United States District Court, N.D. Illinois, Eastern Division
PATRICK McQUEEN, GAIL RUSSELL, MICHELLE SHUMAKER, and SHARON DANCY, Plaintiffs,
CITY OF CHICAGO, a municipal corporation, and JOSEPH O'CONNOR, MICHAEL FITZGERALD, RAYMOND JUBERA, and LOUIS MILLS, in their individual and official capacities. Defendants.
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Patrick McQueen, Gail Russell, Michelle Shumaker, and Sharon Dancy, aviation police officers employed by the City of Chicago's Department of Aviation ("DOA"), brought this suit against several DOA supervisors and the City. The operative complaint alleges violations of 42 U.S.C. § 1981, the Fourteenth Amendment's equal protection and due process clauses, the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq., the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/1 et seq., and the Illinois Civil Rights Act ("ICRA"), 740 ILCS 23/1 et seq. Doc. 71. The named defendants are the City; James Maurer, the former DOA Managing Deputy Commissioner of Security and Public Safety; Joseph O'Conner and Bill Lonergran, both Assistants to the DOA Deputy Commissioner for Security and Public Safety; and Michael Fitzgerald, Raymond Jubera, and Louis Mills, all DOA Lieutenants. In an earlier opinion, the court dismissed certain claims and allowed the others to proceed. Docs. 123-124 (reported at 803 F.Supp.2d 892 (N.D. Ill. Mar. 23, 2011)). The claims against Maurer and Lonergran later were dismissed by stipulation. Docs. 180-181, 190-191.
The remaining defendants have moved for summary judgment. Doc. 192. The motion (which does not argue for qualified immunity) is denied in its entirety, except as set forth below. This opinion assumes familiarity with the court's earlier opinion. The material facts are set forth as favorably to Plaintiffs as the record and Local Rule 56.1 permit. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012).
I. Section 1981 Claims
In Jett v. Dallas Independent School District, 491 U.S. 701 (1989), the Supreme Court held that 42 U.S.C. § 1983 provides "the exclusive federal remedy" for alleged § 1981 violations by state actors. Id. at 731-33. As the court noted in its earlier opinion, 803 F.Supp.2d at 900, whether that holding from Jett survived the Civil Rights Act of 1991 is an open question in the Seventh Circuit. See Naficy v. Ill. Dep't of Human Servs., 697 F.3d 504, 509 n.3 (7th Cir. 2012) (finding it unnecessary to resolve the question). Defendants again press Jett on summary judgment. Doc. 193 at 65-66. The court concludes that the majority view among the circuits, which holds that the Civil Rights Act of 1991 did not abrogate Jett, has the better of the argument. See McCormick v. Miami Univ., 693 F.3d 654, 659-61 (6th Cir. 2012); McGovern v. City of Philadelphia, 554 F.3d 114, 117-21 (3d Cir. 2009); Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir. 2006); Oden v. Oktibbeha Cnty., 246 F.3d 458, 463-64 (5th Cir. 2001); Butts v. Cnty. of Volusia, 222 F.3d 891, 893-94 (11th Cir. 2000); Artis v. Francis Howell N. Band Booster Ass'n, Inc., 161 F.3d 1178, 1181 (8th Cir. 1998); Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995); contra Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207-14 (9th Cir. 1996).
The significance of this ruling is limited. Jett did not extinguish § 1981 claims against state actors; rather, it held that such claims must proceed through the vehicle provided by § 1983. See Bolden v. City of Topeka, 441 F.3d 1129, 1134 (10th Cir. 2006). Plaintiffs' § 1981 claims therefore are not dismissed; rather that proceeding directly under § 1981, they must proceed, like the equal protection and due process claims, under § 1983. It follows that the § 1981 claims are subject to a two-year statute of limitations-which does not appear to have any practical significance in this case, as neither side has noted the distinction between the two-year limitations period under § 1983 and the four-year limitations period that ordinarily governs some claims under § 1981-and Plaintiffs must satisfy Monell to hold the City liable for violating § 1981. See Jett, 491 U.S. at 731-32; Hall v. Vill. of Flossmoor, 520 F.Appx. 468, 473 (7th Cir. 2013); Looper Maint. Serv. Inc. v. City of Indianapolis, 197 F.3d 908, 913 (7th Cir. 1999).
II. Section 1983 Claims
A. Claims Regarding Post Assignments
To prevail on their § 1983 claims, Plaintiffs must demonstrate that they suffered a "materially adverse employment action." Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 635 (7th Cir. 2013). Among other alleged adverse employment actions, Plaintiffs allege that Defendants disproportionately assigned them to undesirable posts as compared to their non-African-American colleagues. DOA officers at O'Hare Airport could be assigned to any of fourteen fixed posts, eight foot patrols, and several vehicle assignments. Doc. 230 at ¶ 14. According to Plaintiffs, six of the fixed posts are "unfavorable." Id. at ¶ 17. They say that Post 1 "is the least desirable" because "it is very busy and many officers are hurt there from being hit by cars, " requires officers to check cars in inclement weather, and contains dust from "limestone... being crushed." Id. at ¶¶ 17-18. Another example is Post 2, which Plaintiffs say is "an unfavorable position because it's filthy, broken down, has rodents, ... has a high volume of traffic, " and exposes officers to fumes. Id. at ¶ 19. Post 12 is situated in a construction area with "all types of dirt, rocks, and porta-potties." Ibid.
Defendants contend that the allegedly discriminatory post assignments do not qualify as a materially adverse employment action. Doc. 198 at 13-17. The Seventh Circuit has held that there are three types of materially adverse employment actions:
(1) cases in which the employee's compensation, benefits or other financial terms of employment are diminished, including cases where employment is terminated; (2) cases in which a nominally lateral transfer without a change in financial terms significantly reduces the employee's career prospects by preventing him from using the skills in which he is trained and experienced; and (3) cases in which the employee is not moved to a different job or the skill requirements of his present job altered, but the conditions in which he works are changed in a way that subjects him to humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in his workplace environment-an alteration that can fairly be characterized as objectively creating a hardship, the classic case being that of the employee whose desk is moved into a closet.
Tart v. Ill. Power Co., 366 F.3d 461, 475 (7th Cir. 2004) (alteration in original) (internal quotation marks and brackets omitted). Discriminatory post assignments could conceivably fall only within the third category.
The post assignments of which Plaintiffs complain do not rise to the level of a materially adverse employment action. While the posts described above were considered "the most non-desirable" by many officers, some officers actually preferred them. Doc. 212 at ¶¶ 16-17 (one African American officer "wanted to work at Posts 1 and 2 because at other posts, he would get bored"). This necessarily means that the post assignments of which Plaintiffs complain were neither intolerable nor a "significantly negative alteration in [the Plaintiffs'] workplace environment." Dass v. Chi. Bd. of Educ., 675 F.3d 1060, 1069 (7th Cir. 2012); see also Griffin v. Potter, 356 F.3d 824, 829 (7th Cir. 2004) ("An adverse employment action must be materially adverse, not merely an inconvenience or a change in job responsibilities."); Johnson v. Cambridge, 325 F.3d 892, 901 (7th Cir. 2003) (holding that "Johnson's allegation that he was given harder work assignments" does not amount to a materially adverse employment action); Haugerud v. Amery Sch. Dist., 259 F.3d 678, 691-92 (7th Cir. 2001) (holding that female custodians' complaints that they received "additional responsibilities, " received no help from others, and were "intentionally interfered with" while working were not materially adverse actions). It follows that those assignments were not materially adverse employment actions. See Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 781 (7th Cir. 2007) ("The plaintiffs here argued only that they preferred the work at the Edwardsville campus, and that claim is contradicted by three of the four plaintiffs' specific or contingent requests to work at the very location they purport to disdain.... This indicates that the plaintiffs' complaints involved purely subjective preference for one assignment over another."); O'Neal v. City of Chicago, 392 F.3d 909, 910-13 (7th ...