Togba v. County of Cook

• Decision Date: 27 May 1999
• Docket Number: No. 98 C 5756.,98 C 5756.
• Parties: Joseph TOGBA, Plaintiff, v. COUNTY OF COOK & HERBERT HAMAKO, Defendants.
• Court: U.S. District Court — Northern District of Illinois

48 F.Supp.2d 1104

Joseph TOGBA, Plaintiff, v. COUNTY OF COOK & HERBERT HAMAKO, Defendants.

No. 98 C 5756.

United States District Court, N.D. Illinois, Eastern Division.

May 27, 1999.

COPYRIGHT MATERIAL OMITTED

Scott Jay Frankel, Frankel & Cohen, Chicago, IL, for Plaintiff.

Anne L. Asulin, Cook County State's Attorney, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Before the court is defendants' motion to dismiss plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the court grants in part and denies in part the motion.

I. BACKGROUND

Plaintiff's first amended complaint makes the following allegations which, for the purposes of ruling on this motion, are taken as true. On March 14, 1971, plaintiff Joseph Togba ("Togba"), who is African American, was hired by Cook County Hospital ("the Hospital"). On March 14, 1994,¹ Togba became Acting Supervisor of the Pediatric Lab. Prior to becoming Acting Supervisor, Togba was classified and compensated as a Biochemist II/grade 16.

On May 2, 1994, Togba was given full and complete responsibilities as Supervisor of the Pediatric Lab ("Supervisor"). Togba replaced a non-African-American employee, who was classified and compensated as the equivalent of a Biochemist III/grade 18 or Medical Technologist III/grade 18 or higher. Prior to May 2, 1994 and continuing on several occasions thereafter, defendant Associate Director Herbert Hamako ("Hamako") told Togba that after assuming and performing responsibilities as Supervisor, Togba would be classified and compensated as a Biochemist III/grade 18 or Medical Technologist III/grade 18. From May 2, 1994 and continuing until April 28, 1997, Togba continued to be compensated as a Biochemist II/grade 16 even though he was performing the supervisory work usually performed by non-African-American employees classified and compensated as a Biochemist III/grade 18 or Medical Technologist III/grade 18.

On April 28, 1997, Hamako demoted and reassigned Togba from his position as Supervisor to a position in the Consolidated STAT Division. Togba was replaced as Supervisor by a non-African-American employee who was classified and compensated as a Biochemist III/grade 18 or Medical Technologist grade 18 or higher. Hamako reassigned Togba pursuant to a hospital policy that laboratory supervisors are not to remain in their assigned laboratory location for more than five years. However, Hamako has not transferred other non-African-American laboratory supervisors even though they worked for five years in the same location.

On May 13, 1997, Togba filed a charge of discrimination with the Illinois Department of Human Rights ("the IDHR") and the Equal Employment Opportunity Commission ("the EEOC"). At that time, Togba also asked the Hospital Director, Ruth Rothstein ("Rothstein"), to consider giving him back his job as Supervisor and to classify him as a Biochemist III/grade 18 or its equivalent. Hamako wrote Rothstein a letter, recommending that she not have any discussions with Togba until after his charge of discrimination was resolved. Pursuant to this recommendation, Rothstein and Togba did not discuss the job actions requested by Togba. On September 17, 1997, Togba filed a new charge of discrimination and withdrew his old one.

On March 10, 1998, Togba asked John Stroger ("Stroger"), the President of the Cook County Board, to consider giving Togba back his job as Supervisor and classifying him as a Biochemist III/grade 18. Stroger wrote Togba a letter, stating that it would be inappropriate for him to take any action because Togba had a complaint pending with the IDHR and EEOC.

Since his demotion and reassignment on April 28, 1997, Togba has applied for various promotions, including a March 30, 1998 application for a promotion to a position as a Biochemist III. Togba has been denied all of the promotions for which he applied.

On June 19, 1998, Togba received his right-to-sue letter. On September 15, 1998, Togba filed a complaint in this court, which he subsequently amended on February 1, 1999. Togba's amended complaint names the County of Cook ("the County") and Hamako as defendants and contains two counts. Count I alleges that the County has violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., (1) by discriminating against Togba on the basis of his race by refusing to compensate or classify him as a Biochemist III/grade 18 and by demoting and transferring him and (2) by retaliating against him for filing a charge of discrimination by refusing to allow its officials to meet with him or consider helping him get his job back and by refusing to promote him to positions for which he applied. Count II alleges that Hamako has violated 42 U.S.C. § 1981 (" § 1981") (1) by refusing to classify or compensate Togba as a Biochemist III/grade 18 or Medical Technologist III/grade 18 and by demoting and transferring him because of his race and (2) by retaliating against Togba for filing a charge of discrimination by causing County officials not to meet with Togba and by denying Togba's requests for promotions. This court has subject matter jurisdiction over the case pursuant to 42 U.S.C. § 2000e-3(a) and 28 U.S.C. §§ 1331 and 1343(a).

On February 22, 1999, the County and Hamako jointly filed a motion to dismiss Togba's first amended complaint. Defendants argue that Togba's first amended complaint should be dismissed because (1) many of the actions of which Togba complains fall outside the statute of limitations applicable to Title VII and § 1981 actions and (2) the complaint fails to state a claim for violations of either Title VII or § 1981. The court addresses each of these arguments in turn.

II. DISCUSSION

A. Standard for deciding a Rule 12(b)(6) motion to dismiss

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F.Supp. 1283, 1285 (N.D.Ill.1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED. R. CIV. P. 12(b)(6); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir.1987). However, the court may dismiss the complaint only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

B. Time-barred claims

In his amended complaint, Togba alleges that from May 2, 1994 until April 28, 1997, defendants discriminated against him on the basis of his race by refusing to classify or compensate him as a Biochemist III/ grade 18 or Medical Technologist III/ grade 18. Defendants argue that this claim must be dismissed insofar as it is based on actions that took place outside of the statute of limitations applicable to Title VII and § 1981 actions.²

Togba does not dispute that his claim is based on alleged discriminatory acts that took place outside the applicable statute of limitations. See Speer v. Rand McNally & Co., 123 F.3d 658, 662 (7th Cir.1997) (explaining that the statute of limitations for filing a Title VII charge with the EEOC is 300 days); Jones v. Citibank, F.S.B., 844 F.Supp. 437, 439 (N.D.Ill.1994) (explaining that § 1981 actions are governed by a two-year statute of limitations). Togba, however, argues that his claims based on those alleged discriminatory acts are not barred because those acts were part of a continuing violation.

The continuing violation doctrine allows a plaintiff to seek relief for a time-barred act by linking it with an act that is within the limitations period. See Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.1992). The continuing violation doctrine "is designed to `accommodate plaintiffs who can show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all discriminatory acts committed as part of this pattern or policy can be considered ... timely.'" Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir.1999) (quoting Ramona L. Paetzold & Ann M. O'Leary-Kelly, Continuing Violations and Hostile Environment Sexual Harassment: When Is Enough Enough?, 31 AM. BUS. L.J. 365 (1993)). "A continuing violation is one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period." Dasgupta v. University of Wis. Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir.1997).

There are three different ways that the plaintiff may show that the continuing violation doctrine applies: (1) by showing that it was difficult to determine exactly when the discrimination took place because the employer's hiring or promotion practice was protracted; (2) by showing that the employer has an express, openly espoused policy that results in discrimination; or (3) by showing that the employer has a covert practice of discrimination, i.e., an ongoing pattern of discrimination. Saldana v. City of Chicago, 972 F.Supp. 453, 455 (N.D.Ill.1997). "If a plaintiff intends to rely on the continuing violation doctrine, ... it must be pleaded in the complaint along with the factual basis supporting one of the three methods (discussed immediately above) for establishing the applicability of the doctrine." Id.; see also Payne v. Abbott Labs., 999 F.Supp. 1145, 1150 (N.D.Ill.1998).

In this case, Togba's amended complaint makes no mention of the continuing violation doctrine. Moreover, Togba does not allege in the amended complaint a factual basis for the applicability of the continuing...