Connelly v. Cook County, an Illinois Municipal Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARGARET CONNELLY, )

)

Plaintiff, ) Case No. 19-cv-07894

)

v. ) Judge Sharon Johnson Coleman

)

COOK COUNTY, ILLINOIS, an Illinois )

Municipal Corporation, and Cook County )

Assessor FRITZ KAEGI, Individually, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case arises out of plaintiff Margaret Connelly’s termination from the Cook County

Assessor’s Office. Plaintiff filed this complaint against defendants Cook County the municipality

and Fritz Kaegi, individually, for wrongfully terminating her in violation of her First Amendment

rights under 42 U.S.C. § 1983. Plaintiff’s complaint also asserts a claim pursuant to Monell v.

Department of Social Services against Cook County. 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Defendants move to dismiss the complaint for failure to state a claim. For the reasons set forth

below, defendants’ motion is granted in part without prejudice and denied in part.

Background

The Court takes the following facts from plaintiff’s complaint as true for purposes of the

motion to dismiss. During the 2010 election for Cook County Assessor, plaintiff Margaret Connelly

distributed campaign materials and served as a poll watcher for Joseph Berrios. In June 2011, after

Berrios won the election, plaintiff was hired as the Executive Assistant to former Director of

Residential Valuation of the Cook County Assessor’s Office, Alfonso Sarro. During her tenure at

the office, plaintiff volunteered at several fundraisers for Berrios. Kaegi unseated Berrios in the

2018 Democratic primary election and ultimately won the election for Cook County Assessor.

Kaegi was sworn into office on December 3, 2018. On or around December 3, 2018, defendants

gave plaintiff a memo terminating her employment. Around the same time, Sarro was transferred to

a different department as the Director of Special Properties.

On January 3, 2019, an article quoted Kaegi as stating that he terminated employees whose

employment was exclusively because of nepotism. Kaegi’s chief communication officer also stated

that anyone linked to nepotism was no longer in the office. On January 23, 2019, Kaegi released a

report again noting that on his first day in office, he terminated employees who had obtained their

job purely through favoritism or nepotism.

Defendants move to dismiss the complaint for failure to allege a specific Cook County

policy to state a Monell claim, Cook County’s inability to be held liable for Kaegi’s actions, failure to

plead Kaegi was aware of plaintiff’s political affiliation, Kaegi’s entitlement to qualified immunity,

improperly asserting Section 1983 claims under the First Amendment, and failure to exhaust

administrative remedies.1

Legal Standard

When considering a Rule 12(b)(6) motion, the Court accepts all the plaintiff’s allegations as

true and views them in the light most favorable to the plaintiff. Lavalais v. Vill. of Melrose Park, 734

F.3d 629, 632 (7th Cir. 2013). A complaint must contain allegations that “state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A claim is facially plausible when the plaintiff “pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The plaintiff

does not need to plead particularized facts, but the allegations in the complaint must be more than

speculative. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

1 Plaintiff filed her response three weeks after the deadline to do so passed, failed to move the court for

extension of time, and did not acknowledge her mistake in any briefing. Regardless, the Court has considered

her response in its decision.

Analysis

Defendants’ Threshold Arguments

Defendants argue that Shakman v. Democratic Organization of Cook County required plaintiff to

report her claim of unlawful political discrimination to the Office of the Independent Inspector

General, Director of Compliance, or Assessor Compliance Administrator, but that plaintiff did not

do so and thus failed to exhaust her administrative remedies. 310 F. Supp. 1398 (N.D. Ill. 1969).

Defendants further suggest that the Court can dismiss a complaint for failure to exhaust if such

failure “is so clear from the face of the complaint that the filing is frivolous.” Walker v. Thompson,

288 F.3d 1005, 1011-12 (7th Cir. 2002). Plaintiff argues that she was not required to follow the

Shakman requirements because the assessor’s complaint form for unlawful political discrimination

notes that a victim “may seek relief in accordance with…Shakman…or by pursuing a claim under

applicable law.” Dkt. 25-1, pg. 2.

Here, the failure to exhaust administrative remedies is not so clear from the face of the

complaint as to warrant dismissal. The complaint form clearly allows potential victims to choose

whether they want to follow the procedures set forth in Shakman or whether they want to pursue a

claim under applicable law. Under the assessor’s own form, the plaintiff is not required to report

her claim to the OIIG, DOC, or ACA. Further, failure to exhaust is an affirmative defense that

plaintiffs do not need to plead around at the motion to dismiss stage. See, e.g., Craftwood II, Inc. v.

Generac Power Systems, Inc., 920 F.3d 479, 482 (7th Cir. 2019).

Defendants also argue that the complaint should be dismissed because plaintiff improperly

asserts a Section 1983 political discrimination claim under the First Amendment. They suggest that

plaintiff is attempting to circumvent the requirements of a Section 1983 claim by directly invoking

the First Amendment, citing to Allen v. City of Chicago, 828 F. Supp. 543, 563 (N.D. Ill. 1993) and

Strauss v. City of Chicago, 614 F. Supp. 9, 10 (N.D. Ill. 1984). But plaintiff is entitled to assert First

Amendment violations under Section 1983. In fact, Section 1983 specifically exists to allow claims,

including constitutional ones, against officials. There is no independent Section 1983 right. This

circuit and this court routinely hear Section 1983 claims for First Amendment violations. See Santana

v. Cook County Bd. of Review, 679 F.3d 614, 622 (7th Cir. 2012); see also Nelson v. Board of Education,

Country Club Hills School District 160, 292 F. Supp. 3d 792 (N.D. Ill. 2017). Plaintiff’s complaint does

not independently allege First Amendment violations. Defendants may, and do, challenge whether

Plaintiff has sufficiently alleged a Section 1983 claim, but plaintiff is well within her rights to assert a

First Amendment violation under Section 1983.

Whether the Qualified Immunity Defense Applies

Defendants suggest that Kaegi should be dismissed from the complaint because he is

protected under the doctrine of qualified immunity. To defeat the defense of qualified immunity, (1)

the plaintiff must set forth facts that, when viewed in her favor, constitute a constitutional violation,

and (2) the right was “clearly established” at the time of the alleged constitutional violation. Siddique

v. Laliberte, 972 F.3d 898, 902–03 (7th Cir. 2020). Here, defendants argue that the plaintiff has not

identified a violation of a constitutional right.

Plaintiff specifically alleges that defendants violated the First Amendment, which “forbids

government officials from discharging employees based on their political affiliation.” Hanson v.

LeVan, 967 F.3d 584, 588 (7th Cir. 2020) (citing Rutan v. Republican Party of Ill., 497 U.S. 62, 64, 110

S.Ct. 2729, 111 L.Ed.2d 52 (1990)). “[F]or some government jobs, political affiliation is an

appropriate position requirement,” Hanson, 967 F.3d at 588, but that is not the situation here. In any

event, plaintiff has sufficiently alleged a First Amendment political association claim under the

federal pleading standards. She alleges that she worked for Kaegi’s rival, Berrios’s office, starting in

2011, specifically for the director of residential valuation. She further alleges that before and after

she worked for Berrios, she volunteered at approximately fourteen of his fundraisers. She also states

that once Kaegi was sworn into office, he terminated the employees at the assessor’s office who

Berrios had hired or were known to politically associate with Berrios. These allegations plausibly

allege that Kaegi terminated her employment based on her political affiliation. See Iqbal, 556 U.S. at

678, 129 S.Ct. 1937 (complaint is plausible on its face when plaintiff alleges “factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.”). That Kaegi knew of her political affiliation can be inferred from plaintiff’s numerous

fundraising and political activities during the primary election pitting Berrios against Kaegi. Also,

Kaegi had personal involvement in the alleged constitutional deprivation because plaintiff alleges

that he tendered her a memo terminating her employment.

As to the second element of qualified immunity, it has been clearly established for decades

that “dismissal of a public employee on the basis of political affiliation violates the employee’s First

Amendment rights.” Hanson, 967 F.3d at 592 (citing Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49

L.Ed.2d 547 (1976)). Kaegi’s arguments that he fired plaintiff based on nepotism and favoritism are

best left for summary judgment because, at this juncture, the Court must view plaintiff’s allegations

and all reasonable inferences as true.

Whether Cook County is Liable for Kaegi’s Actions

Defendants argue that respondeat superior liability only applies to county employees and not

independent county officers. Defendants specify that the Cook County Assessor, Kaegi, is an

independently elected official that is not subject to Cook County’s control. See Thompson v. Duke,

882 F.2d 1180, 1187 (7th Cir. 1989) (finding that sheriffs are independently elected officials not

subject to the control of Cook County). Plaintiff argues that to plead municipal liability for a Monell

claim, she need only show that her constitutional injury was caused by a person with final

policymaking authority. Plaintiff further argues that she has alleged that Kaegi was the final

policymaker for Cook County.

Plaintiff's arguments are erroneous and unsupported. Plaintiff provides no support for her

bare allegation that Kaegi is the final policymaker for Cook County. Kaegi is plausibly the final

policymaker for the Cook County Assessor’s Office. However, this complaint is brought against

Cook County the municipality, not the Cook County Assessor’s Office. Further, it 1s well

established in this circuit that a county cannot be held hable under Mone// Section 1983 claims for the

actions of independently elected officials not subject to their control. Ryan v. County of DuPage, 45

F.3d 1090, 1092 (7th Cir. 1995); see also Bereguist v. Milaxzo, 2020 WL. 757902 at *5 (N.D. Ill. 2020)

(Blakey, J.). ‘The relevant inquiry is whether Cook County the municipality has the authority to hire

and fire employees from the Cook County Assessor’s Office. It does not. The Cook County

Assessor and the Cook County Assessor’s Office are responsible for employee decisions. Just as

sheriffs are independently elected officials responsible for their office, the assessor is an

independently elected official responsible for their office. ‘The assessor answers to the electorate,

not to the Cook County Board of Commissioners. Accordingly, defendant’s motion is granted

without prejudice and Cook County is dismissed from the entirety of the lawsuit.

Conclusion

The Court grants in part and denies in part defendant’s motion to dismiss [20]. Cook

County is dismissed as a named defendant to this lawsuit. The Court grants plaintiff leave to file an

amended complaint identifying the proper Cook County entity. The Court denies the remainder of

defendant’s motion.

IT IS SO ORDERED.

Date: March 22, 2021 Entered: UG : li b “ae

SHARON'JOHNSON COLEMAN

United States District Court Judge