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MacK v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

October 2, 2014

ONITA MACK, Plaintiff,
CITY OF CHICAGO, et al., Defendants.



This matter is before the court on Defendants' motion to dismiss. For the reasons stated below, the motion to dismiss is granted in part and denied in part.


In June 2010, Plaintiff Onita Mack (Mack) allegedly began working for Defendant City of Chicago (City) in Defendant Office of Emergency Management and Communications (OEMC) as a Traffic Management Aide. According to Mack, from November 2010 until March 2011, she was subjected to sexual harassment. Mack contends that she was harassed by Jerod Harden (Harden), who allegedly held the position of the Lead Traffic Management Aide. Harden allegedly made repeated comments to Mack of a sexual nature, and repeatedly invited Mack to date him and have sexual relations with him. On another occasion, Harden allegedly attempted to kiss Mack. Mack contends that Harden became angry because she refused his advancements and Harden began calling her derogatory names.

Mack also contends that she was subjected to sexual harassment by Bernard Austin (Austin), who was allegedly employed as Superintendent of Special Traffic Services. Mack contends that Austin made inappropriate comments to her and asked her to go out to dinner with him. In addition, in February 2011, Mack allegedly requested approval from Austin for an additional job training course (Training Course) that would enable her to work in the parking ticket division, and Austin allegedly responded by asking "what part of her body" she would give him in return for the authorization. (Compl. Par. 40). Mack also contends that she complained to Austin about Harden's alleged misconduct and Austin asked her if she would like to go and talk about it at his "place, " and when Mack declined, Austin allegedly asked her if she would like to discuss it in a van and told her: "I won't do anything you won't let me do." (Compl. Par. 43). Mack allegedly filed a formal charge of harassment and she contends that her work hours then decreased and she was given undesirable job assignments.

Mack includes in her complaint hostile work environment claims brought under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. ยง 2000e et seq. (Count I), Title VII sex discrimination claims (Count II), Title VII retaliation claims (Count III), state law assault claims (Count IV), and state law intentional infliction of emotional distress (IIED) claims (Count V). Defendants now move to dismiss all claims.


In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level'" and "if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that "[t]o survive a motion to dismiss, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, " and that "[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")(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations omitted).


I. Claims Brought Against OEMC

Defendants argue that OEMC is not an independent entity that is subject to suit. The Seventh Circuit has generally held that in Illinois a department or division within a municipal entity is not a separate suable entity. See, e.g. DeGenova v. Sheriff of DuPage County, 209 F.3d 973, 977 (7th Cir. 2000)(stating that "[t]he federal courts look to state law to determine if a defendant is amenable to suit" and that "[t]o be sued in Illinois, a defendant must have a legal existence, either natural or artificial")(citing Fed.R.Civ.P. 17(b))(quoting Magnuson v. Cassarella, 812 F.Supp. 824, 827 (N.D. Ill. 1992)); Castillo v. Cook County Mail Room Dept., 990 F.2d 304, 307 (7th Cir. 1993)(stating that the "Cook County Department of Corrections is not a suable entity" and that "[i]t follows that the mail room, as a subdivision of the Department of Corrections, is not subject to suit either"); Smith v. City of Chicago Police Dept., 1991 WL 126594, at *1 (7th Cir. 1991)(stating that "[t]he district court... correctly determined that [the plaintiff's] claim against the Police Department is a suit against an organizational division of the City and therefore not a separate suable entity"); Averhart v. City of Chicago, 2004 WL 2537576, at *1 (7th Cir. 2004)(stating that the "Chicago Police Department is not a suable entity separate from the City of Chicago").

In the instant action, Mack does not dispute that OEMC is a department of the City and cites no precedent holding that OEMC can be separately sued as a Defendant. Since Mack has not shown that OEMC has a separate legal existence from the City, OEMC is improperly named as a defendant in this action. Therefore, Defendants' motion to dismiss the claims brought against OEMC is granted.

II. State Law Claims (Counts IV-V)

Defendants argue that the state law claims are untimely. As indicated above, Mack included in her complaint state law assault claims and IIED claims. Generally, the statute of limitations for a civil assault claim and for an IIED claim brought under Illinois law is two years. Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 852 (7th Cir. 2008)(citing 735 ILCS 5/13-202); Casey-Beich v. United Parcel Service, Inc., 2008 WL 4471362, at *2 (7th Cir. 2008))(citing 735 ILCS 5/13-202); Stokes v. John Deere Seeding Group, 2013 WL 1314039, at *2-3 (C.D. Ill. 2013); Dawkins v. Deutsche Bank Nat. Trust Co., 2013 WL 5164570, at *5 (N.D. Ill. 2013). However, pursuant to the Illinois Local Governmental and Governmental Employees Tort Immunity Act, such claims brought against a municipal entity and its employees have a one-year statute of limitations. See 745 ILCS 10/8-101(a) stating that "[n]o civil action other than an ...

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