MICHELL T. BUCHANAN, Plaintiff,
COOK COUNTY, d/b/a Cook County Department of Building and Zoning; and DONALD WLODARSKI, an Individual, Defendants.
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, District Judge.
On September 8, 2010, Plaintiff Michell Buchanan filed a charge in which shee alleged that her employer, the Cook County Department of Building and Zoning, discriminated against her on the basis of race and retaliated for a previous grievance when the Department imposed a three-day disciplinary suspension. After a right-to-sue letter issued, Ms. Buchanan filed a pro se complaint this court, alleging that she had been suspended on the basis of her race and in retaliation for having filed a union grievance, and that Defendant failed to promote her on the basis of race. Judge Manning of this court appointed counsel to represent Ms. Buchanan, and through counsel she has filed an amended complaint amplifying these claims. The amended complaint , filed on September 27, 2012, names both Cook County and Plaintiff's supervisor, Donald Wlodarski, as Defendants, and includes ten counts: Counts I and II, against Cook County, allege race discrimination and retaliation in violation of Title VII of the Civil Rights Act. Counts III and IV are claims of race discrimination in violation of 42 U.S.C. § 1981 against Cook County and Wlodarski. Counts V and VI, also brought under § 1981, allege retaliation against Cook County and Wlodarski. Counts VII and VIII allege a failure to promote on the basis of race, in violation of 42 U.S.C. § 1983, against both Defendants. Counts IX and X, also brought under 42 U.S.C. § 1983, allege retaliation against both Defendants. Cook County and Wlodarski have moved to dismiss all of these counts for various reasons. For the reasons stated here, the motion is granted.
I. Title VII Claims
Counts I and II are brought under Title VII. Plaintiff alleges that Defendants failed to promote Plaintiff on the basis of her race, black (Count I) and subjected her to unfair discipline in retaliation for her protected activity (Count II). Defendants have moved to dismiss both counts as beyond the scope of the underlying charge of discrimination that Plaintiff filed with the EEOC.
As a general rule, a plaintiff may raise in a federal complaint only those claims that were first presented in her underlying charge of discrimination. Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994). For a claim to fall within the scope of an EEOC charge, the claim must be "like or reasonably related" to the allegations in that charge or reasonably likely to be part of the EEOC investigation. Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.1976). In determining whether this test is met, the court considers whether the charge and the complaint "at a minimum, describe the same conduct and implicate the same individuals. " Cheek, 31 F.3d at 501 (emphasis original).
The EEOC charge filed by Plaintiff in this case makes no mention of a failure to promote her. It identifies a single discrete adverse action-a three-day suspension imposed on August 25, 2010-and alleges that the suspension was a product of discrimination on the basis of Plaintiff's race and of retaliation for a grievance Plaintiff filed in July 2010 "opposing that which I reasonably and in good faith believed to be unlawful discrimination based on my race." (EEOC Charge, Ex. A to Amended Complaint [14-10].) Plaintiff correctly notes that there are circumstances in which claims not specifically mentioned in an underlying charge are nevertheless actionable because they are "like or reasonably related" to the underlying charge. As the case law Plaintiff herself cites shows, however, those circumstances do not encompass this situation, where Plaintiff complained of one discrete act (her suspension) but made no mention of another form of alleged wrongdoing (failure to promote her). See, e.g., Kolupa v. Roselle Park Dist., 438 F.3d 713, 716 (7th Cir. 2006) (overrul "ed in part on other grounds) (dismissing promotion, accommodation, and retaliation claims not mentioned in underlying charge of termination based on religion). The principle is illustrated well in Conley v. Village of Bedford Park, 215 F.3d 703, 710 (7th Cir. 2000), where the Court of Appeals affirmed dismissal of a complaint alleging discriminatory suspension because the underlying charge presented only a claim of discriminatory failure to promote.
Plaintiff suggests her failure-to-promote claim should nevertheless be considered by the court because failure-to-promote allegations "would have been expected to be explored during the course of the administrative agency's investigation" of the suspension claims. (Plaintiff's Response Brief , at 4.) Assuming such a showing would be sufficient, by itself, the court is not persuaded it can be made here. Plaintiff's complaint is notably silent as to the dates and circumstances of Defendants' decision[s] not to promote her. It is not at all clear that, in the course of investigating the suspension Plaintiff presented in her charge, the EEOC would have investigated a failure to promote that may have occurred months before or after that suspension.
Count I is dismissed as beyond the scope of the underlying charge.
Defendant characterizes Count II as a failure to promote claim, as well. (Defendants' Memorandum in Support of Motion to Dismiss , at 4.) As the court reads those allegations, however, they challenge "disciplinary action" against Buchanan as a retaliatory response to her protected activity. (Amended Complaint  ¶ 16.) The court presumes this is a reference to the suspension identified in the underlying charge. For reasons discussed more fully below, the court concludes Plaintiff has not alleged that she engaged in protected activity under the civil rights laws; but Defendants' objection to Count II as beyond the scope of the EEOC charge is overruled.
II. Section 1981
A. Failure to Promote
Plaintiff may proceed on race discrimination claims under 42 U.S.C. § 1981 even if she did not present them first to the EEOC. Fane v. Locke Reynolds, LLP, 480 F.3d 534, 539 (7th Cir.2007). Counts III and IV allege that Defendants failed to promote Plaintiff in violation of § 1981. Defendants have moved to dismiss this claim on a variety of grounds, including an argument that Plaintiff has not made allegations sufficient to support a Monell claim against Cook County. When a § 1981 claim is brought against a municipal corporation, the standards in Monell and its progeny apply. See Jett v. Dallas Independent Sch. Dist., 491 U.S. 701, 731-34 (1989) (holding that § 1983 is the exclusive remedy in a damages suit against state actor for § 1981 violations and that Monell applies); Smith v. Chicago Sch. Reform Bd. of Trs., 165 F.3d 1142, 1148 (7th Cir.1999) ("recovery against a governmental body under § 1981 may not be based on respondeat superior. The plaintiff must show that the body's official policy or custom was discriminatory"). In suggesting that the Monell test is met, Plaintiff notes only that Defendant Wlodarski was Commissioner of the County Department of Zoning, where she worked at the time of the alleged wrongdoing. The fact that Wlodarski had power to hire, fire or discipline Plaintiff does not, by itself, establish that his decisions constitute municipal policy. Venters v. City of Delphi, 123 F.3d 956. 966 (7th Cir. 1997).
Plaintiff argues that his allegations are nevertheless sufficient at this stage, where all reasonable inferences must be drawn in her favor. Indeed, information establishing Wlodarski's status as final policymaker would presumably be unearthed in discovery. And, the merits of the Monell argument aside, it would not afford a basis for dismissal of Defendant Wlodarski himself, named in Count IV. Under § 1981, as opposed to Title VII, an individual who was involved in a decision that violates the statute may be held liable. See Smith v. Bray, 681 F.3d 888, 896 n.2 (7th Cir.2012); cf. Alexander v. Wisc. Dep't of Health & Family Servs., ...