United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jay Dubensky brought this pro se suit against the
Chicago Public Library, alleging that it violated Title VII
of the Civil Rights Act, 42 U.S.C. § 2000e et
seq., by failing to hire him on the basis of his sex.
Doc. 1. The City of Chicago moved to substitute itself as the
defendant and to dismiss the complaint under Federal Rule of
Civil Procedure 12(b)(6). Doc. 14. The court granted to
motion to substitute, Doc. 17, and now denies the motion to
resolving a Rule 12(b)(6) motion, the court assumes the truth
of the operative complaint's well-pleaded factual
allegations, though not its legal conclusions. See Zahn
v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th
Cir. 2016). The court must also consider “documents
attached to the 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 Dubensky's brief opposing
dismissal, so long as those additional facts “are
consistent with the pleadings.” Phillips v.
Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th
Cir. 2013). The facts are set forth as favorably to Dubensky
as those materials allow. See Pierce v. Zoetis, 818
F.3d 274, 277 (7th Cir. 2016). In setting forth those facts
at this stage, the court does not vouch for their accuracy.
See Jay E. Hayden Found. v. First Neighbor Bank,
N.A., 610 F.3d 382, 384 (7th Cir. 2010).
applied for a job at the Chicago Public Library, and his
application was denied on June 17, 2016. Doc. 1 at
¶¶ 4-6. He alleges that the denial was based on his
sex. Id. at ¶¶ 9(g), 12(a). In the portion
of the form complaint that allows pro se plaintiffs
to state “facts supporting the plaintiff's claim of
discrimination, ” Dubensky wrote this:
Freedom of Information Act [(FOIA)] requests were conducted.
Majority of Librarians who were required to have [been]
accredited by ALA-MLIS degree, or foreign equivalent, did not
have evidence of degree on file while my degree is attached
to application. Over 40 librarians from City Hall web site
were researched by FOIA staff.
Id. at ¶ 13. Dubensky attached to the complaint
his transcript from Dominican University reflecting his
earning of a Master of Library Information and Science
degree, id. at 10, as well as FOIA responses he
received from the Governor and Attorney General of Illinois.
Id. at 6-9.
City moves to dismiss the complaint for failure to state a
claim. Doc. 14. It bases its motion on the meager facts set
forth in the complaint; specifically, the City argues that
“Plaintiff does not mention a position he applied for
or the denial of an application for said position, let alone
any facts underlying his belief that his application was
denied because of his gender.” Id. at 3.
Dubensky responds that he requested from the City (via FOIA)
information about the credentials of its librarians, but
received data on only some of them. Doc. 19 at 23. Dubensky
adds that the data he did receive was incomplete.
parties' punches and counter-punches concern the weight
of the evidence Dubensky might offer to prove his claim, but
evidence is not required at the pleading stage. See
Carlson v. CSX Transp., Inc., 758 F.3d 819, 829 (7th
Cir. 2014) (reversing a Rule 12(b)(6) dismissal where the
district court “faulted [the plaintiff] for not
providing evidence in support of her claims, though of course
evidence is not required at the pleading stage”)
(internal citation and quotation marks omitted). Instead, on
a motion to dismiss, the court must accept the well-pleaded
facts as true and then determine, on that factual predicate,
whether the plaintiff has a plausible claim to relief.
Putting aside the evidentiary disputes about whether Dubensky
was adequately credentialed as compared to the librarians the
City did hire, and construing the complaint as the court must
when considering a pro se complaint, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A
document filed pro se is to be liberally construed
… .”) (internal quotation marks omitted);
Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.
2001) (same), the facts alleged are these: Dubensky was
denied a librarian job at the Library on June 17, 2016, and
the denial was based on his sex. Even after Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), that is all it
takes in the Seventh Circuit to state a viable Title VII
claim. See Tate v. SCR Medical Transp., 809 F.3d
343, 346 (7th Cir. 2015) (“[T]o prevent dismissal under
Rule 12(b)(6), a complaint alleging sex discrimination need
only aver that the employer … instituted a (specified)
adverse employment action against the plaintiff on the basis
of her or his sex.”) (brackets omitted); Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir.
City notes that Dubensky's form complaint includes a
paragraph contemplating a claim under 42 U.S.C. § 1983.
The paragraph reads: “If the defendant is a state,
county, municipal (city, town or village) or other local
governmental agency, plaintiff further alleges discrimination
on the basis of race, color, or national origin (42 U.S.C.
§ 1983).” Doc. 1 at ¶ 10. Under Monell v.
Department of Social Services of City of New York, 436
U.S. 658 (1978), a municipality is not liable for its
employees' constitutional violations based on a
respondeat superior theory. Id. at 691.
Rather, to hold a municipality liable under § 1983, the
plaintiff must allege that “a government's policy
or custom” is responsible for the constitutional
injury, id. at 694, and “that an official
policy or custom not only caused the constitutional
violation, but was the moving force behind it, ”
Estate of Sims ex rel. Sims v. Cnty. of Bureau, 506
F.3d 509, 514 (7th Cir. 2007) (internal quotation marks
omitted). “An official policy or custom may be
established by means of  an express policy,  a
widespread practice which, although unwritten, is so
entrenched and well-known as to carry the force of policy, or
 through the actions of an individual who possesses the
authority to make final policy decisions on behalf of the
municipality or corporation.” Rice ex rel. Rice v.
Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012);
see also Milestone v. City of Monroe, 665 F.3d 774,
780 (7th Cir. 2011).
only specific form of discrimination Dubensky identifies is
sex discrimination in hiring, and it seems that he intended
to bring that claim under Title VII, not § 1983, as his
opposition brief does not even attempt to defend any
Monell claim. That is, it would appear that the
§ 1983 language is mere surplusage from the form
complaint. Thus, rather than dismissing a hypothetical
Monell claim, the court will construe the complaint
as not including one. If Dubensky wishes to bring a
Monell claim, he may move to amend the complaint to
state one in compliance with the requirements that attend
motion to dismiss is denied. The City shall answer the