Wilson v. Board of Trustees of Community College District 508

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHARLES WILSON,

Plaintiff, No. 20 C 4604

v. Judge Thomas M. Durkin

BOARD OF TRUSTEES OF COMMUNITY

COLLEGE DISTRICT 508; and CHRISTOPHER

MAGANA,

Defendants.

MEMORANDUM OPINION AND ORDER

Charles Wilson alleges that his employer and supervisor discriminated and

retaliated against him based on his race and age. Defendants have moved to dismiss

most of his claims pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 19. That

motion is granted.

Legal Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must

provide “a short and plain statement of the claim showing that the pleader is entitled

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, “labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,

the Court accepts all well-pleaded facts as true and draws all reasonable inferences

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

Background

Wilson is Black and was born in 1963. In 2015, he started working as an

engineer for the City Colleges of Chicago—which is the more common name of

defendant Trustees of Community College District 508.

One of Wilson’s colleagues was defendant Christopher Magana. Wilson alleges

that Magana “would question Wilson as he performed his job and would yell at him

to do different tasks.” R. 1 ¶ 10. Wilson complained about Magana’s conduct to his

supervisor, the Chief Engineer, sometime before 2017.

When Wilson’s supervisor retired, Magana was promoted to Assistant Chief

Engineer. Magana continued to “yell at Wilson for no reason and [to] give him extra

work.” Id. ¶ 17.

Wilson complained to the new Chief Engineer. Wilson alleges the Chief

Engineer responded by giving Wilson additional work, including some work that was

Magana’s responsibility. See id. ¶ 19. Wilson was also denied use of a vehicle to get

around campus. Id. ¶ 20.

In February 2019, Magana was promoted to Chief Engineer. Magana changed

Wilson’s hours, gave Wilson additional work, removed personal items from Wilson’s

locker, and denied Wilson use of an office space. Wilson alleges that he complained

about these actions to the City Colleges’ management and human resources

department.

Wilson brings the following claims: Count I for race discrimination in violation

of Title VII; Count II for violation of the Age Discrimination in Employment Act

(“ADEA”); Count III for willful violation of the ADEA; Count IV for retaliation in

violation of Title VII; Count V for discrimination in violation of the Illinois Human

Rights Act (“IHRA”); Count VI for retaliation in violation of the IHRA; Count VII for

race discrimination in violation of Section 1983; and Count VIII for violation of the

Occupational Safety and Health Act (“OSHA”). Wilson has voluntarily dismissed his

OSHA claim, see R. 25 at 3 (¶ 6), and Defendants move to dismiss all but Count IV,

the Title VII retaliation claim.

Analysis

I. Service

Defendants first argue that the claims against Magana should be dismissed for

untimely service. Federal Rule of Civil Procedure 4(m) requires service within 90 days

of filing the complaint. Wilson filed this case on August 5, 2020. He did not serve

Magana until February 19, 2021, more than 90 days later.

Rule 4(m) requires a court to dismiss “without prejudice” an action not timely

served “or order that service be made within a specified time. But if the plaintiff

shows good cause for the failure, the court must extend the time for service for an

appropriate period.” The Seventh Circuit has explained that this means that the

Court must extend the time for service if good cause is shown, and “may in its

discretion grant an extension” otherwise. Troxell v. Fedders of N. Am., Inc., 160 F.3d

381, 383 (7th Cir. 1998) (emphases added).

At a hearing on February 22, 2021, Wilson’s counsel conceded that Wilson had

not attempted personal service on Magana but had only attempted to serve him by

sending a waiver request to his employer. Magana’s counsel told opposing counsel

that “the employer will usually accept service for their employee.” R. 20-1 at 2. But

expectation of a supposedly common courtesy does not absolve a plaintiff from

ensuring that he has satisfied his legal obligations. And Wilson only cursorily argues

that there is good cause for the failure to serve due to “issues related to COVID-19.”

R. 26 at 6. That one sentence is not sufficient to establish good cause.

Nevertheless, Defendants do not explain why the Court should not exercise its

discretion to find that Wilson’s late service on Magana is sufficient in this case. Even

if the Court were to dismiss Wilson’s claims against Magana, he would simply refile

them and again serve Magana at his home. Perhaps dismissal would implicate the

statute of limitations for some of the claims. But Defendants do not make this

argument, so the Court does not consider the issue further. Additionally, the return

of service document indicates that the process server was confronted with somewhat

hostile behavior from residents at Magana’s home, see R. 16 at 2, so the Court is

reluctant to require another similar interaction. Therefore, the Court extends the

time for service of Magana to include February 19, 2021, the day he was served.

II. IHRA Claims

Defendants next argue that Wilson failed to administratively exhaust his

IHRA claims. Wilson contends that he received a right to sue letter from the Illinois

Department of Human Rights (“IDHR”), citing “Exhibit C” to his complaint. See R. 1

¶ 62; R. 26 at 10. But his complaint does not include an “Exhibit C,” see R. 1, and

Wilson does not appear to have provided a IHRA right to sue letter anywhere else in

the record. Furthermore, Defendants attached to their brief a letter from the IDHR

stating that Wilson withdrew his IHRA claims. See R. 20-2 at 2. Therefore, the state

law claims are dismissed without prejudice.

III. Title VII & ADEA Claims Against Magana

Individuals are not proper defendants under either Title VII or the ADEA. See

Robertson v. Dep’t of Health Servs., 949 F.3d 371, 375 (7th Cir. 2020) (Title VII);

Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 610 n.2 (7th Cir.

2001) (ADEA). Therefore, the claims against Magana under those statutes are

dismissed with prejudice.

IV. Adverse Action

A. Conditions of Employment

In the context of a discrimination claim, an adverse action is “a

materially adverse change in the terms and conditions of employment [that is] more

disruptive than a mere inconvenience or an alteration of job responsibilities.” Alamo

v. Bliss, 864 F.3d 541, 552 (7th Cir. 2017). This is so for the Title VII, ADEA, and

Section 1983 claims against the City Colleges and the remaining Section 1983 claim

against Magana. See Fields v. Bd. of Educ. of City of Chicago, 928 F.3d 622, 625 (7th

Cir. 2019) (Title VII and ADEA standards are the same); Sommerfield v. Knasiak,

967 F.3d 617, 622 (7th Cir. 2020) (Title VII and Section 1983 standards are the same).

“Such actions include: (1) diminishing an employee’s compensation, fringe benefits,

or other financial terms of employment, including termination; (2) reducing long-term

career prospects by preventing him from using the skills in which he is trained and

experienced, so that the skills are likely to atrophy and his career is likely to be

stunted; and (3) changing the conditions in which [an employee] works . . . in a way

that subjects him to a humiliating, degrading, unsafe, unhealthful, or otherwise

significantly negative alteration in his workplace environment.” Alamo, 864 F.3d at

552.

Wilson’s allegations do not reach this level. He alleges that he was yelled at,

was given extra work assignments, was denied use of a vehicle and an office, and had

personal items removed from his locker. These actions amount to unpleasant, but

relatively minor inconveniences and alterations of job responsibilities. See Appleton

v. City of Gary, 781 F. App’x 501, 504 (7th Cir. 2019) (“General hostility,”

unpleasantness, or inter-employee disputes . . . do not constitute adverse actions.”).

As such, they do not state a claim for discrimination.

In his brief, Wilson highlights that he also alleges he was “pushed.” See R. 1 ¶

50(d). This is the only allegation of physical harassment in Wilson’s complaint and it

includes no detail. Being physically assaulted is a much more serious allegation than

any of the other allegations in Wilson’s complaint, such that the Court would expect

Wilson to include more detail about it, particularly who pushed him. Without such

detail, the allegation is not well-pled and cannot serve to establish a claim of

discrimination.1

B. Failure to Promote

Wilson also alleges that the City Colleges took an adverse action against him

by failing to promote him. An employer’s decision not to promote an employee is

discriminatory when the employee establishes that “(1) [he] was a member of a

protected class; (2) [he] was qualified for the position sought; (3) [he] was rejected for

the position; and (4) the employer promoted someone outside of the protected class

who was not better qualified for the position.” Riley v. Elkhart Cmty. Sch., 829 F.3d

886, 892 (7th Cir. 2016). To survive a motion to dismiss, “an employment

discrimination plaintiff need not plead a prima facie case of

discrimination.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). But the

plaintiff must plead that he applied for a position, was qualified for it, and that the

1 Wilson also alleges that Defendants permitted vehicles to be driven into the boiler

room creating the conditions for an explosion. Wilson made this allegation in context

of the OSHA claim he conceded. He does not allege that vehicles were driven into the

boiler room because of his race or age, so that allegation does not support his

discrimination claims.

job went to someone else because of the plaintiff’s protected characteristic. See

Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008).

Here, Wilson alleges he applied for and was denied a promotion, and that his

“race and his age were a factor in [the] decision.” R. 1 ¶ 29. Wilson also alleges that

he “performs his job in a diligent and skillful manner.” Id. ¶ 8. But the allegation that

Wilson performs his current position well does not amount to an allegation that he

was qualified to be promoted to a higher position. Without that allegation, Wilson has

failed to state a claim for failure to promote

Wilson argues that “no such specific factual allegation is required.” R. 26 at 8.

But he supports this argument with citation to cases decided prior to the Supreme

Court’s reinterpretation of federal pleadings standards in the Twombly and Iqbal

cases, which require “sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

at 570). Wilson has not alleged facts that permit the Court to reasonably infer that

he was qualified for the promotion he sought. See Boucher, 880 F.3d at 366 (“‘A claim

has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’”). Therefore, his failure to promote claim is dismissed.

V. State Actors

In addition to arguing that Wilson failed to allege an adverse action,

Defendants alternatively sought dismissal of the Section 1983 claims arguing that

Wilson did not plausibly allege that Defendants are state actors, as is required under

Section 1983. See R. 20 at 11. Wilson simply alleged that Defendants were “acting

under color of state law,” R. 1 ¶ 77, and Defendants argue that this is insufficient

because it does not allege “the factual underpinnings” of his claim, see R. 20 at 11.

Defendants also argue that Wilson conceded this argument by failing to address it in

his brief. See R. 27 at 9.

The Court’s finding that Wilson failed to allege an adverse action makes it

unnecessary for the Court to reach this issue. But in case it becomes relevant again

should Wilson replead his claims, the Court notes its skepticism of Defendants’

argument. It appears uncontroversial that a publicly funded university and its

employees are state actors for purposes of Section 1983. See Cole v. Bd. of Trustees of

N. Illinois Univ., 838 F.3d 888, 895 (7th Cir. 2016) (“the university and its employees

are state actors”); Brown v. William Rainey Harper Coll., 2017 WL 3278822, at *3

(N.D. Ill. Aug. 1, 2017) (“As a state community college, the College is likely

a state actor for [Section 1983 discrimination claim] purposes.”). And community

colleges are generally publicly funded. The Court does not believe that Wilson needs

to have alleged anything more than that the Community Colleges are state actors to

make that allegation plausible.

Conclusion

Therefore, Defendants’ motion to dismiss [19] is granted in that all claims but

the Title VII retaliation claim against the City Colleges are dismissed. The Title VII

and ADEA claims against Magana are dismissed with prejudice. All other claims are

dismissed without prejudice to refiling in an amended complaint. The parties should

file a joint status report by May 12, 2021 proposing a discovery schedule, stating

whether Wilson intends to file an amended complaint, and whether the status

hearing set for May 24, 2021 continues to be necessary.

ENTERED:

Honorable Thomas M. Durkin

United States District Judge

Dated: April 28, 2021

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