The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Vincent Lara, )
Plaintiff, ) Case No. 22 C 50014
vs. )
) Judge Philip G. Reinhard
Rock Valley College Police Dept., et al., )
Defendants. )
ORDER
For the reasons stated below, Rock Valley College Police Department and Rock Valley
College are dismissed as defendants in this action. The motion to dismiss [18] of the remaining
defendant, Rock Valley College Board of Trustees, is granted. The complaint is dismissed
without prejudice. Plaintiff may file an amended complaint within 28 days.
STATEMENT-OPINION
Plaintiff, Vincent Lara, brings this action against defendant, his former employer, Rock
Valley College Board of Trustees, in its official capacity.1 Plaintiff claims he is entitled to relief
from defendant because he was injured by defendant when it unlawfully discriminated against,
harassed, constructively discharged, and maliciously prosecuted him because he served as a
member of the United States Army Reserve. He asserts the following legal theories support his
claim: (1) violation of the Uniformed Services Employment and Reemployment Rights Act, 38
U.S.C. § 4301, et seq. (“USERRA”) (Counts I and II), (2) malicious prosecution (Count III), (3)
violation of the Illinois Service Member Employment and Reemployment Act, 330 ILCS 61/1-1,
et seq. (“ISERRA”) (Counts IV and V). Jurisdiction is properly pled pursuant to 38 U.S.C. §
4323(b)(3) & (j) and 28 U.S.C. § 1367. Defendant moves [18] to dismiss for failure to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
The facts are taken from plaintiff’s complaint. On a motion to dismiss, the court takes all
well-pleaded facts as true and draws all reasonable inferences in plaintiff’s favor. White v. United
Airlines, Inc., 987 F.3d 616, 620 (7th Cir. 2021). Plaintiff was employed by defendant as a police
officer. Plaintiff also served in the United States Army Reserve (“Reserve”). When plaintiff
1 The complaint also named as defendants the Winnebago County Sheriff’s Department (“Sheriff’s Department”),
the Rock Valley College Police Department (“RVCPD”) and Rock Valley College (“College”). Plaintiff filed a
notice [44] that he did not oppose the Sheriff Department’s motion to dismiss [49] and consented to the dismissal of
the Sheriff’s Department as a defendant. The court entered an order [46] granting the Sheriff’s Department’s motion
to dismiss and dismissing the Sheriff’s Department from this action. In its motion to dismiss [18], defendant sought
dismissal of RVCPD and College because they are not suable entities under Illinois law. In his response brief,
plaintiff consents to the dismissal of RVCPD and College. RVCPD and College are dismissed. Leaving the Rock
Valley College Board of Trustees, in its official capacity, as the only defendant.
began working for defendant, he expected to serve two to three days per month on active duty
with the Reserve and participate in one annual training per year and occasional Army-sponsored
schools, which would last approximately two weeks. Throughout the years, plaintiff advanced in
rank and was given more responsibilities in the Reserve. These promotions required him to work
more than two to three days per month for the Reserve.
Defendant’s practice concerning employees who were military reservists allowed those
employees to receive concurrent compensation from defendant and, also, from the United States
military for days they were performing duties for the military. Sergeant Coe, plaintiff’s second-
level supervisor at defendant, became increasingly concerned with the time plaintiff was
devoting to his Army duties and stated there was a possibility that plaintiff volunteered for an
extra Army detail to “take advantage of the military leave practice.” Other police officers
employed by defendant complained and made sarcastic remarks about the amount of time
plaintiff was allowed to spend performing duty with the Reserve. When Coe asked defendant’s
payroll department about defendant’s military pay policy, he was informed the policy allowed
concurrent compensation.2
In September 2017, plaintiff provided a letter from his Army company commander,
Captain Eisel, to Coe and other supervisors at defendant asking for cooperation in granting
plaintiff leave to attend to his Reserve duties and describing the rights provided plaintiff under
USERRA. At about the same time, Coe took over scheduling responsibilities with respect to
plaintiff from plaintiff’s first-line supervisor, Sergeant Hoshaw. After assuming responsibility
for reviewing plaintiff’s requests for military leave, Coe focused on whether plaintiff had
volunteered for certain Reserve mobilizations and what the purpose of the mobilizations were.
Coe instructed plaintiff that he must not volunteer for military duty without first receiving
permission from his supervisors at defendant and repeatedly admonished plaintiff for requesting
military leave for missions for which plaintiff had volunteered. On one occasion Coe told
plaintiff that plaintiff was insubordinate to Coe and Hoshaw for not checking with them prior to
volunteering for an Army Reserve mission. Neither USERRA, nor its Illinois equivalent,
requires a Reservist to seek permission from a public employer to participate in any Reserve
duties, mission, deployments, or mobilizations.
Coe particularly questioned the military orders plaintiff received to represent his unit at
an Army-sponsored event in Washington, D.C. known as the Army Ten-Miler. Coe referred to
this event as a “run/festival” and believed the purpose for plaintiff’s attending the Army Ten-
Miler was to take a recreational trip with his family under the guise of legitimacy. Coe initially
ordered plaintiff to take vacation time for this event. The Army Ten-Miler is an annual event
incorporating recruiting, public outreach, fitness promotion, and professionalism. U.S. Army
units from around the world send representatives to support the event. After Coe’s questioning
of the propriety of plaintiff’s participation in the Army Ten-Miler, plaintiff asked the Army to
rescind his orders to the event and his orders were rescinded. On September 27, 2017, plaintiff
advised Coe that plaintiff was rescinding his request for military leave for the Army Ten-Miler.
2 ISERRA requires Illinois public employers, like defendant, to provide this concurrent compensation to employees
for up to 30 days per year. 330 ILCS 61/5-10(a) (“During periods of military leave for annual training, public
employees shall continue to receive compensation as a public employee for up to 30 days per calendar year and
military leave for purposes of receiving concurrent compensation may be performed nonsynchronously.”)
Coe opened a criminal investigation into whether plaintiff had been manipulating
defendant’s “liberal military leave policy” for plaintiff’s benefit. Coe wrote a formal police
report referencing Coe’s concerns about whether plaintiff had volunteered for certain missions
and the value of those missions to plaintiff’s training or military readiness. Coe wrote of his
concern that plaintiff was volunteering for extra details to take advantage of the liberal voluntary
leave practice often getting three to four military leave days per month.
On October 2, 2017, Coe met with Army Captain Eisel to question him about plaintiff’s
military leave. During that meeting, Coe told Eisel that on August 5, 2017, Coe had surveilled
plaintiff and had video footage of plaintiff, wearing his Army uniform, being on the Rock Valley
campus meeting with an unknown individual to buy a musical instrument for plaintiff’s daughter.
At that time, plaintiff was in transit from his home to his Reserve duty station. Coe asked Eisel
about USERRA’s provisions concerning time allotted to plaintiff to rest between his shift with
defendant and the beginning of his Reserve duty. During this conversation, Coe did not tell Eisel
that plaintiff worked the night shift for defendant, which entitled plaintiff to a period of rest
before traveling to his Reserve duty.3 Without this information, Eisel opined to Coe that on at
least one occasion under USERRA plaintiff would not be entitled to receive the day off prior to
his Reserve duty.
On October 6, 2017, plaintiff met with Coe in Coe’s office. Coe advised plaintiff that
Coe had opened an investigation4 into plaintiff’s military leave and that there would be a
compelled interrogation of plaintiff, which would be recorded by a court reporter, and attended
by defendant’s attorney. Coe advised plaintiff he would be compelled to answer questions
pertaining to his attendance. Coe threatened plaintiff with being arrested and prosecuted. After
these threats, plaintiff verbally stated his intent to resign his employment with defendant.
Plaintiff followed with a written statement indicating his intent to resign. Shortly thereafter,
plaintiff asked to rescind his resignation and Coe refused. Coe told plaintiff that plaintiff’s
request to attend the Army Ten-Miler appeared dishonest and an unjustified request for military
leave.
On October 18, 2017, Coe went to the Detective Bureau of Winnebago County Sheriff
(“Sheriff”) concerning his investigation of plaintiff’s military leave requests. Coe provided the
Sheriff with the police report he had prepared. Coe advised the Sheriff that plaintiff had
provided at least one “Fictious Order” from plaintiff’s unit regarding military duty to be
performed in October 2017. However, no such “Fictious Order” exists. Coe provided this false
information to the Sheriff to induce the Sheriff to pursue criminal charges against plaintiff after
plaintiff had resigned. The Sheriff did not conduct any independent investigation and obtained
an arrest warrant for plaintiff based on the information provided by Coe. Plaintiff was notified
of the warrant by phone by a Sheriff’s detective. Plaintiff drove to the Sheriff’s office where he
was handcuffed and arrested.
3 “If the employee performs a full night shift for the civilian employer and travels directly from the work site to
perform a full day of uniformed service, the employee would not be considered fit to perform the uniformed service.
An absence from that work shift is necessitated so that the employee can report for uniformed service fit for duty.”
20 C.F.R. § 1002.74(a).
4 Defendant argues this investigation was a workplace investigation initiated under the terms of the Illinois Police
Officers’ Disciplinary Act, 50 ILCS 725/1, et seq. However, plaintiff alleges it was a criminal investigation, which
the court accepts as true on a motion to dismiss. White, 987 F.3d at 620.
The Army found there were no discrepancies between plaintiff’s military leave requests
to defendant and his Reserve duties performed. The Division Security Manager and Chief
Intelligence Officer of plaintiff’s Reserve unit, Colonel Rose, confirmed that there were no
discrepancies between plaintiff’s requests for time off from defendant and the documentation of
the Reserve duty plaintiff performed. In a memorandum, Colonel Rose detailed the dates
plaintiff had been present pursuant to military orders from 2013 through 2017. He concluded
that “[g]iven the absence of any discrepancies between requests for time off from [defendant]
and documentation confirming Army Reserve duty performed, my initial and continued
assessment is that the charges against [plaintiff] are unfounded.”
The Winnebago County State’s Attorney dismissed the criminal case against plaintiff in
August 2019 and plaintiff’s arrest records were expunged on January 15, 2020. Plaintiff alleges
the criminal allegations against plaintiff were concocted by Coe based on Coe’s resentment of
plaintiff’s participation in the Army Reserve, which Coe perceived as distracting plaintiff from
his duties to defendant.
The United States has an all-volunteer military force. White, 987 F.3d at 625. In 1994,
Congress passed USERRA “with the goal of prohibiting civilian employers from discriminating
against employees because of their military service.” Id. at 619. USERRA provides that the
“term ‘service in the uniformed services’ means the performance of duty on a voluntary or
involuntary basis . . . and includes active duty, active duty for training, initial active duty for
training, [and] inactive duty training.” 38 U.S.C. § 4303(13). “The term ‘benefit’, ‘benefit of
employment’, or ‘rights and benefits’ means the terms, conditions, or privileges of employment,
including any advantage, profit, privilege, gain, status, account or interest (including wages or
salary for work performed) that accrues by reason of employment contract or agreement or an
employer policy, plan, or practice and includes rights and benefits under a pension plan, a health
plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance
pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or
location of employment.” 38 U.S.C. § 4303(2).
Under USERRA, a “person who is a member of, applies to be a member of, performs, has
performed, applies to perform, or has an obligation to perform service in a uniformed service
shall not be denied initial employment, reemployment, retention in employment, promotion, or
any benefit of employment by an employer on the basis of that membership, application for
membership, performance of service, application for service, or obligation.” 38 U.S.C. § 4311(a).
Further, USERRA provides that an “employer may not discriminate in employment against or
take any adverse employment action against any person because such person . . . (4) has
exercised a right provided for in this chapter.” 38 U.S.C. § 4311(b). Both 38 U.S.C. § 4311(a)
and (b) require a materially adverse employment action for the employer’s discrimination or
retaliation to be actionable. Crews v. City of Mt. Vernon, 567 F.3d 860, 869 (7th Cir. 2009).
The United States Supreme Court has stated that USERRA “is very similar to Title VII.”
Staub v. Proctor Hospital, 562 U.S. 411, 417 (2011). The Seventh Circuit has adopted the Title
VII requirement that a materially adverse employment action is required for employer liability
under USERRA sections 4311(a) and (b). Crews, 567 F.3d at 869; Maher v. City of Chicago, 547
F.3d 817, 824 (7th Cir. 2008). “Adverse employment actions generally fall into three categories
(1) termination or reduction in compensation, fringe benefits, or other financial terms of
employment; (2) transfers or changes in job duties that cause an employee’s skills to atrophy and
reduce future career prospects; and (3) unbearable changes in job conditions, such as a hostile
work environment or conditions amounting to constructive discharge5. To be actionable, an
employment action must be a significant change in employment status … or a decision causing a
significant change in benefits. “Adverse employment actions are often economic injuries, but
also extend beyond readily quantifiable losses.” Alexander v. Casino Queen, Inc., 739 F.3d 972,
980 (7th Cir. 2014) (quotation marks and citations omitted) (alteration in original). The critical
issue is “whether the alleged discrimination caused a material change in the employment
relationship.” Lewis v. City of Chicago, 496 F.3d 645, 654 (7th Cir. 2007).
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint
must contain a “short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). If the complaint (1) describes the claim in sufficient detail to give
the defendant fair notice of what the claim is and the grounds upon which it rests and (2)
plausibly suggests that the plaintiff has a right to relief above a speculative level, this
requirement is met. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft
v. Iqbal, 556 U.S. 662 (2009). Plaintiff need only allege the events he believes entitles him to
damages from defendant. Johnson v. City of Shelby, 574 U.S. 10, 12 (2014). Informing
defendant of the factual basis for his complaint is all that is required “to stave off threshold
dismissal for want of a statement of [his] claim.” Id. “A complaint need not identify legal
theories and specifying an incorrect legal theory is not a fatal error.” Rabe v. United Air Lines,
Inc., 636 F.3d 866, 872 (7th Cir. 2011).
To prevent dismissal under Rule 12(b)(6) in a Title VII case, a complaint alleging
discrimination based on the plaintiff’s membership in a protected class need only allege that the
employer instituted a specified adverse employment action against the plaintiff on the basis of
the plaintiff’s membership in the protected class. Luevano v. Wal-Mart Stores, Inc., 722 F.3d
1014, 1028 (7th Cir. 2013) (sex discrimination). “In these types of cases, the complaint merely
needs to give the defendant sufficient notice to enable him to begin to investigate and prepare a
defense.” Id. “Employers are familiar with discrimination claims and know how to investigate
them, so little information is required to put the employer on notice.” Carlson v. CSX
Transportation Co., 758 F.3d 819, 827 (7th Cir. 2014). However, when the alleged adverse
employment action falls into the “unbearable changes in job conditions such as a hostile work
environment or conditions amounting to constructive discharge” category, in order to survive a
12(b)(6) motion, plaintiff must allege facts that show the harassment based on his membership in
a protected class was severe or pervasive so as to alter the conditions of his employment and
create a hostile or abusive working environment. Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir.
2017). Constructive discharge requires alleging facts from which it can be inferred that a
reasonable person would have felt compelled to resign because the working conditions were so
intolerable. See Suders, 542 U.S. at 147.
To be actionable as an adverse employment action, an employer’s actions must affect the
employee’s working conditions. Being investigated for and charged with a crime, arrested,
briefly jailed, and tried on the charges do not involve working conditions even when the
5 A constructive discharge based on a hostile work environment “entails something more” than an actionable hostile
work environment. Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004). A “hostile-environment
constructive discharge” occurs where the “working conditions [are] so intolerable that a reasonable person would
have felt compelled to resign.” Id.
employer is a law enforcement agency, and the criminal charges arise from alleged criminal
behavior committed by the employee during the course of his employment. Swearnigen-El v.
Cook County Sheriff’s Department, 602 F.3d 852, 859-60 (7th Cir. 2010). Therefore, plaintiff’s
allegations concerning the criminal investigation by Coe, Coe’s turning his investigation report
over to the Winnebago County Sheriff, the subsequent charges by the State’s Attorney, and the
pendency of those charges for approximately 19 months before they were dismissed do not
support a claim he suffered an adverse employment action based on unbearable changes in job
conditions -- hostile work environment or constructive discharge -- because they do not involve
plaintiff’s “job conditions” at all. Id.
In his response [43], plaintiff asserts the malicious prosecution theory of liability he
alleges in his complaint also arises under USERRA. Dkt # 43, p. 9. He makes this assertion to
oppose defendant’s argument that a claim under a malicious prosecution theory is untimely.
Plaintiff cites no authority for USERRA covering malicious prosecution. Given that USERRA
requires an adverse employment action for an actionable claim and that, as just discussed, a
criminal prosecution is not an adverse employment action because it does not involve plaintiff’s
job conditions, a claim based on alleged malicious prosecution is not available under USERRA.
See id.
Plaintiff’s other allegations fall short of alleging facts that plausibly suggest he was
subject to harassment so severe or pervasive as to alter the conditions of his employment and
create a hostile or abusive working environment. Alamo, 864 F.3d at 549. In determining
whether an actionable hostile work environment exists, the court looks to “all circumstances,
including the frequency of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interference with an employee’s work performance.” Stitz v. American Family Mutual Insurance
Co., 585 F. Supp.3d 1187, 1191 (E.D. Wis. 2022) (quotation marks omitted) quoting, Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002).
Plaintiff does not allege anything that suggests any of the conduct was severe, physically
threatening, humiliating, or unreasonably interfered with his work performance. Apart from
Coe, plaintiff alleges that other officers complained and/or made sarcastic comments about his
military leave. As to Coe, he alleges Coe questioned plaintiff about whether he volunteered for
certain military missions, complained about his volunteering, told him not to volunteer, and
questioned the propriety of plaintiff’s orders to the Army Ten-Miler -- leading plaintiff to seek
and obtain the recission of those orders. He does not allege anything that suggests any of this
was threatening, humiliating or that he was ever physically threatened. He does not allege any of
it interfered with his work performance.
What plaintiff’s complaint alleges is that Coe did not like the fact plaintiff was taking
military leave and so pressed plaintiff on the reasons for his military leave requests, told him not
to volunteer for military duty, and discouraged him from taking leave he was allowed to take to
the point plaintiff obtained recission of orders he had received so as not to take military leave for
that duty. While under the Family Medical Leave Act (“FMLA”) (29 U.S.C. § 2615(a)(1) an
employer’s discouraging the use of FMLA leave can be actionable, Ziccarelli v. Dart, 35 F.4th
1079, 1088 (7th Cir. 2022), USERRA does not have a like provision. USERRA requires a
materially adverse employment action by the employer. Crews, 567 F.3d at 869; Maher, 547
F.3d at 824. Plaintiff's complaint has not alleged an adverse employment action actionable
under USERRA so the claims under USERRA are dismissed. This disposes of all the federal
claims.
A district court may decline to exercise supplemental jurisdiction where it “has dismissed
all claims over which it has original jurisdiction.” 28 U.S.C.§ 1367(c)(3). “Absent unusual
circumstances, district courts relinquish supplemental jurisdiction over pendant state law claims if
all claims within the court’s original jurisdiction have been resolved before trial.” Coleman v. City
of Peoria, 925 F.3d 336, 352 (7" Cir. 2019). Subject matter jurisdiction in this case was premised
on federal question jurisdiction and all federal claims have been dismissed so relinquishment of
supplemental jurisdiction over the state law claims (in Counts III, [V, V) would be the norm. The
court exercises its discretion to decline to exercise supplemental jurisdiction over the state law
claims and dismisses them without prejudice.
Plaintiffs normally should be given leave to amend after dismissal of an initial
complaint. Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 518 (7® Cir.
2015). Plaintiff may file an amended complaint within 28 days.
For the foregoing reasons, Rock Valley College Police Department and Rock Valley
College are dismissed as defendants in this action. The motion to dismiss [18] of the remaining
defendant, Rock Valley College Board of Trustees, is granted. The complaint is dismissed
without prejudice. Plaintiff may file an amended complaint within 28 days.
Date: 3/06/2023 ENTER:
United States District Court Judge
Electronic Notices.