Price v. Northern Illinois University

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CYNTHIA M. PRICE, )

)

Plaintiff, )

)

v. ) Case No. 16-CV-9827

)

NORTHERN ILLINOIS UNIVERSITY, ) Judge Joan H. Lefkow

GINA KENYON, in her official and )

individual capacity, and BARBARA WILLERT, )

in her official and individual capacity, )

)

Defendants. )

ORDER

For the reasons stated below, defendants’ motion to dismiss is granted as to all claims for

damages and back pay against NIU. All official capacity claims against Kenyon and Willert are

dismissed. Price may proceed against NIU on her claim for reinstatement and against Kenyon

and Willert on her claims for compensatory damages. The case will be called for status hearing

on January 16, 2018. The parties shall discuss in advance of that hearing the potential for early

resolution, the scope of needed discovery, and a date for Rule 26(a) disclosures. See Statement.

STATEMENT

I. Background1

On October 17, 2016, Cynthia M. Price filed this civil rights suit for damages and

injunctive relief against Northern Illinois University (NIU) and two of its employees, Gina

Kenyon and Barbara Willert in their individual and official capacities, alleging race

discrimination which resulted in her constructive termination from her employment at NIU. In

her amended complaint, Price labels her claims as § 1983 claims, although she appears to rely on

substantive rights granted by 42 U.S.C. § 1981. (Dkt. 22.) Defendants have moved to dismiss for

lack of jurisdiction based on sovereign immunity and for failure to state a claim upon which

relief may be granted. (Dkt. 34.) 2

Price is an African-American woman who was employed by NIU from March 2004 to

1 The facts described herein are taken from Price’s second amended complaint (dkt. 22) and are

accepted as true for the purposes of this motion. See Thompson v. Ill. Dep’t of Prof’l Reg., 300 F.3d 750,

753 (7th Cir. 2002) (internal citations omitted); Fed. R. Civ. P. 10(c).

2 The court has jurisdiction under 28 U.S.C. §§ 1331 and 1343. Venue is proper under 28 U.S.C.

§ 1391(b).

May 29, 2014, first as a Building Service Worker and later as a Food Service Supervisor. In

March 2014, Price reported an incident of hostile work environment regarding a non-African-

American employee.3 (Id. ¶ 11.) Kenyon and Willert subsequently reprimanded, suspended, and

demoted Price, made false allegations of stealing, and required her to report when she was going

on breaks when no one else was required to do so, all with intent to retaliate against her for

making the hostile work environment report and to harass her because of her race. Price, despite

performing satisfactorily, could not continue working in that environment and was constructively

terminated on May 24, 2014. She also alleges a pattern and practice by NIU of discrimination

against African-Americans.

II. Legal Standard

Rule 12(b)(1) provides that a case will be dismissed if the court lacks the authority to

hear and decide the dispute. Fed. R. Civ. P. 12(b)(1). If subject matter jurisdiction is not evident

from the face of the complaint, the court analyzes the motion to dismiss under Rule 12(b)(1) as

any other motion to dismiss by assuming the allegations of the complaint are true. United

Phosphorous, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003) (en banc), overruled

on other grounds by Minn–Chem, Inc. v. Agrium Inc., 683 F.3d 845 (7th Cir. 2012).

A Rule 12(b)(6) motion challenges a complaint for failure to state a claim on which relief

may be granted. To survive a Rule 12(b)(6) motion, the complaint must provide the defendant

with fair notice of a claim’s basis and must also establish that the requested relief is plausible on

its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009);

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)

(holding that a plaintiff’s obligation to provide the “grounds” of her “entitle[ment] to relief”

requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do; also, factual allegations must be enough to raise a right of relief above the

speculative level, on the assumption that all the allegations in the complaint are true).

III. Analysis

A. Jurisdiction - Eleventh Amendment Immunity

Under the Eleventh Amendment, states, state agencies, and state officials generally “may

claim immunity from suit in federal court.” Kroll v. Bd. of Tr. of the Univ. of Ill., 934 F.2d 904,

907 (7th Cir. 1991).4 The Seventh Circuit has previously determined that NIU is an arm of the

State of Illinois and consequently receives the protection of the Eleventh Amendment. Osteen v.

Henley, 13 F.3d 221, 223–24 (7th Cir. 1993); see also Winters v. Iowa State Univ., No. 91-2717,

3 The complaint does not make clear to whom this complaint was directed, but the court infers

that the report was internal to the university and that Price is alleging Kenyon and Willert had knowledge

of the complaint and its content.

4 In response, Price argues that complaints are “generally not dismissed under Rule 12(b)(6) on

qualified immunity grounds.” See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). While Price is

correct with regard to her assertions about qualified immunity, she appears to have conflated defendants’

Eleventh Amendment immunity defense with a defense of qualified immunity. Defendants have not

raised a qualified-immunity defense in their motion for dismiss.

1992 WL 101625, at *2 (7th Cir. May 13, 1992) (holding that Eleventh Amendment immunity

extends to state universities for claims under § 1981). Therefore, the court lacks subject matter

jurisdiction over the claims for damages brought against NIU as well as against Kenyon and

Willert in their official capacities.

Price does seek injunctive relief, however, in the form of reinstatement. Claims for

injunctive relief are not barred by the Amendment. Osteen, 13 F.3d at 223, citing Kentucky v.

Graham, 473 U.S. 159, 169 n.18, 205 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). Any such claim,

however, could only be asserted against NIU because Willert and Kenyon could not provide this

relief outside their official capacities. See Woulfe v. Cty. of Cook Dept. of Adult Probation, No.

95 C 7435, 1997 WL 136265, *4 (N.D. Ill. March 20, 1997), citing Lenea v. Lane, 882 F.2d

1171, 1178 (7th Cir. 1989) (also holding award of back pay from the state is barred by Eleventh

Amendment).

As such, all claims against NIU for back pay and damages must be dismissed with

prejudice. All official capacity claims against Kenyon and Willert must be dismissed with

prejudice. NIU is subject to Price’s claim for reinstatement. Kenyon and Willert are subject to

her claims for compensatory damages in their individual capacities.

B. Timeliness of the Complaint

Defendants additionally argue that Price’s complaint should be dismissed in its entirety as

untimely. Claims brought under § 1981 made possible by the 1990 amendment to § 19815are

subject to the four-year statute of limitations of 28 U.S.C. § 1658; Jones v. R.R. Donnelley &

Sons Co., 541 U.S. 369, 382, 124 S. Ct. 1836, 158 L. Ed. 2d 645 (2004). The statute of

limitations for claims brought under § 1983 are “governed by the forum state’s personal injury

statute of limitations.” Campbell v. Forest Preserve Dist. Of Cook County, Ill., 752 F.3d 665,

668 (7th Cir. 2014). Accordingly, in Illinois, § 1983 claims are subject to a two-year statute of

limitations. 735 Ill. Comp. Stat. § 5/13-202.

Defendants argue that, because § 1981 does not provide a right of action against state

actors independent of § 1983, see Campbell, 752 F.3d at 671,6 § 1983’s two-year statute of

limitations applies. Price responds that her complaint is timely because the action concerns rights

created by the amendment of § 1981 by the Civil Rights Act of 1991 (dkt. 37 at 4–5). See n.5

supra; Campbell, 752 F.3d at 668.

In Jones, the Court interpreted § 1658 to apply “if the plaintiff’s claim against defendant

was made possible by a post-1990 enactment.” 541 U.S. at 382. The Seventh Circuit in Campbell

noted, but did not need to decide, that where a plaintiff’s claim is “based on a violation of § 1981

that could not have occurred before the Civil Rights Act of 1991 amended that statute . . . one

5 In 1991, Congress amended § 1981 to establish that the term “make and enforce contracts'”

includes the “termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions

of the contractual relationship.” 42 U.S.C. § 1981(b).

6 See also De v. City of Chi., 912 F. Supp. 2d 709, 727–30 (N.D. Ill. 2012) (collecting cases and

finding that “§ 1983 provides the sole remedy for violations of § 1981 by state actors”).

might argue that § 1658’s four-year statute of limitations should apply regardless.” 752 F.3d at

668.

Accepting the defense’s argument would make impossible a § 1981 claim filed more than

two years from accrual, which is contrary to the application of a four-year limitations period in

Jones. The better conclusion is that the limitations period for §1981 is an exception to the

general two-year period for § 1983 established in Wilson v. Garcia, 471 U.S. 261, 105 S. Ct.

1938, 85 L. Ed.2d 254 (1985). As discussed in Sams v. City of Chi., No. 13 C 7652, 2014 WL

6685809, at *6 (N.D. Ill. Nov. 25, 2014), which also concluded that the four-year limitations

period applies to claims brought under § 1983 for violations of § 1981, this appears to be the

view of the Seventh Circuit. As such, the four-year limitations period of 28 U.S.C. § 1658

applies to Price’s claims for violations of § 1981.

C. Failure to State a Claim

Finally, defendants argue that Price has failed to state a claim because her § 1983 claims

fail to allege a federal constitutional or statutory violation. This assertion is not entirely accurate,

as Price alleges in paragraph 1 that she proceeds under § 1981 and in paragraph 9 that her claims

arise under §§$ 1981 and 1983. Since only § 1981 grants substantive rights, one must infer that

she is claiming violation of § 1981. That aside, her claims are not foreclosed by failure to

articulate a legal theory. See Hatmaker v. Mem’! Med. Ctr., 619 F.3d 741, 742-73 (7th Cir. 2010)

(“Although [Twombly and Iqbal] require that a complaint in federal court allege facts sufficient

to show that the case is plausible, they do not undermine the principle that plaintiffs in federal

courts are not required to plead legal theories.”’) (citations omitted). The facts are what counts.

The allegations are sparse, but Price has alleged that NIU and the individual defendants, because

of her race, subjected her to disparate treatment, retaliation, and made her working conditions so

unpleasant in several specific ways that she felt forced to quit. As such, she has stated a plausible

claim for violation of § 1981.

On the other hand, Price’s allegations of pattern and practice against NIU are wholly

unsupported by facts and are therefore insufficient to state a plausible claim for injunctive relief

under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct.

2018, 56 L.Ed.2d 611 (1978), if that was Price’s intention.

Date: December 14, 2017

U.S. District Judge Joan H. Lefkow