The opinion of the court was delivered by: James F. Holderman, Chief Judge:
MEMORANDUM OPINION AND ORDER
Eloisa Chaparro's First Amended Complaint (Dkt. No. 15) alleges that defendants Brian Roney and Ron Bonadurer violated her right to equal protection under 42 U.S.C. § 1983 (Counts I, II, and IV), that defendants James Washburn and the City of Chicago (the "City") violated her right to equal protection under § 1983 (Counts III and IV), that Roney, Bonadurer, Washburn, and the City are liable to her under Title VII of the Civil Rights Act of 1964 for sex discrimination (Count V), sexual harassment (Count VI), and retaliation (Count VII), that the City is liable to indemnify the individual defendants (Count VIII), that Roney and Bonadurer are liable to her for assault (Count IX), and that Roney, Bonadurer, Washburn, and the City are liable to her for intentional infliction of emotional distress (Count X).
Before the court are the motions to dismiss filed by defendants Washburn and the City (Dkt. No. 25) and Roney and Bonadurer (Dkt. No. 32). Washburn moves to dismiss Counts III, IV, V, VI, VII, and X against him. The City moves to dismiss Counts IV, V, VII, VIII, and X against it. Roney and Bonadurer move to dismiss Counts I, II, IV, V, VI, VII, IX, and X against them. In her response, Chaparro has voluntarily withdrawn Count VIII (Dkt. No. 34, at 10), which is dismissed without prejudice.
For the reasons stated below, the motion of the City and Washburn (Dkt. No. 25) is granted in its entirety. Counts IV, V, VII, and X against the City are dismissed with prejudice, and Counts III, IV, V, VI, VII, and X against Washburn are dismissed with prejudice. Roney and Bonadurer's motion to dismiss (Dkt. No. 32) is granted in part, and Counts IV, V, VI, VII, IX, and X against Roney and Bonadurer are dismissed with prejudice. Counts I and II against Roney and Bonadurer in their official capacity are also dismissed with prejudice. The only remaining counts are Counts I and II against Roney and Bonadurer in their individual capacity and Counts III and VI against the City.
The following facts are drawn from Chaparro's complaint. Chaparro has been an employee of the Chicago Police Department ("CPD") since 1988. First Am. Compl ¶ 1. The alleged sexual discrimination occurred in 2009, when Chaparro was working with the Organized Crime Division under Sergeant James Washburn. Id. ¶¶ 1, 4. According to Chaparro, in March of 2009, Brian Roney and Ron Bonadurer, two of her co-workers, placed the word "Dildo" on the refrigerator Chaparro used to store her lunch. Id. ¶¶ 17, 24. In June of 2009, Roney asked Chaparro to view a video of a police shooting in the media room. Id. ¶ 17. When she obliged, however, Roney showed her graphic pornography instead. Id. Several months later, in October of 2009, Bonadurer set a picture of a penis as the background of one of the computers at the office and forced Chaparro to view it. Id. ¶ 24.
On October 8 and 13, 2009, Chaparro complained to Sergeant Washburn about those three incidents of sexual harassment. Id. ¶ 34. In response, Washburn told Chaparro that he would take care of it, that he would talk to her later, and that she should go home, but did nothing else to prevent further acts of harassment. Id. ¶ 35. Chaparro alleges that, as a result of her complaint, "the Defendants [(she does not specify which ones)] went out of their way to make the Plaintiff's job more difficult by continuing to harass, threaten and ostracize her." Id. at ¶ 72. Specifically she alleges that later in October, the defendants drew an erect penis on Chaparro's CPD car while it was parked in the CPD garage, and again while it was parked outside of her house. Id. ¶ 52. In addition, she alleges that in November 2009 the defendants placed a toy gun on her desk in a threatening manner. Id. ¶ 65.
Under the Federal Rules of Civil Procedure, a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The complaint must "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)). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "include sufficient facts 'to state a claim for relief that is plausible on its face.'" Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011) (quoting Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In ruling on a Rule 12(b)(6) motion, the court "construe[s] the . . . [c]omplaint in the light most favorable to Plaintiff, accepting as true all well-pleaded facts and drawing all possible inferences in his favor." Cole, 634 F.3d at 903.
Counts I and II allege that Bonadurer and Roney are liable under § 1983 for sexually harassing Chaparro and thus violating her right to equal protection. The counts are both brought against the defendants in the "official and individual capacities." First Am. Compl. (headings to Counts I and II). Chaparro's claims in the official capacity must be dismissed, however, because "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office," so it "is no different from a suit against the State itself." Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71 (1989). Counts III and IV already allege a § 1983 complaint against the City for an equal protection violation based on the same underlying events, so Counts I and II against Bonadurer and Roney in the official capacity are redundant with Counts III and IV against the City.
Counts I and II against Bonadurer and Roney in the individual capacity should not be dismissed, however. To make out a violation of the equal protection clause under §1983, Chaparro must allege that "1)[s]he is a member of a protected class; 2) [s]he was similarly situated to individuals not of the protected class; 3) [s]he was treated differently than those similarly-situated individuals; and 4) those who treated h[er] differently acted with discriminatory intent." Swearingen-El v. Cook Cnty. Sheriff's Dep't, 416 F. Supp. 2d 612, 617 (N.D. Ill. 2006) (citing Johnson v. City of Fort Wayne, 91 F.3d 922, 944 (7th Cir. 1996)). Bonadurer and Roney argue that Chaparro failed to allege that she was similarly situated to individuals not in the protected class, and that she was treated differently than the similarly situated individuals.
Bonadurer and Roney are correct that Chaparro did not specifically allege those elements of her claim, but the deficiency is not fatal. Chaparro's claim is that she was subject to sexual harassment, which is a specialized type of equal protection claim. See Bohen v. City of E. Chi., 799 F.2d 1180, 1185 (7th Cir. 1986) (noting "that [sexual] harassment constitutes sex discrimination in violation of the equal protection clause and is actionable under § 1983"). The type of sexual harassment alleged is by its nature usually directed against women, so one can infer from Chaparro's complaint that she was treated differently than the men in her unit who held a position similar to hers. As the Second Circuit has reasoned, "[p]erhaps some public employers sexually harass both men and women, but until an employer has the audacity to advance such a defense, sexual harassment of women constitutes disparate treatment because of gender, and is actionable under Section 1983." Saulpaugh v. Monroe Comm. Hosp., 4 F.3d 134, 144 (2d Cir. 1993). Consequently, the allegation of sexual harassment against Chaparro, a woman, is sufficient to make out an equal protection claim.
Bonadurer and Roney also contend that the March 2009 incident occurred more than two years before Chaparro filed her complaint on April 20, 2011, and that the portion of the complaint based on that incident is barred by Illinois's two-year statute of limitations for personal-injury torts.See Wallace v. Kato, 549 U.S. 384, 387 (2007) (the statute of limitations for a § 1983 claim is the statute of limitations for personal-injury torts in the state in which the cause of action arose); Farrell v. McDonough,966 F.2d 279, 281 ...