Foggey v. City of Chicago

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

VINCENT FOGGEY,

Plaintiff,

No. 16 CV 10963

v.

Judge Manish S. Shah

CITY OF CHICAGO, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

The City of Chicago fired Vincent Foggey from the Chicago Police

Department, and he brings this action against the City, current and former

employees of CPD, and members of the Chicago Police Board. The City, the CPD

defendants, and the Board defendants each move to dismiss Foggey’s seven-count

amended complaint. See [28], [66]–[69], [70]–[74]. These motions are granted in part

and denied in part.

I. Legal Standards

To survive a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), a complaint must contain factual allegations that plausibly suggest a right

to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must accept all

factual allegations as true and draw all reasonable inferences in the plaintiff’s

favor, but need not accept legal conclusions or conclusory allegations. Id. at 678–79.

II. Background

Foggey became a police officer for the City of Chicago over ten years ago. [27]

¶ 21.1 In September 2014, he was on duty with his partner when there was “an

incident” at a Walgreens store. Id. ¶ 22. “Defendants” accused Foggey of failing to

assist his partner during the incident. Id. ¶ 23.2 Foggey says he responded to his

partner’s request for assistance in accordance with his duties—he helped to

physically control the subject, gave verbal demands, and deescalated the situation

until the subject was in custody. Id. ¶ 24.

Three days after the incident, Foggey reported to one of his supervisors,

Lieutenant Doss, that Sergeants Mendoza, Padilla, and Gray had violated

department policies and procedures in connection with the investigation of the

incident. Id. ¶ 25. Thereafter, Doss failed to initiate an investigation into the

incident, in violation of CPD policy. Id. ¶ 26. Foggey also complained to District

Commander Jones that the three sergeants were broadcasting video footage of the

incident, which Foggey believed would compromise the investigation. Id. ¶ 28. Jones

failed to discipline the sergeants or to direct them to stop broadcasting the footage.

Id. ¶ 28. Foggey filed an official complaint against the three sergeants with CPD’s

Bureau of Internal Affairs. Id. ¶ 27. That same day, the City stripped Foggey of his

duties and reassigned him to a lesser position due to Foggey’s involvement in the

1 Bracketed numbers refer to entries on the district court docket.

2 The complaint refers to “defendants” throughout, and Foggey does not identify specific

defendants in his claims, so I will assume that he alleges the fact (and brings each claim)

against each defendant. This assumption aligns with how the parties have briefed the

issues.

incident. Id. ¶ 34. Sergeant Baier signed Foggey’s notification of duty restrictions.

Id. ¶ 35.

Sergeant Hermann from the BIA conducted an investigation of Foggey’s

official complaint; she concluded that Foggey’s complaint was unfounded. Id. ¶¶ 30–

31. The City issued a thirty-day suspension without pay to Foggey for violating

CPD’s rules in connection with the incident. Id. ¶ 36. The then-Superintendent of

CPD, Garry McCarthy, filed charges against Foggey and recommended that Foggey

be discharged. Id. ¶ 37. McCarthy issued the suspension without pay to Foggey,

which began on July 16, 2015. Id. ¶ 36. The Board held a hearing concerning the

charges against Foggey on November 16 and 23, 2015; Foggey had prior written

notice of the hearing and he was represented by legal counsel at the hearing. [28-2]

at 2.3 The Board considered testimony from Foggey, Foggey’s partner, and two

sergeants, as well as a video recording of the incident. Id. at 2–4. The Board

determined that Foggey should be discharged, [27] ¶¶ 39–40, because Foggey failed

to assist his partner. [28-2] at 2–7. Specifically, the Board explained:

Police officers regularly encounter difficult subjects on the

street. They are trained to rely on their partners, and use their

radios and various control tactics in order to keep the public and

themselves safe. In this case, Officer Foggey completely failed to

utilize any of his training and displayed a gross sense of

indifference to a dangerous situation. This left his partner in

jeopardy and injured, and created confusion among those officers

3 The City attaches the following exhibits to their motion to dismiss: the Police Board’s

Findings and Decision in In the Matter of Police Officer Vincent A Foggey, 15 PB 2889;

Foggey’s Complaint for Administrative Review in Foggey v. Superintendent of Police, et al.,

16-CH-5479, in the Circuit Court of Cook County; relevant circuit court orders issued in 16-

CH-5479; and Foggey’s motion for voluntary dismissal in 16-CH-5479. I take judicial notice

of these records. See Ennenga v. Starns, 677 F.3d 766, 773–74 (7th Cir. 2012).

responding and seeking to provide support. Further, Officer

Foggey refused to take responsibility for his failures, even in the

face of the video recording. His unwillingness to support his

fellow officer in this case renders him unfit to continue to serve

as a police officer.

Id. at 7. The City terminated Foggey on March 28, 2016. [27] ¶ 41. Foggey says his

termination was in retaliation for his complaints and charges of discrimination.4 Id.

Foggey says that both the BIA investigation and the Board’s investigation of

the charges against him were biased and improper, and that both investigations

failed to afford him due process because: (1) defendants did not investigate the

incident upon which Foggey’s first complaint was based; (2) defendants did not stop

the video footage of the incident from being broadcasted; (3) defendants failed to

comply with General Order G08-01; (4) defendants did not properly consider

witness statements and other evidence; (5) defendants failed to properly investigate

his second complaint; (6) defendants did not follow their own disciplinary system

regarding police officer rights and conduct; (7) defendants did not provide him

progressive discipline; (8) defendants ruled against the manifest weight of the

evidence provided during the proceedings; and (9) defendants did not conduct a

sufficient investigation of the charges against him. Id. ¶¶ 32, 42. When the BIA or

the Board investigates the conduct of white officers, Foggey says, they adhere to the

procedural and due process protections. Id. ¶¶ 33, 43. Yet, when the BIA or the

4 After the Board hearing, but before its decision, Foggey filed a Charge of Discrimination

against the City with the Illinois Department of Human Rights alleging that the City

discriminated against him on the basis of race and gender with respect to his July 2015

suspension. [27] ¶ 38; see also [28-2] at 11–40. A few months later, the City filed its

response to Foggey’s Charge of Discrimination, and within a week of that response, the

Board decided that Foggey should be discharged. [27] ¶¶ 39–40.

Board investigates the conduct of black officers, no such procedures or protections

are followed. Id. ¶¶ 33–34, 43–44.

Shortly after he was fired, Foggey filed a second Charge of Discrimination

against the City with the EEOC alleging that the City discriminated and retaliated

against him for engaging in protected activities (filing the first Charge of

Discrimination and reporting the three sergeants). Id. ¶ 55. Meanwhile, Foggey

sought administrative review of the Board’s decision in state court. See [28-2] at 28,

32. The state court granted Foggey’s motion for an extension of time to file his brief

in support of administrative review. Id. at 34. A couple of weeks later, the U.S.

Department of Justice issued Foggey a Right to Sue notice regarding his two agency

charges of discrimination against the City. [27] ¶ 57. Foggey moved to voluntarily

dismiss his state court action without prejudice and with leave to refile. [28-2] at 37.

The state court granted the motion and dismissed Foggey’s case with leave to refile.

Id. at 39.

Foggey then brought his claims to federal court with this action. Count I

asserts a Title VII race and gender discrimination claim; Count II asserts a Title

VII retaliation claim; Count III asserts a race discrimination claim under 42 U.S.C.

§ 1981; Count IV asserts a race discrimination claim under 42 U.S.C. § 1983; Count

VI5 asserts a First Amendment retaliation claim under 42 U.S.C. § 1983; Count VII

5 The amended complaint does not include a Count V.

asserts a Due Process claim under 42 U.S.C. § 1983; and Count VIII asserts a claim

for Monell liability.6

III. Analysis

Defendants’ motions to dismiss share many of the same arguments. The City,

the CPD defendants, and the Board defendants all move to dismiss Foggey’s

amended complaint by arguing that the complaint is barred by res judicata; state

actors cannot be sued under § 1981; and the complaint fails to allege actionable

conduct under § 1983. Both the CPD defendants and the Board defendants also

move to dismiss on the following bases: individual agents cannot be sued under

Title VII because they are not Foggey’s “employer” as a matter of law; the complaint

fails to allege an adverse action under § 1983; and the complaint fails to allege a

liberty interest under § 1983. Finally, the City argues that Foggey fails to state a

Monell claim; the CPD defendants argue that they should be dismissed as protected

by qualified immunity; and the Board defendants argue that they should be

dismissed as protected by absolute immunity.

A. Res Judicata

Res judicata precludes plaintiffs from re-litigating claims that were or could

have been litigated during an earlier proceeding. Hayes v. City of Chicago, 670 F.3d

810, 813 (7th Cir. 2012). Federal courts apply the law of preclusion from the state in

which the prior decision originated. Id. Here, Illinois preclusion law governs, and to

6 It was unnecessary for Foggey to name individual CPD defendants and Board defendants

in their official capacities, see [27] ¶¶ 6–17, because he also brings this action against the

City. An action against an individual in his official capacity is the same as an action against

the municipality. Sanville v. McCaughtry, 266 F.3d 724, 732–33 (7th Cir. 2001).

preclude a plaintiff from bringing a claim, a defendant must establish the following

elements: (1) “a judgment on the merits rendered by a court of competent

jurisdiction”; (2) “an identity of cause of action”; and (3) “an identity of parties or

their privies.” Id. (quoting River Park, Inc. v. City of Highland Park, 184 Ill.2d 290,

302 (1998)); Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 22. Decisions by

an administrative agency have preclusive effect under res judicata so long as the

agency’s proceedings were judicial in nature.7 Bagnola v. SmithKline Beecham

Clinical Labs., 333 Ill.App.3d 711, 717–18 (1st Dist. 2002).

The defendants argue that there was a final judgment on the merits because

the Board, after considering testimony and video evidence, found Foggey guilty and

the Board discharged him; Foggey sought judicial review of that decision in Illinois

state circuit court under the Administrative Review Law, 735 ILCS 5/3-101, et seq.;

and ultimately, the circuit court dismissed his action pursuant to Foggey’s motion to

voluntarily dismiss the action under 735 ILCS 5/2-1009, rendering it “final and

unappealable.” Ross v. Illinois Mun. Retirement Fund, 395 Ill.App.3d 1073, 1078–79

(5th Dist. 2009). Courts have barred a public employee from bringing a Title VII or

a § 1983 action concerning a discharge from employment when the public employee

had previously litigated that issue in state administrative and state administrative

7 The City argues, and Foggey does not dispute, that hearings by the Chicago Police Board

are quasi-judicial administrative proceedings—they include notice to the litigants, a right

to legal representation, testimony under oath, and the opportunity to present witnesses and

evidence. [28] at 5–6 (citing 65 ILCS 5/10-1-18.1; Mun. Code Chi. 2-84-030; Bagnola v.

SmithKline Beecham Clinical Labs., 333 Ill. App. 3d 711, 717 (1st Dist. 2002)).

review proceedings. See, e.g., Bonnstetter v. City of Chicago, 811 F.3d 969, 975 (7th

Cir. 2016); Walczak v. Chicago Bd. of Educ., 739 F.3d 1013, 1017 (7th Cir. 2014).

But on the other hand, if a court of competent jurisdiction never reviewed his

claim, res judicata would not bar Foggey’s action. See Univ. of Tenn. v. Elliott, 478

U.S. 788, 796 (1986) (un-reviewed state administrative proceedings do not have

preclusive effect in federal civil rights cases). Since the circuit court granted his

motion for voluntary dismissal with leave to refile, the order does not constitute a

final judgment under Illinois law. Brye v. Brakebush, 32 F.3d 1179, 1180 (7th Cir.

1994), does not hold otherwise. The Byre court opined that Elliott does not apply

when a state court has entered a judgment against the plaintiff, but also, the Byre

court explained that federal courts, pursuant to 28 U.S.C. § 1738, must afford a

state court judgment the same preclusive effect to which it would be entitled in that

state’s courts. Byre, 32 F.3d at 1183. Accordingly, the Byre court analyzed and

applied the relevant state preclusion law, which provided that a voluntary dismissal

is not on the merits unless otherwise specified in the court’s order. Id. at 1184

(citing Wis.Stat. § 805.04(2)). Under Wisconsin law and the language of the

dismissal order in that case, the Byre court concluded that the order was not a final

judgment on the merits and res judicata did not apply. Id. at 1185. A similar

conclusion is proper here.

“A ruling which is not a final order does not in any manner affect or

determine any subsequent proceeding.” Arnold Schaffner, Inc. v. Goodman, 73

Ill.App.3d 729, 732 (1979). A judgment is final when it terminates the litigation and

fixes the parties’ rights absolutely. Richter, 2016 IL 119518, ¶ 24. For example, an

order that dismisses an action “without prejudice” or with “leave to file an amended

complaint” is not a final adjudication on the merits. Id. ¶ 25 (“A dismissal order that

grants leave to amend is interlocutory and not final.”). To determine whether a

judgment is final, courts look to the substance rather than the form of the

judgment. Id. ¶ 24.

Defendants’ main argument here—that a final judgment exists whenever a

court grants a voluntary dismissal under § 2-1009 of the Administrative Review

Law because such a decision renders the underlying agency decision final and

appealable—has been considered and disposed of by at least one Illinois court. See

Hernandez v. Bernstein, 2011 IL App (1st) 102646, ¶ 10, aff’d sub nom. Hernandez

v. Pritikin, 2012 IL 113054, ¶ 10; see also Richter, 2016 IL 119518, ¶¶ 39–40;

Piagentini v. Ford Motor Co., 387 Ill.App.3d 887, 893–95 (2009). In Hernandez, the

court understood Hudson v. City of Chicago, 228 Ill.2d 462 (2008), to stand for the

proposition that all final orders become immediately appealable upon voluntary

dismissal of an action; but not that non-final orders become final upon voluntary

dismissal of an action. Id. at ¶ 10 (citing Piagentini, 387 Ill.App.3d at 895). The

court then concluded that because there was no final order from the circuit court,

res judicata did not apply. Id. at ¶¶ 9–10 (“[A]n order dismissing a complaint but

granting leave to replead is not a final order for purposes of res judicata until the

trial court enters an order dismissing the suit with prejudice.”) (quoting Williams v.

Ingalls Memorial Hospital, 408 Ill.App.3d 360, 364 (2011)).

Like Hernandez, there was no final judgment on the merits in the prior

action here. Foggey sought administrative review of the Board’s decision in circuit

court. Next, he successfully moved the circuit court for an extension of time to file

his brief in support of administrative review. But, before he filed that brief, he

moved to voluntarily dismiss the action without prejudice and with leave to refile.

The circuit court granted his motion; its order states, in relevant part: “It is hereby

ordered that the motion is granted and this lawsuit is voluntarily dismissed with

leave to refile.” [28-2] at 39. Since the order allows Foggey to refile his complaint,

the litigation between the parties may continue, and it has not been terminated.8

Defendants failed to establish the first requisite element of claim preclusion under

Illinois law. I need not consider the parties’ dispute over the second element or

address the issue of privity between the City and the CPD defendants or the Board

defendants. The motion to dismiss is denied as to the issue of res judicata.

Foggey may proceed on his Title VII claims, but only against his employer,

the City. Since Title VII does not impose individual liability, see Williams v.

Banning, 72 F.3d 552, 553–54 (7th Cir. 1995), Foggey may not pursue those claims

against the CPD defendants.

B. Absolute Immunity

The Board defendants argue that they should be dismissed from this case

because the doctrine of absolute immunity protects members of a quasi-judicial

adjudicatory body from liability for their decisions. Foggey does not address this

8 Because there was not a final judgment on the merits in the circuit court, claim splitting

is not an issue here.

argument in his response brief, thereby forfeiting any arguments he may have. See

Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011). In any event, I agree

with the Board defendants.

“Few doctrines were more solidly established at common law than the

immunity of judges from liability for damages for acts committed within their

judicial jurisdiction.” Cleavinger v. Saxner, 474 U.S. 193, 199 (1985) (quoting

Pierson v. Ray, 386 U.S. 547, 553–554, (1967)). This doctrine of absolute immunity

extends to non-judges who perform quasi-judicial functions. Id. To determine

whether an official is entitled to absolute immunity, courts should consider the

characteristics of quasi-judicial functions, which the Supreme Court identified in

Butz v. Economou, 438 U.S. 478, 512 (1978): (1) the need to assure that the

individual can perform his functions without harassment or intimidation; (2) the

presence of safeguards that reduce the need for damages actions as a means for

controlling unconstitutional conduct; (3) the insulation from political influence; (4)

the importance of precedent; (5) the adversarial nature of the process; and (6) the

correctability of error on appeal. Heyde v. Pittenger, 633 F.3d 512, 517 (7th Cir.

2011) (citing Butz, 438 U.S. at 512). The official seeking absolute immunity bears

the burden of proof. Id.

These factors weigh in the Board’s favor here. The Board’s decision

concerning a police officer’s discipline necessarily involves public safety, see Kappel

v. Police Bd. of Chicago, 220 Ill.App.3d 580, 591 (1st Dist. 1991), therefore, there is

great need to ensure that the Board’s members are free to decide such issues

without outside influences. Board members are appointed to five-year terms, which

insulate them from political influence. Mun. Code Chi. 2-84-020. There are several

procedural devices that provide for an adversarial nature of the process, which

include written charges against the officer, an opportunity for the officer to be

heard, prohibition against hearsay, the officer’s right to counsel, right to be

confronted by the officer’s accusers, the right to cross-examine witnesses giving

evidence against the officer, the right to present witnesses and evidence on the

officer’s behalf, proceedings under oath, subpoena power to secure witnesses and

records, and a mandate that all proceedings be recorded. 65 ILCS 5/10-1-18.1

(1992); Municipal Code of Chicago 2-84-030. Decisions by the Board can be appealed

under the Administrative Review Law. 735 ILCS 5/3-101, et seq.; see also 65 ILCS

5/10-1-45 (1982).

As such, the Board members have carried their burden of showing that they

are entitled to absolute immunity for their actions involved in the quasi-judicial

proceedings, which culminated in Foggey’s termination. Since Foggey only alleges

that the Board members are liable for their involvement in these proceedings,

Foggey cannot state a claim against them. Defendants Lightfoot, Foreman, Balatte,

Conlon, Eaddy, Fry, Simpson, Sweeney, and Valenzuela are dismissed from this

action.

C. Discrimination Under 42 U.S.C. § 1981

Defendants argue that 42 U.S.C. § 1983 provides “the exclusive federal

remedy” for alleged § 1981 violations by state actors. [28] at 9 (citing Campbell v.

Forest Preserve Dist., 752 F.3d 665, 671 (7th Cir. 2014); Jett v. Dallas Independent

School Dist., 491 U.S. 701 (1989)); [66] at 7 (citing the same). Foggey asserts that a

state actor can be liable under § 1981, just as it can be liable under § 1983, when

“the execution of an official government policy or custom causes the alleged

constitutional injury.” [33] at 5 (quoting White v. City of Chicago, No. 96 C 3329,

1997 WL 392249, at *2 (N.D. Ill. July 8, 1997)). Foggey correctly cites the conclusion

in White, but the weight of binding authority supports defendants’ arguments. See

McQueen v. City of Chicago, 2014 WL 1715439, at *1 (N.D. Ill. 2014) (collecting

cases). The Supreme Court and the Seventh Circuit have held that violations of

§ 1981 are enforced against state actors by suits under § 1983, because § 1981 does

not provide any such remedies. Goldberg v. 401 N. Wabash Venture LLC, 755 F.3d

456, 467 (7th Cir. 2014) (citing Jett v. Dallas Independent School District, 491 U.S.

701, 731–32 (1989); Campbell, 752 F.3d 665). As discussed below, Foggey’s

complaint does not state a claim for relief against defendants under § 1983 or

Monell, and so Count III is dismissed.

D. Discrimination Under 42 U.S.C. § 1983

To state a claim for employment discrimination under § 1983, Foggey must

show that each defendant was personally involved in a “materially adverse action”

taken against Foggey because of racial discrimination. Lavalais v. Village of Melrose

Park, 734 F.3d 629, 635 (7th Cir. 2013); Miller v. Smith, 220 F.3d 491, 495 (7th Cir.

2000). An employment action is materially adverse when it involves “a significant

change in employment status,” Boss v. Castro, 816 F.3d 910, 917 (7th Cir. 2016)

(quoting Andrews v. CBOCS W., Inc., 743 F.3d 230, 235 (7th Cir. 2014)), and is

“more disruptive than a mere inconvenience or an alteration of job responsibilities.”

Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 779 (7th Cir. 2007) (quoting

Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004)).

Of the actions Foggey identifies, only his allegations concerning a hostile

working environment and his termination could constitute a materially adverse

employment action. The complaint includes conclusory allegations that the

discrimination “caused” the hostile work environment, see, e.g., [27] ¶¶ 62, 83; but

the response brief never refers to a hostile work environment. The CPD defendants

assume that Foggey’s allegations about Sergeants Mendoza, Padilla, and Gray

playing video footage of the incident over a few days in September 2014, which

Foggey says caused bias against him, were intended to support Foggey’s hostile

work environment theory. [66] at 13–14. To the extent that assumption is accurate,

the CPD defendants have a persuasive response: the three sergeants could not be

held liable for this activity because Foggey fails to show any link to his race, a

requisite element for a hostile work environment claim. See Racicot v. Wal-Mart

Stores, Inc., 414 F.3d 675, 677 (7th Cir. 2005).

With respect to Foggey’s termination, the City was the “actor,” not the CPD

defendants. The individual CPD defendants cannot be held liable under § 1983 for

an action they did not perform, see Iqbal, 556 U.S. at 676, and the City can only be

liable if Foggey can state a Monell claim. Monell v. Dep’t of Soc. Servs., 436 U.S. 658

(1978). As discussed later, Foggey cannot state a Monell claim; thus, Count IV is

dismissed.9

9 I do not reach the arguments concerning the affirmative defense of the statute of

limitations.

E. First Amendment Retaliation Under 42 U.S.C. § 1983

To establish a First Amendment retaliation claim, a public employee must

first prove that his speech is constitutionally protected. Kubiak v. City of Chicago,

810 F.3d 476, 481 (7th Cir.), cert. denied sub nom. Kubiak v. City of Chicago, Ill.,

137 S.Ct. 491 (2016). Speech is protected when a public employee speaks as a

citizen on a matter of public concern. Id. (citing Garcetti v. Cellabos, 547 U.S. 410,

418 (2006)). When public employees speak pursuant to their official duties, they do

not speak as citizens. Id. (quoting Garcetti, 547 U.S. at 421). “Determining the

official duties of a public employee requires a practical inquiry into what duties the

employee is expected to perform, and is not limited to the formal job description.”

Id. (citing Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008)). Given that

police officers have a duty to report police misconduct, defendants argue that

Foggey’s internal complaints constitute statements made pursuant to his official

duties rather than statements made as a citizen.

In response, Foggey says that his speech is protected because his speech

concerned information that he learned of as a victim of racial discrimination, not

because of his position as a public employee. [33] at 6–7 (citing Lane v. Franks, 134

S.Ct. 2369, 2379 (2014)). But, Lane does not support Foggey’s position. Rather, Lane

makes clear that the “critical question” is “whether the speech at issue is itself

ordinarily within the scope of an employee’s duties, not whether it merely concerns

those duties.” Id. (citing Garcetti, 547 U.S. at 421). It is well established that police

officers have a duty to report official misconduct. Forgue v. City of Chicago, 873 F.3d

962, 967 (7th Cir. 2017) (citing Roake v. Forest Pres. Dist. of Cook Cty., 849 F.3d

342, 346 (7th Cir. 2017); Kubiak, 810 F.3d at 481–82; Vose v. Kliment, 506 F.3d 565,

571 (7th Cir. 2007)). Since making an internal report was within the scope of

Foggey’s official duties and because the subject of his complaint concerned an

incident that occurred while he was on duty, I agree with defendants that when

Foggey communicated via internal complaints, he spoke as a public employee and

not as a private citizen.

Additionally, defendants note that Foggey’s internal complaints and his

charges of discrimination concerned his own employment and did not address a

matter of public concern. Foggey does not respond to this argument. Nevertheless,

the Seventh Circuit makes clear that “speech that serves a private or personal

interest, as opposed to a public one, does not satisfy the standards for First

Amendment protections.” Houskins, 549 F.3d at 492; see also Kubiak 810 F.3d at

482 (“The Supreme Court has defined ‘public concern’ to mean ‘legitimate news

interest,’ or ‘a subject of general interest and of value and concern to the public at

the time of publication.’”) (internal quotation marks omitted) (quoting City of San

Diego v. Roe, 543 U.S. 77, 83–84 (2004) (per curiam)). Although discrimination is

certainly a public concern, when a public employee’s communication only addresses

the personal effects of such discrimination, the speech does not rise to the level of a

matter of public concern, and it is not protected. See Phelan v. Cook County, 463

F.3d 773, 791 (7th Cir. 2006). That is true here; because Foggey’s internal

complaints and charges of discrimination were an attempt to combat the effect of

the City’s alleged racial discrimination against Foggey, individually, his speech in

those instances was not a matter of public concern. Foggey’s speech is not protected

and he cannot state a First Amendment Claim. Count VI is dismissed.10

F. Due Process Violation Under 42 U.S.C. § 1983

The City makes three arguments to support dismissal of Foggey’s due process

claim. First, Foggey has no protected interest in the investigation of his internal

complaints. [28] at 11 (citing Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.

1996); Swick v. City of Chicago, 11 F.3d 85, 86–87 (7th Cir. 1993)). Second, the

Board hearing satisfied the standard set in Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 546 (1985), because it included notice, the right to legal

counsel, cross examination, hearsay objections, and the chance to present witnesses

and evidence. [28] at 12 (citing 65 ILCS 5/10-1-18.1; Mun. Code Chi. 2-84-030).

Third, Foggey’s allegation, taken as true, that video footage of the incident was

broadcasted does not “overcome a presumption of honesty and integrity in those

serving as adjudicators.” [28] at 12 (citing Alston v. Smith, 840 F.3d 363, 368 (7th

Cir. 2016) (citation omitted)). Foggey did not respond to any of these arguments, nor

did he address his due process claim generally. Foggey has forfeited any arguments

in opposition to the motion to dismiss on this issue. Alioto, 651 F.3d at 721.

The CPD defendants similarly argue that due process does not attach to a

fact-finding investigation, which does not adjudicate or impose sanctions. [66] at 12

(citing Hannah v. Larche, 363 U.S. 420, 440–41 (1960)). Furthermore, playing a

video cannot violate due process or compromise an investigation when there is no

10 I do not reach the individual CPD defendants’ arguments about their lack of a retaliatory

action.

allegation that the individuals who participated in the adjudication of Foggey’s

discharge saw or learned of the video. Id. at 12–13 (citing Alston, 840 F.3d at 368).

Foggey also did not respond to these arguments. Instead, Foggey advances a

“stigma-plus” due process claim in his response brief. [84] at 19 (citing Paul v.

Davis, 424 U.S. 693 (1976)). His theory is that defendants’ public display of “certain

portions” of the video footage constituted defamatory statements, which were made

in order to assert that Foggey lacked the skills and integrity necessary to be a police

officer. Id. at 20.

As the CPD defendants argue, Foggey cannot state a “stigma-plus” claim,

because it requires that he show: (1) defendants made false and defamatory

statements about him, (2) the stigmatizing information was publicly disclosed, and

(3) he suffered a tangible loss of other employment opportunities as a result of

public disclosure. Strasburger v. Bd. of Educ., Hardin Cty. Cmty. Unit Sch. Dist. No.

1, 143 F.3d 351, 356 (7th Cir. 1998); Colaizzi v. Walker, 542 F.2d 969, 973 (7th Cir.

1976). Foggey offers no support for the proposition that playing authentic video

surveillance of him constitutes a false and defamatory statement. Nor does he show

that playing the video within CPD is a public disclosure. Finally, there is no

allegation that Foggey suffered a tangible loss of other employment, much less that

he lost such an opportunity because of the video footage.

The record further demonstrates that Foggey received adequate process

before being terminated from his police officer job with CPD. See Loudermill, 470

U.S. at 542. Count VII is dismissed.

G. Monell Liability

To state a Monell claim against a municipality, a plaintiff must establish “the

requisite culpability, (a ‘policy or custom’ attributable to municipal policymakers)

and the requisite causation (the policy or custom was the ‘moving force’ behind the

constitutional deprivation).” Montano v. City of Chicago, 535 F.3d 558, 570 (7th Cir.

2008) (quoting Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002)). With

respect to a municipal policy, a plaintiff must show (1) an express policy that causes

a constitutional deprivation; (2) “a widespread practice that, although not

authorized by written law or express municipal policy, is so permanent and well

settled as to constitute a custom or usage with the force of law”; or (3) a person with

final policymaking authority caused the constitutional injury. Gable, 296 F.3d at

537 (quoting Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir. 1994)).

In response to the City’s motion to dismiss the amended complaint for failure

to state a Monell claim, Foggey argues that the superintendent and board members

are final policymakers and their race-based decision to discharge him constitutes a

plausible Monell claim. [33] at 7 (citing Pembaur v. City of Cincinnati, 475 U.S. 469,

480 (1986) (“[I]t is plain that municipal liability may be imposed for a single

decision by municipal policymakers under appropriate circumstances.”).

A final policymaker has the authority to make policy, laws, or rules for the

conduct of government; “a person who merely implements existing law—rather than

creating it—does not act with policymaking authority.” Gianessi v. City of Pekin, 52

Fed. App’x 265, 268–69 (7th Cir. 2002) (citing Auriemma v. Rice, 957 F.2d 397, 399–

400 (7th Cir. 1992)). In Auriemma, the court reasoned that because the Municipal

Code of Chicago bans racial discrimination in the police department and only grants

the superintendent authority to manage the department pursuant to the city

ordinances, state law, and police board rules and regulations, the superintendent

could not be a final policymaker if he decided to discriminate on the basis of race, as

such a decision would not implement the will of the City. That holding is binding

here. When the superintendent and the board members discharged Foggey, they

were bound by the same laws and regulations as was the superintendent in

Auriemma. If they discharged Foggey on the basis of his race, they did so in

violation of the laws and regulations under which the serve, and therefore, they

could not have made that decision as a final policymaker for the City.

Although Foggey only raises the final policymaker argument in his response

brief, it seems that his complaint attempted to show a widespread de facto policy of

ignoring procedural and due process protections when conducting an investigation

for the BIA or the Board into the conduct of a black officer, but strictly adhering to

those procedures and protections when investigating the conduct of a white officer.

See [27] ¶¶ 33, 43. Even if Foggey had made such an argument in his response brief,

defendant’s motion should still be granted because Foggey’s allegations in the

complaint did not contain enough specificity on this issue. McCauley v. City of

Chicago, 671 F.3d 611, 616–17 (7th Cir. 2011) (“The required level of factual

specificity rises with the complexity of the claim.”); Lanigan v. Vill. of E. Hazel

Crest, Ill., 110 F.3d 467, 479 (7th Cir. 1997) (“There must be a ‘direct causal link

between a municipal policy or custom and the alleged constitutional deprivation.’”);

Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194, 202 (7th Cir. 1985)

(“Boilerplate allegations of a municipal policy, entirely lacking in any factual

support that a city policy does exist, are insufficient.”). The City’s motion to dismiss

Foggey’s Monell claims is granted.

H. Qualified Immunity

“Qualified immunity protects officers performing discretionary functions from

civil liability so long as their conduct does not violate clearly established statutory

or constitutional rights that a reasonable person would know about.” Houlihan v.

City of Chicago, 871 F.3d 540, 546 (7th Cir. 2017) (citation omitted). A right is

clearly established when a reasonable officer would have understood his actions as

violating the right at issue. Reichle v. Howards, 566 U.S. 658, 664 (2012).

Effectively, some existing precedent must have placed the statutory or

constitutional principles pertaining to that right beyond debate. Id. To decide

whether the defense of qualified immunity applies, courts consider (1) whether the

plaintiff has alleged a deprivation of a constitutional right; and (2) whether that

constitutional right was clearly established at the time of the alleged violation.

Bianchi v. McQueen, 818 F.3d 309, 319 (7th Cir. 2016).

Foggey argues that at the time of his discharge, his liberty interest in his

continued employment, his right to be free from racial discrimination in his

employment, and his right to speak on matters of public concern without fear of

retaliation, were all clearly established. See [84] at 17. Yet, as discussed above with

respect to each Count, Foggey has not sufficiently alleged a deprivation of a

constitutional right. For the same reasons that each count should be dismissed,

defendants prevail on their arguments that qualified immunity applies here.

IV. Conclusion

Defendants’ motions to dismiss, [28], [66]—[69], [70]—[74], are granted in part

and denied in part. Foggey may proceed with his Title VII claims against the City,

but the individual defendants and the Monell claim against the City are dismissed

with prejudice.

ENTER:

Manish 8. Shah

United States District Judge

Date: February 5, 2018

11 The Board defendants’ absolute immunity and Foggey’s failure to allege plausible § 1983

claims against the individual defendants after amending once in response to a motion to

dismiss, see [16] at 12-13, [22], demonstrate that further amendment would be futile.

22