Johnson v. Lew
| Decision Date | 10 August 2016 |
| Docket Number | 14-cv-2233 |
| Citation | 202 F.Supp.3d 805 |
| Parties | David JOHNSON, Plaintiff, v. Jacob J. LEW, Secretary of the Treasury, Sergio Arellano, Susan J. Kass, David Oyler, Larry G. Kottke, James M. Johnson, Lynn G. Ganz, Patrick Wozek, Fred Savaglio Robert Trzakus, Darlene McVey, National Treasury Employees Union, Unknown Defendants, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
David M. Johnson, Oak Park, IL, pro se.
AUSA, Prashant Kolluri, United States Attorney's Office, Chicago, IL, for Defendants.
Plaintiff David Johnson has filed suit against his former employer, the Internal Revenue Service, alleging that the IRS and several of its employees violated his constitutional, statutory, and common law rights by discriminating against him on the basis of his race, by retaliating against him for objecting to the race-based discrimination, and by failing to honor a collective bargaining agreement between the IRS and Johnson's union. Defendants have moved to dismiss the entire complaint for failure to state a claim. For the reasons given below, the Court grants Defendants' motion in part and denies it in part.
Johnson, an African American man, worked as a revenue agent at the IRS until his employment was terminated on May 7, 2010. 2d Am. Compl. ¶ 5. The terms and conditions of his employment were specified in a collective bargaining agreement (CBA) between the IRS and the National Treasury Employees Union. Id. ¶ 22.
According to Johnson, his supervisors at the IRS repeatedly discriminated against him on the basis of race and then retaliated against him for complaining about that discrimination. They also, he claims, violated the terms of the CBA governing his employment and denied him a fair hearing before firing him.
Johnson filed this lawsuit in March 2014, ECF No. 1, and filed an amended complaint on April 14, 2014, ECF No. 9. He brought claims ostensibly under the Fifth Amendment; the Thirteenth Amendment; 42 U.S.C. §§ 1981, 1985, and 1986 ; 31 U.S.C. § 3730(h) ; the Americans with Disabilities Act, the Labor Management Relations Act; and state common law. The Court dismissed the amended complaint on December 4, 2015, for failure to state a claim but allowed Johnson to file a second amended complaint to attempt to "correct the defects in his complaint." Order of 12/4/15 at 1, ECF No. 147. The Court presumes familiarity with the December 2015 order.
In his second amended complaint, as in his first, Johnson alleges that Defendants discriminated against him because he is African-American and retaliated against him because he complained about this discrimination. He claims that Defendants' actions against him violated the First Amendment, Fourth Amendment, Fifth Amendment, and the Stored Communications Act, as well as 42 U.S.C. §§ 1985 and 1986. 2d Am. Compl. ¶¶ 66–67, 87, 100, 120, 136–38, 147–50. He also asserts claims for breach of contract and denial of due process. Id. at ¶¶ 110, 275–76. Additionally, Johnson brings discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.Id. ¶¶ 157–269.
When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must view the complaint in the light most favorable to the plaintiff and accept all well-pleaded facts as true. Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir.2013). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief, Fed. R. Civ. P. 8(a)(2), and must plead facts that, when accepted as true, "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Pro se complaints are to be construed liberally. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir.2013).
The Court notes that, throughout his response brief, Johnson argues that the Court "lacks jurisdiction" over Defendants' motion to dismiss. But because Johnson asserts federal claims in his complaint, the Court has jurisdiction over this case under 28 U.S.C. § 1331, and that jurisdiction of course extends to a motion to dismiss the complaint.
Additionally, Johnson's second amended complaint names a new defendant, the National Treasury Employees Union. But Johnson did not request leave to add a new defendant, and, in any event, the complaint includes no specific allegations against the Union. For those reasons, the Union is dismissed as a defendant.
In the December 2015 order, the Court dismissed Johnson's claims brought under the Fifth Amendment, the Thirteenth Amendment, and 42 U.S.C. §§ 1981, 1985, and 1986, explaining that Title VII was his "only option for bringing claims of race discrimination and related retaliation" against his former employer. Order of 12/4/15 at 2 (). Johnson's second amended complaint reasserts his discrimination claims under the Fifth Amendment and §§ 1985 and 1986, but these claims are still cognizable only under Title VII. As such, Counts IV–VI are dismissed as precluded by Title VII.
Johnson's second amended complaint includes a new claim under the First Amendment. In support, he alleges that IRS employees, in retaliation for his speaking out about racial discrimination, prepared false performance evaluations that led to his termination. 2d Am. Compl. ¶ 64.
As Defendants argue, this claim suffers from the same defect as the discrimination claims above. Title VII is the "exclusive judicial remedy for claims of discrimination in federal employment." Brown , 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Johnson thus cannot bring a claim for First Amendment retaliation that is based on discrimination he allegedly faced while employed by the IRS. " ‘[I]t is clear...that a federal employee is limited to the remedies for discrimination in the workplace provided by Congress in Title VII...’ and cannot state separate, related claims under the First Amendment." Jackson v. F.B.I., No. 02 C 3957, 2007 WL 2492069, at *9 (N.D.Ill. Aug. 28, 2007) (quoting Patel v. Derwinski, 778 F.Supp. 1450, 1457 (N.D.Ill.1991) ; see also Lockhart v. Sullivan , 720 F.Supp. 699, 704 (N.D.Ill.1989) (). Because Johnson's First Amendment claim is premised on alleged workplace discrimination and thus is precluded by Title VII, Count I is dismissed.
Johnson asserts a number of claims under Title VII. Count VII is a disparate treatment claim, in which Johnson alleges that he was treated differently than a similarly situated white employee in that he was required to complete more work than the white employee during his one-year probationary period. 2d Am. Compl. ¶¶ 162–63, 168. In Count VIII, a disparate impact claim, Johnson alleges that African-American IRS employees are disparately impacted by a flawed process for challenging performance evaluations. Id. ¶ 183. In Count IX, Johnson asserts a disparate treatment claim against Defendant Kass, an IRS Territory Manager and Johnson's supervisor and trainer, alleging that she "failed to guard against racial discrimination." Id. ¶ 199. In Count X, Johnson alleges that the IRS failed to promote him to the position of Senior Flow Through Specialist, for which he was qualified, because of his race. Id. ¶¶ 208–14, 225. In Count XI, Johnson claims that he experienced a hostile work environment while employed by the IRS and alleges that the harassment was severe and pervasive from the perspective of a reasonable African-American employee. Id. ¶¶ 233, 236–37. In Count XII, Johnson claims that the IRS violated Title VII by denying him training and a transfer, unless he withdrew his EEOC complaint and waived his union rights. Id. ¶¶ 253–55.
Defendants argue that these claims should be dismissed as time-barred. Mem. Supp. at 4–6. In order to bring a claim under Title VII, a plaintiff must first file a complaint with the Equal Employment Opportunity Commission and then must file suit within 90 days of receiving a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e–16(c) ; Reynolds v. Tangherlini , 737 F.3d 1093, 1099 (7th Cir.2013). Here, Defendants point out, the EEOC decision on Johnson's complaint is dated July 12, 2013, but Johnson did not file suit until March 27, 2014. Defendants argue that Johnson should be presumed to have received the letter by July 17, 2013, and thus was required to file suit by October 15, 2013. Mem. Supp. at 5.
In Johnson's second amended complaint, however, he alleges that he received the right-to-sue letter on January 14, 2014. 2d Am. Compl. ¶ 20. If that is true (and the Court must presume it to be true at this stage), his Title VII claims are timely. Johnson's allegation may prove to be false, of course, but because his complaint does not indicate on its face that the statute of limitations for the claims has expired, dismissing his Title VII claims as untimely would be premature. See Small v. Chao, 398 F.3d 894, 898 (7th Cir.2005) (); Del Korth v. Supervalu, Inc., 46 Fed.Appx. 846, 848 (7th Cir.2002) (); Myers v. Joliet Twp. High Sch. Dist. No. 204, No. 12 C 1866, 2013 WL 3874057, at...
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