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Nolan v. City of Chicago

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

February 10, 2017

MICHAEL NOLAN, Plaintiff,
v.
CITY OF CHICAGO and GEORGE BLACK, Defendants.

          MEMORANDUM AND ORDER

          Joan B. Gottschall United States District Judge

         According to his complaint, the City of Chicago (“the City”) hired Michael Nolan (“Nolan”) to work as a sign hanger in its Department of Transportation (“CDOT”) on or around October 16, 2014. (ECF No. 1 ¶ 7.) The City terminated him approximately three months later. (See id. ¶ 23.) On December 24, 2015, Nolan filed a four-count complaint against the City and one of his supervisors, George Black (“Black”), in his individual capacity. (See id. ¶¶ 5-6, 15.) He pleads a claim under 42 U.S.C. § 1981 against both defendants (Count One); a retaliation claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq., against the City (Count Two); a Title VII discrimination claimed premised on a hostile work environment against the City (Count Three); and a respondeat superior count against the City (Count Four). (See Id. at 3-7.) The court has before it separate motions to dismiss Nolan's complaint for failure to state a claim, Fed.R.Civ.P. 12(b)(6), filed by the City and Black. The court grants both motions but gives Nolan leave to amend his complaint in part, concluding that his hostile work environment claim exceeds the scope of his charge of discrimination.

         I. BACKGROUND

         For purposes of deciding a Rule 12(b)(6) motion, the court assumes that all of the well-pleaded allegations in the complaint are true and draws all reasonable inferences in the plaintiff's favor. Manistee Apts., LLC v. City of Chi., 844 F.3d 630, 633 (7th Cir. 2016). Nolan alleges that he began experiencing workplace harassment “[a]lmost immediately after being hired.” (Compl. ¶ 8.) Coworkers and supervisors yelled and cursed at him, verbally abused him, threatened to terminate him “because of his ‘attitude, '” (Compl. ¶ 12) and gave him disparate work assignments during training. (Id. ¶¶ 9-10.) He describes one occasion in his complaint on which Black “poked Plaintiff in the chest repeatedly and told [him] that the safety of the building and the people in it were none of [his] business.” (Id. ¶ 11.)

         Black and Nolan's supervisors scheduled his performance review in December 2014, even though four months remained on Nolan's probationary period. (Id. ¶¶ 14-15.) At the review, Black told Nolan that he did not have a problem with Nolan's performance, but “Nolan had a problem with ‘body language.'” (Id. ¶ 16.) Due to the mounting stress, Nolan began calling in sick. (Id. ¶ 21.) On January 5, 2015, Nolan called CDOT's human resources division and “explained . . . the problems he had been having with Defendant Black and other members of CDOT.” (Id. ¶ 22.) Nolan received a termination letter on or about January 15, 2015; it did not give a reason for his termination. (Id. ¶ 23.) Nolan filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on or about July 15, 2015, and the EEOC sent him a right-to-sue letter on September 25, 2015. (Id. ¶ 24.)

         Nolan commenced this action by filing his original complaint on December 24, 2015. He initially served the City but not Black. By April 2016, the City's motion to dismiss had been fully briefed. Nolan withdrew two counts in his response to the City's motion to dismiss (ECF No. 17 at 1-2 (withdrawing Counts One and Four as to the City)), but he did not amend his complaint. See Fed. R. Civ. P. 15(a)(1)(B).

         In June 2016, Nolan moved for an extension of his deadline to serve Black. (ECF No. 19.) His motion stated, among other things, that “[u]pon reading Defendant's motion, Plaintiff realized that the complaint would need to be amended, and for the sake of efficiency, waited to serve Defendant Black until Defendant City's motion had been decided.” (Id. ¶ 5.) The court held a hearing on June 24, 2016. The court asked Nolan's counsel whether he intended to amend his complaint consistent with the representations made in his response to the City's motion to dismiss. (See Tr. at 6:7-7:4, ECF No. 26-2 Ex. 5.) Nolan's counsel responded that he did not “purely for judicial economy because we are standing on Counts 2 and 3 against the City.” (Id. at 7:5-7.) After hearing from Nolan's counsel on his theory of how the interest of judicial economy was served, the court stated:

I do not think there is any judicial economy here. Basically, what you are telling me is if I read your response, I will know what is at issue. It has been put at issue by the City. And I will go ahead and get you a decision on it. That is what you want?
MR. O'BRIEN [Counsel for Nolan]: Yes, your Honor.

(Id. at 7:21-8:1.) The court set a deadline for Nolan to serve Black, and Black filed his pending motion to dismiss.

         II. LEGAL STANDARD

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007)); Katz-Crank v. Haskett, 843 F.3d 641, 646 (7th Cir. 2016) (quoting Tombly, supra). A complaint satisfies this standard when its factual allegations “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56; see also Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011) (“[T]he complaint taken as a whole must establish a nonnegligible probability that the claim is valid, though it need not be so great a probability as such terms as ‘preponderance of the evidence' connote.”); Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough details about the subject-matter of the case to present a story that holds together.”). When deciding a motion to dismiss under Rule 12(b)(6), the court takes all facts alleged by the plaintiff as true and draws all reasonable inferences from those facts in the plaintiff's favor, although conclusory allegations that merely recite the elements of a claim are not entitled to this presumption of truth. Katz-Crank, 843 F.3d at 646 (citing Iqbal, 556 U.S. at 662, 663); Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).

         III. ANALYSIS OF MOTIONS TO DISMISS

         A. Section 1981 and ...


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