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dismissing Monell claim because the plaintiff "does not allege facts supporting retaliatory conduct against anyone other than herself"
Summary of this case from Jordan v. J.E. Klamenrus, L.C.Opinion
No. 10 C 1313.
February 24, 2011
MEMORANDUM OPINION AND ORDER
Pursuant to the consent of the parties and 28 U.S.C. § 636(c), on November 24, 2010, this case was assigned to this Court for all proceedings, including the entry of final judgment (doc. # 42).
On March 3, 2010, plaintiff, Delores Lewis, filed a five-count amended complaint against the defendants (doc. # 5), alleging violations of the Shakman Consent Decree (Count I) and Ms. Lewis's civil rights under 42 U.S.C. § 1983 (Count II); sex discrimination (Count III) and retaliation (Count IV) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1988; and violations of the Equal Pay Act of 1963, 29 U.S.C. § 626(b) (Count V). On May 14, 2010, defendants — County of Cook, doing business as Cook County Highway Department, and Todd H. Stroger, Rupert Graham, Herbert Schumann, Cecil Marchand, Mark Kilgallon, and Jonathan Rothstein, both in their official capacities and individually — moved to dismiss Counts I, II, and IV of plaintiff's complaint (doc. # 30). For the reasons set forth below, we deny the defendants' motion to dismiss Count I, Count II (as applied to the individually named defendants), and Count IV. However, we grant the County's motion to dismiss Ms. Lewis's claim against Cook County in Count II.
On February 25, 2010, Ms. Lewis filed a complaint (doc. # 1) that did not charge any individually named defendants in their official capacities, but was otherwise identical to her amended complaint.
I.
We begin by providing a summary of the relevant background information. Cook County is an Illinois governmental entity, whose president at the time the suit was filed was Todd H. Stroger (Am. Compl. ¶¶ 6-7). Rupert Graham is the Cook County Highway Superintendant ( Id. ¶ 8). Herbert Schumann was formerly Director of Financial Control for the Highway Department, a position now occupied by Cecil Marchand ( Id. ¶¶ 9-10). Mark Kilgallon is Chief of the Bureau of Administration, and Jonathan Rothstein is the former Acting Bureau Chief of Human Resources ( Id. ¶ 11-12).
For purposes of the County's motion to dismiss, the Court assumes as true all well-pleaded allegations set forth in plaintiff's complaint. See, e.g., Killingsworth v. HS Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007). However, the Court does not accord such deference to the allegations when analyzing the County's subject matter jurisdiction challenge. See Apex Digital, Inc. v. Sears, Roebuck Co., 572 F.3d 440, 444 (7th Cir. 2009).
From January 6, 1992 until April 2000, Ms. Lewis worked as a tax examiner in the Office of the Cook County Clerk (Am. Comp. ¶ 14). In April 2000, the Cook County Highway Department ("Department") hired Ms. Lewis, where she worked as a Right of Way Agent II. In February 2004, Ms. Lewis assumed the duties of an Administrative Assistant IV ("AAIV") ( Id. ¶ 16). However, she did not receive a change of title or pay increase commensurate with her new job duties ( Id.). In 2006, Mr. Schumann replaced William Krystiniak as head of the Department ( Id. ¶ 17). When Mr. Krystiniak left, his duties were divided among the remaining employees ( Id. ¶ 18). As a result, Ms. Lewis assumed the additional duties of acting as liaison to the Cook County State's Attorney's Office ("SAO"), answering interrogatories, and representing management on employment-related issues ( Id.). Despite her high ratings on performance evaluations, Ms. Lewis's attempts to obtain promotions and position upgrades in the Department were unsuccessful ( Id. ¶¶ 19-20).
On February 2, 2007, as part of the long-standing proceedings in Michael Shakman, et al. v. Democratic Organization of Cook County, et al., 69 C 2145, this Court entered a Supplemental Relief Order ("SRO"). See Supplemental Relief Order for Cook County in Shakman v. Democratic Org. of Cook County, 69 C 2145 (doc. # 587). The SRO provided a claims procedure that Class Members (defined to include employees of Cook County) could utilize to seek a monetary award for alleged violations of the Shakman Consent Decrees prior to the entry of the SRO (SRO, Section IV). Under the SRO, a court-appointed Compliance Administrator was vested with the sole discretion and authority to determine whether a person filing a pre-SRO claim should receive a monetary award, and if so, in what amount ( Id., Section IV(D)(1)).
Ms. Lewis consequently filed a complaint with the Compliance Administrator, who strongly encouraged the County to perform a desk audit of Ms. Lewis (Am. Compl. ¶ 21). In August 2008, after her complaint, Ms. Lewis's position was upgraded from Grade 16 to 18, and she obtained the AAIV title ( Id ¶ 22). The following month, the Compliance Administrator awarded Ms. Lewis $86,000.00 after concluding that the Department had politically discriminated against Ms. Lewis by denying her requested promotions and reclassifications ( Id. ¶ 23).
After she filed her complaint with the Compliance Administrator, Ms. Lewis was treated differently from other employees with respect to her furlough days, and Cook County failed to respond to Ms. Lewis's grievances regarding the incident; Mr. Graham, Mr. Schumann, and Mr. Kilgallon, who had previously granted another employee's request for excess furlough days, all disregarded Ms. Lewis's requests for payment (Am. Compl. ¶ 25). In addition, after receiving the title of AAIV in 2008, Ms. Lewis was forced to become a union employee and, as a result, was stripped of her personnel-related job duties ( Id. ¶ 27). Meanwhile, another AAIV named Bobbie Jackson, who Ms. Lewis believes to be a member of the Eighth Ward political organization and who reportedly donated $1,500.00 to County politicians, was not required to join a union ( Id.). While the County could have requested that Ms. Lewis be exempt from the union, the County made no such request on her behalf ( Id.). Instead, Tony Cole, a political hire, was brought in to take over Ms. Lewis's personnel duties ( Id.).
Since becoming a union member, Ms. Lewis has been given virtually no assignments (Am. Compl. ¶ 28). In July 2009, she was involuntarily transferred to a different office to prepare travel vouchers, but was never given computer access to complete those vouchers ( Id. ¶ 29). In October 2009, Mr. Marchand replaced Mr. Schumann and immediately held a staff meeting to allocate assignments ( Id. ¶ 30). Ms. Lewis was never told of the meeting or given any assignments ( Id.). Ms. Lewis later spoke with Mr. Marchand and asked why she was not included in the meeting ( Id. ¶ 31). Mr. Marchand responded that he "knew all about her" ( Id.). Mr. Marchand then informed Ms. Lewis that her supervisor was Muhammad Quarishi, who would be giving her an assignment ( Id. ¶ 32). Later, after Mr. Marchand admitted that he was in fact Ms. Lewis's supervisor, Mr. Marchand told Ms. Lewis that she would be working on travel vouchers with another employee ( Id. ¶ 33). However, Ms. Lewis has yet to receive any assignments, even though she attends work daily and requests assignments several times per week ( Id. ¶ 34).
On October 14, 2008, Ms. Lewis filed a Report of Retaliation with the Independent Inspector General ("IGO") (Am. Compl. ¶ 24). The IGO forwarded the complaint to the Office of the Cook County Post-SRO Complaint Administrator ("CA") on February 12, 2009 ( Id.). On December 21, 2009, after investigating Ms. Lewis's October 2008 retaliation complaint, the CA issued a Final Claim Report finding that Ms. Lewis had been "subjected to significant, continuing political discrimination and retaliation" ( Id. ¶ 35).
Under the SRO, the post-SRO Complaint procedure is to be administered by the Inspector General's Office ("IGO") or by any other individual or entity designated by the Court pursuant to Section V of the SRO — which, pursuant to an order entered February 12, 2009, is now the post-SRO Complaint Administrator ("CA") ( See 69 C 2135: Agreed Order Appointing Post SRO Complaint Administrator For Cook County (doc. # 1025)).
II.
Count I of Ms. Lewis's complaint alleges that Cook County violated the Shakman Decree. The Shakman Decree enjoins the County from (with certain exceptions) "conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a government employee, upon or because of any political reason or factor." Shakman v. Democratic Org. of Cook County, 481 F.Supp. 1315, 1358 (N.D. Ill. 1979), vacated sub nom., Shakman v. Dunne, 829 F.2d 1387, 1398 (7th Cir. 1987), cert. denied, 484 U.S. 1065 (1988). Count II alleges that defendants violated Ms. Lewis's civil rights under Section 1983 by retaliating against her for reporting political discrimination. Count IV alleges that Cook County retaliated against Ms. Lewis for complaining of sexual discrimination in violation of Title VII. We provide the governing legal standards before addressing the County's Rule 12(b)(1) challenges to Counts I and II and Rule 12(b)(6) challenges to Counts II and IV.
A.
Rule 12(b)(1) requires dismissal of any claim over which the federal court lacks subject matter jurisdiction. In reviewing amotion challenging subject matter jurisdiction, "the district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Apex Digital, Inc. v. Sears, Roebuck Co., 572 F.3d 440, 444 (7th Cir. 2009) (internal quotations omitted). Once such evidence is offered, "[t]he presumption of correctness that we accord to a complaint's allegations falls away," and the plaintiff bears the burden of coming forward with competent proof that jurisdiction exists. Id.Rule 12(b)(6) requires dismissal if the allegations in the complaint, when taken as true and with all reasonable inferences drawn in favor of the plaintiff, do not state a claim for which legal relief can be granted. A court considering a Rule 12(b)(6) motion to dismiss is generally confined to the allegations contained in the complaint, and cannot consider extrinsic evidence without converting the motion to a Rule 56 motion for summary judgment; however, "the ban on considering matters outside the pleadings is not absolute." Cont'l Cas. Co. v. American Nat. Ins. Co., 417 F.3d 727, 731 n. 3 (7th Cir. 2005). Documents that a defendant attaches to a motion to dismiss will be considered part of the pleadings if they are: (1) referred to in the plaintiff's complaint and (2) central to the plaintiff's claims. Id. Further, in ruling on a Rule 12(b)(6) motion, the district court may consider matters of public record beyond the complaint. Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).
While the material facts alleged in plaintiff's complaint must be taken as true and construed favorably to the plaintiff, this tenet is "inapplicable to legal conclusions" that are "supported by mere conclusory statements." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). In assessing whether the allegations are sufficient to state a claim, a reviewing court must determine whether the plaintiff's assertions contain "`enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In Iqbal, the Supreme Court explained that the "plausibility standard is not akin to a `probability requirement,' but asks for more than a sheer possibility that a defendant has acted unlawfully." Id. The Seventh Circuit recently interpreted this requirement as follows:
The fact that the allegations undergirding a claim could be true is no longer enough to save a complaint from being dismissed; the complaint must establish a nonnegligible probability that the claim is valid; but the probability need not be as great as such terms as `preponderance of the evidence' connoteIn re: Text Messaging Antitrust Litig., ___ F.3d ___, ___, 2010 WL 5367383, *6 (7th Cir. Dec. 29, 2010).
B.
The County first argues that Ms. Lewis's Shakman claim should be dismissed under Rule 12(b)(1) as time-barred by the SRO. In assessing this argument, we begin by explaining the relevant provisions of the SRO.
The County's jurisdictional challenge applies to Counts I and II, as well as Counts III, IV, and V (to the extent that any of Ms. Lewis's allegations in Counts III, IV, and V are based on a violation of the Shakman Decree) (Defs.' Mot. at 3).
1.
The SRO authorizes aggrieved class members (defined to include employees of the County) to "file for post-SRO claim relief under the post-SRO claim procedure," or to "seek relief otherwise provided by law" (SRO, Section III(F)(1)). By agreeing to the SRO, the County waived its right to challenge the Shakman Consent Decree (entered January 1, 1994), the SRO, and the standing of class members to "enforce" or "seek relief" under the 1994 Consent Decree or the SRO ( Id., Section III(F)(2)). Thus, any class member may file suit to enforce the provisions of the Shakman consent decrees and the SRO, unless otherwise barred by the specific provisions of the SRO or any other applicable limitations period. The SRO provides that, within 120 days after the date on which a complainant "learned or should have learned" of an alleged violation of the Shakman consent decrees or the SRO, the complainant may file a lawsuit or, in lieu of immediately going to court, may utilize the claim and settlement procedures established in the SRO (SRO, Section V). If the complainant utilizes the SRO procedures, the 120-day limitations period is "tolled from the date a complaint is filed with the [CA] until the date the [CA] issues its [Final Claim] [R]eport" ( Id., Section V(A)(6)).
Once the investigation is completed, and the CA issues the Final Claim Report, the complainant's right "to pursue his or her claims under the SRO" is reinstated, and the 120-day limitations period begins to run again ( Id.). At that point, the complainant has whatever time is left from the 120-day limitations period to pursue his or her claim in court.
For example, if a complainant filed a claim under the SRO 60 days after the complainant learned or should have learned of the alleged violation, the running of the 120-day period would be tolled until issue of the CA's Final Claim Report, at which point the complainant would have 60 days left in which to file suit in court.
On the other hand, if the complainant wishes to continue utilizing the SRO's procedures to try to resolve the complaint, she may do so by filing a Complaint Form with the SAO within 45 days after the CA issues its Final Claim Report (SRO, Section V(A)(9)). A complainant who continues to employ the SRO procedures by filing a post-report complaint has the right to a settlement conference ( Id., Section V(11)), and if that is unsuccessful, to proceed to arbitration ( Id., Section V(A)(12), V(B)). The SRO specifically states that, by filing an Arbitration Request Form, a complainant waives "any and all rights she or he may otherwise have arising from the alleged violations of the Consent Decrees or the SRO" ( Id., Section V(B)(8)).
The SRO states that if a complainant files a claim using the SRO procedures, the CA will investigate the claim "expeditiously" (SRO, Section V(A)(6)). Generally, the investigation shall be completed within 180 days ( Id.). However, the SRO contemplates that there will be times when an investigation cannot be timely completed within 180 days. In such instances, the SRO sets forth a procedure for the CA to follow when a delay occurs. Because this procedure is central to the parties' dispute here, we quote the relevant part in full:
If the [CA] is not able to complete its investigation within the time alloted, the [CA] shall notify the SAO, the Complainant (if the Complainant has alleged that she or he has been harmed by the unlawful political discrimination), [], and Plaintiff's Counsel of the reasons for the failure to complete the investigation within the allotted time. The [CA's] notice of failure to complete the investigation within one hundred eighty (180) days will be accompanied by a Notice of Rights. The Notice of Rights will inform the Complainants that if he or she wishes to seek relief for the alleged unlawful political discrimination in connection with any aspect of government employment with the County, the Complainant must either wait for the [CA] to complete its investigation to pursue a claim under the Consent Decrees or the SRO or may pursue his or her claim under applicable law by filing suit within forty-five (45) days. The limitations period applicable to any individual's claims against the County or any other person will be tolled from the date a complaint is filed with the [CA] until the date the [CA] issues the report.Id.
2.
With this backdrop in mind, we turn to the treatment of Ms. Lewis's claim. On August 11, 2009, the CA sent a letter informing Ms. Lewis that the investigation of her October 14, 2008 complaint would not be completed on schedule (Pl.'s Resp. at 6). Attached to the letter was a Notice of Rights stating that Ms. Lewis must either "1. [w]ait for the post-SRO CA to complete his investigation to pursue a claim under the Shakman Consent Decrees, or 2. Pursue [her] claim under applicable law by filing suit within forty-five (45) days of receipt of this Notice" ( See Defs.' Mot., Ex. B at 3) (emphasis in original). Ms. Lewis did not file suit within 45 days of receiving the Notice of Rights and instead waited for the CA to complete his investigation. On December 21, 2009, the CA issued a Final Claim Report (Compl. ¶ 35). Then, on December 29, 2009, Ms. Lewis filed a Post-SRO Complaint Form with the SAO. After the SAO held an unsuccessful settlement conference with Ms. Lewis on January 27, 2010, Ms. Lewis was provided with an Arbitration Request Form. Rather than filing a request for arbitration, Ms. Lewis filed the instant action in federal court on February 25, 2010.The County contends that Ms. Lewis forfeited her right to sue by waiting for the CA to complete his delayed investigation, rather than filing suit within 45 days after receiving the Notice of Rights. The County also argues that Ms. Lewis's resort to the settlement procedures under the SRO bar her from filing the Shakman claim in federal court (Defs.' Mem. at 4).
Because the County's argument raises an important issue of first impression regarding the interpretation of the SRO, on January 21, 2011, this Court invited counsel for the Shakman Class Plaintiffs and the CA to file memoranda expressing their views on the following four issues raised by the County's motion:
(1) Whether, under Section V(A)(6), a complainant who received a Notice of Rights relinquishes the right to file suit in federal court based on the alleged violations of the Shakman consent decrees or the SRO by declining to file a federal lawsuit within 45 days of receiving the Notice of Rights, and instead allowing the CA to complete his investigation and issue an investigative report?
(2) Assuming that a complainant who has not filed suit in federal court within 45 days of receiving the Notice of Rights does not relinquish the right to file a federal lawsuit based on alleged violation of the Shakman consent decrees or the SRO, what is the applicable limitations period within which the complainant must file a federal suit after the CA issues an investigative report?
(3) Does a complainant who files a Complaint Form pursuant to Section V(A)(9) of the SRO within 45 days of the CA's investigative report, which triggers the settlement process under the SRO, thereby relinquish the right to file a federal lawsuit based on alleged violations of the Shakman consent decrees and the SRO?
(4) Assuming that a complainant who has filed a Complaint Form pursuant to Section V(A)(9) has not relinquished the right to file a federal lawsuit based on the alleged violations of the Shakman consent decrees and the SRO, does that complainant then relinquish the right by participating in settlement conference with the State's Attorney's Office pursuant to Section V(A)(11) of the SRO?
(10 C 1313: doc. # 47 at 3). Ms. Lewis and the County were given an opportunity to reply to any memoranda filed ( Id.). The CA and Class Plaintiffs responded to the Court's query (doc. ## 53-54). The County — but not Ms. Lewis — filed a reply (doc. # 56).
3.
We have carefully considered the submissions of the parties, the CA and Class Plaintiffs. We have done so in light of the language, structure and purpose of the SRO. We conclude that under Section V(A)(6) of the SRO, the running of the 120-day limitations period is not triggered by the Notice of Rights. Nor does the issuance of the Notice of Rights trigger the onset of a new 45-day limitations period in which a suit must either be filed or is forever waived. Rather, a complainant who receives a Notice of Rights may file a Shakman suit within 45 days. If the complainant fails to do so, that does not waive the right to later do so; the complainant instead must then wait for the CA to complete the investigation and issue an investigative report. We further conclude that a complainant does not waive the right to file a Shakman suit merely by invoking the settlement procedures available under the SRO. Finally, we conclude that once a final investigative report issues and the tolling of the 120-day limitations period ceases, a complainant's right to file a Shakman suit terminates on the first of the following two events to occur: (1) expiration of the 120-day limitations period, or (2) the filing of a complaint for arbitration. The County's contrary interpretation of the SRO is unpersuasive for several reasons.
First, the SRO specifies only two instances in which a complainant has waived the right to file suit in federal court based on a post-SRO claim: when more than 120 (un-tolled) days have passed since the alleged violation occurred (SRO, Section V), or when a complainant has submitted a request for arbitration ( Id., Section V(B)(8)). Otherwise, a complainant retains the right to file a Shakman claim in court. We are loathe to imply a waiver of rights beyond those two specifically enumerated circumstances. Second, and in a related vein, the SRO states that the 120-day period for filing suit is tolled "from the date a complaint is filed with the [CA] until the date the [CA] issues its report" (SRO, Section V(A)(6)). The SRO does not state that tolling of the 120-day limitations period ceases once a Notice of Rights issues.
We have considered the fact that in Ms. Lewis's case, the CA supplied a Notice of Rights form and a "Path of a Patronage Complaint" diagram that the County cites as support for its argument ( See Defs' Mot at 7-8; Defs.' Ex. B). However, these documents were never approved by the Court, and are no longer in use ( see Class Plaintiffs' Memorandum at 7). In any event, we focus instead on the language of the SRO — the only language that controls.
Third, the defendants' reading of the SRO would create an anomalous result. Claimants whose investigations were completed within the 180-day time period would enjoy the option of either continuing under the SRO process or filing suit with an investigative report in-hand. By contrast, under defendants' reading, claimants whose investigations were delayed through no fault of their own would be forced to either terminate their investigation by filing suit within 45 days, or instead allow the investigation to move forward, waive their right to go to court, and be limited to the SRO settlement and arbitration processes. The system defendants espouse would create an incentive for claimants to terminate delayed investigations precipitously, and thus would undermine a central purpose of the investigative process — to provide parties with an independent assessment of a complaint, to use to better inform their decisions regarding settlement, arbitration or suit.
Fourth, defendants' argument misconceives the purpose of the Notice of Rights. The event that triggers that notice is the CA's need for more than the presumptive 180-day period to complete an investigation. The purpose of that notice is to inform a complainant of the delay in completing the investigation and the reason for it — and to give the complainant the option of allowing the investigation to proceed or instead to go to court if the complainant does not wish to wait for a more extended period for the investigative result. In this respect, the SRO parallels the right of a Title VII plaintiff who files an EEOC change to allow the agency investigation to run its course (even if it is a time-consuming course), or instead to seek a right to sue letter that allows the plaintiff to bring suit without the EEOC investigation being completed. The purpose of the SRO was not to force complainants who receive a Notice of Rights to precipitously file federal lawsuits.
4.
Under our reading of the SRO, Ms. Lewis did not waive her right to assert her Shakman claim in this suit merely by choosing to let the investigation reach completion and by declining to sue within 45 days after receiving the Notice of Rights. Nor did she waive that right by invoking the settlement procedures under the SRO. And, because Ms. Lewis never filed an arbitration complaint, she did not waive her right to sue under Section V(B)(8) of the SRO.
All of that said, it remains unclear whether Ms. Lewis's Shakman claim was timely filed. From the information provided in her amended complaint, it is impossible to discern whether Ms. Lewis's claim falls within the 120-day limitations period contained in Section V of the SRO. The amended complaint provides no date for the alleged retaliatory action regarding her furlough days. Further, Ms. Lewis's promotion to the rank of AAIV — the alleged catalyst for Ms. Lewis being stripped of her job duties — is simply described as occurring "in August 2008." If these alleged events occurred on or before August 21, 2008, then Ms. Lewis's Shakman falls outside the 120-day limitations period and is thus time-barred. If the alleged violations occurred on or after August 22, 2008, then Ms. Lewis's Shakman complaint is timely.
If the alleged violation occurred on August 22, 2008, 53 days would have passed before tolling of the 120-day limitations period began on October 14, 2008 — the date of Ms. Lewis's post-SRO Complaint. Regardless of the date on which the alleged violation occurred, any tolling ended (and the limitations period began to run again) on December 21, 2009 — the date that the CA issued its Final Claim Report. Ms. Lewis filed her federal complaint on February 25, 2010, 67 days after the CA issued its report. Assuming an alleged violation date of August 22, 2008, the total number of un-tolled days between the date of the alleged violation and the filing of Ms. Lewis's Shakman claim would be 120 days. Thus, to the extent that Ms. Lewis seeks to pursue in this case a Shakman claim for alleged conduct prior to August 22, 2008, her claim would be untimely.
In either event, we need not resolve the timeliness issue here. The expiration of the statute of limitations "is an affirmative defense that does not affect our subject matter jurisdiction to hear [Ms. Lewis's] case." See, e.g., General Auto Services Station v. City of Chicago, 526 F.3d 991, 1001 (7th Cir. 2008). Thus, Ms. Lewis's failure to include the precise dates of the alleged violations is not a pleading defect that renders her complaint subject to a motion to dismiss. See Limestone Development Corp. v. Village of Lemont, Ill., 520 F.3d 797, 802 (7th Cir. 2008) (the plaintiff is not required to anticipate and refute a statute of limitations defense). We trust that the parties are aware of the relevant dates, and that the Court will learn them in due course. Accordingly, we deny the County's motion to dismiss Ms. Lewis's Shakman claim in Count I.
C.
Count II of the amended complaint is brought pursuant to 42 U.S.C. § 1983 and alleges that Ms. Lewis's First Amendment rights were violated when she was retaliated against for complaining of political discrimination ( Id. ¶ 47). Ms. Lewis pursues this claim against the individual defendants both in their individual capacities and their official capacities. We address each set of claims in turn.
Ms. Lewis's complaint also alleges that the defendants violated the Fourth Amendment by taking retaliatory action against her (Compl. ¶ 47). However, Ms. Lewis's complaint contains no allegations supporting a violation of the Fourth Amendment, which protects against unreasonable searches and seizures.
1.
To state a Section 1983 claim against the individual defendants in their individual capacity, the plaintiff must allege that they subjected her to conduct that occurred under the color of state law, and that this conduct deprived the plaintiff of rights, privileges, or immunities guaranteed under federal law or the United States Constitution. Lanigan v. Vill. of East Hazel Crest, Ill., 110 F. 3d 467, 471 (7th Cir. 1997). To state a prima facie claim for retaliation, Ms. Lewis must allege that: (1) her speech was protected by the First Amendment; (2) she suffered a deprivation likely to deter free speech in the future; and (3) that Ms. Lewis's protected speech was the "but-for cause" of the deprivation. See Gunville v. Walker, 583 F.3d 979, 983-84 (7th Cir. 2009); Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009).
With respect to the first element, the County argues that "[f]iling an SRO claim for violation of the Shakman Decree in and of itself is not afforded constitutional protection" (Defs.' Mot. at 11). We recognize that not all speech by a public employee is protected; the First Amendment only protects "a public employee's right, in certain circumstances, to speak as a citizen addressing a matter of public concern." Morales v. Jones, 494 F.3d 590, 595 (7th Cir. 2007) (citations omitted). Speech that addresses a "private or personal interest, as opposed to a community one, [will] not satisfy the standards for first amendment protection." Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004). To assess whether an employee's speech addresses a matter of public concern, the Court looks to the content of the speech "as a whole," Gazarkiewicz v. Town of Kingsford Heights, Ind., 359 F.3d 933, 942-43 (7th Cir. 2004), as well as its form and context. Connick v. Meyers, 461 U.S. 138, 147-48 (1983).
Here, Ms. Lewis alleges that she complained about alleged violations of the Shakman decrees and the SRO, and that she complained about alleged retaliation that occurred after she made a claim under the SRO and recovered a money award (Am. Compl. ¶¶ 21, 23-24, 45). In her successful SRO claim, Ms. Lewis had alleged that she "encountered political patronage and abuse and had been unable to advance . . . based on her education, skills, and willingness to work" ( Id., Ex. A at 4). Ms. Lewis also specifically complained that, when she had discussed her career stagnation with the former head of her office, he asked her whether she could get "someone to make a call." Id.
The allegations of political patronage in Ms. Lewis's SRO claim charge a "breach of the public trust" of the sort that can qualify for constitutional protection. See Connick, 461 U.S. at 149 (observing that "there is a demonstrated interest in this country that government service should depend upon meritorious performance rather than political service"). The fact that Ms. Lewis may have had personal motives for her statements, motives that went beyond a public-spirited desire to expose alleged political corruption, does not mean that her SRO claim lost its status as a matter of public concern. See Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir. 1990) ("[e]ven if the plaintiff viewed their problems as only a personal matter, the test of public concern is more objective"); Zorzi v. County of Putnam, 30 F.3d 885, 897 (7th Cir. 1994) (the fact that plaintiff had "a personal motive" for filing a political discrimination suit and "sought remedies of a personal nature," such as her job back and damages, did not prevent the lawsuit from being a matter of public concern). As Chief Judge Holderman recently observed in another Shakman-related case:
While general complaints about promotions, job assignments, and overtime are not necessarily matters of public concerns by themselves, they may rise to the level of public concern if they involve decisions allegedly based on political considerations, or if they describe events that supposedly occurred in retaliation for reporting . . . political corruption.McDonough v. City of Chicago, ___ F.Supp.2d ___, 2010 WL 3894239, *7 (N.D. Ill. Sept. 29, 2010). That is particularly true here: Ms. Lewis alleges discrimination and retaliation that is forbidden by the SRO ( see SRO, Section VI), which is a court order. An allegation that public employees have not only engaged in prohibited discrimination, but have done so in violation of a court order, is manifestly a matter of public concern.
The SRO, which binds the County, is designed to eliminate unlawful political discrimination and retaliation as it relates to employment practices within the County. The SRO specifically sets forth criteria whereby the County can achieve "substantial compliance" with its mandates ( see SRO, Section III(E)) and, as a result, obtain release from the Shakman Consent Decrees which have bound the County for decades ( Id., Section III(E)(6)). The SRO subjects the County to oversight by a Court-appointed monitor in order to assess the County's compliance ( Id., Section III(D)(1)). Given the public significance of the County's compliance with the SRO, an employee's charge that the County retaliated against her for resorting to the procedures put into place by that very SRO is a matter of public concern. See Wainscott v. Henry, 315 F.3d 844, 849 (7th Cir. 2003) (an employee's ability to "highlight" breaches of the public trust is "a critical weapon in the fight against government corruption and inefficiency").
We recognize that there may be garden-variety discrimination cases in which the factual circumstances signify more of a private grievance than a matter of public concern. See, e.g., Yatvin v. Madison Metropolitan School District, 840 F.2d 412, 419 (7th Cir. 1988). We are also mindful that in this case, as we explain below, Ms. Lewis has failed to sufficiently plead a broader policy of retaliation by the County. See Auriemma, 910 F.2d at 1460; Zorzi, 30 F.3d at 897-898 (holding that speech constituted a matter of public concern where, among other things, the alleged misconduct was "pervasive and systemic"). However, in light of the SRO, Ms. Lewis's case presents a unique set of circumstances that remove it from the pool of "run-of-the-mine single-plaintiff discrimination case[s]" described in Yatvin. See 840 F.2d at 420. She raises allegations that, in essence, suggest that a public entity is not only violating the First Amendment by conditioning employment on political sponsorship, but also retaliating against the plaintiff for exercising rights that were specifically granted to her by the SRO — a court order that this same entity has agreed to follow.
Further, apart from the SRO, the allegations of continuing retaliation in Ms. Lewis's October 2008 Shakman complaint suggest that "she has been paid approximately $60,000 to do nothing" ( See Am. Compl., Ex. A at 9). As recognized in McDonough, "[i]ssues that represent a potential waste of taxpayer funds may also qualify as matters of public concern." ___ F.Supp.2d ___, 2010 WL 3894239 at *7; see Valentino v. Village of South Heights, 575 F. 3d 664, 671-672 (7th Cir. 2009) ("[i]t is by now well-established that speech protesting government waste addresses a matter of public concern and is therefore entitled to constitutional protection") (citations omitted). Thus, we find that Ms. Lewis has properly alleged the first element of a political retaliation claim.
To satisfy the second element, a plaintiff must allege retaliatory activities against her that would "deter a person of ordinary firmness from exercising First Amendment activity in the future." Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009) (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). In Ms. Lewis's complaint, she alleges that: (1) in contrast to another employee with political clout, the County ignored her reimbursement requests for excess furlough days (Am. Compl. ¶ 25), and (2) her personnel duties were stripped and given to a "political hire," while Ms. Lewis was involuntarily transferred to a new position with no assignments ( Id. ¶¶ 26-34), These allegations are sufficient to meet Ms. Lewis's burden with respect to pleading the second element of a retaliation claim. See Hildbrandt v. Illinois Department of Natural Resources, 347 F.3d 1014, 1034 (7th Cir. 2003) (observing that a materially adverse employment action may be indicated by "a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities"). However, we note that whether a plaintiff's allegations are in fact true or whether the alleged retaliatory conduct would actually deter a person of ordinary firmness "are not questions that we address at the pleading stage." Gilbert, 557 F.3d at 552.
The third element required for a retaliation claim is a causal connection. Often times, a plaintiff may plead the causal link of a retaliation claim by alleging that "there was a suspiciously short period of time between the employee's complaint and the adverse employment action." Pantoja v. American NTN Bearing Mfg. Corp., 495 F.3d 840, 849 (7th Cir. 2007) (quoting Boumedhi v. Plastag Holdings, LLC, 489 F.3d 781, 793 (7th Cir. 2007)). However, if a lapse in time is too long to give rise to an inference of retaliation, the plaintiff can bring her claim by alleging other evidence to show causal connection. See Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 n. 6 (7th Cir. 1996); Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1010 (7th Cir. 2000). Here, Ms. Lewis sufficiently alleges a causal connection. She alleges that, unlike another employee, her reimbursement for excess furlough days was denied and, from the moment her position was reclassified following her original complaint and award, she was stripped of job duties that were never replaced. The temporal proximity and relationship of these alleged events is sufficient to give rise to an inference of retaliation. See Culver v. Gorman Co., 416 F.3d 540, 545-46 (7th Cir. 2005) ("circumstantial proof, such as the timing of events or the disparate treatment of similar individuals, may be sufficient to establish the defendant's retaliatory motive"). Therefore, Ms. Lewis has successfully plead the third and final element of a retaliation claim.
There remains one more hurdle Ms. Lewis must surmount in order to state Section 1983 claims against the individual defendants; Ms. Lewis must allege their individual participation in the alleged retaliatory conduct. See Wolfe-Lille v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (an individual "cannot be held liable in a [Section] 1983 action unless he caused or participated in an alleged constitutional deprivation"). Ms. Lewis alleges four retaliatory acts on behalf of Messrs. Graham and Schumann, some of which also apply to the other defendants; she claims that they (1) disregarded her requests for reimbursement for excess furlough days, though they had reimbursed another employee (Compl. ¶ 25), (2) stripped her of her personnel-related duties after she attained the AAIV title and gave them to a political hire ( Id. ¶ 45(a)), (3) chose not to exempt her from a union, while granting an exemption to a politically connected employee ( Id. ¶ 45(b)), and (4) continue to retaliate against her by denying her assignments despite her "repeated written and verbal requests for assignments" ( Id. ¶ 45(c)). Ms. Lewis's first allegation also applies to Mr. Kilgallon ( Id. ¶ 25). Her second and third allegations also apply to Mr. Stroger ( Id. ¶ 45(a)-(b)). Her third allegation applies to Mr. Rothstein, while both her third and fourth allegations also apply to Mr. Marchand ( Id. ¶ 45(b)-(c)). With respect to Mr. Marchand, Ms. Lewis also alleges that he: (1) held a meeting to allocate assignments but did not inform Ms. Lewis or give her an assignment ( Id. ¶¶ 30, 45(d)) (2) told Ms. Lewis that he "knew all about her" and denied being her supervisor, ( Id. ¶¶ 31-32), and (3) later admitted to being Ms. Lewis's supervisor, but failed to actually give her any assignments ( Id. ¶¶ 33-34).
Ms. Lewis has adequately alleged a constitutional violation by Messrs. Stroger, Graham, Schumann, Rothstein and Marchand. She alleges that each of those defendants either participated in or knowingly consented to the involuntary transfer of Ms. Lewis and the stripping of her job duties once she attained the AAIV title. See Hildebrant, 347 F.3d at 1039 (7th Cir. 2003) (a supervisor will be liable under Section 1983 if "the conduct causing the constitutional deprivation occurred at [his] direction or with [his] knowledge and consent") (internal citation omitted). Involuntarily transferring an employee and removing her job duties based on her complaint of political discrimination violates the First Amendment. See Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990); see also Boger v. Wayne County, 950 F.2d 316, 321 (6th Cir. 1991) (holding that an involuntary, retaliatory transfer causing no loss of pay or grade is nevertheless actionable because "[p]laintiff need not have suffered loss of salary, promotional opportunities, seniority or other monetary deprivations to have a cognizable interest protected by the First Amendment"). Thus, Ms. Lewis's claim against the participating defendants may proceed.
In the Final Claim Report, which Ms. Lewis incorporates as part of her complaint (Compl. ¶ 35), the CA states that Jonathan Rothstein authorized Ms. Lewis's reclassification to the unionized position of AAIV, while knowing that this would lead to removal of her job duties ( See Compl., Ex. A at 9). In her complaint, Ms. Lewis alleges that Mr. Rothstein could have preserved her job duties by exempting her from the union, but chose not to do so. ( Id. ¶ 27, 45(b)).
Ms. Lewis also alleges that, although Messrs. Graham, Schumann, and Kilgallon had previously granted a request for excess furlough days to another Highway Department employee, "all [three] disregarded [Ms. Lewis's] requests and she ultimately had to file a grievance." (Compl. ¶ 25). As the Seventh Circuit has observed in the Title VII context, "not every unwelcome employment action qualifies as an adverse [employment] action;" instead, the action must cause a change in the terms or conditions of employment that is "more disruptive than a mere inconvenience." Fyfe v. City of Fort Wayne, 241 F.3d 597, 602 (7th Cir. 2001). Applying this standard, the Court has held that the denial of a raise constitutes an actionable adverse employment action, Hunt v. City of Markham, Illinois, 219 F.3d 649, 654 (7th Cir. 2000), while the denial of a bonus does not. Rabinovitz v. Pena, 89 F.3d 482, 488-89 (7th Cir. 1996). The difference between these two items lies in the fact that "raises are a normal and expected element of an employee's salary," while bonuses generally are "`sporadic, irregular, unpredictable, and wholly discretionary on the part of the employer.'" Fyfe, 241 F.3d at 602 (quoting Hunt, 219 F.3d at 654).
Ms. Lewis alleges, it is apparent that the credit for excess furlough days was an expected part of her salary (Compl., Ex. A at 3). Taking the plaintiff's allegations as true, we conclude that the defendants' retaliatory denial of reimbursement for those days would represent an adverse employment action, depriving Ms. Lewis of her rights under the First Amendment. Therefore, Ms. Lewis's individual claims against Messrs. Graham, Schumann, and Kilgallon based on the furlough incident may also proceed.
The County argues that Ms. Lewis's retaliation claims against the individual defendants should nonetheless be dismissed pursuant to the defense of qualified immunity. The doctrine of qualified immunity shields government officials from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is "clearly established" if its contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Silvard v. Pulaski County, 17 F.3d 185, 189 (7th Cir. 1994) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (internal quotations omitted). While the "very action in question" need not have been previously held unlawful itself, the unlawfulness of the action must be apparent in light of pre-existing law. Id. (quoting Anderson, 483 U.S. at 640).
The First Amendment right to be free from political discrimination and retaliation in the workplace is clearly defined. See, e.g., Hall v. Babb, 389 F.3d 758, 762 (7th Cir. 2004) (observing that "[i]t is well established that hiring, firing, or transferring [non-policy making] employees based on political motivation violates the First Amendment"); Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990); Elrod v. Burns, 427 U.S. 347, 356-57 (1976). Therefore, based on the allegations of the complaint, which we accept as true on a motion to dismiss, the individual defendants cannot invoke the defense of qualified immunity to shield them from Ms. Lewis's claims.
For the reasons stated above, we deny the County's motion to dismiss Ms. Lewis's individual claims in Count II against defendants Todd H. Stroger, Rupert Graham, Herbert Schumann, Cecil Marchand, Mark Kilgallon, and Jonathan Rothstein.
2.
Defendants also seek to dismiss Ms. Lewis's Section 1983 claim against Cook County and the individual defendants in their official capacities in Count II, which is based on Monell v. Department of Social Services, 436 U.S. 658 (1978). Actions brought against government officers in their official capacities are claims against the municipal entity that employs the officer. Kentucky v. Graham, 473 U.S. 159, 167 (1985).A plaintiff bringing a Monell claim for municipal liability must allege that he or she has suffered a constitutional injury resulting from a municipal policy, custom, or practice. Waters v. City of Chicago, 580 F.3d 575, 580 (7th Cir. 2009). To properly plead a Monell claim, a plaintiff must allege: (1) an express policy; (2) a widespread practice constituting custom or usage; or (3) a constitutional injury caused or ratified by a person with final policy making authority. Wragg v. Vill. of Thornton, 604 F.3d 464, 467 (7th Cir. 2010). Ms. Lewis relies on the second approach to pleading a Monell claim ( See Pl.'s Resp. at 12).
Ms. Lewis has failed to allege a custom or practice so permanent, well-settled, and widespread as to constitute custom or usage. It is firmly established that "[i]f the same problem has arisen many times and the municipality has acquiesced in the outcome, it is possible (though not necessary) to infer there is a policy at work." Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (quoting Phelan v. Cook County, 463 F.3d 773, 789 (7th Cir. 2006) (quoting Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005))). However, more is required to establish an informal policy than merely the allegation that the County took retaliatory action against one individual. See Valentino, 575 F.3d at 675 (finding no "custom and practice" where plaintiff failed to sufficiently allege retaliation against anyone other than the plaintiff). While Ms. Lewis alleges broadly in her complaint that "Cook County . . . engaged in a pattern and practice of retaliating against individuals who have filed complaints against them for violation of the Shakman Decree" (Compl. ¶ 45), she does not allege facts supporting retaliatory conduct against anyone other than herself. Ms. Lewis fails to allege who the other complainants are, how they were retaliated against and, more importantly, "how these separate incidents weave together into a cognizable [County] policy." See Valentino, 575 F.3d at 675. The kind of unsupported, conclusory allegation that Ms. Lewis offers is insufficient to state a claim. Iqubal, ___ U.S. ___, 129 S. Ct. at 1949.
To compensate for this deficiency, Ms. Lewis asks that this Court "take judicial notice of the fact that the County has been found to have engaged in a widespread practice of political discrimination" and, consequently, "has developed a widespread practice of violating First Amendment rights of its employees" (Pl.'s Resp. at 12). Requests like this have long been rejected. See Adrian v. Gibbs, 1985 WL 3439, *4 (N.D. Ill. Oct. 28, 1985) (declining to take judicial notice of the fact that many Shakman complaints have been filed against the City for purposes of establishing a custom and practice); see also Strauss v. City of Chicago, 760 F.2d 765, 769 (7th Cir. 1985) (holding that the number and character of complaints, without more, "indicates nothing" about whether the "policies alleged by [the plaintiff] do in fact exist"). Ms. Lewis's allegations are insufficient to allow her Monell claim to proceed. We therefore grant the County's motion to dismiss Ms. Lewis's Monell claim in Count II.
D.
We now turn to Ms. Lewis's Title VII retaliation claim against Cook County in Count IV. Title VII forbids an employer from retaliating against an employee because that employee: (1) "opposes any practice made an unlawful practice" by Title VII (the "opposition clause"), or (2) participated in "an investigation, proceeding, or hearing" under Title VII (the "participation clause"). 42 U.S.C. § 2000e-3(a). To state a viable claim for retaliation, a plaintiff must first allege that she engaged in the "statutorily protected activity" of either opposing an employment practice made unlawful by Title VII, or participating in an investigation or hearing related to such a practice. Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). The second and third elements of a Title VII retaliation claim include an adverse employment action against the plaintiff and a causal connection between the protected activity and the adverse employment action. Id.
Defendants' motion challenges Ms. Lewis's retaliation claim squarely on the ground that Ms. Lewis "does not plead that she engaged in protected activity prior to the alleged adverse employment actions" because she filed her EEOC Charge of Discrimination on February 18, 2009 — after the alleged adverse actions would have occurred (Defs.' Mot. at 14). In her complaint, Ms. Lewis alleges that she has "been retaliated against for complaining of sex discrimination and requesting a raise in her salary to the level of male employees" (Am. Compl. ¶ 65). Similarly, in her EEOC Charge itself, Ms. Lewis alleges that, in retaliation for her "complaining of pay inequities, gender discrimination, and [Cook County's] continued failure to promote her," her job duties were taken away and given to a male employee ( Id., Ex. C at 1). Ms. Lewis further alleges that her male replacement was hired to perform the same duties, "but at a higher pay rate" ( Id. at 2).
Ms. Lewis incorporates her EEOC Charge by reference in her complaint (Compl. ¶ 66).
Defendants focus on the participation clause of Title VII — but it is the opposition clause that applies. Ms. Lewis bases her retaliation claim on the fact that she had previously complained of sexual discrimination, not the fact that she later filed a formal charge with the EEOC. An employee's statements challenging sexual discrimination on the part of her employer are protected by Title VII's opposition clause. See Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, ___ U.S. ___, 129 S.Ct. 846, 851 (2009) ('"[w]hen an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication' virtually always `constitutes the employee's opposition to the activity'") (internal citation omitted). Ms. Lewis has sufficiently alleged that she engaged in a protected activity for the purposes of stating a claim under Title VII. We therefore deny the County's motion to dismiss Ms. Lewis's retaliation claim in Count IV.
CONCLUSION
For the foregoing reasons, we (1) deny the County's motion to dismiss Count I, (2) deny the County's motion to dismiss the defendants in their individual capacities in Count II, (3) grant the motion to dismiss Cook County and the defendants in their official capacities in Count II, and (4) deny the County's motion to dismiss Count IV.