United States District Court, N.D. Illinois, Eastern Division
JOSEPH D.G. SIMPSON, FREDERICK MERKERSON, MAURICE RICHARDSON, and JONATHAN HARRIS, on behalf of themselves and all others similarly situated, Plaintiffs,
COOK COUNTY SHERIFF'S OFFICE, COOK COUNTY SHERIFF'S MERIT BOARD, and COUNTY OF COOK Defendants.
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN UNITED STATES DISTRICT COURT JUDGE.
plaintiffs, Joseph D.G. Simpson, Frederick Merkerson, Maurice
Richardson, and Jonathan Harris, allege that the Cook County
Sheriff's Office and Cook County Sheriff's Merit
Board (“The Merit Board”) have discriminated
against them based on their race by rejecting their
applications to be correctional officers, in violation of
Title VII of the Civil Rights Act of 1964, Section 1981 of
the Civil Rights Act of 1866, the Illinois Civil Rights Act,
and the Equal Protection Clause of the United States
Constitution. The Merit Board now moves to dismiss the
plaintiffs' claims against it. For the reasons set forth
herein, that motion is granted in part and denied in part.
plaintiffs allege that the Cook County Sheriff's Office
and the Merit Board have engaged in a pattern of intentional
discrimination and disparate treatment against African
American applicants to be correctional officers.
Cook County Sheriff's Merit Board is an administrative
body authorized by statute. The Board's purpose is to
create employment policies and make employment decisions for
the Cook County Sheriff's Office. The Merit Board is the
final decisionmaker as to whether applicants are certified as
“eligible for hire, ” a designation which is a
prerequisite to the Sheriff's Office's final hiring
decision. In order to be certified as eligible to hire, an
applicant must pass a written examination, a situational
examination, a physical fitness test, fingerprinting, drug
testing, a background investigation, and an interview by a
Merit Board investigator. The Merit Board is almost entirely
white, and applicants' race is indicated throughout the
information collected and considered by the Merit Board.
Between 2013 and 2017, black applications were
disproportionately likely to be denied certification by the
applied to be a correctional officer four times between 2014
and 2018. His 2015 application was certified by the Merit
Board, but the Sheriff's Office rejected him for
employment. His most recent application was rejected in 2018
based on his score on the Merit Board's written
examination. Merkerson applied to be a corrections officer in
2015. The Merit Board refused to certify Merkerson as
eligible to hire, despite the fact that Merit Board employees
had remarked favorably on his qualifications. Merkerson's
interviewer, however, had warned him that the Merit Board
would try to “fuck [him] over, because they're not
hiring black folks.” Merkerson subsequently filed a
charge of discrimination with the EEOC. Although that charge
of discrimination did not name the Merit Board as a
defendant, it contained allegations involving the Merit
Board, the Merit Board was represented in the proceedings,
and the Merit Board's Executive Director was interviewed.
The remaining named plaintiffs, Richardson and Harris, were
both certified for employment but were ultimately not hired
by the Sheriff's Office, seemingly following the results
of their post-certification polygraph examinations.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the complaint, not
the merits of the allegations. The allegations must contain
sufficient factual material to raise a plausible right to
relief. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 569 n.14, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Although Rule 8 does not require a plaintiff to plead
particularized facts, the complaint must assert factual
“allegations that raise a right to relief above the
speculative level.” Arnett v. Webster, 658
F.3d 742, 751-52 (7th Cir. 2011). When ruling on a motion to
dismiss, the Court must accept all well-pleaded factual
allegations in the complaint as true and draw all reasonable
inferences in the plaintiff's favor. Boucher v. Fin.
Sys. of Green Bay, Inc., 880 F.3d 362, 365 (7th Cir.
initial matter, the Merit Board contends that it is not
properly named as a defendant in this action. In order for
the plaintiffs to bring a Title VII claim against the Merit
Board, the plaintiffs must establish that the Merit Board was
their employer. As the Seventh Circuit and other courts in
this district have recognized, however, the Merit Board does
not act as an employer, but instead acts as an agent of the
Cook County Sheriff's Department, which delegates certain
employment functions to it. See Averhart v. Cook County
Sheriff, 752 F.3d 1104, 1106 (7th Cir. 2014) (concluding
that the Merit Board was not an employer when acting in its
capacity adjudicating proposed terminations); Coleman v.
Sheriff of Cook County, No. 16 C 2682, 2018 WL 3740558,
at *5 (N.D. Ill. Aug. 7, 2018) (Durkin, J.) (recognizing that
the Merit Board acts as the Sheriff's agent for purposes
of Title VII liability). Accordingly, the Merit Board cannot
be properly sued directly as an employer under Title VII.
plaintiffs alternatively argue that the Merit Board is an
“employment agency” for purposes of Title VII.
Although Title VII makes it illegal for an employment agency
to engage in racial discrimination, the term
“employment agency” is defined as only
encompassing those who regularly undertake to “procure
employees for an employer or to procure for employees
opportunities to work for an employer.” 42 U.S.C.
§ 2000e(c). Here, there is no allegation that the Merit
Board is procuring employees or employment. Instead, the
plaintiffs allege that the Merit Board screens potential
applicants on behalf of the Sheriff. The Court does not
interpret this activity as falling within the scope of
“procuring” those applicants or their employment,
and thereby disagrees with the limited authorities from other
jurisdictions holding to the contrary. See generally
Dumas v. Town of Mount Vernon, Ala., 612 F.2d 974, 980
(5th Cir. 1980) (stating without explanation that a county
personnel board is an employment agency), overruled on other
grounds by Larkin v. Pullman-Standard Div., Pullman,
Inc., 854 F.2d 1549, 1569 (11th Cir. 1988);
Scaglione v. Chappaqua Central Sch. Dist., 209
F.Supp.2d 311, 318 (S.D.N.Y. 2002) (holding that a municipal
service administrator responsible for administering all
hiring procedures for municipalities within the county was an
employment agency for purposes of Title VII). The Court also
does not find the role of the Merit Board to be comparable to
other private and public entities that affirmatively seek to
procure job placements for others, such as the law school
defendant in Kaplowitz v. Univ. of Chi., 387 F.Supp.
42, 46 (N.D. Ill. 1974) (Marovitz, J.). The Court therefore
rejects this argument.
plaintiffs, in an alternative argument, attempt to assert
that the Merit Board was their de facto or indirect employer
because it asserted control over their employment. See
generally Harris v. Allen County Board of Commissioners,
890 F.3d 680, 683 (7th Cir. 2018). The Merit Board, in a
conclusory footnote, asserts that the allegations supporting
this theory are insufficient and that this theory is not
legally sound. The allegations in the complaint, however,
establish that the Merit Board played a dispositive role in
the hiring process at issue in this case. Accordingly, and in
the absence of any contrary authority, the Court does not
foreclose the plaintiff's indirect employment argument at
Merit Board also contends that the plaintiffs' Title VII
claims must be dismissed because they were not
administratively exhausted before the EEOC. Generally, a
party not named in an EEOC charge may not be sued under Title
VII. Schnelbaecher v. Baskin Clothing Co., 887 F.2d
124, 126 (7th Cir. 1989). An exception to this requirement
exists, however, when the unnamed party is given adequate
notice of the charges and has the opportunity to participate
in the EEOC conciliation proceedings. Eggleston v.
Chicago Journeyman Plumbers' Local Union No. 130,
U.A., 657 F.2d 890, 905 (7th Cir. 1981). Title VII does
not require procedural exactness, and EEOC charges must be
construed with the “utmost liberality” to join
parties sufficiently named or alluded to in the factual
statement. Id. at 906.
Merkerson's charge of discrimination alleged that he was
disqualified by the Merit Board, that the background
questionnaire administered by the Merit Board included
questions adversely impacting minority applicants, and that
he had been told that the Merit Board was “not hiring
black folks.” The complaint alleges that the Cook
County Sheriff's General Counsel's Office, which
represented both the Sheriff and the Merit Board, actively
participated in the investigation and responded to
information requests on behalf of the Merit Board. The
complaint also alleges that the Merit Board's Executive
Director was extensively interviewed regarding the Merit
Board's screening process. On the limited record before
the Court, these allegations suffice to establish that ...