United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Rosalyn Copeling brought this suit against her former employer, the Illinois State Toll Highway Authority, under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/1 et seq. Doc. 1. Copeling is now on her second amended complaint. Doc. 30. The Authority has moved to dismiss Counts II and III of the second amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and it also moves under Rule 12(f) to strike Copeling's request for punitive damages in Count I. Doc. 31. The motion is granted.
In considering the motion to dismiss, the court assumes the truth of the second amended complaint's factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). The court must also consider "documents attached to the [second amended] complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, " along with additional facts set forth in Copeling's brief opposing dismissal, so long as those facts "are consistent with the pleadings." Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The following facts are set forth as favorably to Copeling as those materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).
Copeling, an African-American female, began working for the Authority, an Illinois state agency, in 2007. Doc. 30 at ¶¶ 8-9, 13. The second amended complaint alleges that Pamela Molczan, another Authority employee, "denied [Copeling] work hours, vacation time, preferred shifts, seniority benefits and promotions, " as well as "the ability to work her scheduled shift and ordered [her] to work non-scheduled hours in a toll booth with no lights." Id. at ¶¶ 18-19. In addition, Molczan forced Copeling to "work non-scheduled hours" by altering her schedule, repeatedly denied her vacation requests, and "frequently insulted, berated, belittled, coerced and verbally abused" her. Id. at ¶¶ 21-22, 25. The Authority published on the Internet information regarding Copeling's medical condition and potential litigation involving her, and stopped making her retirement contributions. Id. at ¶¶ 17, 20. Authority employees once asked Copeling to falsely testify in a workers' compensation hearing that an African-American employee had faked an injury. Id. at ¶ 23. After Copeling refused, her hours were reduced. Id. at ¶ 24. Copeling repeatedly informed Michael Doyle, another Authority employee, of her concerns, but he took no action. Id. at ¶ 26. The Authority terminated Copeling on December 31, 2012. Id. at ¶ 27.
Count I of the second amended complaint states a disparate treatment claim under Title VII and § 1981. Id. at pp. 5-6, ¶¶ 28-38. Count II seeks to state a disparate impact claim under Title VII. Id. at pp. 7-8, ¶¶ 28-35. (Copeling purports to bring her disparate impact claim under § 1981 as well, id. at p. 7, ¶ 28, but § 1981 recognizes only disparate treatment or intentional discrimination claims, not disparate impact claims. See Franklin v. City of Evanston, 384 F.3d 838, 848 (7th Cir. 2004); Majeske v. Fraternal Order of Police, Local Lodge No. 7, 94 F.3d 307, 312 (7th Cir. 1996)). And Count III seeks to state a claim under the IHRA. Doc. 1 at pp. 9-10, ¶¶ 28-34. As noted above, the Authority has moved to dismiss Counts II and III and to strike the punitive damages request in Count I.
I. Count I: Request for Punitive Damages for the Title VII and § 1981 Disparate Treatment Claim
Count I alleges that Copeling "is entitled to punitive/exemplary damages in addition to compensatory damages" on her Title VII and § 1981 disparate treatment claim. Id. at p. 6, at ¶ 38. The Authority argues that it may not be subjected to a punitive damage award under Title VII and § 1981 because it is a government agency. Doc. 31-1 at 7-8. Copeling fails to respond to this argument, thereby forfeiting the point. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (noting that forfeiture occurs "where a litigant effectively abandons the litigation by not responding to alleged deficiencies in a motion to dismiss"); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) ("Failure to respond to an argument-as the Bontes have done here-results in waiver."); Cincinnati Ins. Co. v. E. Atl. Ins. Co., 260 F.3d 742, 747 (7th Cir. 2011) (holding that a party's failure to oppose an argument permits an inference of acquiescence, and "acquiescence operates as a waiver").
The Authority is correct in any event. The Authority is an agency of the State of Illinois. See 605 ILCS 10/1 (creating "[t]he Illinois State Toll Highway Authority, as an instrumentality and administrative agency of the State of Illinois"). As a government agency, the Authority is immune from punitive damages under Title VII and § 1981. See 42 U.S.C. § 1981a(b)(1) (providing that punitive damages may not be awarded against "a government, government agency, or political subdivision"); Hildebrandt v. Ill. Dep't of Nat'l Resources, 347 F.3d 1014, 1031 (7th Cir. 2003) (applying § 1981a(b)(1) to a Title VII claim); Bell v. City of Milwaukee, 746 F.2d 1205, 1270 (7th Cir. 1984) (applying § 1981a(b)(1) to a § 1981 claim), overruled on other grounds by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005).
For these reasons, the punitive damages request in Count I is stricken. The striking is with prejudice because Copeling has abandoned the request by failing to defend it and also because repleading would be futile; there is nothing that Copeling could plead that would expose the Authority to punitive damages under Title VII or § 1981. See Tribble v. Evangelides, 670 F.3d 753, 761 (7th Cir. 2012) ("District courts have broad discretion to deny leave to amend... where the amendment would be futile."); Estrada v. Reed, 346 F.Appx. 87, 89-90 (7th Cir. 2009) (affirming the district court's denial of "a futile amendment" where the plaintiff could not state a viable claim).
II. Count II: Title VII Disparate Impact Claim
Title VII makes it ...