United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
Pro se plaintiff Travis Tanner has sued his former employer the Joliet Housing Authority; its executive director Michael Simelton; its chief operating officer Mark Jakielski; its chief administrative officer Maria Cottrell; maintenance department superintendent Roy Finley; property manager Michelle Dixon; and the City of Joliet. Tanner's amended complaint includes six claims relating to his former employment with the Housing Authority.
Tanner, who is African-American, alleges that he because a full time employee of the Housing Authority in 1988. Am. Compl. ¶ 18. In that same year, he became a member of Local 399 of the International Union of Operating Engineers, which represented certain employees of the Housing Authority. Id . ¶ 19. Tanner alleges that starting in 2010, certain management-level employees of the Housing Authority began to subject him to disparate treatment. Id. ¶ 24. Among other things, Tanner alleges, a disciplinary report was submitted in December 2010 that falsely accused him of misconduct. Id. ¶¶ 34, 35. Tanner says that he was terminated from employment, in contrast to white workers at the Housing Authority who were not disciplined or terminated for similar alleged misconduct. Id. ¶¶ 36-37. Tanner alleges, however, that he was reinstated following grievance proceedings. Id. ¶ 39.
Tanner also alleges that he suffered a work-related injury to his knee in January 2010. Id. ¶ 42. He was placed on disability leave for a month and then returned to work. Id. ¶ 44. However, he experienced difficulty working due to the injury and was placed on a further period of disability leave. Id. ¶¶ 45, 49, 51. Tanner was released to return to work in June 2010. Id. ¶ 52.
Tanner says that he suffered a work-related injury to his left arm in December 2012 and reported it to management but was not given an opportunity to submit the required paperwork documenting the injury. Id. ¶¶ 54-56. He says (though this may be a misprint or typographical error) that in August 2012-a date several months before his arm injury-he was called to a disciplinary meeting at which he was asked about the condition of his arm. Id. ¶¶ 60, 61. During this meeting, Tanner alleges, he was falsely accused of committing various acts of misconduct and was placed on six months of paid administrative leave pending further investigation. Id. ¶ 62. At a grievance hearing in February 2013, Tanner says, he was presented with "a modified version of the December 13, 2010 issued Employee Disciplinary Report, " which (as previously) falsely accused him of misconduct. Id . ¶ 63. The disciplinary action was nonetheless upheld, and he was discharged effective February 1, 2013. Id. ¶¶ 64, 65. As a result, Tanner alleges, his medical insurance was terminated, leaving him without coverage for an MRI examination on his arm scheduled for a few days later (which he says the Housing Authority was aware of). Id. ¶¶ 59, 66.
As indicated earlier, Tanner asserts six claims in his amended complaint. In Count 1, a claim under 42 U.S.C. §1981 brought against Simelton and Jakielski, Tanner alleges that he was deprived of certain rights under the Housing Authority's personnel policy manual based on his national origin and race. In Count 2, a claim brought against all five individual defendants under 42 U.S.C. § 1983, Tanner alleges that he was denied his rights under the Illinois Workers' Compensation Act, the Americans with Disabilities Act, and the U.S. Constitution's Equal Protection Clause. Count 3 is a state law breach of contract claim against the Housing Authority; Tanner alleges that he was not given reasonable accommodations for his disability and work-related injury and that he was not provided with "progressive discipline" as required by the Housing Authority's personnel policy. Count 4 is a state law claim of intentional infliction of emotional distress, brought against the five individual defendants and the Housing Authority. Count 6 is a state law negligence claim against the City of Joliet. Count 6 is a claim against the City of Joliet under 42 U.S.C. §1983.
The Court previously granted summary judgment in favor of the City on Count 6. The City has also moved to dismiss Count 5 for failure to state a claim. Tanner states in his response that he agrees to the dismissal of Count 5. See Pl.'s Combined Resp. at 1.
The other defendants have moved to dismiss Counts 1 through 4 for failure to state a claim. Tanner opposes the motion and has also sought leave to file a second amended complaint.
1. Section 1981 claim (Count 1)
Defendants have moved to dismiss Count 1, Tanner's section 1981 claim, based on qualified immunity and on the ground that he has failed to state a plausible claim. See Defs.' Combined Mem. at 7-8. Assuming the doctrine of qualified immunity applies to claims under section 1981, it is not close to being a viable basis for dismissal of Count 1 at this stage of the case. Qualified immunity protects government officials from liability for damages to the extent their conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have known. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Tanner alleges in Count 1 that he was subjected to differential treatment in employment-related discipline based on his race. No viable contention can be made that the prohibition against racially disparate treatment in employment discipline was not clearly established at the relevant time. See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 285 (1976) (race may not be legitimately taken into account in mitigating discipline of some employees but not others).
The Court also concludes that Tanner has alleged enough facts to support a plausible claim of race discrimination. Defendants make the point that the comparative event Tanner cites in his complaint occurred a little over two years before his own termination in February 2013. If that is all Tanner comes up with, it is conceivable that his case might not survive a motion for summary judgment. But the sort of detail defendants want-citations of specific comparable incidents close in time to the challenged action-does not have to be pled in a complaint. To put it another way, a plaintiff is not required to prove his case in his complaint. All that is required are factual allegations sufficient to raise a right to relief about the speculative level-"enough facts to raise a reasonable expectation that discovery will reveal evidence" supporting the plaintiff's claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 556 (2007). Tanner's allegations that, contrary to Housing Authority policy, he was not provided with progressive discipline, and that white employees were given second chances (or more), are sufficient to pass muster for purposes of a Rule 12(b)(6) motion.
2. Section 1983 claim (Count 2)
Count 2 is Tanner's claim under 42 U.S.C. § 1983. It appears that Tanner bases this claim on allegations that he was denied his rights under the Illinois Workers' Compensation Act, the Americans with Disabilities Act (ADA), and the Constitution's Equal Protection Clause. The first two bases are insufficient to give rise to a section 1983 claim. A violation of state law does not create liability under section 1983, see Martin v. Tyson, 845 F.2d 1451, 1455 (7th Cir. 1988), and a claim under the ADA requires exhaustion of administrative remedies (which Tanner has not done), and it may be pursued only against the employing entity, not individual supervisors. See, e.g., EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir. 1995). Thus Tanner cannot base his section 1983 claim on contentions that his rights under the ADA and the Worker's Compensation Act were violated.
Tanner's equal protection claim, however-which essentially duplicates his section 1981 claim in Count 1-states a claim for the reasons described with respect to Count 1. The Court therefore declines to dismiss Count 2 to the extent it ...