleges intentional racial and gender discrimination by CSU and the Board under Title VII. Id. ¶¶ 35, 43-44, 48- 49, 51. He alleges race discrimination under § 1981 by all "individual defendants."*fn3 Id. ¶¶ 57, 60. Third, Hosick alleges that all Defendants violated the Illinois Civil Rights Act of 2003, 750 ILCS 23/5. Id. ¶¶ 90-92. Next, Hosick alleges intentional deprivation by all individual defendants of his liberty and property interests in pursuing employment under both the Fourteenth Amendment of the United States Constitution, id. ¶¶ 71-72, and Article I, Section 2 of the Illinois Constitution, id. ¶¶ 71-72. Further, he alleges intentional and unlawful retaliation by all individual defendants in violation of the Illinois State Official and Employees Ethics Act, ILCS 430/15-5. Id. ¶¶ 83-86. Last, Hosick alleges intentional violation by all individual defendants of his rights under the law establishing and governing CSU (the CSU Law), 110 ILCS 660/5-45. Id. ¶¶ 109-10. Hosick seeks compensatory damages, punitive damages, and an injunction against the ongoing violation of these laws. Id. at 19-20.
Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This short and plain statement must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007).
"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007). A "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). These allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. And the allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 129 S. Ct. at 1950.
As detailed below, Hosick's procedural due process claims fail for lack of a property interest in his employment. His claim under the CSU Law fails because that statute does not provide a private cause of action. All claims against CSU are barred because CSU is not a suable entity. His claims against Hill, Montes, and Tolliver fail because they are too speculative and do not plausibly state a claim. His state law claims against Westbrooks and Williams in their official capacities are barred by sovereign immunity. His federal claims against Westbrooks and Williams in their official capacities survive only to the extent that they seek injunctive relief against ongoing harm. His Illinois Ethics Act claim against the Board is barred by sovereign immunity. His Illinois Civil Rights Act claims against Finney, Westbrooks, and Williams are barred because individuals cannot be sued under that law. The other claims survive this motion to dismiss.
A. Procedural Due Process -- Counts 4 and 7
Counts 4 and 7 are claims for violations of due process under both the United States and Illinois Constitutions against all individual defendants. R. 39 at 13-4; 17-18. Hosick's procedural due process claims fail because he had no property interest in his employment. To establish a federal due process claim, Hosick "must demonstrate (1) that he had a constitutionally protected property interest, (2) that he suffered a loss of that interest amounting to a deprivation, and (3) that the deprivation occurred without due process of law." Moss v. Martin, 473 F.3d 694, 700 (7th Cir. 2007). Protected property interests are not created by the Constitution but are derived from independent sources, such as state law. Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 943 (7th Cir. 1996). To establish a property interest in his job under Illinois law, Hosick must prove that he legitimately expected that his employment would continue by showing a specific "'ordinance, state law, contract, or understanding limiting the ability of the state or state entity to discharge him.'" Moss, 473 F.3d at 700 (quoting Krecek v. Bd. of Police Com'rs of La Grange Park, 646 N.E.2d 1314, 1318-19 (Ill. App. Ct. 1995)).
Hosick argues that the CSU Law, 110 ILCS 660/5-45, establishes his property interest. In relevant part, the statute empowers the Board "[t]o employ, and, for good cause, to remove . . . all other necessary employees." Id. But the Seventh Circuit has held that this language cannot be the basis for a protected property interest. Grimes v. E. Illinois Univ., 710 F.2d 386, 387-88 (7th Cir. 1983) (citing the identically-worded statute used in the statutory scheme establishing Eastern Illinois University). Grimes held that the statute was more sensibly interpreted as a grant of power to a board of governors to remove employees for good cause, rather than a grant of rights to employees. Id. at 388. Grimes controls.
Hosick cites Meer v. Graham for support. 524 F. Supp.2d 1044, 1050 (N.D. Ill. 2007) (holding that the plaintiff had established a property interest in employment). Meer, however, interpreted university bylaws, not Illinois state statutes. Id. Additionally, the bylaws required that the school had to provide "due cause" when imposing "severe sanctions," and there were detailed procedures for imposing sanctions. Id. Those bylaws were both more detailed and more constraining (on the university) than the CSU Law, and thus arguably the bylaws could be the source of individual rights rather than a grant of power to the university. ...