McGuire v. Chicago Transit Authority

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

DONALD A. MILLER and JOHN W. )

MCGUIRE, )

Plaintiffs, )

) Case No. 17-cv-00806

v. )

) Judge Sharon Johnson Coleman

CHICAGO TRANSIT AUTHORITY and )

DONALD BONDS, in his individual )

capacity, )

)

Defendants. )

MEMORANDUM AND ORDER

Plaintiffs, Donald A. Miller (“Miller”) and John W. McGuire (“McGuire”) bring this action

against Defendants, Chicago Transit Authority (“CTA”) and Donald Bonds (“Bonds”) alleging racial

discrimination and retaliation for complaining about the racial discrimination pursuant to 42 U.S.C.

§ 1983, 42 U.S.C. §1981, and 775 ILCS 5/1-101 et seq.. Plaintiff McGuire independently brings

claims of racial discrimination and retaliation against CTA pursuant to Title VII of 42 U.S.C. 2000e

et seq.. Now Defendants CTA and Bonds separately move to dismiss Plaintiffs’ Second Amended

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the foregoing reasons,

Defendants’ Motions are granted in part and denied in part.

Background

The following facts are taken as true for the purpose of deciding this motion. McGuire, who

is Caucasian, worked for CTA for 30 years before he was terminated on July 6, 2016. McGuire was

rated a satisfactory employee and received regular raises and promotions. The last promotion

occurred in June of 2014 when he was designated the Mechanical Officer. Miller, also Caucasian,

worked for CTA for nearly 31 years until he was fired on July 6, 2016. Similar to McGuire, Miller

was rated a satisfactory employee, receiving regular promotions and raises. His last position was

General Manager. Miller reported directly to McGuire. Both McGuire and Miller began reporting

to Bonds, an African-American, when he assumed the role of Vice President of Vehicle

Maintenance in January of 2015.

From the time of Bonds’ hiring, McGuire and Miller contend that Bonds subjected them to

racially discriminatory treatment. McGuire stated that, in March of 2016, Bonds told him that he

intended to create a new position—Manager of Bus Maintenance, and hire Teresa Williams to fill it.

McGuire suggested that Bonds also consider Todd Dudek for the position, which McGuire

contends angered Bonds. McGuire believed that Bonds falsely concluded that McGuire indicated a

preference for a Caucasian manager, Dudek, over the African-American candidate, Williams.

McGuire has not indicated how he knew Bonds was angry or how the anger manifested itself.

On June 20, 2016, Bonds spoke with McGuire about whether McGuire intended to retire

prior to July 1, 2016 so that he would be eligible for reduced-cost health insurance under CTA’s

plan. McGuire responded that he planned to continue working for CTA. According to McGuire,

Bonds responded that he might demote or fire McGuire, but did not cite any misconduct, violation,

or performance deficiencies warranting such action at the time. McGuire contends that Bonds had a

similar retirement discussion with a CTA General Manager, who was African-American, around the

same time. Bonds requested that the General Manager rescind his intent to retire and continue

working for CTA.

After that conversation with Bonds, on June 21, 2016, McGuire contacted CTA’s Equal

Employment Officer (“EEO”), Rita Kopida (“Kopida”), to report his belief that Bonds was

discriminating against him based on his race. The Kopida initiated an investigation into the

allegations and scheduled a follow-up meeting for July 7, 2017 in order for McGuire to provide her

with his supporting documentation.

Miller also alleges that Bonds racially discriminated against him because Bonds showed

favoritism towards African-American employees over him. As an example, Miller claims that Bonds

was angry with Miller about his decision to place an African-American manager who reported to

him on a “Performance Improvement Plan.” Miller did not indicate how he knew Bonds was angry

or how the anger was demonstrated. On July 5, 2016, Miller contacted Kopida to express his

concerns about the racial discrimination. Kopida initiated the investigation process and scheduled a

follow-up meeting on the same day as McGuire’s meeting, July 7, 2016.

On July 6, 2016, McGuire and Miller were invited to morning meetings with Bonds. When

McGuire arrived at his meeting, he found Bonds, the Chief Transit Officer, and a Human Resources

representative, all of whom were African-American. Bonds informed McGuire that he was being

terminated, effective immediately, but provided no explanation other than that the department was

moving in a different direction. When McGuire asked for a reason for his termination, Bonds told

him that he was an “at-will” employee and a reason was not required. McGuire requested that

Bonds wait to decide on his employment until after the EEO investigation was complete. The

Human Resources representative responded that the decision was ultimately up to Bonds and the

Chief Transit Officer. Both men decided that CTA would move forward with the termination.

Miller was also terminated at his meeting and given no reason since he was also an “at-will”

employee. Miller was replaced by an African-American manager who he contends had significantly

less experience and qualifications than he did. Plaintiffs believe that Bonds knew about their EEO

complaints and that they were scheduled to meet with the EEO the next morning when he

terminated their employment.

Plaintiffs now seek damages, alleging that CTA had a custom or practice of discriminating

against people based on race, and that Bonds personally perpetuated this unlawful discrimination

and retaliation against them. Defendants both rebut these claims, contending that the Second

Amended Complaint fails to adequately plead sufficient causes of action.

Legal Standard

A 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. Gardunio v. Town of Cicero, 674 F. Supp.

2d 976, 983 (N.D. Ill. 2009) (Dow, J.). “The issue involved is not whether the claimant is entitled to

prevail, but whether the claimant is entitled to offer evidence in support of the claims.” Id. (citation

omitted). When ruling on a motion to dismiss, a court must accept all well-pleaded factual

allegations in the complaint as true and draw all reasonable inferences in a plaintiff’s favor. Park v.

Ind. Univ. Sch. of Dentistry, 692 F.3d 828, 830 (7th Cir. 2012). 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). A claim has facial plausibility when the plaintiff pleads

factual content that allows a court to draw the reasonable inference that a defendant is liable for the

misconduct alleged. Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L. Ed. 2d 868

(2009).

Discussion

Counts III and V

Defendant CTA asserts that Plaintiffs’ recitals of fact for Counts III and V are not sufficient

to state a plausible claim for racial discrimination. Title VII of the Civil Rights Act of 1964

prohibits an employer from discriminating against individuals with respect to compensation, terms,

conditions, or privileges of employment on account of that individual’s race. 42 U.S.C. § 2000e-

2(a)(1). As IHRA claims apply the same standard, the two claims will be discussed together.

Zaderaka v. Ill. Human Rights Com., 131 Ill. 2d 172, 178, 137 Ill. Dec. 31, 34, 545 N.E.2d 684, 687

(1989). A Title VII suit “must proceed against the employer as an entity rather than against a

natural person.” Carver v. Sheriff of LaSalle Cty., 243 F.3d 379, 381 (7th Cir. 2001).

To succeed on a Title VII or IHRA claim, McGuire and Miller must demonstrate the

offender’s discriminatory intent through direct proof or indirect evidence. Paxson v. Cty. of Cook, No.

02 C 2028, 2002 U.S. Dist. LEXIS 15647, at *6 (N.D. Ill. Aug. 21, 2002)(Darrah, J.)(citing Contreras

v. Suncast Corp., 237 F.3d 756, 759 (7th Cir.), cert. denied, 534 U.S. 824, 151 L. Ed. 2d 29, 122 S. Ct.

62 (2001)). If a plaintiff cannot provide direct support of discriminatory intent, an indirect

demonstration can be made by showing: (1) he is a member of a protected class; (2) he was

performing his job in a satisfactory manner; (3) he was subjected to an adverse employment action;

and (4) similarly situated employees were treated more favorably. Hoffman-Dombrowski v. Arlington Int'l

Racecourse, Inc., 254 F.3d 644, 650 (7th Cir. 2001). The burden then shifts to the defendant to put

forth a “legitimate, nondiscriminatory business reason for the challenged action.” Id. If the

defendant meets this burden, then Plaintiffs must demonstrate that the articulated reason was

pretextual. Id.

In the case of reverse discrimination, a plaintiff must demonstrate background circumstances

that suggest they are members of a protected class in this situation. These circumstances can include

any “allegations that the particular employer at issue has some inclination or reason to discriminate

against the majority or allegations that indicate that there is something ‘fishy’ about the facts of the

case.” Paxson 2002 U.S. Dist. LEXIS 15647 at *7 (citing Mills v. Health Care Services Corp., 171 F.3d

450, 455-457 (7th Cir. 1999)). Courts have also found that if a plaintiff cannot show background

circumstances, a logical reason to believe that the employer’s “decision rests on a legally forbidden

ground” will suffice to shift the burden to the defendants. Id. at *8.

This Court is not convinced that Plaintiffs have demonstrated the background circumstances

that implicate reverse discrimination. Compared to Paxton, where the court found that the plaintiff

demonstrated “something fishy about the facts,” Plaintiffs’ allegations here are insufficient. Paxton

alleged that he was treated differently than similarly situated non-white employees, and provided

clear examples of racial harassment to that effect, such as accusations of Klu Klux Klan affiliation,

and racist vandalism to his office, that his employer refused to investigate or punish. Here McGuire

and Miller merely assert that Bonds, an African-American, became upset with them, Caucasian

employees, for their decisions. They have not alleged any organization-sanctioned discriminatory

conduct, “fishy facts,” or even a logical basis for believing that CTA acted discriminately beyond the

fact that the offending actors were African-American. This does not rise to the level of baseline

circumstances required to reach the plausible inference that CTA was inclined to discriminate

unlawfully against white people or treat white employees differently because of their race. Thus,

Count V, McGuire’s claim of race discrimination under Title VII is dismissed without prejudice.

In evaluating employment discrimination actions brought under the Illinois Human Rights

Act, courts have adopted the analytical framework used to analyze Title VII cases, so the

aforementioned rationale applies to Count III as well. McGuire and Miller have not established

sufficient background circumstances to support an inference of reverse discrimination, and so,

Count III is dismissed without prejudice as well.

Counts IV and VI

Title VII’s anti-retaliation provision makes it unlawful for an employer to discriminate

against an employee because he has opposed any unlawful employment practice or because he has

made a charge, testified, assisted, or participated in a Title VII investigation, proceeding, or hearing.

42 U.S.C. § 2000e-3(a). Since courts apply the same framework to analyze retaliation claims under

IHRA, this Court will evaluate the sufficiency of Counts IV and VI together. Hoffelt v. Ill. Dep't of

Human Rights, 367 Ill. App. 3d 628, 632, 310 Ill. Dec. 701, 705, 867 N.E.2d 14, 18 (2006).

In order to prove retaliation, McGuire and Miller must allege: “1) a statutorily protected

activity, 2) an adverse action taken by the employer, and 3) a causal connection between the two.”

Salas v. Wis. Dep't of Corr., 493 F.3d 913, 924 (7th Cir. 2007) (citing Sitar v. Ind. Dep't of Transp., 344

F.3d 720, 728 (7th Cir. 2003)). Courts have “accepted circumstantial evidence of intentional

retaliation, including evidence of suspicious timing, ambiguous statements, behavior toward or

comments directed at other employees in the protected group, and other bits and pieces from which

an inference of discriminatory intent might be drawn” to surmise a plausible causal link. Id. (citing

Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994); Salas v. Wis. Dep't of Corr., 493 F.3d

913, 924 (7th Cir. 2007)).

Applying the above test to the facts, this Court finds that Plaintiffs have alleged a plausible

claim. First, in order to allege protected conduct, a plaintiff need not prove that the employer’s

action was actually discriminatory or that a plaintiff would have prevailed under an intentional

discrimination Title VII claim. Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 674 (7th Cir.

2011). It is enough to have a reasonable, good-faith belief that the act was discriminatory. Id. Here,

Plaintiffs genuinely believed that they were terminated because they filed an official complaint about

the racial discrimination they believe they suffered at the hand of their supervisor. Whether it is a

winnable claim or not, alleging that they lodged a complaint or participating in an investigation into

that complaint is protected activity under Title VI that satisfies this part of the test. Second, “There

is no dispute that [a] Plaintiff’s termination constitutes an adverse employment action,” so being

terminated establishes the second prong. Nair v. Bank of Am. Ill., 991 F. Supp. 940, 960 (N.D. Ill.

1997) (Pallmeyer, J.). Finally, Plaintiffs’ allegations have established a sufficient causal link between

the protected conduct and the adverse action to withstand scrutiny at this early stage of litigation.

While there is no definitive statement that Bonds knew about the complaints when McGuire and

Miller were terminated, “a plaintiff may establish a link through evidence that the discharge took

place on the heels of the protected activity.” Alexander v. Gerhardt Enters., 40 F.3d 187, 196 (7th Cir.

1994); see Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009)(finding that the suspicious

timing of the adverse action immediately following the protected conduct created a triable issue).

This Court can properly conceive of a causal link between the protected conduct—the EEO

complaint—and Plaintiffs’ terminations based on the timing of the EEO investigations and their

subsequent dismissals. Accordingly, Defendant CTA’s motion to dismiss is denied with respect to

Counts IV and VI.

Counts I and II

CTA

Defendant CTA contends that Counts I and II should be dismissed for failure to state a

claim under Monell. Given Plaintiffs’ statement that they will not be pursuing Counts I and II, (Dkt.

38, p. 2), these claims are waived and dismissed as to CTA.1

Bonds

Counts I and II of the Second Amended Complaint allege that Bonds racially discriminated

and retaliated against Plaintiffs in violation of §§ 1981 and 1983. Bonds believes these claims should

be dismissed because qualified immunity shields him from suit and further, because Plaintiffs failed

to plead a cause of action against him in his individual capacity.

Section 1981 establishes the right to be free from discrimination based on race as it relates to

the making and enforcement of contracts and to be free from work-place retaliation. 42 U.S.C. §

1981. Section 1983 is the exclusive vehicle through which a plaintiff can assert deprivations of rights

guaranteed by § 1981 when the claim is against state actors. Nitch v. Ester, No. 16-CV-06033, 2017

U.S. Dist. LEXIS 171338, at *11 (N.D. Ill. Oct. 17, 2017)(Tharpe, J.)(citing Jett v. Dallas Indep. Sch.

1 While the statement to not pursue Counts I and II was broad and vague, since Plaintiffs did not

reiterate this intention in their Response to Bonds’ Motion to Dismiss and also presented argument,

this Court interprets that the concession was exclusive to CTA.

Dist., 491 U.S. 701, 735, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989)); see also 42 U.S.C. § 1983. When

evaluating discrimination claims under section 1983 or section 1981, courts apply the same proof

analysis as a disparate treatment claim under Title VII, see supra pp. 4-8. Brown v. City of Chi., Case

Number: 00 C 4173, 2002 U.S. Dist. LEXIS 16920, at *27 (N.D. Ill. Sep. 6, 2002)(Guzman, J.).

“‘The doctrine of qualified immunity protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Gerhartz v. Richert, 779 F.3d 682, 688 (7th Cir.

2015) (citing Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)). While

qualified immunity has not been a traditional grounds for dismissal under Rule 12(b)(6), more

recently “courts have been admonished to resolve qualified immunity issues at the earliest possible

stage of litigation.” McGreal v. AT&T Corp., 892 F. Supp. 2d 996, 1011 (N.D. Ill. 2012)(Castillo, J.).

“When a qualified immunity defense is presented in a motion to dismiss, courts ‘apply the standard

of review under Rule 12(b)(6), accept[ing] as true the well-pleaded allegations of the complaint and

the inferences that may be reasonably drawn from those allegations’” to assess whether an

established right has been violated. Id. (citing Stevens v. Umsted, 131 F.3d 697, 706 (7th Cir. 1997).

To overcome a presumption of qualified immunity, a plaintiff’s pleading must establish two

things: (1) that the facts alleged describe a violation of a protected right; and (2) that this right was

clearly established at the time of the defendant’s alleged misconduct. Gerhartz, 779 F.3d at 688 (citing

Mordi v. Zeigler, 770 F.3d 1161, 1164 (7th Cir. 2014)).

In evaluating if Plaintiffs properly alleged a claim for racial discrimination, the Court must

first examine whether the pleading properly alleged a violation of a protected right that was clear at

the time of the discrimination. The Second Amended Complaint states that Bonds “acted

intentionally, and with reckless indifference to both Plaintiffs’ rights under 42 U.S.C. § 1981,” by

discriminating and retaliating against them. Plaintiffs supported these assertions by alleging that

Bonds treated them discriminately for making decisions within their discretion because they are

Caucasian and for wrongfully terminating them based on their EEO complaints.

Here, the rights to not be racially discriminated and retaliated against established by § 1981

were clear at the time that the incidents occurred, satisfying the second prong of the test. The

question of whether they were protected rights remains. In light of the Title VII discussion above,

see supra pp. 4-8, this Court is not convinced that Plaintiffs have sufficiently alleged evidence of racial

discrimination that would permit Count I to survive a motion to dismiss, even considering the

barebones pleading standard. Thus, the inquiry for that claim stops here. The Court does find,

however, that the facts alleged could plausibly support that Bonds violated Plaintiffs rights to be free

from retaliation under § 1981. Consequently, it will consider Bonds’ second argument—whether

Plaintiff’s failure to state that Bonds acted “under the color of the law” is fatal to Count II.

Alleging that a party acted in his official capacity requires more than simply including

boilerplate language in the pleading. Action taken under the color of the law occurs when “the

wrongdoer is clothed with the authority of state law,” and “the act committed . . . [is] in some way

related to the performance of the duties of the state office.” Gibson, 910 F.2d at 1516; Thomas v.

Cannon, 751 F. Supp. 765, 767-68 (N.D. Ill. 1990) (Norgle, J.). While Plaintiffs did not include the

specific phrase “under the color of the law” in Count II, they did allege that Bonds was the Vice

President of Vehicle Maintenance for CTA, a position of authority vested by the state that permitted

him to make consequential decisions about Plaintiffs’ employment. Further, the fact that Plaintiffs

did not specifically identify a discriminatory policy or custom that lead to the retaliation is also not

fatal to their claim against Bond in his individual capacity. Brown v. Budz, 398 F.3d 904, 917 (7th Cir.

2005). Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain only “a short and

plain statement of the claim showing the pleader is entitled to relief.” This requires only the bare

minimum of facts to provide notice. Id. Given the liberal pleading requirement to survive a motion

under Rule 12(b)(6), it is not unreasonable for this Court to draw the inference that Bonds’ conduct

could be retaliatory and to permit Plaintiffs access to discovery that will further bolster these claims.

Brown, 398 F.3d at 917.

For these reasons, Defendant Bonds’ Motion to Dismiss 1s denied as to Count I and granted

as to Count II.

Conclusion

Based on the foregoing, this Court grants Defendants’ motions to dismiss Counts I, HI and

V of Plaintiffs Amended Complaint, and denies the Motions as to the remaining Counts.

TT IS SO ORDERED.

ENTERED: SHARON JOHNSON COLEMAN

United States District Court Judge

Dated: 2/15/2018

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