Carey v. Chicago Transit Authority

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARLA CAREY,

Plaintiff, No. 20 C 7266

v. Judge Thomas M. Durkin

CHICAGO TRANSIT AUTHORITY,

Defendant.

MEMORANDUM OPINION AND ORDER

Marla Carey alleges that her employer, the Chicago Transit Authority,

retaliated against her for complaining about being harassed by a co-worker. The CTA

has moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6). R. 14. That motion is denied in part and granted in part.

Legal Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must

provide “a short and plain statement of the claim showing that the pleader is entitled

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, “labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). “‘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.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,

the Court accepts all well-pleaded facts as true and draws all reasonable inferences

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

Background

Carey began working for the CTA in 1997. In 2017, Carey was transferred to

the mailroom of a certain CTA department.

Paul Smith was one of Carey’s co-workers. Beginning in May 2018, Smith

“disparaged, physically intimidated, and threatened [Carey] with physical violence.”

R. 1 ¶ 2. Carey complained to her supervisors in June 2018. After that, Smith’s

intimidation and threats increased, including mentioning that he knew where Carey

lived and could get someone to “jump” her. Id. ¶ 28.

Carey reported Smith to the police on November 17, 2018, id. ¶ 29, and again

reported him to her supervisors on November 28, 2018, id. ¶ 33. Her supervisors

“demanded that [Carey] withdraw her complaint and retract her statement,” and

indicated that failure to do so would result in her termination. Id. ¶ 37. For the next

few days, Carey met with her supervisors and union representatives daily. Id. ¶ 39.

On November 30, one of Carey’s supervisors issued a “Notice of Investigation of

Alleged Misconduct or Rule Violation,” regarding Carey’s conduct, which required her

to report for an inquiry on December 3. Id. ¶ 41. At the meeting on December 3,

Carey’s supervisors told her that she was required to provide them with the police

report she had filed. Id. ¶ 42. They then told her that “she would be suspended as of

that day and that she should not report back until her discharge hearing on December

10, 2018, after which they would terminate her employment.” Id. ¶ 45.

On December 7, 2018, the Circuit Court of Cook County issued a restraining

order against Smith. Id. ¶ 46. On December 10, the CTA fired Carey based on findings

that she had made false claims against Smith. Id. ¶ 48.

Pursuant to 42 U.S.C. § 1983, Carey claims that the CTA retaliated against

her in violation of the First Amendment. She also claims that the CTA’s conduct

violated the Illinois Whistle Blower Protection Act. The CTA argues that both claims

are untimely, and that Carey has failed to state a Monell claim against the CTA.

Analysis

I. Section 1983

A. Timeliness

The statute of limitations for Section 1983 claims brought in Illinois is two

years. See Savory v. Cannon, 947 F.3d 409, 413 (7th Cir. 2020). The CTA argues that

Carey was notified of her termination on December 3, 2018, but she did not bring this

action until December 9, 2020, more than two years later. Carey argues that she was

not fired until December 10, 2010, so her Section 1983 claim is timely.

The CTA relies primarily on Chardon v. Fernandez, in which the Supreme

Court held that a retaliatory termination claim accrued when the plaintiff “was

notified by letter that his [job] would terminate at a specified [future] date.” 454 U.S.

6, 7 (1981). In Chardon, the Court explained that “the proper focus is on the time of

discriminatory act, not the point when the consequences of the act become painful.”

Id. at 8.

Carey alleges that on December 3, 2018, her supervisors told her she would

have a “discharge hearing on December 10, 2018, after which they would terminate

her employment.” R. 1 ¶ 44. The CTA argues that Carey “clearly alleges that the

decision to terminate [her] was made prior to her discharge hearing,” and that her

termination was not merely threatened on December 3 but had already been decided.

R. 20 at 4.

Contrary to the CTA’s argument, Carey’s allegations do not settle whether her

claim accrued on December 3 or December 10. As Carey argues, if the CTA could not

fire her until a discharge hearing was held, then an off-the-record comment by her

supervisors that they had already decided to fire her is not analogous to the formal

notice of termination at issue in Chardon. But if the December 10 discharge hearing

was merely a finalization of a formal decision that was made on December 3, then

that might be the day of the “discriminatory act” for accrual purposes. Carey’s

allegations are ambiguous in this regard. More facts about the circumstances and the

CTA’s policies must be known before the Court can make a finding about accrual and

whether Carey’s Section 1983 claim is timely. So the Court will not dismiss the claim

as untimely at this stage of the proceedings.

B. Monell

To state a claim for municipal liability under Section 1983, a plaintiff must

allege that the constitutional violation was caused by either: (1) an express municipal

policy; (2) a widespread municipal practice; or (3) a person with final policymaking

authority. See Monell v. N.Y.C. Dep’t of Social Servs., 436 U.S. 658, 694 (1978). Carey

does not allege policy or practice, so the question is whether she was fired by CTA

policymakers.

The CTA points out that Carey does not make any explicit allegation about

whether she was fired by CTA policymakers. And the CTA argues further that “the

only policymaking authority at CTA is the Chicago Transit Board, and [Carey] makes

no reference to any actions taken by the Chicago Transit Board in her complaint.” R.

15 at 8.

The Seventh Circuit has held that “the CTA Board is the official policymaker

for employment decisions.” Radic v. Chicago Transit Auth., 73 F.3d 159, 161 (7th Cir.

1996). But the Seventh Circuit also noted that a plaintiff bringing a Monell claim

against the CTA for improper termination would need “to show that the Board

somehow acted to confer policymaking authority on a particular official before his or

her actions could be considered policy decisions.” Id. As noted, Carey has not explicitly

alleged that the CTA Board made a “delegation of authority to set policy for hiring

and firing” to Carey’s supervisors. See Kujawski v. Bd. of Comm’rs, 183 F.3d 734, 737

(7th Cir. 1999). And the “mere unreviewed discretion of authority to make hiring and

firing decisions does not amount to a policymaking authority” without “a delegation

of authority to set policy for hiring and firing.” Id. But the Court can reasonably infer

from the allegation that a certain person had the discretion to make hiring and firing

decisions that such a person has also been delegated policymaking authority. See

Kristofek v. Village of Orland Hills, 712 F.3d 979, 987 (7th Cir. 2013) (“firing decisions

[that] were not reviewed” plausibly allege policymaking authority); Thuet v. Chicago

Pub. Sch., 2020 WL 5702195, at *4 (N.D. Ill. Sept. 24, 2020) (same). And whether

such delegation has occurred is generally a fact-based analysis. See Kujawski, 183

F.3d at 737-38 (considering evidence of delegation on summary judgment); see also

Butler-Burns v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 2018 WL 1468996, at *8

(N.D. Ill. Mar. 26, 2018) (deciding delegation issue on summary judgment). Indeed,

the primary case cited by the CTA decided the delegation question on summary

judgment. See Radic, 73 F.3d at 160. It may be that the CTA Board did not delegate

any policymaking authority to Carey’s supervisors. But Carey will have the

opportunity to take discovery on that issue.

II. Whistle Blower Act

The CTA also argues that the Whistle Blower Act has a one-year statute of

limitations, and so Carey’s claim under that Act is untimely. The Whistle Blower Act

does not include a statute of limitations. But under the Metropolitan Transit

Authority Act, tort claims against the CTA have a statute of limitations of one year.

See 70 ILCS § 3605/41.

Carey argues that the one-year statute of limitations should not apply to

retaliatory discharge claims for the same reasons a district court held that the one-

year statute of limitations in the Tort Immunity Act does not apply to retaliatory

discharge claims. See R. 19 at 10 (citing Zelman v. Hinsdale Twp. High Sch. Dist. 86,

2010 WL 4684039 at 2 (N.D. Ill. Nov. 12, 2010)). But Zelman is an “outlier” that has

been rejected by all other district courts to consider the issue. See Elue v. City of

Chicago, 2017 WL 2653082, at *8-9 & n.10 (N.D. Ill. June 20, 2017). Those courts

have all held that the one-year statute of limitations applies. See id.; see also Klee v.

McHenry Cty. Coll., 2017 WL 3168973, at *4 (N.D. Ill. July 26, 2017); Vasquez v. Bd.

of Educ. for Sch. Dist. U-46, 2017 WL 1250839, at *4 (N.D. Ill. Apr. 5, 2017); Williams

v. Off. of Chief Judge of Cook Cty., 2015 WL 2448411, at *13 & n.11 (N.D. Ill. May 21,

2015). This Court agrees, so Carey’s Whistle Blower Act claim is untimely.

But Carey argues further that even if the one-year statute of limitations bars

her claim for damages, it does not bar her claim for injunctive and other equitable

relief. She makes this argument, however, with reference to the Tort Immunity Act.

As discussed, it is the Metropolitan Transit Authority Act that is relevant here. Carey

has not made any argument that the Metropolitan Transit Authority Act permits

equitable relief even if damages claims are untimely. Therefore, the Court will not

make that distinction and the entirety of Carey’s Whistle Blower Act claim is

dismissed.

III. Punitive Damages

Lastly, Defendants moved to dismiss Carey claim for punitive damages. Carey

did not respond to this motion in her brief. By failing to respond, Carey has conceded

the argument, so her claim for punitive damages is dismissed.

Conclusion

Therefore, the CTA’s motion to dismiss [14] is denied in part and granted in

part. The motion is denied in that Carey’s Section 1983 claim will proceed. The motion

is granted in that Carey’s claims under the Whistle Blower Act claim and for punitive

damages are dismissed.

By May 17, 2021, the parties should submit a status report with a proposed

discovery schedule. The parties should also state whether the status hearing set for

May 24, 2021 continues to be necessary.

ENTERED:

Knee M Luchor

Honorable Thomas M. Durkin

United States District Judge

Dated: May 10, 2021