Consolino v. Dart

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Carmen Consolino, et al.,

Plaintiffs,

Case No. 17 C 9011

v.

Judge Jorge L. Alonso

Thomas J. Dart, et al.,

Defendants.

Memorandum Opinion and Order

Pending before the Court are Defendants’ motion for summary judgment (ECF No. 144),

Plaintiffs’ motion for leave to file a sur-reply in opposition to Defendants’ motion for summary

judgment (ECF No. 168), and Plaintiffs’ motion to reconsider the Court’s prior ruling dismissing

Count III of their Third Amended Complaint (ECF No. 170). For the reasons below, the Court

grants Plaintiffs’ motion for leave to file a sur-reply, grants Defendants’ motion for summary

judgment and dismisses Plaintiffs’ claims, and denies Plaintiffs’ motion for reconsideration.

Background1

0F

Plaintiffs Antonio Belk, Victor Thomas, Cynthia Chubb, Carmen Consolino, Andres

Garcia, and Aretha Germany are former Correctional Officers in the Cook County Department of

Corrections (“DOC”), who ultimately reached the rank of DOC Commander by 2012. (DSOF

¶¶ 1–6.)

1 This background is taken from the statements and responses the parties have submitted under

this District’s Local Rule 56.1. The Court refers to Defendants’ statement of facts (ECF No. 145)

as “DSOF” and refers to Plaintiffs’ response and statement of additional facts (ECF No. 157) as

“Pls. Resp.” and “PSOF,” respectfully. The Court refers to Defendants’ response to Plaintiffs’

statement of additional facts (ECF No. 167) as “Defs. Resp.” Unless otherwise noted, these facts

are either undisputed or presented from Plaintiffs’ point of view as the non-moving party.

Plaintiffs were involved in varying capacities in efforts by DOC commanders to unionize

beginning in 2013 and 2014. (See PSOF ¶¶ 1–6.) On August 2, 2017, an administrative law judge

of the Illinois Labor Relations Board (“ILRB”) issued a Recommended Decision and Order

(“RDO”), recommending that the rank of commander be granted the petitioned-for bargaining

unit. (PSOF Ex. CC, ECF No. 157-38 at 32.) The Cook County Sheriff’s Office’s (“CCSO’s”)

position was to oppose unionization by any level of management, including commanders, though

over 90 percent of CCSO staff was unionized. (PSOF ¶ 21; Defs. Resp. ¶ 21.) In February 2018,

the full ILRB rejected the RDO as a matter of law and dismissed the commanders’ unionization

petition, finding that the commanders were ineligible supervisors under the Illinois Public Labor

Relations Act. (Defs. Resp. Ex. 1, ECF No. 167 at Plaintiff 005288.)

During the commanders’ unionization efforts, certain individuals at CCSO—most of

whom were not involved in the later conduct relevant to this case—made negative comments

about unions or collective-bargaining agreements. (PSOF ¶¶ 26–27; Defs. Resp. ¶¶ 26–27.) For

example, in 2015, Defendant Nneka Jones Tapia, the Executive Director of the DOC, separately

(1) said that the commanders “have the audacity to want a union” and (2) called the Teamsters

union “ignorant” and “disrespectful” and did not want them to attend a meeting related to

manpower or staffing. (PSOF ¶¶ 25, 28, Ex. D at 68:4–69:16; Defs. Resp. ¶¶ 25, 28.) Assistant

Executive Director Michael Miller stated in October 2016, “you Commanders are a bunch of

lazy [expletive], and now you are trying to get a union too.” (PSOF ¶ 27.) And Assistant

Executive Director Mario Reyes stated in 2017 that “higher-ups” at CCSO were upset with the

RDO and that the RDO meant that CCSO would have to “deal with another” collective-

bargaining agreement and would not be able to control the Commanders. (Id. ¶ 25.)

On November 10, 2016, the Cook County Board of Commissioners voted to adopt the

Cook County Sweetened Beverage Tax Ordinance (the “Soda Tax”). (DSOF ¶ 16.) Based in part

on the revenue derived from the Soda Tax, Cook County provided the Cook County Sheriff’s

Office (“CCSO”) with a budget target of $625 million for Fiscal Year 2018 (“FY2018”). (Id.

¶ 17.) The CCSO’s FY2018 request was at that time $50 million over that budget target. (Id.)

On July 3, 2017, Cook County Budget Director Tanya Anthony notified the CCSO that a

temporary restraining order had issued preventing collection of the Soda Tax, resulting in a

projected shortfall of $67 million for FY 2017 and a holdback for the remaining of FY2017,

which would affect the FY2018 as well. (Id. ¶ 18.) The County also provided CCSO with a

suggested reduction plan calling for the layoff of hundreds of CCSO employees including twelve

Correctional Commanders. (Id.) In June and early July 2017, the County told the CCSO they

would have to make cuts to the FY2017 budget given the potential Soda Tax repeal. (Id. ¶ 19.)

In July 2017, the County notified the CCSO that the possible repeal of the Soda Tax

would result in the CCSO budget being reduced from $625 million to $553 million for FY2018,

and Defendant Undersheriff Zelda Whittler asked Helen Burke (the Chief Legal Officer for the

CCSO, supervised by Undersheriff Whittler) to put together a team to help manage the required

cuts. (Id. ¶¶ 20–21.) The resulting team included Undersheriff Whittler, Jill McArdle (CCSO’s

budget director), Tim Kinsella (McArdle’s budget assistant), and Jennifer Black (liaison with the

operational and administrative departments). (Id. ¶ 22.)

On October 11, 2017, the Cook County Board of Commissioners voted to repeal the Soda

Tax. (Id. ¶ 23.) On October 25, 2017, the CCSO held a budget hearing, during which multiple

commissioners questioned Defendant Sheriff Thomas Dart about the layers of supervision within

the DOC. (Id. ¶ 24.) Two days later, the CCSO received a letter from County Commissioner John

Daley, requiring an updated CCSO FY2018 budget that was reduced by ten percent ($62.5

million), which Ms. Burke’s team began working on. (Id. ¶ 25.)

In Fall 2017, CCSO Chief of Operations Jeff Johnsen sent an email to the commanders,

lauding their experience, knowledge, and leadership, and stating that he would rest easy knowing

that the compound’s operations are in their capable hands. (PSOF ¶ 39.) But on October 20,

2017, Ms. Burke wrote to Defendant Matthew Burke (the DOC Chief of Staff) and others to ask

if they could look at the savings and operational issues that would result from eliminating

commanders. (DSOF ¶¶ 11, 28.)2 When CCSO layoffs became a possibility, Undersheriff

1F

Whittler did not identify specific positions to eliminate, but rather directed the various bureau

chiefs, including Defendant Chief Bradley Curry (CCSO’s Chief Operating Officer), and

department heads to discuss with their managers what their operational needs were to determine

what positions could be eliminated without adverse impact, if needed—and explained that if the

bureau chiefs did not identify positions to eliminate, the County Board would eliminate

positions. (Id. ¶¶ 29, 31.) Curry and the CCSO solicited and considered the feasibility of various

options to cut the CCSO’s budget, including eliminating the Commander position altogether,

moving commanders back to the lieutenant rank, or converting or reassigning some

commanders—with Chief Curry to ultimately decide what to do operationally. (See PSOF ¶¶ 31,

35; Defs. Resp. ¶¶ 31, 35; see also DSOF ¶¶ 33–36; Pls. Resp. ¶¶ 33–36.3)

2F

2 Plaintiffs claim that the ultimate budgetary cuts were pretextual but do not dispute these facts

themselves.

3 Plaintiffs summarily object to several of Defendants’ factual statements as “argumentative,”

even though Defendants provide record support for the statements. The Court overrules those

objections. Regardless, the undisputed takeaway is that numerous proposals were made to

address CCSO and DOC’s budget issues—several of which were rejected by the County, and

Plaintiffs themselves point to evidence that “the County wanted bodies,” rather than other cost-

saving measures, to meet the FY2018 budget. (See Pls. Resp. ¶ 33.)

Following consultation with Director Jones Tapia (whom he supervised), Chief Johnsen,

Director Miller, Matthew Burke, Helen Burke, and others, Chief Curry decided to eliminate the

Commander position. (DSOF ¶¶ 37–38; Pls. Resp. ¶ 38; PSOF ¶ 37.) According to Chief Curry,

he and others did not want to lay off commanders but felt they had to do so under the

circumstances.4 (Pls. Resp. ¶ 46; see also DSOF ¶ 46; Pls. Resp. ¶ 46.) CCSO’s final budget was

3F

agreed to on November 21, 2017. (DSOF ¶ 27.) All commanders, including Plaintiffs, were

terminated5 in November 2017 with an effective date of December 4, 2017. (Id. ¶ 47.) Karyn

4F

Williams, Executive Director of the Sheriff’s Human Resources Office as of 2016, was not

consulted for the decision to terminate the commanders and expressed concern that Human

Resources had not been involved in the decisionmaking process. (PSOF ¶ 44.)6 In 2017, CCSO

5F

Superintendent Joseph Brown, who had testified at the ILRB hearing on the CCSO’s behalf, was

the only superintendent who was laid off. (Id. ¶ 48; Defs. Resp. ¶ 48.) Several CCSO non-

commander employees were demoted and received pay cuts in lieu of being laid off. (PSOF

¶ 40.)

Notwithstanding the CCSO’s budget issues and termination of all DOC commanders, the

CCSO hired 12 employees across all departments between September and December 2017 and

4 Curry testified that CCSO “didn’t have a lot of time, we didn’t have a lot of options,” including

due to collective-bargaining agreements with certain ranks. (PSOF ¶ 31; Defs. Resp. ¶ 31.)

5 Defendants refer to the elimination of Plaintiffs and the other commanders as “layoffs” rather

than terminations. The Court adopts Plaintiffs’ characterization of these eliminations as

terminations for purposes of its analysis.

6 Plaintiffs also cite as evidence various allegations from Williams’ verified state-court

counterclaim in her separate action against the Sheriff’s Office claiming political favoritism

during the budget cuts. (See PSOF ¶ 18.) However, these allegations are not evidence. See 735

ILCS 5/2-605 (“Verified allegations do not constitute evidence except by way of admission.”).

They also are related to Williams’ separate allegations against the Sheriff’s Office and not to

Plaintiffs’ allegations of retaliation related to the firing of the commanders. Williams’ verified

allegations therefore are not material to this case.

hired 70 employees in 2018—though none of the new hires appear to have taken over the

terminated commanders’ duties. (Id. ¶ 42; see also Defs. Resp. ¶ 42.)7

6F

The Sheriff’s Employment Action Manual (“SEAM”) contains a set of employment-

related articles that the CCSO must adhere to. (DSOF ¶ 49; Pls. Resp. ¶ 49.) Around the time Ms.

Burke learned of potential issues with the Soda Tax, she prioritized revising SEAM Article S

related to layoffs of nonunion employees to ease those procedures—which made it easier to fire

commanders—and SEAM Article S was ultimately revised approximately a month before

Plaintiffs’ termination. (See DSOF ¶¶ 50, 52; Pls. Resp. ¶¶ 50, 52, 54; PSOF ¶¶ 16–17; see also

Defs. Resp. ¶¶ 16–17.) By its terms, SEAM could be modified by the CCSO at any time.8

7F

(DSOF ¶ 51; see also Pls. Resp. ¶ 51.)

On December 15, 2017, Plaintiffs filed the instant action in this Court. (ECF No. 1.)

Their operative complaint brought the following pending counts against Defendants: retaliation

for Plaintiffs’ protected First Amendment speech and activities (their unionization efforts) under

42 U.S.C. § 1983 against the individual Defendants (Counts I and II); a related Monell liability

claim against the CCSO (Count V); and a related indemnification claim against Cook County

(Count VIII). (Third. Am. Compl., ECF No. 54; see also Sept. 19, 2019 Mem. Op. & Order, ECF

No. 77 (dismissing other counts).) Among the counts that the Court dismissed in its September

17, 2019 ruling was Count III against the individual Defendants, alleging a deprivation of their

Fourteenth Amendment due process rights related to purported procedural protections granted to

7 The Court considers this evidence over Defendants’ admissibility objections. (See Defs. Resp.

¶ 42.)

8 Plaintiffs clarify that the CCSO was not allowed to modify SEAM to retaliate for the Plaintiffs’

attempts to unionize—this is uncontroversial and is not a factual dispute.

them under the Cook County Sheriff’s Merit Board Act, 55 ILCS 3/7001 et seq., which is the

subject of plaintiffs’ pending motion for reconsideration.

Legal Standards

“The Court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); Wackett v. City of Beaver Dam, 642 F.3d 578, 581 (7th Cir. 2011). A genuine dispute

of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“Summary judgment is the proverbial put up or shut up moment in a lawsuit, when a party

must show what evidence it has that would convince a trier of fact to accept its version of events.”

Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 973 (7th Cir. 2020) (internal quotation marks

omitted). “To defeat a motion for summary judgment, the party opposing it must make a ‘showing

sufficient to establish the existence of [any challenged] element essential to the party’s case, and

on which that party will bear the burden of proof at trial.’” Johnson v. Advoc. Health & Hosps.

Corp., 892 F.3d 887, 893–94 (7th Cir. 2018) (quoting Celotex v. Catrett, 477 U.S. 317, 322 (1986)).

The court may not weigh conflicting evidence or make credibility determinations, but the party

opposing summary judgment must point to competent evidence that would be admissible at trial

to demonstrate a genuine dispute of material fact. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629

F.3d 697, 705 (7th Cir. 2011); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). The court will

enter summary judgment against a party who does not “come forward with evidence that would

reasonably permit the finder of fact to find in [its] favor on a material question.” Modrowski v.

Pigatto, 712 F.3d 1166, 1167 (7th Cir. 2013).

In assessing the evidence at summary judgment, the court must consider the facts in the

light most favorable to the non-moving party, giving that party “the benefit of all conflicts in the

evidence and reasonable inferences that may be drawn from the evidence,” regardless of whether

it can “vouch for the objective accuracy of all” the evidence the non-moving party puts forward.

Fish v. GreatBanc Tr. Co., 749 F.3d 671, 674 (7th Cir. 2014). Even though district courts must

view the non-moving party’s evidence in this generous light, it does not follow that they are

“required to draw every requested inference; they must only draw reasonable ones that are

supported by the record.” Omnicare, 629 F.3d at 704. “Inferences supported only by speculation

or conjecture will not suffice.” Johnson, 892 F.3d at 894.

Discussion

I. Plaintiffs’ Motion for Leave to File a Sur-Reply (ECF No. 168)

As a preliminary matter, Plaintiffs seek leave to file a sur-reply in opposition to

Defendants’ motion for summary judgment. Whether to grant a motion for leave to file a sur-

reply is a matter of the Court’s discretion. Johnny Blastoff, Inc. v. L.A. Rams, 188 F.3d 427, 439

(7th Cir. 1999). For example, a sur-reply may be appropriate to allow a party the opportunity to

respond to new arguments made in a reply brief. See Univ. Healthsys. Consortium v.

UnitedHealth Grp., Inc., 68 F. Supp. 3d 917, 922 (N.D. Ill. 2014). Further, the Court’s Local

Rule 56.1(f) contemplates that a party opposing summary judgment may seek leave to respond to

evidentiary objections raised in response to the party’s Rule 56.1(c)(1) statement of facts, as is at

least partially the case for Plaintiffs here. See N.D. Ill. Local R. 56.1(f). The Court concludes that

Plaintiffs’ sur-reply will assist it in considering the issues before it and therefore grants Plaintiffs’

motion for leave to file a sur-reply. See In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 329

(N.D. Ill. 2005) (“This vouchsafes the aggrieved party’s right to be heard and provides the court

with the information necessary to make an informed decision.”).

However, after claiming that they need a sur-reply to respond to various arguments

Defendants purportedly raised in their reply brief, Plaintiffs spend much of their sur-reply simply

claiming waiver. That misses the point. Waiver arises because arguments must be raised “so that

the [opponent] may address them.” Wilson v. O’Leary, 895 F.2d 378, 384 (7th Cir. 1990). Here,

and even assuming Plaintiffs are correct that Defendants raised new arguments in their reply

brief, Plaintiffs themselves sought and have now obtained an opportunity to respond to

Defendants’ allegedly new arguments. But rather than doing so, they use much of their sur-reply

to repeatedly claim waiver for various arguments. Because Plaintiffs have used up their own

requested opportunity to substantively address Defendants’ arguments, the Court finds Plaintiffs’

waiver claims unconvincing. See Malgorzata v. Kijakazi, No. 20 C 296, 2022 WL 2257122, at *3

(N.D. Ill. June 23, 2022) (finding no waiver partly because the party asserting it “had an

opportunity to respond to the issue in the sur-reply and it chose not to”); CHC Cobrasource, Inc.

v. Mangrove Cobrasource, Inc., No. 12 C 1832, 2012 WL 1952930, at *1 (N.D. Ill. May 30,

2012) (“Although a party generally waives an argument that it raises for the first time on reply,

Cobrasource did not do so here because Defendants had an opportunity to respond to the

argument.” (citing cases)); Moorehead v. Deutsche Bank AG, No. 11 C 106, 2011 WL 4496221,

at *5 (N.D. Ill. Sept. 26, 2011) (“The Court eliminated that [waiver] problem when it allowed

plaintiffs to file a surreply to address defendants’ argument.”).

II. Defendants’ Motion for Summary Judgment (ECF No. 144)

Defendants claim they are entitled to summary judgment in their favor on all claims

because (1) Plaintiffs cannot make out a prima facie case of retaliation, (2) Plaintiffs would have

been fired even if they had not engaged in protected activities, (3) Plaintiffs cannot show that the

reasons given for their firings were pretextual, and (4) Defendants are entitled to qualified

immunity.9

8F

Here, Plaintiffs allege unlawful First Amendment retaliation based on protected activity,

which requires them to show: (1) they engaged in activity protected by the First Amendment; (2)

they suffered a deprivation that likely would deter First Amendment activity in the future; and (3)

the First Amendment activity was “a motivating factor” in the Defendants’ decision to take the

retaliatory action. Douglas v. Reeves, 964 F.3d 643, 646 (7th Cir. 2020) (citation omitted). If

Plaintiffs do so and thus make a prima facie showing of retaliation, then the burden shifts to

Defendants to produce evidence that they would have fired Plaintiffs even in the absence of their

protected activity—that is, that retaliation was not the but-for cause of the firings. Massey v.

Johnson, 457 F.3d 711, 717 (7th Cir. 2006). If Defendants meet that burden, then the burden

shifts back to Plaintiffs to produce sufficient evidence for a reasonable fact finder to determine

that Defendants’ reasons “were pretextual and that retaliatory animus was the real reason that the

defendants fired them.” Id.

a. Prima Facie Retaliation10

9F

The parties agree that Plaintiffs’ have adequately shown protected activity and a sufficient

deprivation.11 Therefore, the only disputed element is whether Plaintiffs’ union-related activities

10F

9 Because Plaintiffs do not survive summary judgment on the merits of their retaliation claims,

the Court does not reach Defendants’ qualified-immunity defense.

10 In their opposition briefs, Plaintiffs blend their arguments regarding a prima facie case and

pretext without clear boundaries. The Court thus considers their arguments as directed to both

parts of the analysis, and the Court ultimately concludes that Plaintiffs’ cited evidence does not

preclude summary judgment for either a prima facie case or pretext.

11 The parties likewise agree that Plaintiffs’ comments regarding safety and security are not

protected, and that scheduling issues they were subject to while still employed did not amount to

constitutional deprivations. The parties dispute whether the RDO constitutes separately protected

were a motivating factor in their firings. For this element, Plaintiffs rely solely on circumstantial

evidence, which “may include suspicious timing, ambiguous oral or written statements, or

behavior towards or comments directed at other employees in the protected group.” Long v.

Teachers’ Retirement Sys. of Ill., 585 F.3d 344, 350 (7th Cir. 2009) (citation omitted). “If the

plaintiff can assemble from various scraps of circumstantial evidence enough to allow the trier of

fact to conclude that it is more likely than not that discrimination lay behind the adverse action,

then summary judgment for the defendant is not appropriate[.]” Morgan v. SVT, LLC, 724 F.3d

990, 996 (7th Cir. 2013).

Here, Plaintiffs point to various facts and circumstances in their effort to avoid summary

judgment, including:

• the timing between the commanders’ favorable RDO on August 2, 2017, and their

termination in November 2017;

• Defendants’ amendment of SEAM Article S to make firing the DOC commanders

easier;

• CCSO’s hiring of 12 new employees between September and December 2017 and

70 new employees in 2018, and its choice to demote or cut the pay of certain

employees at other ranks as an alternative to termination;

• the exclusion of the CCSO’s Human Resources department from the

decisionmaking process;

• the CCSO’s opposition to the commanders’ unionization effort, including its

decision to appeal the RDO;

activity—however, this issue is immaterial as the court considers below the timing between

either the Plaintiffs’ unionization activities or the RDO and Plaintiffs’ later terminations, and

finds no prima facie case of retaliation in either event.

• inconsistent testimony over whether Cook County required the CCSO to

implement layoffs to meet its FY2018 budget;

• Superintendent Brown’s termination in 2017;

• Jones Tapia’s, Miller’s, and Reyes’ purportedly anti-union comments;

• Chief Curry’s failure to adequately consider or pursue alternatives to terminating

all DOC commanders; and

• Chief Johnsen’s fall 2017 email lauding the commanders.

As explained below, and even taking the facts in Plaintiffs’ favor, a reasonable jury could

not find a prima facie case of retaliation. Summary judgment therefore is appropriate.

Here, Plaintiffs’ terminations did not come “close on the heels” of their unionization

activity (or of the RDO)—they came years after the activity took place and only after Defendants

were presented with a severe budget shortfall. See Bless v. Cook Cty. Sheriff’s Office, 9 F.4th 565,

572 (7th Cir. 2021) (“Even assuming that [the decisionmakers] were aware of [the plaintiff’s]

political activity, nothing about this timeline suggests to us that his political activity was a

motivating factor . . . because the adverse employment action is too distant from the protected

activity[.]”). Even given the issuance of the RDO in August 2017, Plaintiffs’ terminations did not

happen until months after the decision, and exactly when they would most be expected to happen

given the CCSO’s undisputed budget challenges. Accordingly, the post-RDO timing here is not

enough on its own for a reasonable juror to conclude that Plaintiffs’ protected activity was a

motivating factor in their terminations, particularly given the significant intervening event of the

CCSO’s budget challenges. See Kidwell v. Eisenhauer, 679 F.3d 957, 966–68 (7th Cir. 2012)

(affirming summary judgment and finding no inference based on suspicious timing and that the

evidence did not show that the alleged retaliation “was based on [] purportedly protected speech;

rather, the decision was based on wholly unrelated, intervening events”). Like in Kidwell, “the

context in which these [terminations] were taken defies any argument that they were related to”

Plaintiffs’ unionization efforts, and “it is apparent that significant intervening events . . . that

occurred after . . . were the cause” of their terminations.” Id. at 969.

Plaintiffs’ lengthy arguments related to SEAM and its amendments do not move the

needle. At most, Defendants’ efforts to revise Article S confirm that Defendants wanted to make

the termination process easier (specifically for commanders and other non-union employees)—

but do not themselves indicate that those efforts were done due to Plaintiffs’ protected activity

rather than due to the CCSO’s budgetary issues. Plaintiffs also do not explain why Human

Resources should have been involved in this or any other process related to Plaintiffs’

termination, and simply speculate that Williams’ exclusion from the decisionmaking process

implies malfeasance. See Morgan, 724 F.3d at 999 (affirming summary judgment where firing

decisions were made “without input from Human Resources”).

The CCSO’s hiring of other employees across its departments in 2017 and 2018 also does

not provide enough support for an inference to avoid summary judgment. Though

contemporaneous hiring may sometimes support an inference of retaliation, Plaintiffs do not

justify such an inference in this case. See Jajeh v. Cty. of Cook, 678 F.3d 560, 572 (7th Cir. 2012)

(affirming summary judgment where, though a different employee was moved to full time

following the plaintiff’s layoff, “Cook County’s stated reason for terminating [the plaintiff] was

to reduce budget costs” and “the County did in fact reduce budget costs by eliminating [the

plaintiff’s] position and promoting [the other employee]”); cf. Huck Store Fixture Co. v.

N.L.R.B., 327 F.3d 528, 534 (7th Cir. 2003) (finding substantial evidence of unlawful layoffs

based on anti-union animus where, among other things, the employer’s “business outlook at the

time the workforce reduction decision was made was not significantly different from the”

positive outlook one month prior, and the employer hired ten permanent employees the day

before firing twelve others). Plaintiffs seemingly imply, without explanation, that the CCSO

would not have hired anyone (within DOC or in other CCSO departments) during FY2018 unless

it had retaliated against Plaintiffs, and do not indicate how much of CCSO’s savings from firing

the commanders was purportedly undone by its 2017 and 2018 hirings to support an inference

that Plaintiffs’ firings were motivated by retaliation or were pretextual. The fact that CCSO hired

some other employees as part of its nine-figure budget in FY2018 notwithstanding its

termination of all commanders does not support a reasonable inference that retaliation was a

motivating factor for the terminations, or, as explained further below, that Defendants’ offered

rationale of budget cuts was merely pretextual.

Plaintiffs also have not provided sufficient evidence of anti-union behavior or comments

to infer retaliation. The CCSO appeal of the RDO and general opposition to management-level

employees like commanders unionizing, as further recounted by Reyes following the RDO, does

not support more than speculation that the CCSO then took the additional step of specifically

retaliating against Plaintiffs in 2017 for their unionization activities dating as far back as 2013.

Jones Tapia’s and Miller’s isolated comments years earlier likewise do not support a reasonable

inference of retaliation in Defendants’ (specifically Curry’s) decision to terminate Plaintiffs in

2017, and Plaintiffs do not provide material evidence that they were the proximate cause of

Plaintiffs’ termination.12 See Castetter v. Dolgencorp, LLC, 953 F.3d 994, 997 (7th Cir. 2020)

11F

(“[I]solated comments must be contemporaneous with termination or causally related to the

12 The Court also notes that during the decisionmaking process, Jones Tapia herself thought that

placing commanders in Correctional Lieutenant positions (which were unionized and did have a

collective-bargaining agreement) was operationally feasible. (PSOF ¶¶ 31, 35; Defs. Resp. ¶ 31.)

termination process in order to be probative of discrimination.”); Bahl v. Royal Indem. Co., 115

F.3d 1283, 1293 (7th Cir. 1997) (“Such comments cannot defeat summary judgment in favor of

an employer unless they are both proximate and related to the employment decision in question.”

(citations omitted)); Ammons v. Cook Cty. Of Ill., No. 11 CV 5010, 2014 WL 4116956, at *10

(N.D. Ill. Aug. 20, 2014) (“There is no suggestion . . . that Jackson’s conduct was the ‘proximate

cause’ of anything.”). The fact that in 2017 the CCSO also fired Superintendent Brown, who had

testified on the CCSO’s own behalf at an ILRB hearing years earlier regarding the supervisor’s

unionization petition, also offers nothing beyond speculation that Superintendent Brown was laid

off due to his mere association with the ILRB hearing and that this somehow relates to Plaintiffs’

own activities and terminations. Ultimately, Plaintiffs do not offer material evidence from which

a jury could conclude that the CCSO not only opposed unionization but retaliated against

Plaintiffs for their unionization activities.

Plaintiffs’ other cited factors amount to little more than arguing that Defendants should

have addressed the CCSO’s budget crisis in some way other than terminating all DOC

commanders and that they were not required by Cook County to terminate employees to meet

CCSO’s FY2018 budget. Mere speculation and claims that a different solution would have been

better policy and that commanders were valued within the CCSO does not present a prima facie

case of retaliation here. See Nicholson v. City of Peoria, Ill., 860 F.3d 520, 524 (7th Cir. 2017)

(“Even if we didn’t think that it was particularly smart for the selection committee to pick

Skaggs based on the interview, it clearly wasn’t irrational. Thus, we will not second-guess the

defendants’ hiring decision in this case.”).

Even when considered together, Plaintiffs’ evidence does not overcome summary

judgment. Plaintiffs ultimately offer little beyond conjecture that because Plaintiffs had been

seeking unionization and had obtained a favorable ruling around the time that the CCSO was

forced to swiftly implement significant budget cuts, Defendants presumably fired all

commanders (including Plaintiffs) because of those unionization efforts. However, this

speculation is not materially borne out by the record, and Plaintiffs fail to make out a prima facie

case of retaliation at this stage. Further, and as explained below, even if the Court concluded

otherwise, it nevertheless would grant summary judgment for Defendants based on a lack of

evidence that Defendants’ facially legitimate explanation for Plaintiffs’ terminations due to the

CCSO’s budget crisis was pretextual.

b. Legitimate, Nonretaliatory Reason for the Firings

Even were Plaintiffs to have presented a prima facie case of retaliation at this stage,

Defendants have offered a credible nonretaliatory reason for Plaintiffs’ termination: the severe

budget challenges presented in Fall 2017 that required the CCSO to cut $65 million from its

proposed FY2018 budget. “When the plaintiff establishes a prima facie case of retaliation, an

employer may produce evidence which, taken as true, would permit the conclusion that it had a

legitimate non-discriminatory reason for taking the adverse employment action.” Robertson v.

Dept. of Health Servs., 949 F.3d 371, 378 (7th Cir. 2020). Here, Defendants have offered ample

undisputed factual support for the CCSO’s budget circumstances as the reason that all

commanders, including Plaintiffs, were terminated in November 2017. Were Plaintiffs to survive

summary judgment as to a prima facie case of retaliation, they thus would have to also survive it

as to whether Defendants’ nonretaliatory reason for their firings was pretextual.

c. Pretext

Plaintiffs do not present a material factual dispute regarding pretext, and so summary

judgment in Defendants’ favor is appropriate on this ground as well. Because Defendants offer a

legitimate, nonretaliatory reason for Plaintiffs’ firings, the burden shifts back to Plaintiffs to

“demonstrate a material issue of fact as to pretext” by showing “either (1) it is more likely that a

discriminatory reason motivated the employer than the proffered non-discriminatory reason or

(2) that an employer’s explanation is not credible.” Hudson v. Chi. Transit Auth., 375 F.3d 552,

561 (7th Cir. 2004) (citation omitted). “Pretext is more than a mistake on the part of the

employer; it is a phony excuse.” Id. “The focus of a pretext inquiry is whether the employer’s

stated reason was honest, not whether it was accurate, wise, or well-considered.” Steward v.

Henderson, 207 F.3d 374, 378 (7th Cir. 2000) (citations omitted).

Here, the record is clear that Defendants’ purported reasons for firing Plaintiffs were

real—there is no legitimate question that the CCSO was presented with a serious, immediate $65

million budget shortfall that would require substantial cuts, and that Defendants (specifically

Chief Curry) ultimately settled on terminating all commanders as part of those cuts. As explained

above when assessing Plaintiffs’ prima facie case, the various circumstantial evidence Plaintiffs

point to does not present a genuine issue that survives summary judgment, especially when

considered alongside the undisputed budgetary context of Plaintiffs’ terminations. Plaintiffs may

believe that Defendants should have taken a different approach to address the budgetary

challenges presented to them in 2017, but they have not presented material evidence to conclude

that Defendants’ offered justifications were mere pretext rather than a genuine and nonretaliatory

attempt to make the necessary cutbacks. See Debs v. Northeastern Ill. Univ., 153 F.3d 390, 396

(7th Cir. 1998) (explaining that a foolish, trivial, or even baseless decision, if honestly believed

by the employer, is not pretextual) (citing cases). Just as Plaintiffs fail to support a prima facie

case of retaliation, they doubly fail to produce material evidence that would permit a reasonable

jury to find that Defendants’ explanation for their terminations was pretextual. See Bless, 9 F.4th

at 573 (“Even if Bless could establish the prima facie case, his claim fails for the additional

reason that Bless failed to present evidence showing that the proffered [nondiscriminatory]

reasons for firing him were pretextual.”); Jajeh, 678 F.3d at 572 (“Dr. Jajeh cannot demonstrate

that Cook County’s articulated reason for his termination was a lie, and therefore Dr. Telfer’s

promotion does not support an inference of pretext.”); Stewart, 207 F.3d at 378 (7th Cir. 2000)

(“We do not sit as a superpersonnel department that reexamines an entity’s business decision and

reviews the propriety of that decision. Our only concern is whether the legitimate reason

provided by the employer is in fact the true one.” (citation omitted)). Accordingly, summary

judgment in Defendants’ favor as to Counts I and II is appropriate, and those claims are

dismissed.

d. Plaintiffs’ Monell and Indemnification Claims

Because the Court grants summary judgment as to Plaintiffs’ retaliation claims (Counts I

and II), it likewise must grant summary judgment as to Plaintiffs’ remaining Monell and

indemnifications claims (Counts V and VIII), which relied on the same purported constitutional

violations as the retaliation claims. The Court therefore grants summary judgment in Defendants’

favor as to all claims.

III. Plaintiffs’ Motion for Reconsideration (ECF. No. 170)

Plaintiffs move for reconsideration of the Court’s September 17, 2019, ruling granting

Defendants’ motion to dismiss as to Count III—which alleged a violation of procedural due

process—under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Court

specifically concluded that Plaintiffs’ Third Amended Complaint did not adequately plead

Plaintiffs were entitled to Merit Board protection either (1) because Commander was a Merit

Board protected rank or (2) because Plaintiffs maintained their Merit Board protections as

Lieutenants even after becoming Commanders. Plaintiffs now argue that the Court should

reconsider that ruling given evidence elicited during discovery in this case—specifically,

deposition testimony from Robert Egan and provisions in SEAM Articles A and Q—that they

believe further supports their earlier arguments.

A motion to reconsider an interlocutory order, like the Court’s dismissal of Count III, is

governed by Federal Rule of Civil Procedure 54(b), which provides that such orders “may be

revised at any time before the entry of a judgment adjudicating all the claims and all the parties’

rights and liabilities.” Fed. R. Civ. P. 54(b). The court thus may reconsider its prior rulings in its

discretion, though motions to reconsider are disfavored. See Patrick v. City of Chicago, 103 F.

Supp. 3d 907, 911 (N.D. Ill. 2015). “Such motions ‘serve a limited function: to correct manifest

errors of law or fact or to present newly discovered evidence.’” Id. (citations omitted). “A further

basis for a motion to reconsider would be a controlling or significant change in the law or facts

since the submission of the issue to the Court.” Bank of Waunakee v. Rochester Cheese Sales,

Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). Here, Plaintiffs claim newly discovered evidence,

which requires a showing “that the evidence was unknown until after the hearing and the moving

party could not have discovered and produced such evidence with reasonable diligence before

the court’s earlier decision.” Webster Bank, N.A. v. Pierce & Assocs., P.C., No. 16 C 2522, 2018

WL 704693, at *2 (N.D. Ill. Feb. 5, 2018) (citing Caisse Nationale de Credit Agricole v. CBI

Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996)). The party seeking reconsideration “bears a

heavy burden, and motions for reconsideration ‘are not at the disposal of parties who want to

“rehash” old arguments.’” Patrick, 103 F. Supp. 3d at 912 (citation omitted).

Plaintiffs’ motion fails. At the outset, the portions of SEAM Plaintiffs point to were

available by January 2017, before Plaintiffs filed this case and long before the Court considered

Defendants’ motion to dismiss Count III. The only “new” facts Plaintiffs thus can attempt to

point to are those they cite in Egan’s deposition testimony.

Plaintiffs do not explain how they could not have discovered the facts purportedly

revealed during Egan’s deposition earlier despite diligent efforts—especially since those facts

(i.e., whether Plaintiffs held a merit rank in 2017) existed well before this case began. See Johnke

v. Espinal-Quiroz, No. 14-cv-6992, 2018 WL 3381888, at *6 (N.D. Ill. July 9, 2018) (“All of

these documents reference facts that existed well before the summary judgment briefing began

and thus could have been obtained earlier.” (emphasis in original)). Plaintiffs seem to assume

that they are off the hook simply because the evidence they point to, which addresses facts that

existed years earlier, shows up in a deposition taken after the Court’s September 2019 ruling. But

“[f]acts that were available to Plaintiffs before the Court’s dismissal order are not newly

discovered merely because they are later presented again in the form of deposition testimony.”

Walls v. Vre Chicago Eleven, LLC, No. 16-cv-4048, 2020 WL 887488, at *4 (N.D. Ill. Feb. 24,

2020) (citing cases). Plaintiffs must show that they could not have discovered the relevant facts

regarding their own merit rank status before the Court dismissed Count III, and have made no

attempt to do so.

Plaintiffs’ motion for reconsideration also fails because it asks the Court to reevaluate

dismissal based on newly introduced evidence outside of Plaintiffs’ own complaint—which the

Court does not consider when evaluating whether Plaintiffs have pled a claim under Rule

12(b)(6). See United States ex rel. Sibley v. Univ. of Chi. Med. Ctr., 44 F.4th 646, 662 (7th Cir.

2022) (“[A] ruling on a motion to dismiss considers only the pleadings[.]”). The Court

previously evaluated the allegations in Plaintiffs’ Third Amended Complaint, found them lacking

as to Count III, and dismissed that count. That dismissal inquiry remains unchanged—Plaintiffs’

allegations in their operative complaint are the same now as there were in September 2019, and

Plaintiffs have not argued why the facts they claim are newly discovered, though outside of their

complaint, may nonetheless be considered to reassess Defendants’ prior Rule 12(b)(6) motion.

Plaintiffs have not sought to amend their complaint to add new allegations related to their merit

ranks, and the Court thus is left with the same allegations it already found lacking when it

previously considered Plaintiffs’ arguments and dismissed Count III. (See ECF No. 77 at 7-9.)

Because Plaintiffs offer nothing new for purposes of the Court’s prior dismissal, reconsideration

is unwarranted.

Conclusion

For the above reasons, the Court grants Plaintiffs’ motion for leave to file a sur-reply

(ECF No. 168), grants Defendants’ motion for summary judgment (ECF No. 144), and denies

Plaintiffs’ motion for reconsideration (ECF No. 170). Civil case terminated.

SO ORDERED. ENTERED: September 20, 2023

HON. JORGE ALONSO

United States District Judge

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