Runkel v. City of Springfield

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

DIANE RUNKEL, )

)

Plaintiff, )

)

v. ) Case No. 18-cv-03206

)

CITY OF SPRINGFIELD, and )

JAMES O. LANGFELDER, )

)

Defendants. )

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on the Motion to Dismiss (d/e

8) filed by Defendants City of Springfield (the City) and James O.

Langfelder. Because Counts I through III of Plaintiff Diane Runkel’s

Complaint (d/e 1) state claims for which relief can be granted, the

motion is DENIED.

I. BACKGROUND

The following facts come from Plaintiff’s Complaint. The Court

accepts them as true in ruling on the motion to dismiss. See

Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

Plaintiff began working for the City in 2007 after being hired

as an administrative clerk in the City’s Office of Budget and

Management. Complaint (d/e 1), ¶ 7. Plaintiff continued working

for the City and was promoted in November 2008 and again in May

2015. Id. ¶¶ 8-9. After the May 2015 promotion, Plaintiff was

working for the City as an assistant purchasing agent. Id. ¶ 9.

In early 2018, it was announced that the incumbent

purchasing agent would be leaving her position. Id. ¶11. Plaintiff

informed William McCarty, the City’s Director of Management and

Budget, several times that Plaintiff was interested in the purchasing

agent position. Id. ¶ 14.

Plaintiff was not selected for the position, however. Id. ¶ 15.

Kassandra Wilkin, who is black and had less experience than

Plaintiff, who is white, was selected to be the City’s purchasing

agent solely because of Wilkin’s race. Id. ¶¶ 19-20. Plaintiff was

the most qualified applicant for the purchasing agent position. Id.

¶17. Wilkin had only two years’ experience in the Office of Budget

and Management and was a subordinate of Plaintiff. Id. ¶ 16. Had

Plaintiff been black, she would been selected for the purchasing

agent position. Id. ¶ 21. The City’s previous purchasing agent was

black, and Langfelder wanted a black person to be the next

purchasing agent. Id. ¶ 18.

Plaintiff was subsequently told by Langfelder that Plaintiff was

going to receive a raise despite being passed over for the promotion.

Id. ¶ 22. Through counsel, Plaintiff sent a letter to Langfelder

expressing Plaintiff’s view that Plaintiff was passed over for the

promotion in favor of Wilkin because of Plaintiff’s race. Id. ¶ 23.

Attached to the letter was a proposed complaint to the Equal

Employment Opportunity Commission (EEOC) alleging race

discrimination. Id.

On April 5, 2018, Plaintiff filed a race discrimination complaint

with the EEOC, and, the next day, the City notified Plaintiff that her

pay increase was being rescinded and that she was being placed on

a “last chance agreement.” Id. ¶¶ 24-25. Approximately one month

later, Plaintiff filed a second charge with the EEOC against the City,

alleging that the City’s actions of rescinding her pay increase and

placing her on the “last chance agreement” were retaliatory. Id. ¶

26. On August 7, 2018, Plaintiff received notices that she could

bring a civil lawsuit based on EEOC charges. Id. ¶ 27.

In August 2018, Plaintiff filed a three-count Complaint against

the City and Langfelder, the mayor of Springfield, in his individual

capacity. Count I alleges the City discriminated against Plaintiff in

violation of Title VII of the Civil Rights Act (Title VII) when it passed

Plaintiff over for a promotion due to her race. Count II, brought

under 42 U.S.C. § 1983, alleges Langfelder violated Plaintiff’s

Fourteenth Amendment equal protection rights when Langfelder

passed Plaintiff over for a promotion due to her race. Count III

alleges the City retaliated against Plaintiff in violation of Title VII

when the City rescinded Plaintiff’s pay increase and placed Plaintiff

on a “last chance agreement” because Plaintiff complained of racial

discrimination.

On October 22, 2018, Defendants filed their Motion to

Dismiss. Defendants seek to have Plaintiff’s claims dismissed for

failure to state a claim upon which relief may be granted pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants

argue that Counts I and III should be dismissed because the City’s

purchasing agent position does not fall within the definition of

“employee” set forth in 42 U.S.C. § 2000e. Defendants also argue

that Count II should be dismissed, as Langfelder is entitled to

qualified immunity because political appointees are not subject to

Title VII and elected officials may consider race when making

political appointments.

On November 5, 2018, Plaintiff filed a Memorandum of Law in

Opposition to Motion to Dismiss (d/e 10). Plaintiff contends that

the City’s purchasing agent is not appointed by an elected official

and therefore qualifies as an employee under Title VII. Plaintiff also

argues that Langfelder is not entitled to qualified immunity, as it

was clearly established at the time Plaintiff was not promoted that

the Fourteenth Amendment prohibits the use of race in hiring

decisions, “absent the most compelling of circumstances.”

II. LEGAL STANDARD

A complaint must “state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). “Factual allegations are accepted

as true at the pleading stage, but allegations in the form of legal

conclusions are insufficient to survive a Rule 12(b)(6) motion.”

Adams, 742 F.3d at 728 (internal quotation marks omitted). The

court must draw all inferences in favor of the non-moving party. In

re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir. 2009).

III. ANALYSIS

A. Count I states a claim upon which relief can be granted

because the City’s purchasing agent is not appointed by an

elected official.

Title VII makes it unlawful for any employer to limit, segregate,

or classify their employees in a manner that would deprive them of

employment opportunities on the basis of the employee’s race,

color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(2).

An “employee” is any individual employed by an “employer.” 42

U.S.C. § 2000e(f). An “employer” is “a person engaged in an

industry affecting commerce who has fifteen or more employees for

each working day in each of twenty or more calendar weeks in the

current or preceding calendar year.” 42 U.S.C. § 2000e(b).

There are four exclusions to Title VII’s definition of “employee”:

(1) elected officials; (2) personal staff of elected officials, (3)

appointees on the policymaking level, and (4) immediate advisors

with respect to the exercise of constitutional or legal powers of a

public office. 42 U.S.C. § 2000e(f); Opp v. Office of the State’s Atty.,

630 F.3d 616, 619 (7th Cir. 2010). Therefore, policymaking

appointees cannot bring Title VII claims. Americanos v. Carter, 74

F.3d 138, 144 (7th Cir. 1996). The question faced by the Court in

this case is whether a policymaking appointee must be appointed

by an elected official to be excluded from Title VII’s definition of

“employee.”

The Seventh Circuit has not yet definitively addressed this

question. However, the Second and Tenth Circuits have determined

that, in order to qualify as a policymaking appointee excluded from

the “employee” definition of the Age Discrimination in Employment

Act (ADEA),1 the individual must be appointed by an elected official.

See Tranello v. Frey, 962 F.2d 244, 249 (2d Cir. 1992); Anderson v.

Albuquerque, 690 F.2d 796, 801 (10th Cir. 1982). District judges

within the Seventh Circuit, relying on Tranello, have held that an

appointee must be directly appointed by an elected official to be

excluded from the “employee” definitions in Title VII or the ADEA.

See O’Neill v. Ind. Comm’n on Pub. Records, 149 F. Supp. 2d 582,

1 The definition of “employee” under the ADEA, like the corresponding Title VII

definition, does not include policymaking appointees. See 29 U.S.C. § 630(f);

42 U.S.C. § 2000e(f).

588-89 (S.D. Ind. 2001); Braaksma v. Wells Cmty. Hosp., 98 F.

Supp. 2d 1026, 1028-29 (N.D. Ind. 2000).

The Court finds these cases persuasive for several reasons.

First, holding that a policymaker, to be excluded from Title’s VII’s

“employee” definition, must be appointed by an elected official is

consistent with the legislative history of Title VII. See Tranello, 962

F.2d at 249-50 (“The Joint Explanatory Statement submitted to the

House and Senate interprets the language that was ultimately

adopted as exempting “elected officials and members of their

personal staffs, and persons appointed by such elected officials as

advisors or to policymaking positions . . . .”). Second, excluding only

those policymakers appointed by an elected official is consistent

with Congress’ intent to construe the exemption narrowly. See id.

at 250. Third, the placement of the exemption from Title VII’s

definition of “employee” for policymaking appointees with other

exemptions tied to elected officials suggests that policymaking

appointees are only exempt if appointed by an elected official. See

O’Neill, 149 F. Supp. 2d at 589.

The City’s purchasing agent position is established by

ordinance, and the purchasing agent is appointed by the City’s

director of budget and management with the approval of the City’s

mayor. Code of Ordinances of the City of Springfield, Illinois, §

38.11. The City’s mayor appoints the City’s director of budget and

management. Id. § 32.35.

Because the City’s purchasing agent is not directly appointed

by an elected official, the purchasing agent is not excluded from

Title VII’s definition of “employee.” Count I of Plaintiff’s Complaint,

therefore, states a claim upon which relief can be granted.

B. Count III states a claim upon which relief can be granted

because the City’s assistant purchasing agents are not

policymaking appointees.

Title VII prohibits discriminating against employees because

they have charged, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing under Title VII. 42

U.S.C. § 2000e-3(a). To plead a Title VII retaliation claim, a plaintiff

must allege that they engaged in statutorily protected activity that

was subjected to adverse employment action due to that activity.

Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1029 (7th Cir.

2013) (holding that the plaintiff successfully pleaded a retaliation

claim by alleging that her work hours were reduced after filing an

EEOC charge against a coworker).

Plaintiff filed a complaint of racial discrimination with the

EEOC on April 5, 2018, because Plaintiff was passed over for a

promotion because of her race. The next day, the City advised

Plaintiff that the pay increase she was promised on March 1, 2018,

was being rescinded and that she was being placed on a “last

chance agreement.” These allegations constitute a Title VII

retaliation claim upon which relief can be granted.

Defendants’ argument for the dismissal of Count III is the

same argument Defendants utilize in seeking the dismissal of Count

I–-the City’s purchasing agent is a policymaking appointee excluded

from Title VII’s definition of “employee.” As noted by the Court,

Defendants’ position is incorrect.

Even if Defendants’ argument were correct, at the time the

City’s alleged retaliatory actions took place, Plaintiff was an

assistant purchasing agent, not the City’s purchasing agent. And

Defendants have made no attempt to establish that an assistant

purchasing agent for the City is a policymaking appointee. As the

City’s purchasing agent position is not a policymaking appointee

exempt from Title VII’s definition of “employee,” the Court sees no

basis to hold that the City’s assistant purchasing agents are

policymaking appointees excluded from Title VII’s protections.

C. Langfelder is not entitled to qualified immunity on Count

II.

Qualified immunity protects government officials from liability

for civil damages when their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known. Pearson v. Callahan, 53 U.S. 223, 231

(2009). To counter a claim of qualified immunity, a plaintiff must

show (1) that the official violated a statutory or constitutional right

and (2) that the right was clearly established at the time of the

alleged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

Qualified immunity is generally dependent on the facts of the case,

and dismissal at the pleading stage on the basis of qualified

immunity is rarely appropriate. See Alvarado v. Litscher, 267 F.3d

648, 651-52 (7th Cir. 2001).

For a right to be “clearly established,” the right must be

“sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987). Existing case law need not be identical to the

situation at hand to meet this burden. See Nabozny v. Podlesny, 92

F.3d 446, 456 (7th Cir. 1996) (“Under the doctrine of qualified

immunity, liability is not predicated upon the existence of a prior

case that is directly on point.”).

The Equal Protection Clause of the Fourteenth Amendment

protects a person’s right to be free from certain types of

discrimination in public employment absent sufficient justification.

Alexander v. Milwaukee, 474 F.3d 437, 444 (7th Cir. 2007). For

instance, race-based employment decisions by a local government

are unconstitutional unless they satisfy strict scrutiny. See

Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94 (1989). Strict

scrutiny requires a showing that a race-based action is necessary to

further a compelling governmental interest and that the action is

narrowly tailored to further the governmental interest. Grutter v.

Bollinger, 539 U.S. 306, 327 (2003).

Plaintiff alleges that, even though she was Wilkin’s supervisor

and had substantially more experience than Wilkin, Plaintiff was

passed over for a promotion because Plaintiff is white and Wilkin is

black. Plaintiff has therefore established a racial classification. See

Finch v. Peterson, 622 F.3d 725, 728 (7th Cir. 2010) (holding that

police lieutenants who alleged they were passed over for a

promotion based on their race despite higher rankings on a merit-

based “eligibility list” identified a racial classification). Plaintiff also

suggests that the decision to promote Wilkin was due to the fact

that the City’s previous purchasing agent was black. Assuming the

truth of the allegations in Plaintiff’s Complaint, Langfelder violated

Plaintiff’s constitutional right to be free from racial discrimination

with respect to the City’s employment decisions.

Nevertheless, Defendants argue that Langfelder is entitled to

qualified immunity because there is no case law establishing that

Langfelder could not consider a person’s race in making a political

appointment. However, at the time Langfelder refused to appoint

Plaintiff to the City’s purchasing agent position, the Seventh Circuit

had already held that a “governmental officer holding the power of

appointment may make any decision he pleases, unless the

Constitution bars the way.” Chasensky v. Walker, 740 F.3d 1088,

1098 (7th Cir. 2014) (emphasis added). And the Seventh Circuit

had already repeatedly held that the Equal Protection Clause

prohibited the promotion or demotion of individuals based solely on

race unless strict scrutiny were satisfied. See Finch, 622 F.3d at

730 (denying qualified immunity defense to city officials who

promoted three African-American police lieutenants to the rank of

captain over three white police lieutenants); Auriemma v. Rice, 910

F.2d 1449, 1457 (7th Cir. 1990) (noting that no reasonable police

chief could believe that he was allowed to demote and promote

police officers among racial lines).

Any reasonable mayor in Langfelder’s position would have

understood that refusing to appoint a person to serve as the City’s

purchasing agent solely because of that person’s race would violate

the Equal Protection Clause. Plaintiff alleges that Langfelder chose

Wilkin for the purchasing agent position because Wilkin is black

and Plaintiff is white. Therefore, Langfelder is not entitled to

qualified immunity on Count II of Plaintiff’s Complaint.

IV. CONCLUSION

Because Counts I through III of Plaintiff Diane Runkel’s

Complaint state claims upon which relief can be granted, the

Motion to Dismiss (d/e 8) filed by Defendants City of Springfield

and James O. Langfelder is DENIED.

ENTER: September 9, 2019

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE