Murphy v. Chicago Transit Authority

• Decision Date: 11 March 1986
• Docket Number: No. 85 C 2595.,85 C 2595.
• Citation: 638 F. Supp. 464
• Parties: Joanne Mary MURPHY, Plaintiff, v. The CHICAGO TRANSIT AUTHORITY, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

638 F. Supp. 464

Joanne Mary MURPHY, Plaintiff, v. The CHICAGO TRANSIT AUTHORITY, et al., Defendants.

No. 85 C 2595.

United States District Court, N.D. Illinois, E.D.

March 11, 1986.

DeJong, Poltrock & Giampietro, Chicago, Ill., for plaintiff.

Leslie South, Rothschild, Barry & Myers, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

Plaintiff Joanne Mary Murphy, a former Chicago Transit Authority ("CTA") staff attorney, filed a three-count action against the CTA and seven of its employees seeking compensatory and punitive damages for sex discrimination under Title VII of the Civil Rights Act of 1964 (Count I), intentional infliction of emotional distress (Count II), and willful and wanton conduct (Count III). Subject matter jurisdiction is predicated on 42 U.S.C. § 2000e and 28 U.S.C. § 1331. In a Memorandum Opinion and Order from this court dated October 21, 1985, Counts II and III were dismissed, and Count I was dismissed as to the three defendant co-workers, but not as to the CTA itself or the three defendant supervisors. Plaintiff now seeks to amend her complaint with a fourth count, brought pursuant to 42 U.S.C. § 1983, for violation of her fourteenth amendment rights. For the reasons stated below, the court will grant plaintiff's motion to amend with the qualifications discussed below.

Statement of Facts

The allegations of this case were reviewed in the October 21, 1985 opinion and need only be briefly summarized here. For purposes of the current motion, the allegations are taken as true. Plaintiff Murphy worked as a staff attorney for defendant CTA from April of 1983 through August 3, 1984. During the last five months of her employment, she was subjected to constant degrading and humiliating sexual remarks by defendants and fellow staff attorneys Robert Hilbert, Terry Luckman, and Michael Lyons. The remarks included questions about when plaintiff last had oral sex, requests for plaintiff to lift up her skirt, suggestions that plaintiff give opposing counsel in a personal injury action a "blow job," and other comments about the nature of plaintiff's sexual activity. Defendant Hilbert repeatedly touched and pulled at Murphy's clothing, untying the ties of her blouse. These remarks and actions often took place in public and in the presence of witnesses.

On numerous occasions during her employment, plaintiff complained of this conduct to the defendants Loretta Eadie-Daniels, Supervisor; Ronald Barkowicz, Deputy Attorney; and John E. Powers, Supervisor. No corrective action was taken. Rather, the CTA began assigning plaintiff to menial, demeaning tasks which previously had been rotated among all the staff attorneys. Plaintiff also alleges that defendant Bruce Talega, the supervisor of defendants Luckman and Lyons, "knew or should have known of their abusive and harassing treatment of plaintiff." (Count IV ¶ 8). He also failed to stop or otherwise control these actions.

In her complaint, plaintiff describes the defendant co-workers' actions as intentional and "designed to discriminate against Plaintiff on the basis of her sex." (Id. ¶ 7). The supervisory defendants and the CTA are charged with maintaining and implementing a policy and practice of "deliberate indifference" to violations of plaintiff's rights. (Id. ¶ 9). As a result of all the foregoing, plaintiff resigned on August 3, 1984 and filed an EEOC complaint alleging constructive discharge. She alleges that since her resignation she can no longer function as a trial attorney and has had to seek professional therapy to alleviate the stress caused by defendants.

Legal Discussion

Although the present motion is for amendment of the complaint, the parties have argued only whether the proposed Count IV states a claim for which relief can be granted. This is because leave to amend a complaint under Fed.R.Civ.P. 15(a) may be denied if the amendment would be futile. Cohen v. Illinois Institute of Technology, 581 F.2d 658 (7th Cir.1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979); Verhein v. South Bend Lathe, Inc., 598 F.2d 1061 (7th Cir.1979). Thus, the parties do not argue about the presence of any of the factors which normally might defeat a motion to amend under Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), such as inexcusable delay or prejudice. Accordingly, the court will address the issue of whether Count IV states a claim under Fed.R.Civ.P. 12(b)(6).

Defendants Hilbert, Luckman and Lyons — The Co-Workers

Under 42 U.S.C. § 1983,

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In every § 1983 action, one crucial element is whether the plaintiff has been deprived of some federally secured constitutional or statutory right by someone acting "under color of state law." See Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Flagg Brothers Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The critical question as to Hilbert, Luckman, and Lyons, therefore, is whether their conduct can be said to have been taken under color of state law.

The Supreme Court has held "that misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S.Ct. 2744, 2750, 73 L.Ed. 482 (1982) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). In Screws, the Court stressed that the acts of the state employees must be under "pretense" of some state law. 325 U.S. at 111. That pretense is lacking if the wrongful acts are not in any way related to the performance of the duties of the state employee. Johnson v. Hackett, 284 F.Supp. 933, 937 (E.D.Pa.1968). In Johnson, the defendant police officers had shouted racial insults to a group of blacks and challenged the group to fight, this all occurring while the officers were on duty and in uniform. Certain members of the group sought to hold the police liable under § 1983, prompting the following discussion from the court:

What plaintiff's position boils down to is that any act committed by a police officer while on duty and in uniform is under "color of law," even if the act is wholly unrelated to the performance of any of his duties. This contention attempts to equate "clothed with the authority of state law" to "wearing a policeman's uniform." Of course they are not the same. It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law. If the officer was enabled to do what he did because of the authority of his office, even if what he did constituted an abuse of that authority, either by the excessiveness of his conduct or because the act was not actually, although apparently, authorized, the act is under "color of law."

Id.

The Supreme Court agrees that mere employment by the state, although relevant to a determination of whether a defendant's actions are taken under color of state law, is not conclusive. Polk County v. Dodson, 454 U.S. 312, 321, 102 S.Ct. 445, 451, 70 L.Ed.2d 509 (1981) (public defenders do not act under color of state law when lawyering, even though state employees, because state does not have authority over their actions; overruling Robinson v. Bergstrom, 579 F.2d 401, 405-08 (7th Cir. 1978), cited by plaintiff). Accord Brown v. Miller, 631 F.2d 408, 411 (5th Cir.1980) (cited by plaintiff) (mere status of state employee not sufficient); Warner v. Croft, 406 F.Supp. 717, 721 (W.D.Okla.1975) (nature of the acts done, not mere status as state employee, determines whether action was under color of state law). Thus, in Delcambre v. Delcambre, 635 F.2d 407 (5th Cir.1981), the chief of police who assaulted his sister-in-law on the premises of the municipal police station while on duty was not liable under § 1983. Similarly, in Rogers v. Fuller, 410 F.Supp. 187 (M.D.N.C. 1976), the act of stealing, even by a police officer on duty and in uniform, was held to be a personal, private pursuit and not committed under color of state law. But a police officer who uses excessive force to make an arrest is acting under color of state law, see Hausman v. Tredinnick, 432 F.Supp. 1160 (E.D.Pa.1977), as is an officer who effectuates an arrest outside his jurisdiction, even though without actual authority to make the arrest, see United States ex rel. Brzozowski v. Randall, 281 F.Supp. 306 (E.D.Pa.1968).

In short, it appears that a person acts "under color of state law" when he engages in conduct that is related to state authority conferred on the person, even though that authority does not in fact permit the conduct. Applying these general standards to this case, and reading plaintiff's allegations liberally, the following observations can be made.

Defendants Hilbert, Luckman and Lyons engaged in their abusive and offensive conduct while at their place of employment. The defendants were capable of harassing plaintiff only because their jobs enabled them to have frequent encounters with her. Therefore, it may be said that defendants' contacts with plaintiff were made possible only because defendants were given...