OPINION AND ORDER
Pаmela Harris filed a seven-count amended complaint against the State of Illinois, Department of Corrections (“IDOC”), Roger E. Walker, Jr., Debbie Denning, and Mary Sigler (collectively, “defendants”). Harris alleges discrimination and retaliation on the basis of race and other protected activities in violation of various federal and state statutes and
BACKGROUND 2
Harris, an African-American, worked for IDOC for sixteen and a half years prior to her termination on December 15, 2008. In 2004, she was promoted to Supervisor of the Jessie Ma Houston Adult Transition Center (“Jessie Ma Houston”), an IDOC facility in Dixmoor, Illinois. In April 2006, at Denning’s request, Harris was transferred to the Dwight Correctional Center (the “DCC”), an IDOC facility in Dwight, Illinois, where she became Acting Assistant Warden of Operations. In June 2006, Harris was appointed Assistant Warden of Operations. At all relevant times, Sigler was the Warden at the DCC, Denning was Deputy Director of IDOC’s Women and Family Division, and Walker was the IDOC Director.
On December 21, 2006, Harris received a report from an African-American inmate, Heather Weeden, that she had been kicked by a Caucasian correctional officer (“CO”), Carol Gurgone. 3 Although Wee-den had spoken to Lieutenant Winters and CO Lynn Hodge, both Caucasian, about the incident, they had advised her not to press the issue as they would not act on it. This was despite the fact that Gurgone admitted to kicking Weeden. Harris reported the incident and coverup to Sigler, who claimed not to have known about the incident. 4 Sigler did not like that Harris reported a coverup by Winters and Hodge, both friends of Sigler’s. Harris also informed Denning of the incident by telephone. Denning requested that Harris submit an incident report, which she did. IDOC’s Internal Investigation Department looked into the coverup. During this investigation, Sigler represented that Winters and Hodge had reported the incident to her, which was not the case. The investigatiоn concluded in late January 2007 and confirmed that Gurgone had kicked Weeden. Gurgone was then locked out of the DCC on February 20, 2007 and eventually terminated. Once Weeden was transferred out of the DCC, however, Gurgone returned to work at the DCC with Sigler’s, Denning’s, and Walker’s approval. Sometime after Harris reported the incident and coverup, Sigler and Denning initiated an investigation of an incident where Harris allegedly left an inmate in a holding cell at the DCC for nearly five hours. On February 20, 2007, Harris complаined to Denning of being racially discriminated against at the DCC and about the discriminatory practices of others there. In particular, she complained of the handling of an investigation into a report by an African-American CO, Beatrice Brownfield, that a Caucasian CO, Renee Bantista, had called Harris a racial slur. She also complained that Gurgone was treated differently from Lt. Milton Luster, an African-American. Denning admitted to Harris that there was a problem at the DCC but that she was not sure how to address it.
Although working at Jessie Ma Houston, Harris continued to be under Sigler’s and Denning’s supervision. All her paperwork and personnel approval actions were “tunneled through the [DCC] so it would appear as though her position had not changed and so Defendants Sigler and Denning could continue to exert control over [her].” Am. Compl. ¶ 45. On April 13, 2007, she received an oral reprimand from Denning for violating IDOC standards of conduct in leaving an inmate in a holding cell for nearly five hours. On May 3, 2007, Harris attended a performance review at the DCC with Sigler and Joni Stahlman, who is Caucasian and the Reentry Manager for IDOC’s Women and Family Services Division. At this meeting, she received an “acceptable” rating for her work from June 1, 2006 to June 1, 2007, lower than any other rating she had received during her employment with IDOC. This rating made her ineligible for a bonus in 2007. In May 2007, Harris’s state vehicle was reassigned to Toyia Sims, IDOC’s Policy Advisor to the Director. In late 2007, Sims requested that Harris campaign for a candidate supported by then Governor Blagojevich running against State Representative Barbara Flynn Currie. Harris refused to do so.
In August 2007, Harris filed a charge with the Illinois Department of Human Rights (“IDHR”) and the Equal Employment Opportunity Commission (“EEOC”), alleging discrimination and retaliation. After IDOC received the IDHR charge in October 2007, on November 2, 2007, Walker appointed Duane Tucker the Assistant Warden of Operations at the DCC, the position Harris continued to occupy.
On December 1, 2008, shortly after informing IDOC that she intended to continue prosecuting her IDHR charge, Harris was placed on administrative leave and locked out of Jessie Ma Houston. On December 15, 2008, she received a letter from Walker informing her that her employment with IDOC was terminated with no explanation. Harris then filеd a second charge of discrimination with the IDHR. The EEOC provided her with a notice of the right to sue on April 21, 2009.
LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court’s subject matter jurisdiction. Fed. R.Civ.P. 12(b)(1). The burden of proof is on the party asserting jurisdiction.
United Phosphorus, Ltd. v. Angus Chem. Co., 322
F.3d 942, 946 (7th Cir.2003). In determining whether subject matter jurisdiction exists, the court must accept all well-pleaded facts alleged in the complaint and draw all reasonable inferences from those facts in the plaintiffs favor.
Sapperstein v. Hager,
A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6);
Gen. Elec. Capital Corp. v. Lease Resolution Corp.,
DISCUSSION
I. Federal Claims
Harris brings claims against all defendants for race discrimination and retaliation in violation of 42 U.S.C. § 1981 (Count I) and for violation of the Equal Protection Clause under 42 U.S.C. § 1983 (Count IV). She also brings a claim against IDOC for race discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq. (Count II). Defendants argue that only the Title VII claim and a circumscribed § 1981 claim against Walker are viable. Harris concedes that her § 1981 and § 1983 claims against IDOC and any claims against the individual defendants in their official capacities are not proper. Thus, they will be dismissed.
A. Personal Involvement
In order for an individual to be liable under § 1981 or § 1983, he or she must have been personally involved in the alleged constitutional violation.
See Hildebrandt v. Ill. Dep’t of Natural Res.,
Defendants argue that Harris’s § 1981 and § 1983 claims against Sigler and Denning fail because she has not sufficiently alleged that the individual defendants were personally involved in any discriminatory actions. In doing so, defendants ignore the factual details of Harris’s complaint. Harris has alleged that Sigler and Denning initiated an investigation into Harris’s placement of an inmate in a holding cell for nearly five hours, making the terms and conditions of her employment increasingly difficult. Am. Compl. ¶¶ 25-26. She alleges that Denning gave her an oral reprimand as a
B. Adverse Employment Action
In addition to personal involvement, Harris must allege that she was subjected to an adverse employment action.
McGowan v. Deere & Co.,
Defendants do not argue that her demotion, suspension, or termination are not adverse employment actions, although they challenge the time between Harris’s protected activity and the suspension and termination. It is true that the suspension and termination did occur over a year after Harris filed her initial IDHR charge, which, after discovery, may prove to be too remote to support a retaliation claim.
See Oest v. Ill. Dep’t of Corr.,
The denial of a bonus is not an adverse employment action unless Harris was automatically entitled to one.
Miller v. Am. Family Mut. Ins. Co.,
C. Discrimination Based on Race
Harris’s § 1983 claim must be founded on an allegation that her suspension and termination was due to her race, as opposed to being retaliation fоr her complaints of racial discrimination.
See Boyd v. Ill. State Police,
D. Section 1983 Statute of Limitations
Harris’s § 1983 claims are gоverned by a two-year statute of limitations.
See Williams v. Lampe,
II. State Law Claims
Harris brings four state law claims: retaliation in violation of the Illinоis Human Rights Act (the "IHRA"), 775 Ill. Comp. Stat. 5/1 et seq. (Count III), the State Officials and Employees Ethics Act (the "Ethics Act"), 5 Ill. Comp. Stat. 430/1 et seq. (Count V), the Whistleblower Protection Act (the "Whistleblower Act"), 740 Ill. Comp. Stat. 174/1 et seq. (Count VI), and common law retaliatory discharge (Count VII). 5 Counts III and VII are asserted only against IDOC, while Counts V and VI are brought against all defendants. Defendants argue that all but Count V are barred by Illinois’s State Lawsuit Immunity Act (the "Immunity Act"), 745 Ill. Comp. Stat. 5/1. Defendants further contend that Count V is preempted by the IHRA. Harris concedes that the retaliatory discharge clаim must be dismissed without prejudice to refiling in the Illinois Court of Claims but maintains that the other claims are proper.
The Immunity Act provides that the State of Illinois (the "State") shall not be made a defendant in any court except as provided in specific laws, including the
A. The IHRA (Count III)
While the IHRA previously provided the Human Rights Commission with exclusive jurisdiction to hear civil rights claims, it was amended to allow a complainant to proceed in the appropriate circuit court after the Human Rights Commission dismisses charges filed with it after January 1, 2008. 775 Ill. Comp. Stat. 5/7A-102(C)(4), (K). Harris argues that this amendment indicates that the State has waived its sovereign immunity for IHRA claims asserted against it. A waiver of the state’s sovereign immunity must be "clear and unequivocal."
In re Walker,
The Immunity Act clearly provides that the State does not waive its immunity except as provided in certain other acts. The IHRA is not mentioned as an exception to the Immunity Act.
See Cook v. Ill. Dep’t of Corr.,
No. 09-cv-0122-DRH,
B. The Whistleblower Act (Count VI)
The parties initially dispute whether a Whistleblower Act claim can be maintained against IDOC and the individual defendants. For an individual to be protected by the Whistleblower Act, he or she must work for an “employer” as defined by the statute. A recent amendment to the Whistleblower Act, effective January 1, 2008, defined employer as
an individual, sole proprietorship, partnership, firm, corporation, association, and any other entity that has one or more employees in this State, including a political subdivision of the State; a unit of local government; a school district, combination of school districts, or governing body of a joint agreement of any type formed by two or more school districts; a community college district, State collegе or university, or any State agency whose major function is providing educational services; any authority including a department, division, bureau, board, commission, or other agency of these entities; and any person acting within the scope of his or her authority express or implied on behalf of those entities in dealing with its employees.
740 Ill. Comp. Stat. 174/5. Prior to this date, the Whistleblower Act specifically excluded any governmental entity from the definition.
See
740 Ill. Comp. Stat. 745/5 (2005). The amendment is not retroactive.
See Norris v. City of Chicago,
No. 07 C 6776,
At least two federal district courts have concluded, without discussion, that the State and its departments are included in the Whistleblower Act’s definition of employer.
See Pratt v. McAnamey,
No. 08-3144,
Harris contends that even if she cannot proceed against IDOC, she may proceed with her Whistleblоwer Act claim against the individual defendants. Defendants argue that the Whistleblower Act does not allow for suit against individual employees,
7
but this ignores the recent amendment, which includes within the definition of an employer “any person acting within the scope of his or her authority express or implied on behalf of those entities in dealing with its employees.” 740 Ill. Comp. Stat. 174/5. If IDOC is considered an employer, the individual defendants would be as well for any claims arising after January 1, 2008. Again, the court need not resоlve the issue. Even assuming that the individual defendants are employers and not protected by sovereign immunity,
8
Harris has not stated a claim
C. The Ethics Act (Count V)
Defendants argue that Count V is preempted by the IHRA. The Ethics Act prohibits retaliation based on a state employee’s disclosure of an activity, policy, or practice that she reasonably believes violates a law, rule, or regulation. 5 Ill. Comp. Stat. 430/15-10. The IHRA prohibits retaliation based on an individual’s opposition to what she believes is unlawful race discrimination, among other things. 775 Ill. Comp. Stat. 5/6-101(A). It provides that “[e]xcept as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in [the IHRA].” 775 Ill. Comp. Stat. 5/8-111(D). To the extent Count V is premised on Harris’s reports of race discrimination, the IHRA preempts the claim and she cannot proceed under the Ethics Act.
Harris argues that Count V is also premised on her complaints regarding Gurgone kicking Weeden and the coverup that followed. Harris claims that various administrative directives and department rules were violated and that, by reporting the incident and coverup, she disclosed actions that she reasonably believed violated the law, rules, or regulations. Thеse complaints, she contends, were independent of her complaints of race discrimination. Defendants argue that this claim is inextricably linked to Harris’ race discrimination claim and thus preempted. A claim is not inextricably linked to a civil rights violation “where a plaintiff can establish the necessary elements of the tort independent of any legal duties created by the [IHRA].”
Maksimovic v. Tsogalis,
CONCLUSION AND ORDER
For the foregoing reasons, defendants’ motion to dismiss [# 24] is granted in part and denied in part. Counts I and IV against IDOC and the individual defendants in their official caрacities are dismissed. Counts III, VI, and VII are dismissed without prejudice to refiling in the Illinois Court of Claims. Count V is dismissed to the extent Harris is alleging retaliation for race discrimination. Defendants have until November 23, 2010 to answer the remaining counts of the complaint.
Notes
. The court has original jurisdiction over Harris's federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
. The facts are taken from the complaint and are presumed to be true for the purpose of rеsolving the pending motion.
. IDOC rules prohibit COs from assaulting inmates and using corporal punishment and unnecessary use of force.
. IDOC also has an Administrative Directive that requires the immediate reporting of serious incidents, including any time a CO makes physical contact with an inmate.
. The retaliatory discharge claim is mislabeled as Count IX.
. State sovereign immunity rules apply to state law claims brought in federal court. Richman v. Sheahan, 270 F.3d 430, 441 (7th Cir.2001).
. Defendants rely on
Averett v. Chicago Patrolmen’s Fed. Credit Union,
No. 06 C 4606,
. A claim against a state employee in his or her individual capacity is considered a claim against the state where "judgment for the plaintiff could operate to control the actions of the State or subject it to liаbility."
Currie v. Lao,