# Webb v. AFSCME Council 31, Local 654

> District Court, N.D. Illinois · February 26, 2020

URL: https://www.frixlaw.com/law-library/cases/10142215

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** February 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DEREK WEBB, )
)
Plaintiff, ) Case No. 19-cv-4192
)
v. ) Judge Sharon Johnson Coleman
)
AFSCME COUNCIL 31, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
In his first amended complaint, pro se plaintiff Derek Webb brings race discrimination and
retaliation claim against defendants AFSCME Council 31/AFSCME Local 654 (“Union”), and
certain Union officials and employees. Before the Court is defendants’ motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants defendants’
motion; dismisses Webb’s Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983 claims without
prejudice; and dismisses Webb’s Title VI claim, claims under the Illinois Constitution, and unfair
representation claims with prejudice. The Court grants Webb leave to file a second amended
complaint as to his Title VII, § 1981, and § 1983 claims in accordance with this ruling.
Background
The Court takes the following facts from the first amended complaint and construes them
liberally in Webb’s favor because he is proceeding pro se. Greyer v. IDOC, 933 F.3d 871, 878 (7th
Cir. 2019). Webb, who is a civilian employee of the Chicago Police Department, alleges that in
contradiction of the 2018 collective bargaining agreement (“CBA”) that his Union entered into with
the City of Chicago, the Union has engaged in racial discrimination and retaliation by refusing to
process grievances that were filed from January 2018 to the present, respond to the status of
grievances, enforce the terms of the CBA, and that the Union failed to provide fair representation.
Webb filed an EEOC Charge alleging race discrimination and retaliation under Title VII in
March 2019. In his EEOC Charge, Webb stated that the Union failed to process his grievances
involving overtime assignments. After he received his right to sue letter, Webb filed the present
lawsuit alleging race discrimination and retaliation claims under Title VI, Title VII, 42 U.S.C. § 1981,
42 U.S.C. § 1983, and claims under the Illinois Constitution. Webb also brings a First Amendment
claim pursuant to § 1983.

On February 24, 2020, the Court presided over the parties’ oral arguments on the Union’s
motion to dismiss. At that time, Webb gave additional details about his claims, including that the
Union failed to provide fair representation because his grievances did not go to arbitration under the
CBA’s grievance procedures. Webb also presented numerous documents to the Court and opposing
counsel in relation to certain grievances. As the Court explained to Webb, at this juncture, the Court
must examine the allegations in his first amended complaint and not his explanation of the
documents he brought to court. Further, the Court discussed the possibility of Webb having the
opportunity to re-allege certain allegations to flesh out his claims with more details. When asked,
Webb clarified that he was bringing this lawsuit on his own behalf.
Legal Standard
When considering dismissal of a complaint under Rule 12(b)(6), the Court accepts all well
pleaded factual allegations as true and draws all reasonable inferences in favor of the plaintiff.
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive

a motion to dismiss, plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint is
facially plausible when plaintiff alleges “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Discussion
Unfair Representation Claim
Although Webb does not bring a separate count in his first amended complaint alleging that
the Union breached its duty of fair representation, he mentions this breach in his allegations, and at
oral argument, he explained that the Union breached its duty because it did not follow the CBA’s
grievance procedure as to his grievances. As an Illinois public employee, Webb’s claims against the

Union for a breach of the duty of fair representation are governed by the Illinois Public Labor
Relations Act (“Act”), 5 ILCS 315/1 et seq., and the Illinois Administrative Code, 80 Ill. Adm. Code
§ 1200, et seq. Under the Act, the Illinois Labor Relations Board (“Board”) has exclusive jurisdiction
to determine if a union has breached its duty of fair representation. Knox v. CTA, 105 N.E.3d 810,
817, 423 Ill.Dec. 402, 409, 2018 IL App 162265 (1st Dist. 2018); see also Carver v. Nall, 172 F.3d 513,
516 (7th Cir. 1999) (Board “has exclusive jurisdiction to hear unfair labor practice grievances of
Illinois state employees.”).
In his response to defendants’ motion, Webb acknowledges that he has submitted breach of
fair representation claims to the Board and that the Board has exclusive jurisdiction over these
claims. Nonetheless, Webb asserts that the Court will have jurisdiction once he exhausts his
administrative remedies. Webb’s argument is unavailing because unfair representation claims under
the Act are subject to a comprehensive and exclusive scheme of remedies and administrative
procedures and judicial review of the Board’s final administrative decisions are only heard by the

Illinois Appellate Court on administrative review. Knox, 105 N.E.3d at 817-18; see also Cook County v.
ILRB, 70 N.E.3d 795, 809, 410 Ill.Dec. 668, 2017 IL App 153015 (1st Dist. 2017) (“Judicial review
of a decision of the Labor Relations Board is governed by the Administrative Review Law[,] 735
ILCS 5/3-101 et seq.”). As such, Webb’s argument that his unfair representation claim can be
brought in federal court after he exhausts his claims is misplaced. The Court grants the Union’s
motion to dismiss in this respect.
Title VII and § 1981 Claims
Both Title VII and 42 U.S.C. § 1981 prohibit labor organizations from discriminating against
their members on the basis of race. See 42 U.S.C. § 2000e-2(c)(1); 42 U.S.C. § 1981(b). Federal
courts apply the same standard when assessing Title VII and § 1981 discrimination and retaliation

claims, although under § 1981, a plaintiff may also sue individuals and not just his union or
employer. Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir. 2017); Smith v. Bray, 681 F.3d 888, 907
n.2. (7th Cir. 2012), overruled on other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir.
2016). To establish a race discrimination against defendants, Webb must eventually show that the
Union refused to process his grievances because of his race or his earlier complaints about race.
Green v. AFT/IFT Local 604, 740 F.3d 1104, 1107 (7th Cir. 2014).
Construing his pro se allegations liberally, Webb has not alleged sufficient factual details that
raise his race discrimination and retaliation claims above a speculative level. Taha v. International Bhd.
of Teamsters, Local 781, 947 F.3d 464, 471 (7th Cir. 2020). Webb fails to give context to what
grievances he made and how the Union reacted to them except that the Union “refused to respond
to his inquiries.” As to the individual defendants, Webb does not identify what roles they played in
the grievance process or any details outside of his cursory statement that they refused to respond to
his grievances. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”).
The Court therefore grants defendants’ motion to dismiss Webb’s Title VII and § 1981
claims without prejudice and grants Webb leave to file a second amended complaint. In amending
these allegations, Webb must set forth facts – not just conjecture – describing how defendants
engaged in racial discrimination and retaliation.
Title VI Claim
Webb also brings his race discrimination and retaliation claims under Title VI of the Civil
Rights Act, 42 U.S.C. § 2000d, which bars discrimination “under any program or activity receiving
Federal financial assistance.” Title VI, however, is not intended to reach discrimination in
employment practices. Johnson v. Transportation Agency, Santa Clara Cty., Cal., 480 U.S. 616, 628 n.6,
107 S.Ct. 1442, 94 L.Ed. 2d 615 (1987); Ahern v. Board of Educ. of City of Chicago, 133 F.3d 975, 977

(7th Cir. 1998); 42 U.S.C. § 2000d-3. Simply put, § 2000d-3, which controls Title VI claims against
employers or unions “bars plaintiffs from pursuing employment discrimination claims against
organizations that otherwise would be subject to liability under Title VII.” Outley v. City of Chicago,
407 F.Supp.3d 752, 767 (N.D. Ill. 2019) (Feinerman, J.).
Webb’s race and retaliation claims against his Union fall well within the rubric of Title VII,
see 42 U.S.C. § 2000e-2(c)(1), and his claims against the individual defendants are appropriate
pursuant to § 1981. Therefore, Title VI is not the proper statutory authority for these claims. The
Court dismisses Webb’s Title VI claim with prejudice.
Claims Under § 1983
Next, defendants move to dismiss Webb’s claims based on 42 U.S.C. § 1983, including his
First and Fourteenth Amendment claims, because defendants are private – not state – actors.
Section 1983 provides a cause of action for constitutional deprivations that occur under the color of
state law, which means that § 1983 does not allow lawsuits based on private conduct. Spiegel v.

McClintic, 916 F.3d 611, 616 (7th Cir. 2019). Nonetheless, although unions are not state actors, if a
private actor, such as the Union, conspires or acts jointly with a state actor to deprive an individual’s
constitutional rights, the private actor may be subject to § 1983 liability under Seventh Circuit
precedent. Alarm Detection Sys., Inc. v. Village of Schaumburg, 930 F.3d 812, 825 (7th Cir. 2019).
Viewing the allegations in his pro se first amended complaint liberally, Webb has not set
forth any allegations that the Union or the individual defendants acted jointly or conspired with a
state actor to deprive him of his rights under the United States Constitution. ‘The Court thus
dismisses Webb’s § 1983 claims without prejudice. If Webb wishes to amend his § 1983 allegations,
he must keep in mind his Rule 11(b) obligations, namely, that to the best of his knowledge, his
factual contentions have evidentiary support.
Due Process and Equal Protection Claims
Last, Webb brings claims under Article I, Section 2 of the Illinois Constitution based on due
process and equal protection deprivations. The Hlinois Constitution does not protect its citizens
from actions by private entities or individuals, such as defendants. Hi//v. PS I. Trust, 856 N.E.2d
560, 564, 305 Ill. Dec. 755, 368 IIL App.3d 310 (1st Dist. 2006); Methodist Med. Cir. of IMinois v. Taylor,
489 N.E.2d 351, 354, 95 Hl. Dec. 130, 140 Il App.3d 713 (3d. Dist. 1986). The Court dismisses this
last claim with prejudice.
Conclusion
For the foregoing reasons, the Court grants defendants’ motion to dismiss in part without
prejudice and in part with prejudice [36]. ‘The Court grants plaintiff leave to file a second amended
complaint in accordance with this ruling by no later than April 7, 2020.
IT IS SO ORDERED.
Date: 2/26/2020 | | poh
Entered:
SHARON JOHNSON COLEMAN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10142215. Public record. Not legal advice.