Kresch v. Northeast Illinois Regional Commuter Railroad Corp.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

METROPOLITAN ALLIANCE OF )

POLICE and JOSEPH KRESCH, President, )

Metropolitan Alliance of Police, Chapter 267, )

)

Plaintiffs, )

)

v. ) 18 C 2468

)

NORTHEAST ILLINOIS REGIONAL )

COMMUTER RAILROAD CORP. and )

JOSEPH PEREZ, in his individual and )

official capacity, )

)

Defendants. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Before the Court is Defendants Northeast Illinois Regional Commuter Railroad

Corp. d/b/a Metra (“Metra”) and Joseph Perez’ (“Perez”) (collectively, “Defendants”)

Motion to Dismiss (“Motion”) Plaintiffs Metropolitan Alliance of Police and Joseph

Kresch’s (“Kresch”) (collectively, “Plaintiffs”) Complaint pursuant to Federal Rules of

Civil Procedure 12(b)(1), (b)(3), and (b)(6). For the following reasons, Defendants’

Motion is granted in part and denied in part.

BACKGROUND

The Court accepts as true the following well-pled allegations from Plaintiffs’

Complaint and attached exhibits. All possible inferences are drawn in Plaintiffs’ favor.

Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (iterating the 12(b)(6)

standard); Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995) (iterating the 12(b)(1)

standard). Additional background information has been gleaned from exhibits attached

to Defendants’ Motion. See discussion infra LEGAL STANDARD.

Defendant Metra is a municipal corporation of the State of Illinois with its

principal place of business in Chicago. Metra, the primary operator of commuter

passenger rail services in the six-county metropolitan area in Northeast Illinois, is a

“carrier” as defined by the Railway Labor Act (“RLA”), Title 45 U.S.C. § 151 et seq.

Of its 4400 employees, Metra employs approximately 120 police officers. Defendant

Perez is the Chief of Police of the Metra Police Department.

Plaintiff Metropolitan Alliance of Police (“MAP”) is a labor organization

composed of police officers and other police-related employees who maintain full or

part-time employment with government agencies, operating upwards of 200 chapters

representing over 5000 members. Since 2003, MAP has been the certified labor

organization authorized to represent employees of Metra, the craft or class of police

officers below the rank of Captain, for purposes of the RLA. MAP, Chapter 267

(“Chapter 267”) represents approximately ninety-two police officers at all Metra

locations. Plaintiff Kresch, a resident of Carpentersville, IL, is President of Chapter

267, charged with representing the local organization, processing grievances,

collectively bargaining with Metra, and enforcing the rights of Chapter 267’s members.

a. Kresch’s Purportedly Protected Activity

As President of Chapter 267 and since May 2014: Kresch has filed approximately

thirty-eight separate grievances challenging the actions of Metra and Perez; represented

approximately fifty members during Metra disciplinary investigations; issued

“countless” written and verbal objections or other protests challenging the actions of

Metra and Perez; engaged in “numerous” discussions with Perez and other Metra

representatives about his members’ legal rights; and engaged in “numerous”

discussions and meetings with Perez and other Metra representatives regarding Metra’s

failure to provide safety and well-being to the public by neglecting to provide adequate

staffing levels, safety and radio equipment, firearms, and use of force training.

From approximately May 2012 to September 2015, Kresch represented Chapter

267 at the bargaining table for a successor collective bargaining agreement (“CBA”)

with Metra. During this process, the parties were unable to resolve numerous

differences and engaged in mediation in Washington, D.C. beginning in August 2016

(the “Mediation”). The Mediation, a significant financial expense for Metra, was the

first time that Chapter 267 required Metra and Perez to travel to Washington, D.C. to

resolve a CBA. The negotiations between 2012 and 2015 were also significantly more

expensive for Metra than any previous negotiation between Metra and Chapter 267.

Additionally, the CBA reached in the Mediation was “significantly more expensive”

than what Metra had previously offered.

In the summer of 2016, Kresch complained to Perez and other Metra

representatives that their enforcement policies and efforts to discipline officers may

have violated the Bill of Rights for the Homeless Act, 775 ILCS 45/1 et seq. Kresch’s

complaint concerned the discipline of Chapter 267 member David Lee and Metra’s

alleged targeting and discrimination against homeless individuals at Chicago Metra

stations.

In December 2016, Kresch complained to Metra Chief Executive Officer Donald

Orseno and to the Metra Head of Safety regarding perceived health and safety concerns

borne from a continuing water and sewage line blockage. The blockage allegedly

resulted in a lack of potable water, unsafe and unsanitary working conditions, a buildup

of urine and feces due to non-working flush toilets, and a blocked drain sewer at the

Blue Island Metra Police Station.

In April 2017, Kresch raised concerns with Perez that Metra appeared to be

discriminating against African Americans and older employees, denying them

representation rights, disciplining them more harshly, and treating them less favorably

than white and younger employees.

In August 2017, Kresch, invoking the RLA, disputed Metra’s implementation of

a new general order that would have restricted other employment opportunities for

Chapter 267 members. Metra rescinded the order within one week of receiving

Kresch’s written objection.

In the fall of 2017, Kresch advised the membership of Chapter 267 and the

leadership of the other Metra Unions that Metra failed to renew a $14 million grant that

would have continued to provide for the safety and security of the public. Kresch

alleges that his communications with union members were conducted both on and off

duty and with the full knowledge of Perez and Metra.

b. Alleged Retaliation by Metra

On or about August 31, 2017, Kresch was notified that he was being investigated

as to whether he falsified payroll records and misrepresented time worked. The

investigation also considered if Kresch failed to devote himself exclusively to Metra

duties while on duty by conducting personal business by picking up Chapter 267 mail

at a UPS store, in full uniform and using a Metra-owned vehicle, on nine separate

occasions.

On October 4, 5, and November 1, 2017, investigation hearings were held.

Kresch’s immediate supervisors testified that the UPS store was within Kresch’s work

beat, Kresch was authorized to be at that location while on duty, and Kresch was

permitted to take breaks without requesting permission. The supervisors also testified

that during these breaks, Kresch was permitted to eat, sleep, use the restroom, use the

ATM, go into a store, take personal breaks, and read, all without asking permission.

Kresch alleges that his average break was less than one minute, and the total amount of

time that he spent at the UPS store was approximately eleven minutes combined over

nine occasions. Kresch also alleges that there is no mechanism in the Metra

timekeeping system to record breaks as short as those for which Kresch was under

investigation.

The investigative record demonstrated that while Kresch worked for more than

eight hours on each day that included a visit to the UPS store, he was paid for only eight

hours on each occasion. The record also demonstrated that, as Chapter 267 President,

Kresch could adjust his time to conduct union business and did not need to request

permission to do so.

Kresch was found guilty by Metra and received a ten-day suspension without

pay. Kresch alleges that no other Metra police officer has ever been disciplined for

taking short breaks while on duty and Metra and Perez “pre-determined” the level of

punishment to assess to Kresch before the investigation. Because of his suspension,

Kresch has been placed on “last-chance status,” which authorizes his termination for

any other rule violation, regardless of how minor, for a period of two years. Kresch’s

appeal of his suspension, brought under the CBA and RLA, is pending.

On November 29, 2017, after the investigation’s conclusion, Kresch submitted a

written notice via inter-office mail and email to Perez through administrative secretary

Marchell Redmond (“Redmond”) to inform Perez of Kresch’s pending secondary

employment as a part-time police officer in Fox River Grove. Metra and Chapter 267’s

CBA does not require members to obtain Metra’s approval to work secondary

employment. Metra and Perez, however, require Chapter 267 members to notify Metra

of secondary employment on an annual basis.

On December 5, 2017, Redmond advised Kresch that he would be notified within

a day or two regarding his secondary employment. Nine days later, on December 14,

2017, Redmond informed Kresch that his notice was “lost” and he would need to file a

new document. Kresch did so the next day, December 15. On December 19, 2017,

Redmond notified Kresch that he needed to change his notice and resubmit, which

Kresch did the following day, December 20. Almost two full weeks later, on January

2, 2018, Perez denied Kresch’s right to work secondary employment, claiming a

conflict of interest between Metra and the Fox River Grove Police Department.

Kresch alleges that other Chapter 267 members work secondary employment,

some as part-time police officers and law enforcement trainers, and Metra and Perez

have never denied any other MAP member the right to work secondary employment.

Nor have they ever rejected the secondary employment notice of any other MAP

member or requested a re-submission. Metra also does not typically respond in any

way to the notifications by Chapter 267 members regarding secondary employment.

Kresch alleges that he has lost and continues to lose income that he would otherwise

have earned as a part-time officer in Fox River Grove.

Kresch spent December 2017 and January 2018 running for re-election as

President of Chapter 267. Kresch alleges that, during the election period, Perez directly

contacted Chapter 267 members to attempt to convince them to run for President against

Kresch and/or to not support Kresch’s election bid. Perez also tried to convince union

members to elect someone other than Kresch. Kresch alleges that Perez’ actions

interfered with the election and served to sow discord within Chapter 267. Kresch was

ultimately reelected, but he alleges that Perez’ actions dealt Kresch a loss of significant

support from the union’s membership.

c. The Collective Bargaining Agreement

In December 2017, Perez announced a new work rule regarding the use of

Portable Audio Video Recorders. That same month, Kresch notified Metra in writing

that Chapter 267 believed that the imposition of said rule violated the RLA. The CBA

does not authorize Metra to audio and video record the actions of union members, and

the new rule imposed surveillance requirements on officers’ work duties, including the

mandatory use of Portable Audio Video Recorders. Previously, such use was voluntary.

The new rule also subjected Chapter 267 members to potential disciplinary action. On

or about January 31, 2018, and over Kresch’s objection, Metra implemented the new

policy.

In or about January 2018, Metra also implemented a new Secondary

Employment Policy that imposed new working conditions on Chapter 267 members.

This despite Metra having rescinded a different secondary employment restriction,

discussed supra BACKGROUND § a., five months prior in August 2017. The

Secondary Employment Policy restricted the actions of off-duty union members and

interfered with their ability to earn additional income while off duty.

The CBA contains a number of relevant Rules, the following of which are

relevant to this dispute. Pursuant to Rule 1, “Scope,” the CBA covers “the rates of pay,

hours of service, benefits, and working conditions of all employees classified herein as

Police Officers.” Rule 2, “Definition of Police Officer,” defines “Police Officers” as

lieutenants, sergeants, and patrolmen.

Rule 22, “Machines, Equipment, and Supplies Furnished,” states in relevant part:

(a) If [Metra] requires an employee to use…equipment and supplies in

the performance of service for the company, such items shall be furnished

and maintained by the company, without expense to the employee.

Rule 25, “Investigation and Discipline,” states in relevant part:

(a)…An employee may be held out of service for serious offense(s)

pending an investigation and decision thereafter. The employees shall be

notified in writing of the specific charge against him…. Employees will

be permitted to have up to two duly accredited representatives along with

witnesses of their choice present….

(c) If an employee or the duly accredited representative is not satisfied

with the decision rendered following the investigation, an appeal may be

made in accordance with Rule 27.

Rule 26, “Unjust treatment,” states in relevant part:

(b) An employee who considers himself unjustly treated shall have the

same right of hearing and appeal as provided in Rule 25 if written request

containing specific reasons for complaint is made to his immediate

superior or appropriate officer of [Metra] within thirty (30) days of the

cause of the complaint.

(c) This rule does not apply to grievances in connection with time claims

or to the appeal of [Metra] decisions made pursuant to Rule 25 which must

be progressed in accordance with provisions of Rule 27.

Rule 27, “Time Limit on Claims and Grievances,” states in relevant part:

(a) All claims and grievances must be presented, in writing…within sixty

(60) days from the date of the occurrence on which the claim or grievance

is based….

(b) If a disallowed claim or grievance is to be appealed, such appeal must

be in writing and must be taken within sixty (60) days from receipt of

notice of disallowance and the representative of [Metra] shall be notified

in writing within that time of the rejection of his decision…. It is

understood…that the parties may, by agreement, at any stage of the

handling of a claim or grievance on the property, extend the sixty (60) day

period for either a decision or appeal, up to and including the highest

officer of [Metra] designated for that purpose.

(c) The requirements outlined in paragraphs (a) and (b) pertaining to

appeal by the employee and decision by [Metra] shall govern in appeals

taken to each succeeding officer, except in cases of appeal from the

decision of the highest officer designated by [Metra] to handle such

disputes. All claims or grievances involved in a decision by the highest

designated officer shall be barred unless within nine (9) months from the

date of said officer’s decision proceedings are instituted by the employee

or his duly accredited representative before the Division of the National

Railroad Adjustment board or a system, group, or regional board of

adjustment….

Rule 52 defines “Duly Accredited Representative” as “the elected Chapter

President and/or official Board Officer…representing the employees covered by the

Agreement, under the provision of the [RLA] and signatory hereto.” Under Rule 52,

“duly accredited representatives will be granted necessary time off to conduct

Organization business.”

* * *

On April 6, 2018, Plaintiffs filed their six-count Complaint, which states the

following causes of action. Counts I and II, brought by Kresch individually under 42

U.S.C. § 1983, the First Amendment of the United States Constitution, and Article I,

§§ 4 and 5 of the Illinois Constitution, allege retaliation in violation of Kresch’s right

to free speech and association. Count I is alleged against Perez in his individual

capacity; Count II is against both Perez in his official capacity and Metra. Plaintiffs

bring Counts III, IV, V, and VI pursuant to the RLA, 45 U.S.C. § 152, First, Third,

Fourth, and Ninth, respectively. In relevant part, those statutory provisions state as

follows. 45 U.S.C. § 152, First:

It shall be the duty of all carriers, their officers, agents, and employees to

exert every reasonable effort to make and maintain agreements concerning

rates of pay, rules, and working conditions, and to settle all disputes,

whether arising out of the application of such agreements or otherwise, in

order to avoid any interruption to commerce or to the operations of any

carrier growing out of any dispute between the carrier and the employees

thereof.

45 U.S.C. § 152, Third:

[N]either party shall in any way interfere with, influence, or coerce the

other in its choice of representatives.

45 U.S.C. § 152, Fourth:

[I]t shall be unlawful for any carrier to interfere in any way with the

organization of its employees, or to use funds of the carrier in maintaining

or assisting or contributing to any labor organization, labor representative,

or other agency of collective bargaining, or in performing any work

thereof, or to influence or coerce employees in an effort to induce them to

join or remain or not to join or remain members of any labor

organization….

45 U.S.C. § 152, Ninth:

[T]he carrier shall treat with the representative so certified as the

representative of the craft or class for the purposes of this chapter….

Each of the six counts seeks some discrete form of injunctive, declaratory, and

compensatory relief.

LEGAL STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests

the sufficiency of the Complaint, not the merits of the case. McReynolds v. Merrill

Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012). The allegations in the Complaint must

set forth a “short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). Plaintiffs need not provide detailed factual allegations,

but they must provide enough factual support to raise their right to relief above a

speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

A claim must be facially plausible, meaning that the pleadings must “allow[] 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). The claim must be described

“in sufficient detail to give the defendant ‘fair notice of what the…claim is and the

grounds upon which it rests.’” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773,

776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “[D]ocuments attached to a

motion to dismiss are considered part of the pleadings if they are referred to in the

plaintiff’s complaint and are central to his claim,” and may be considered in a district

court’s ruling on a motion to dismiss. Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244,

1248 (7th Cir. 1994). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements,” are insufficient to withstand a 12(b)(6)

motion to dismiss. Iqbal, 556 U.S. at 678.

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) tests

the jurisdictional sufficiency of the Complaint, but it is otherwise “analyzed as any other

motion to dismiss.” United Phosphorus, Ltd., v. Angus Chem. Co., 322 F.3d 942, 946

(7th Cir. 2003), overruled on other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683

F.3d 845 (7th Cir. 2012). For 12(b)(1) considerations, the 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.” Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993) (internal

citation and quotation marks omitted). “The burden of proof on a 12(b)(1) issue is on

the party asserting jurisdiction.” United Phosphorus, 322 F.3d at 946.

DISCUSSION

I. Jurisdictional Considerations under Rule 12(b)(1)

Before the Court can entertain the RLA-based claims, Counts III, IV, V, and VI,

it must tend to a critical jurisdictional question: whether the discrete factual disputes

alleged in the Complaint are “major” or “minor.” This inquiry is vital, since “[a] minor

dispute in the railroad industry is subject to compulsory and binding arbitration before

the National Railroad Adjustment Board…or before an adjustment board established

by the employer and the unions representing the employees.” Consol. Rail Corp. v. Ry.

Labor Execs.’ Ass’n, 491 U.S. 299, 303 (1989) (“Conrail”). “[The labor board] has

exclusive jurisdiction over minor disputes.” Id. at 304. “The upshot: because the RLA

compels arbitration of minor disputes, this Court lacks subject-matter-jurisdiction over

such disputes.” Bhd. of R.R. Signalmen v. Connex R.R., LLC, 184 F.Supp.3d 645, 647

(N.D. Ill. 2016).

The Supreme Court has “defined minor disputes as those involving the

interpretation or application of existing labor agreements.” Hawaiian Airlines, Inc. v.

Norris, 512 U.S. 246, 256 (1994); see Conrail., 491 U.S. at 305 (“The distinguishing

feature of [a minor dispute] is that the dispute may be conclusively resolved by

interpreting the existing [CBA]”). As a jurisdictional requirement, Plaintiffs carry the

burden of showing that their allegations are not minor. United Phosphorus, 322 F.3d

at 946.

It is with this burden in mind that the Court expresses its profound befuddlement

at Plaintiffs’ failure to oppose Defendants’ lengthy argument that the Complaint raises

exclusively minor disputes. Rather than substantively respond to Defendants’ minor-

dispute contentions, Plaintiffs posit, without citation to any caselaw, “The fact

Defendants opine this is a minor dispute, is not appropriate for a Motion to Dismiss

under Rule 12. Therefore, [the Motion] pursuant to Section 12(b)(1) must be denied in

its entirety.”

Plaintiffs’ posture is perplexing. Rule 12(b)(1) exists precisely for the situation

presently before the Court, to dispose of cases that district courts lack the authority to

adjudicate. Moreover, aplenty is the binding precedent from the Seventh Circuit

affirming district courts’ 12(b)(1) dismissals. See Monroe v. Mo. Pac. R.R. Co., 115

F.3d 514 (7th Cir. 1997) and Bielicke v. Terminal R.R. Ass’n, 30 F.3d 877 (7th Cir.

1994) (each affirming district courts’ 12(b)(1) dismissals under the RLA of plaintiffs’

employment disputes with their employer railroad companies). Plaintiffs were wrong

to suggest that Defendants improperly raised the major-minor dispute issue at the

12(b)(1) stage, and their citation to Vidovic v. Losinjska Plovidba Oour Broadarstvo, a

1994 Eastern District of Pennsylvania case, is unavailing. 868 F.Supp. 691 (E.D. Pa.

1994). Vidovic is non-binding, and Plaintiffs rely exclusively on its discussion of

pleading standards that have long since been contravened in this circuit and others.

And, since it is Plaintiffs’ burden to show that the Court has jurisdiction over their

claims – a burden they have plainly failed to carry in light of Defendants’ compelling

arguments that the allegations before the Court indicate minor disputes – their oversight

is not only problematic, it is fatal.

In the interest of justice, we address Defendants’ applications of Rule 12(b)(1)

to the Complaint’s distinct factual allegations. Before doing so, however, we note that

the well-established consequence of Plaintiffs’ failure to respond to Defendants’ minor-

dispute argument is concession. “It is not the obligation of this court to research and

construct the legal arguments open to parties, especially when they are represented by

counsel.” Beard v. Whitley Cnty. REMC, 840 F.2d 405, 408—09 (7th Cir. 1988).

“Longstanding under our case law is the rule that a person waives an argument by

failing to make it before the district court. We apply that rule…where a litigant

effectively abandons the litigation by not responding to alleged deficiencies in a motion

to dismiss.” Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011). Although the

Court has considered Defendants’ position substantively and found it meritorious on

the 12(b)(1) issue, the Court stresses that any opposition to our conclusion was waived

when Plaintiffs abandoned their jurisdictional responsibility.

Turning to the substance of the Motion, Plaintiffs point out that MAP and Metra

collectively bargained for discipline, unjust treatment, and grievances. The propriety

of both Kresch’s 10-day suspension and the investigation that led to said discipline are

questions requiring the interpretation of the CBA’s relevant provisions, namely Rules

25, 26, and 27. Such an interpretative question is squarely within the contours of a

minor dispute, and beyond this Court’s jurisdiction. See Monroe, 115 F.3d at 519

(finding a minor dispute where the allegations did not merely raise the employee’s

discipline, but rather “involve[d] the propriety of [the plaintiff’s] discharge”); Bielicke,

30 F.3d at 878 (finding a minor dispute where the complaint alleged that the defendant

company “‘unfairly and vindictively investigated’ the plaintiffs”).

The same goes for Metra’s decisions to deny Kresch’s secondary employment

request. Defendants’ decision to withhold such opportunity does not glisten with good

nature and fairness. Nonetheless, working conditions are the subject of Rule 1, and a

determination of their scope necessarily requires interpretation of the CBA. That we

remain skeptical of the impartiality of Metra’s decision-making process does not vest

the Court with the jurisdictional authority to jurisprudentially delve into our moral

curiosity.

The body camera issue also falls neatly within the contours of the CBA. Rule

22 is a seemingly by-the-book equipment policy. Any grievance with the body camera

implementation must grapple with the language of Rule 22. As Defendants point out,

Conrail unambiguously supports the proposition that, in a contractual agreement, the

absence of presaged circumstantially specific language does not inherently undermine

a CBA to the extent that unforeseen discrete disputes automatically become major. 491

U.S. at 318. “[L]abor laws do not require all the details of particular practices to be

worked out in advance.” Id. Rule 22 contemplates equipment distribution and usage,

and the decision to require body cameras inheres in that language.

It is these three groupings of allegations – Defendants’ discipline of Kresch,

Defendants’ denial of Kresch’s secondary employment request, and Defendants’

implementation of the body camera policy – that comprise Plaintiffs’ essential

accusations of misconduct. Under the RLA, which grounds Counts III-VI, these

allegations raise minor disputes. The Court retains no jurisdiction over such disputes,

and it dismisses Counts III, IV, V, and VI under Rule 12(b)(1).1

1 Defendants also mention Rule 12(b)(3) in their Motion as a ground for dismissal. They do not develop this argument

in any way, shape, or form. And, in any event, any relief available under 12(b)(3) would merely duplicate the effect

of our 12(b)(1) ruling. Because the RLA counts are dismissed under 12(b)(1), the Court declines to entertain

Defendants’ arguably nonexistent 12(b)(3) contention.

II. Free Speech Claims – Counts I & II

a. Illinois Constitution

“[W]here adequate remedies exist under state common law or federal law for

certain causes of action, a plaintiff may not maintain an independent cause of action

under the Illinois Constitution.” S.J. v. Perspectives Charter School, 685 F.Supp.2d

847, 862 (N.D. Ill. 2010). Pursuant to this principal, Defendants request dismissal of

the first two counts’ independent causes of action brought under the Illinois

Constitution. Plaintiffs do not contest Defendants’ request, and their requests for relief

under § 1983 and the First Amendment demonstrate an adequate federal free speech

remedy. Insofar as Counts I and II press independent claims under the Illinois

Constitution, they are dismissed.

b. Count II Against Perez in his Official Capacity

Similarly, Plaintiffs decline to oppose Defendants’ contention that claims against

public employees in their official capacity are duplicative of claims against the public

employer. Indeed, “[s]uits against state officials in their official capacity…should be

treated as suits against the State.” Hafer v. Melo, 502 U.S. 21, 25 (1991). Therefore,

Count II, as against Perez in his official capacity, is dismissed.

c. Actionability of the Free Speech/Association Claims

Left standing are Counts I and II, brought by Kresch as an individual, against

Perez in his individual capacity and Metra, respectively. Defendants ask the Court to

dismiss these counts for two distinct reasons. First, they urge us to find that the

Complaint fails to state a plausible free speech claim and dismiss the first two counts

under Rule 12(b)(6). Second, they claim that both counts are “preempted” by the RLA

and require dismissal. We address each argument in turn.

i. Failure to state a plausible free speech claim

Two years ago, in a case cited by Defendants, this Court elucidated a standard

for analyzing a claim of free speech retaliation. See Davis v. City of Chi., Ill., 162

F.Supp.3d 726, 731 (N.D. Ill. 2016), aff’d sub nom. Davis v. City of Chi., 889 F.3d 842

(7th Cir. 2018). We reiterate that standard here.

“To establish a claim for retaliation in violation of the First Amendment, a public

employee must prove that: (1) his speech was constitutionally protected, (2) he has

suffered a deprivation likely to deter speech, and (3) his speech was at least a motivating

factor in the employer’s action.” Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir.

2013). The first step in the analysis requires the Court to determine whether Kresch’s

speech is constitutionally protected. Such an inquiry is “a question of law to be decided

by the court.” Volkman v. Ryker, 736 F.3d 1084, 1089 (7th Cir. 2013). “For a public

employee’s speech to be protected under the First Amendment, the employee must

establish that she spoke as a citizen on a matter of public concern,” Kubiak v. City of

Chi., No. 14-3074, 2016 WL 106868, at *3 (7th Cir. Jan. 11, 2016) (citing Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006)). Kresch must also show that “the state’s interests

as an employer in ‘promoting effective and efficient public service’” do not outweigh

the employee’s interest in expressing that speech. Swetlik, 738 F.3d at 825.

The threshold question and the focal point of the parties’ dispute is whether

Kresch was speaking as a citizen on a matter of public concern. “If the answer is no,

the employee has no First Amendment cause of action based on his or her employer’s

reaction to the speech.” Garcetti, 547 U.S. at 418. If, however, Kresch spoke as a

citizen on a matter of public concern, then he is subject to “only those speech restrictions

that are necessary for [his] employers to operate efficiently and effectively.” Id. at 419.

Strangely, Defendants go to the trouble of citing the standard this Court

propounded in Davis, only to fail to press an argument in keeping with its tenets. The

thrust of Defendants’ position is that Kresch’s “speech was motivated by personal

concerns, i.e., his discipline for doing union work while on Metra duty and the denial

of his secondary employment request.” To that end, certainly “if the objective of the

speech—as determined by content, form, and context—is simply to further a purely

personalized grievance, then the speech does not involve a matter of public concern.”

Kristofek v. Vill. of Orland Hills, 712 F.3d 979, 986 (7th Cir. 2013). Here, however,

most of the protected speech that Kresch highlights in his Complaint occurred before

either his disciplinary proceedings began or his secondary employment was denied.

How Kresch’s utterance of speech that preceded the imposition of his suspension could

have been motivated by then-nonexistent discipline is beyond the Court’s present

comprehension.

Moreover, Kristofek makes clear that, while “[t]he motive of the speaker is

relevant as part of the ‘context’ in which the speech was made,…content ‘remains the

most important factor in determining whether speech addresses a matter of public

concern.’” Id. at 984 (quoting Chaklos v. Stevens, 560 F.3d 705, 712 (7th Cir. 2009)).

In this case, the Court finds that the speech alleged in the Complaint, assumed to be true

for purposes of this Motion, rises to the level of public concern. Kresch’s speech

included complaints stemming back to 2014 about Metra’s failure to ensure the safety

and well-being of the public via its neglect of adequate staffing levels, safety and radio

equipment, firearms, and use of force training. A summer 2016 complaint focused on

Perez and Metra’s alleged targeting of and discrimination against homeless individuals

at Chicago Metra stations. An April 2017 complaint raised concerns over Perez and

Metra’s apparent discrimination against African American and older employees.

Defendants decline to suggest that these instances are anything but speech worthy of

public concern.

“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.’” Meade v. Moraine Valley Cmty. Coll., 770 F.3d 680, 684 (7th

Cir. 2014) (quoting City of San Diego v. Roe, 543 U.S. 77, 83—84 (2004)). The Court

believes that the speech alleged in the Complaint rises to this level. Because Kresch’s

speech, as alleged, was of public concern, Defendants raised no other substantive issue

with Kresch’s free speech claims, and Defendants offered no argument against Kresch’s

freedom of association claims, the Motion’s plea for Counts I and II’s dismissal under

Rule 12(b)(6) is denied.

ii. Preclusion

Having found Counts I and II substantively viable, we must now determine if

they are “precluded” by the RLA.2 Preclusion “under the RLA exists when ‘the success

of the claim is dependent upon an interpretation of the collective bargaining

agreement’s terms.’” Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 757 (7th Cir. 2008).

We have already determined that resolution of Counts III-VI necessarily require an

interpretation of the CBA at issue and are consequently beyond the jurisdiction of this

Court. Defendants contend that Counts I and II similarly depend upon a construction

of the CBA, and are so precluded by the RLA. Plaintiffs dedicate the bulk of their

opposition brief on this issue, their argument essentially boiling down to the proposition

that “Plaintiffs’ Constitutional claims are sufficient to stand apart from the need to

search for any allegations of contractual violations and therefore can proceed

independently.”

As Plaintiffs acknowledge, there is a frustrating dearth of precedent on the

intersection of the First Amendment, § 1983, and RLA preclusion. The only case-on-

point cited by either party is a 1980 decision from the Southern District of Georgia,

Hodges v. Tomberlin, 510 F.Supp. 1280 (S.D. Ga. 1980). In Hodges, the district court

equivocated, but ultimately declined to find that the RLA precluded the plaintiff’s free

speech retaliation claim, stating that it “cannot conclude…that § 1983 and the RLA do

2 The parties refer to the issue as one of “preemption.” It is a distinction without a functional difference, but disputes

potentially subject to mandatory arbitration raised in a federal claim, like those under § 1983 in Counts I and II, are

“precluded” – “preemption” is reserved for mandatorily arbitrated disputes raised in state law claims.

not provide supplementary rather than conflicting grounds for relief.” Id. at 1285. The

court did note that several then-recent cases “dealing with other statutes and the

[RLA]…support the proposition that [the RLA] is not to be construed as an exclusive

remedy.” Id. This proposition has since become axiomatic: “disputes over rights under

a collective bargaining agreement must be resolved by an arbitrator while claims based

on rights with an independent basis may be litigated as usual.” Carlson v. CSX Transp.,

Inc., 758 F.3d 819, 832 (7th Cir. 2014); see Rabe v. United Air Lines, Inc., 636 F.3d

866, 873 (7th Cir. 2011) (plaintiff’s Title VII, ADEA, and IHRA claims were not

precluded and preempted where they did not bring the relevant policy of the collective

bargaining agreement into dispute).

Here, we have determined that the propriety of the discipline that Kresch was

subjected to requires interpretation of the CBA. However, the appropriateness of said

discipline under the CBA is not contemplated in Kresch’s First Amendment claims. Put

another way, while Counts III-VI turn on an interpretation of Defendants’ conduct

under the CBA, Counts I and II require no such discernment. Rather, Kresch’s free

speech claims merely assert that the alleged retaliatory misconduct, untethered from its

sanction, licensure, or lack thereof by the CBA, violated Kresch’s First Amendment

right in and of itself. The Court is confident that this is what Plaintiffs had in mind

when they suggested that their Constitutional claims stood free and clear from their

RLA claims.

Whether Defendants operated within the strictures of the CBA, and pursuant to

the RLA, when they disciplined Kresch and denied him his secondary employment

request is a discrete question better left to the jurisdiction of the labor boards. The

separate questions of whether said discipline constituted a deprivation likely to deter

speech and was motivated by Kresch’s protected speech are “purely factual

questions...[n]Jeither of [which] requires a court to interpret any term of a collective-

bargaining agreement.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407

(1988). These are constitutional questions that stand independent of the RLA’s concern

for CBA interpretation. They are properly raised in federal court and not precluded by

the RLA. The Motion is denied as to the § 1983 free speech and association claims in

Counts I and II.

CONCLUSION

For the reasons above, the Defendants’ Motion is granted as to Counts III, IV,

V, and VI. It is also granted as to Count II’s inclusion of Perez in his official capacity

and the Illinois Constitutional claims in Counts I and II. It is denied as to the remaining

§ 1983 First Amendment claims in Counts I and II. It is so ordered.

Dated: 8/31/2018 CharlesP.Kocoras s—s—S

United States District Judge

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