Simpson v. Cook County Sheriff's Office

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSEPH D.G. SIMPSON, FREDERICK )

MERKERSON, MAURICE RICHARDSON, )

and JONATHAN HARRIS, on behalf of ) Case No. 18-cv-553

themselves and all others similarly situated, )

) Judge Sharon Johnson Coleman

Plaintiffs, )

)

v. )

)

COOK COUNTY SHERIFF’S OFFICE, )

COOK COUNTY SHERIFF’S MERIT )

BOARD, and COUNTY OF COOK )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

The 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.

Background

The 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.

The 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 Merit Board.

Simpson 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.

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. 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. 2018).

Discussion

As an 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.

The 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.

The 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 this time.

The 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.

Here, 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

the Merit Board had notice of the charges and had the opportunity to participate in the EEOC

proceedings. Accordingly, Merkerson adequately exhausted his administrative remedies with respect

to the Merit Board.1

The Merit Board next contends that the plaintiffs have failed to state a claim under 42

U.S.C. § 1983. In order to state a section 1983 claim under Monell, a plaintiff must allege that his

constitutional injury was caused by the enforcement of an express policy, a widespread practice so

permanent and settled as to constitute a custom or usage with the force of law, or a person with

final policymaking authority. Wragg v. Village of Thornton, 604 F.3d 464, 467–68 (7th Cir. 2010).

Here, the plaintiffs have clearly alleged that the Merit Board played a dispositive role in the Sheriff’s

1 It is undisputed that Simpson can piggyback on Merkerson’s exhausted claims. Anderson v. Montgomery Ward & Co., Inc.

852 F.2d 1008, 1017–1018 (7th Cir. 1988).

hiring process, and that the Merit Board had a practice of either asking questions adversely

impacting minority applicants and tracking applicants’ race or of intentionally dismissing otherwise

qualified black applicants. This allegation distinguishes this case from Bless v. County Sheriff’s Office,

No. 13-cv-4271, 2016 WL 958554 (N.D. Ill. March 8, 2016) (Lee, J.). In Bless, a Monell claim based

on an employee’s termination was rejected because the Merit Board merely served as the

adjudicative body applying the employment policies of the Sheriff’s office. Here, by contrast, it is

alleged that the Merit Board has much greater discretion in the hiring process.

Accordingly, the allegations in the complaint are sufficient to state a claim under section 1983.

The Merit Board further contends that Merkerson’s section 1983 and Illinois Civil Rights

Act claims are time barred. As this Court has previously held, the plaintiff’s section 1983 and Illinois

Civil Rights Act claims are subject to a two-year statute of limitations. The Merit Board denied

Merkerson’s certification for employment eligibility on October 27, 2015, and this case was not filed

until January 24, 2018. Although the plaintiffs argue that Merkerson’s claim did not accrue until the

earliest date on which Merkerson could have been hired if he had been certified, the Court finds the

plaintiffs’ arguments for that accrual date to be unconvincing. Unlike the Title VII cases that the

plaintiffs rely on, in this case Merkerson had explicit and certain knowledge that he would not be

hired as a result of the Merit Board’s determination that he was not eligible for hire. See Hileman v.

Maze, 367 F.3d 694, 696 (7th Cir. 2004) (recognizing that statutes of limitations begin to run when

the plaintiff knows or should know of their injury). Accordingly, the Court once again concludes

that Merkerson’s section 1983 and Illinois Civil Rights Act claims against the Merit Board are time

barred.

Conclusion

For the foregoing reasons, the Merit Board’s motion to dismiss [104] is granted in part and

denied in part. ‘The plaintiffs’ section 1983 and Ilhnois Crvil Rights Act claims against the Merit

Board are dismissed without prejudice.

TT IS SO ORDERED.

Date: 7/24/2019

Entered: / /

SHARON JOHNSON COLEMAN

United States District Court Judge