Consolino v. Dart

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CARMEN CONSOLINO, et al., )

)

Plaintiff, ) Case No. 17-cv-09011

)

v. ) Judge Robert M. Dow, Jr.

)

THOMAS J. DART, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs bring claims against Defendants for retaliation, due process violations, and equal

protection violations under 42 U.S.C. § 1983 and various state law theories. Before the Court is

Defendants’ motion to dismiss Counts III, IV, V, VI, and VII [62]. For the reasons set forth below,

Defendants’ motion to dismiss is granted with respect to Counts III, IV, VI, and VII, and denied

with respect to Count V. The case is set for further status hearing on October 3, 2019 at 9:00 a.m.

I. Background1

The case concerns the termination of Plaintiffs’ employment with the Cook County

Sheriff’s Office (CCSO), allegedly in retaliation for starting a union drive and whistleblowing

about conditions in the Cook County Jail. According to the third amended complaint (TAC) [54],

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

Aretha Germany (“Plaintiffs”) were longtime employees of the CCSO, each having been in its

employ for at least a decade. [54, at ¶¶ 24–29.] In May 2011, the title of the rank of “Correctional

Captain” was changed to “Commander.” [Id. at ¶¶ 16, 38.] By April 2012, each Plaintiff had

1 For purposes of the motion to dismiss, the Court accepts as true all of Plaintiffs’ well-pleaded factual

allegations and draws all reasonable inferences in Plaintiffs’ favor. Killingsworth v. HSBC Bank Nev., N.A.,

507 F.3d 614, 618 (7th Cir. 2007).

attained the rank of Commander either as a result of a promotion from Lieutenant or the name

change from Correctional Captain. [Id. at ¶¶ 24–29.]

Notwithstanding this straightforward narrative, the TAC is not altogether clear about

Plaintiffs’ actual job titles and ranks following April 2012. This confusion stems from the fact

that the Cook County Sheriff’s Merit Board apparently recognizes the rank of Correctional

Captain, but it does not recognize the rank of Commander. [Id. at ¶¶ 11, 96]; see also, infra,

III.A.1. Merit Board recognition is a big deal, because it comes with the promise that termination

will only be “for cause.” [Id. at ¶ 96.] Plaintiffs submit that the rank of “Commander” is “nearly

identical” to that of “Captain.” [Id. at ¶¶ 10, 29.] In the alternative, Plaintiffs allege that for

purposes of merit classification, they retain the last “hard rank” they attained prior to promotion

to Correctional Captain or Commander, which apparently would be Lieutenant. [Id. at ¶ 40.] But

elsewhere, the TAC defines “commander” as a “sworn hard rank.” [Id. at ¶¶ 24–29.] Finally,

Plaintiffs allege that they were similarly situated to “Directors” employed by the CCSO. [Id. at

¶¶ 110–111.]

In December 2013, Plaintiffs filed an initial “Majority Interest Petition” and signed union

cards, which signaled their collective interest in forming a union. [Id. at ¶ 50.] Defendants Sheriff

Thomas Dart, Zelda Whittler, Bradley Curry, Nneka Jones Tapia, and Matthew Burke

(“Defendants”)2 fought Plaintiffs’ union drive, arguing that Plaintiffs were supervisors or

managers, and therefore ineligible under state law to form a union. Id. Plaintiffs Consolino, Belk,

and Chubb regularly attended ILRB hearings, where Consolino and Belk gave testimony regarding

the CCSO’s labor practices and safety conditions at the Cook County Jail. [Id. at ¶¶ 51, 54, 135.]

Plaintiffs Garcia and Germany were visibly involved in the union drive and known supporters of

2 Cook County is also named as a defendant [54 at ¶ 32], but only as an indemnitor. See generally [59].

Unless otherwise noted, the term “Defendants” as used in this order does not include Cook County.

unionization, although they did not testify before the ILRB. [Id. at ¶ 52.] The Court infers that

Plaintiff Thomas also supported unionization in a way that was known to Defendants. [Id. at

¶ 53.]3 On August 2, 2017, the ILRB issued a decision allowing the Commanders (i.e., Plaintiffs)

to lawfully form a union. [Id. at ¶ 56.] Contemporaneous with the union drive, and throughout

their employment with CCSO, Plaintiffs made internal complaints about jail conditions and alleged

safety code violations. [Id. at ¶¶ 44–46.] In retaliation for voicing their concerns, Plaintiffs were

shunned from internal management “pre-accountability” and “accountability” meetings. See [id.

at ¶ 77.]

At some point, Plaintiffs allege, “Defendant Dart passed and enforced SEAM, Article S.”

[Id. at ¶ 119.] SEAM, Article S appears to be a department-wide policy that empowers Defendants

to make discretionary layoffs. See [id. at ¶¶ 70, 73, 74.] On December 4, 2017, about four months

after the favorable ILRB decision, Plaintiffs were laid off from the CCSO. [Id. at ¶ 37.] These

layoffs, Plaintiffs contend, were directed and carried out by each of the Defendants pursuant to the

authorities delineated in SEAM, Article S. [Id. at ¶¶ 70, 73, 74, 92.] Plaintiffs also contend that

Defendant Dart selected Plaintiffs for layoffs and approved of the final termination orders. [Id. at

¶ 68, ¶ 74.] Plaintiffs were not provided with a pre-termination hearing, an opportunity to contest

having been laid off, or any other procedure beyond a perfunctory exit interview where they were

informed of their pension rights and COBRA. [Id. at ¶ 58–60.] Moreover, Plaintiffs were not

allowed to accept demotions and “bump” junior officers. [Id. at ¶ 17.]

3 The TAC is unclear about Plaintiff Victor Thomas’s role in the union drive. Mr. Thomas was initially

called to testify before the ILRB on behalf of CCSO leadership (i.e., those opposed to unionization), but

the Sheriff’s representatives ultimately declined to have Plaintiff Thomas testify. [54 at ¶ 52.] Elsewhere,

however, the TAC implies that CSSO leadership failed to call Plaintiff Thomas as a witness because he

would not give them favorable testimony. [Id. at ¶ 87(f).] Because all reasonable inferences are drawn in

favor of the plaintiff when ruling on a 12(b)(6) motion to dismiss, the Court infers that Plaintiff Thomas

had pro-union beliefs and was prepared to testify to that effect, which is why his testimony was pulled.

Plaintiffs concede that CCSO was, at the time of the layoffs, reducing personnel costs in

other ways beyond firing just them: According to the TAC, the CCSO also demoted, transferred,

or reduced the salaries of other employees. [Id. at ¶ 57.] As is clear from the briefing, CCSO's

broader personnel changes were contemporaneous to and at least partly motivated by the repeal of

the “Soda Tax,” which left the county in dire budgetary straits. See [67 at 5 n.1]; [60-1 at 2].

Each Plaintiff held the position of Commander for more than one year prior to termination,

putting them outside of the one-year probationary period outlined in the Sheriff’s Employment

Action Manual. [54 at ¶ 43.] Plaintiffs also plead that during their employment, they were subject

to progressive discipline but fail to elaborate the terms of such discipline. [Id. at ¶ 99.]

On November 27, 2018, Plaintiffs filed the TAC [Id.], which asserts six counts against all

of the Defendants (except Cook County) in their individual capacities: a violation of Plaintiffs’

First Amendment right to freedom of speech pursuant to 42 U.S.C. § 1983 (Count I) [Id. at ¶¶ 65–

85]; a violation of their First Amendment right to freedom of association pursuant to 42 U.S.C.

§ 1983 (Count II) [Id. at ¶¶ 86–93]; a violation of their Fourteenth Amendment due process rights

pursuant to 42 U.S.C. § 1983 (Count III) [Id. at ¶¶ 94–102]; a violation of their Fourteenth

Amendment equal protection rights pursuant to 42 U.S.C. § 1983 (Count IV), [Id. at ¶¶ 103–115];

a violation of the Illinois Whistleblower Act, 740 ILCS 174/1 et seq. (Count VI), [Id. at ¶¶ 128–

138]; and common law retaliatory discharge (Count VII), [Id. at ¶¶ 139–145]. Plaintiffs also assert

a Monell claim against Defendant Dart in his official capacity (Count V) [Id. at ¶¶ 116–127] and

an indemnification claim against Cook County (Count VIII) [Id. at ¶¶ 146–147]. Defendants filed

a motion to dismiss Counts III, IV, V, VI, and VII pursuant to Federal Rule of Civil Procedure

12(b)(6) [62], asserting that each of the claims fails to assert a claim upon which relief can be

granted.

II. Legal Standard

“In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must ‘state a

claim to relief that is plausible on its face.’” See, e.g., Lodholtz v. York Risk Serv. Grp., Inc., 778

F.3d 635, 639 (7th Cir. 2015) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The

plaintiff’s complaint needs not include “detailed factual allegations,” but it must contain more than

“a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Thus,

the complaint must include sufficient “factual content that allows 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). At this stage, the Court “accept[s] as true all of the well-pleaded facts in the complaint

and draw[s] all reasonable inferences in favor of the plaintiff.” Forgue v. City of Chicago, 873

F.3d 962, 966 (7th Cir. 2017) (quoting Kubiak v. City of Chicago, 810 F.3d 476, 480–81 (7th Cir.

2016)).

III. Analysis

A. Procedural Due Process (Count III)

The Fourteenth Amendment to the U.S. Constitution forbids states from depriving “any

person of life, liberty or property, without due process of law.” U.S. Const. amend. XIV § 1. “To

state a claim for a procedural due process violation, a plaintiff must demonstrate (1) a cognizable

property interest; (2) a deprivation of that property interest; and (3) a denial of due process.”

Manistee Apartments v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016).4 Plaintiffs claim that

4 The Plaintiffs’ TAC does not specify whether they intend to bring a case under procedural or substantive

due process, but the TAC and briefing are both only relevant to procedural due process claims. [54 at ¶¶

95–102 (reciting facts relevant to procedural due process claim)]; [67 at 5 (citing procedural due process

cases).] In the event that Plaintiffs intended to bring a substantive due process claim, that must be

dismissed. Substantive due process claims are “limited to violations of fundamental rights, and

employment-related rights are not fundamental.” Palka v. Shelton, 623 F.3d 447, 453 (7th Cir. 2010)

(citation omitted).

they had a property interest in their employment, and that Defendants deprived them of that interest

without due process. [54 at ¶¶ 95–100.] Defendants seek to dismiss this claim on the ground that

Plaintiffs “do not have a property interest in their employment.” See [60-1 at 3.]

Although the right to procedural due process is protected by the federal Constitution,

property rights themselves “are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law.” Bd. of Regents of State

Colleges v. Roth, 408 U.S. 564, 577 (1972). Thus, the Court must turn to Illinois law to determine

the nature and dimension of Plaintiffs’ alleged property interest in their employment. See, e.g.,

Dibble v. Quinn, 793 F.3d 803, 810 (7th Cir. 2015). “[E]mployment relationships in Illinois are

presumed to be at will.” Cromwell v. City of Momence, 713 F.3d 361, 364 (7th Cir. 2013) (citing

Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 317 (Ill. 1987)); see also, e.g.,

Swyear v. Fare Foods Co., 911 F.3d 874, 885 (7th Cir. 2018). A public employee can rebut that

presumption only if he or she has a “legitimate expectation of continued employment,” and “to

show a legitimate expectation of continued employment, a plaintiff must show a specific

ordinance, state law, contract or understanding limiting the ability of the state or state entity to

discharge him.” Moss v. Martin, 473 F.3d 694, 700 (7th Cir. 2007) (citing Krecek v. Bd. of Police

Comm’rs of La Grange Park, 646 N.E.2d 1314, 1318 (Ill. App. Ct. 1995)).

Plaintiffs offer two theories in support of a legitimate expectation of continued

employment: (1) the Cook County Sheriff’s Merit Board Act requires that termination of certain

correctional employees be “for cause” and (2) the property interest in continued employment was

secured by an understanding in the form of a clearly implied promise. [54 at ¶ 96, 98–99.] The

Court considers each in turn.

1. Cook County Sheriff’s Merit Board Act

An employee can show a legitimate expectation of continued employment established by

a “specific ordinance” or “state law.” Moss, 473 F.3d at 700. Plaintiffs hang their hat on the Cook

County Sheriff’s Merit Board Act (CCSMBA), 55 ILCS 5/3–7001, et seq., which mandates certain

personnel policies and procedures for the CCSO. In relevant part, the Act provides, “Except as is

otherwise provided in this Division, no deputy sheriff in the County Police Department, no full-

time deputy sheriff not employed as a County police officer or county corrections officer and no

employee in the county Department of Corrections shall be removed, demoted or suspended except

for cause.” 55 ILCS 5/3–7012. Elsewhere, the CCSMBA establishes a Merit Board, which has

the power to “establish a classification of ranks including those positions which shall be exempt

from merit classification.” 55 ILCS 5/3–7006. These provisions must be read in tandem: The

Merit Board, pursuant to its powers in section 3–7006, has the authority to classify different

position types as within or exempt from section 3–7012’s for-cause protections. Kolman v.

Sheahan, 31 F.3d 429, 434 (7th Cir. 1994) (holding that two chief deputies and five investigators

employed by the CCSO did not have a property right in employment because the Merit Board did

not classify their positions as merit positions).5

Because the CCSMBA itself does not explicitly include or exempt the rank of

“Commander” from the for-cause requirement, 55 ILCS 5/3–7012, whether section 3–7012 applies

turns on how the Merit Board classifies that rank. See Kolman, 31 F.3d at 434. Plaintiffs, however,

do not plead that the Merit Board includes Commander as a protected rank; in fact, their pleading

suggests that Commander is not classified by the Merit Board as a protected rank. See [54 at ¶¶ 11,

5 Defendants advance an alternate theory that section 3–7012 does not apply because it only applies to for-

cause termination, and not to layoffs. [60-1 at 5–7.] Because the Court dismisses this Count on alternate

grounds, it need not reach the question of whether layoffs are within the ambit of the CCSMBA.

96.]6 In order to forestall the inevitable conclusion that they are not protected by the CCSMBA,

Plaintiffs advance two theories for why Commanders should nonetheless be given merit

protections under the CCSMBA. First, the Plaintiffs contend that the rank of “Commander” is

“nearly identical” to and entails “generally” the same job responsibilities as the (presumably)

protected rank of “Correctional Captain.” [54 at ¶¶ 10, 42, 96.] That is, this was nothing more

than a name change from Captain to Commander. [Id. at ¶ 39.] But the Merit Board does not

classify job functions, it classifies “ranks including those positions which shall be exempt from

merit classification.” 55 ILCS 5/3–7006 (emphasis added); Kolman, 31 F.3d at 434. Because

Plaintiffs do not contend that the rank of Commander is included within the merit system, they fail

to show how the CCSMBA provides a legitimate expectation of continued employment.7

Moreover, the fact that the Plaintiffs were fired six years after the creation of the Commander rank

suggests that the Merit Board consciously excepted it from merit protections. The inference that

Plaintiffs would have the Court draw, that the Merit Board was asleep at the wheel for the better

part of a decade, is simply not tenable. See Iqbal, 556 U.S. at 678.

6 Defendants included the most recent Cook County Sheriff’s Merit Board Rules and Regulations as an

attachment to their reply brief. See generally [68-1]. This document, however, is dated four months after

the layoffs occurred, so the Court cannot rely on it in analyzing Plaintiffs’ merit status as of December

2017. But, had these rules been in effect in December 2017, they would preclude Plaintiffs’ allegation that

they were covered by the Merit Board: Article IV of these rules categorically “exempt[s] from merit

classification” any “[i]ndividuals serving in positions outside” the classified ranks of Correctional Captain,

Lieutenant, Sergeant, and Officer. [Id. at 9.] Because the position of Commander was not listed in Article

IV, it would be “exempt from merit classification.” [Id.]

7 On April 4, 2019, Plaintiffs submitted supplemental authority on this question. See [73]. The case in

question, however, involved a former CCSO employee who had been discharged from his position of

Lieutenant, which is a rank that is protected by section 3–7012 according to the Merit Board classifications.

See generally [73–1 (Jones v. Dart, No. 2018 CH 03589 (Cook Cty. Chanc. Ct. March. 27, 2019)]. In

contrast, Plaintiffs here do not allege that the position of Commander is protected by the Merit Board—

rather, they say that their job duties are similar enough to Correctional Captain that they should be protected

as well. The Circuit Court’s opinion in Jones says nothing about this issue.

Plaintiffs’ next argument is difficult to parse, but as the Court understands it, Plaintiffs

contend that they retain their last “hard rank”—and that “hard ranks” can be different from their

formal job titles. [54 at ¶¶ 40–41, 97.] That is, although Plaintiffs’ rank “changed” from “Captain”

or “Lieutenant” to “Commander,” they still retained their last hard rank, which is apparently the

Merit Board recognized position of Lieutenant. See [Id. at ¶¶ 41, 97.] Preliminarily, Plaintiffs

repeatedly plead that “commander” is a “sworn hard rank,” so the Court is at a loss as to how the

Plaintiffs’ “hard rank” is not simply Commander, which would put them outside of the CCSMBA

system. [Id. at ¶¶ 24–29, 96.] Even taking Plaintiffs’ contention that their last hard rank was

Captain or Lieutenant as true, however, this creative pleading goes against the statutory text and

the holding in Kolman. The CCSMBA says nothing about ranks vesting and Plaintiffs do not plead

that they are in fact classified in a rank protected by the Merit Board—they are all by their own

admission Commanders, not Lieutenants. See [54 at ¶ 41.] Because the CCSMBA only protects

the ranks identified by the Merit Board, Kolman, 31 F.3d at 434, and the Merit Board does not

recognize the rank of Commander, the CCSMBA does not apply to Plaintiffs and cannot provide

a legitimate expectation of continued employment.8

2. Clearly implied promise

“[E]mployment relationships in Illinois are presumed to be at will.” Cromwell, 713 F.3d

at 364 (citing Duldulao, 505 N.E.2d at 317). Non-statutory and non-contractual promises may, in

some circumstances, rebut that presumption. There is not a consistent formulation of the test, but

some courts find a property interest in employment if there is a “clearly implied promise of

continued employment.” Bruce v. Bd. of Educ. of the City of Chicago, 2011 WL 3895125, at *4

8 Again, Plaintiff's citation to supplemental authority is unavailing. See [73]. The plaintiff in Jones pled

that his most recent promotion was into the protected position of Lieutenant. [Id. at 1] Nothing in Jones

indicates that people who have moved out of the rank system retain the protections of the CCSMBA.

(N.D. Ill. Aug. 31, 2011) (quoting Heck v. City of Freeport, 985 F.2d 305, 310 (7th Cir. 1993)).

Others find that the “terms of employment must provide that termination will only be for cause or

otherwise evince mutually explicit understandings of continued employment.” Cromwell, 713

F.3d at 364 (internal quotation marks and citation omitted). In any event, the precise formulation

of the test does not matter, because Illinois law requires clear promises of continued employment

to rebut the presumption of at will employment, and thereby establish a property right in continued

employment.

Plaintiffs claim that there were two clearly implied promises of continued employment

establishing a property right. First, plaintiffs contend that the existence of a probationary period

implies that upon successful completion of that period, employees can only be terminated for

cause: “By how well-established it is that probationary police officers do not have protected

property interests, it follows that non-probationary sworn officers * * * have protected property

interests by virtue of completing their probationary periods.” [67 at 6]; see also [54 at ¶ 98.]

Second, such as the Court can glean from the TAC and briefing, Plaintiffs argue under similar

logic that being subject to progressive discipline implies a legitimate expectation in continued

employment absent committing infractions that would give rise to discipline. See [67 at 5–6]; see

also [54 at ¶ 99].

Both arguments are unconvincing. The Seventh Circuit has explained that under Illinois

law, “[t]he mere presence of a probationary period does not by implication create an enforceable

property right to continued employment for nonprobationary employees.” Cromwell, 713 F.3d at

364. Indeed, successful completion only secures a property right when the terms of the

probationary period are “coupled with other language suggesting an expectation of continued

employment.” Id. at 365 (discussing leading cases). Plaintiffs do not cite any authority to the

contrary. [67 at 6.] Because Plaintiffs did not plead any “other language suggesting an expectation

of continued employment,” they have not shown that their probationary period implied a promise

of continued employment. Plaintiffs’ arguments regarding progressive discipline fail for similar

reasons. “Without any contractual language or implied promise limiting the employer’s power to

fire,” enumerated grounds for discipline are “gratuitous warnings.” Cromwell, 713 F.3d at 365

(quoting Border v. City of Crystal Lake, 75 F.3d 270, 276 (7th Cir. 1996)); see also Villacci v.

Herrell, 2014 WL 7205562, at *7 (N.D. Ill. Dec. 18, 2014) (collecting cases); Catinella v. Cnty.

of Cook, 230 F. Supp. 3d 880, 886 (2016) (granting motion to dismiss because an “unadorned

reference to progressive discipline” is not “sufficient to state a protected property interest” in

continued employment). As noted above, Plaintiffs have not pled any additional implied promise

of continued employment beyond the “gratuitous warnings” embodied by the system of

progressive discipline, or cited any authority suggesting that progressive discipline confers a

property right in employment. [67 at 6–7.] Because Plaintiffs do not have a legitimate expectation

in continued employment, they do not have any constitutionally protected property interest and

Count III must be dismissed.9

B. Count IV (Equal protection)

Plaintiffs’ Count IV alleges that Defendants violated the Equal Protection Clause of the

Fourteenth Amendment in singling Plaintiffs out for termination. See U.S. Const. amend. XIV

§ 1. Equal protection claims arise when a state actor “treats a person poorly because of the person's

race or other suspect classification, such as sex, national origin, religion, political affiliation,

among others, or because the person has exercised a ‘fundamental right,’ or because the person is

a member of a group that is the target of irrational government discrimination.” Abcarian v.

9 If there was no implied promise then, a fortiori, there can be no “mutually explicit understanding,” so

Plaintiffs fail both formulations of this test. Cromwell, 713 F.3d at 364.

McDonald, 617 F.3d 931, 938 (7th Cir. 2010). In limited circumstances, the Supreme Court has

recognized so-called “class-of-one” claims, “where the plaintiff alleges that she has been

intentionally treated differently from others similarly situated and that there is no rational basis for

the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curium).

Class-of-one claims generally only arise when, “with no conceivable basis for his action other than

spite or some other improper motive[,] * * * [a public official] comes down hard on a hapless

private citizen.” Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir. 2005).

Defendants have moved to dismiss this Count on the grounds that class-of-one claims can

never be brought against public employers, and that Plaintiffs have failed to plausibly plead either

of the elements of such a claim: (1) that similarly situated individuals were treated differently, or

(2) that Defendants acted without any rational basis. [60-1 at 8–10.]

Defendants have the better argument. The law is clear that “a ‘class-of-one’ theory of equal

protection has no place in the public employment context” even when the plaintiff alleges that the

employment action was taken for “arbitrary, vindictive, or malicious reasons.” Engquist v. Oregon

Dep’t of Agr., 553 U.S. 591, 594–95; see also, e.g., Forgue, 873 F.3d at 968 (holding that public

employee plaintiff’s equal protection “theory of liability is categorically foreclosed by the

Supreme Court’s holding in Engquist”); Avila v. Pappas, 591 F.3d 552, 554 (7th Cir. 2010)

(“[D]isputes related to a public employee's interactions with superiors or co-workers never may be

litigated as class-of-one claims under the equal protection clause.”). Plaintiffs themselves concede

that the Seventh Circuit interprets Enquist as imposing a “broad” immunity on public employers

from class-of-one claims. [67 at 8] (quoting Abcarian, 617 F.3d at 939). This categorical policy

is guided by the “common-sense realization that government offices could not function if every

employment decision became a constitutional matter.” Engquist, 553 U.S. at 607 (quoting Connick

v. Myers, 461 U.S. 138, 143 (1983)). Indeed, “[t]o treat employees different is not to classify them

in a way that raises equal protection concerns,” but rather, “it is simply to exercise the broad

discretion that typically characterizes the employer-employee relationship.” Id. at 605. Because

Plaintiffs’ theory amounts to little more than the claim that their public employer singled them out

for disparate treatment, it must be dismissed under Engquist as an improper class-of-one claim.

Plaintiffs’ discussion of an out-of-circuit race discrimination case is unpersuasive. [67 at

7–8 (citing Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d. Cir. 2015)).] In Vega, the

plaintiff alleged that his public employer discriminated against him because he is Hispanic, and

then retaliated against him when he filed charges with the Equal Employment Opportunity

Commission. 801 F.3d at 76–78. Vega did not cite Engquist or even discuss class-of-one equal

protection claims because the retaliation at issue was part of the same underlying race-based

discrimination, a clear-cut equal protection violation. Id. at 82. Vega is thus inapposite, because

Plaintiffs have not alleged that they were fired in retaliation for bringing workplace discrimination

against suspect classes to light, let alone that they are members of a suspect class.10 And to the

extent that Plaintiffs cite Vega for the proposition that Engquist does not apply to public

employers’ retaliation against employees, the Court is bound by Seventh Circuit precedent to the

contrary. See, e.g., Forgue, 873 F.3d at 968.

In any event, Plaintiffs have also failed to make out either of the elements of a proper class-

of-one equal protection claim: that they have been “[1] intentionally treated differently from others

similarly situated and [2] that there is no rational basis for the difference in treatment.” Id. First,

10 Plaintiffs’ alternative proposed class of people “seeking to unionize and that [] were whistle-blowers”

[67 at 7] is not a suspect class within equal protection jurisprudence. See, e.g., Abcarian, 617 F.3d at 938

(listing the traditionally recognized protected classes). Moreover, recognizing such a class would turn

Engquist’s categorical ban on public employment class-of-one claims into a mere formality to be overcome

by cleverly specific pleading.

Plaintiffs have not plausibly pled that they were treated worse than other similarly situated

individuals. Plaintiffs’ proposed similarly situated comparators, “Directors,” fails because

Plaintiffs have not pled facts showing that “Directors” are “prima facie identical in all relevant

respects” to Commanders. Stachowski v. Town of Cicero, 425 F.3d 1075, 1078 (7th Cir. 2005)

(quoting Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002)). Plaintiffs concede

that “the entire rank” of Commander was terminated, meaning that no one with that rank was

treated differently than Plaintiffs. [54 at ¶ 120(b)]. And, obviously, rank is highly “relevant” to

personnel procedures in the CCSO. See, supra, III.A.1. Plaintiffs alternately assert that all CSSO

employees are similarly situated because they are all “employees who cost the Sheriff money.”

[67 at 8.] This is obviously overbroad, which is why Engquist precludes class-of-one claims that

rest “on the theory that other employees were not treated wrongfully.” Engquist, 553 U.S. 608.

Plaintiffs have also failed to rebut the “presumption of rationality” that attaches to

government actions challenged in class-of-one claims. Flying J Inc. v. City of New Haven, 549

F.3d 538, 548 (7th Cir. 2008). “[E]ven at the pleading stage a class-of-one plaintiff must negate

any reasonably conceivable state of facts that could provide a rational basis.” Jackson v. Vill. of

W. Springs, 612 Fed.Appx. 842, 847 (7th Cir. 2015) (quoting Miller v. City of Monona, 784 F.3d

1113, 1121 (7th Cir. 2014)). If the Court “can come up with a rational basis for the challenged

action, that will be the end of the matter—animus or no.” Fares Pawn v. Indiana Dep’t of Fin.

Inst., 755 F.3d 839, 845 (7th Cir. 2014). Here, Plaintiffs have failed to rebut the purported

justification for the layoffs—Cook County’s budget crisis. Moreover, the Court can conceive of

many rational bases for singling out the Commanders. For example, it may be administratively

easier to eliminate a stratum of middle management that consists of only six people than to

reorganize larger departments. Or perhaps firing employees not covered by the CCSMBA is

simply less of an administrative headache. Because Engquist bars class-of-one claims by public

employees and Plaintiffs have failed to plead either of the required elements of such a claim, the

Court must dismiss Count IV.

C. Count V (Monell)

Next, Plaintiffs bring a Monell claim against Defendant Dart in his official capacity as

Sheriff of the CCSO. Preliminarily, Monell is a theory of municipal or agency liability for actions

brought under 42 USC § 1983. See generally Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

Because the Court has dismissed Count III and Count IV, the Monell analogues must be dismissed

as well. Counts I and II have not been dismissed, however, and allege constitutional violations

pursuant to 42 USC § 1983, so the Court must still determine whether Monell liability applies.

To state a claim under Monell, a plaintiff must plead that his or her constitutional injury

was caused by one of the following: “(1) the enforcement of an express policy of the [agency], (2)

a widespread practice that is so permanent and well settled as to constitute a custom or usage with

the force of law, or (3) a person with final policymaking authority.” E.g., Wragg v. Vill. of

Thornton, 604 F.3d 464, 467 (7th Cir. 2010) (citations omitted). Here, Plaintiffs try to plead all

three theories. ¶¶ 118, 120–21.

In reviewing the Plaintiffs’ Monell claim, the Court is mindful of Seventh Circuit's

admonition “that federal courts may not apply a heightened pleading standard * * * in civil rights

cases alleging municipal liability under . . . 42 USC § 1983.” White v. City of Chicago, 829 F.3d

837, 844 (7th Cir. 2016) (internal quotation marks and citation omitted). Thus, as in all civil cases,

Plaintiffs here need only abide by Rule 8(a)(2)’s requirement of a “short and plain statement of the

claim showing that the pleader is entitled to relief.” Id.

Defendant Dart challenges each of the three ground for Monell liability as insufficiently

specific to survive a motion to dismiss. He argues that “the First Amendment claims based on

policies, practices, and final policymakers fail because they are nothing more than conclusory and

threadbare recitations of the elements of Monell claims.” [60-1 at 11.] Specifically, he contends

that (1) Plaintiffs’ allegations regarding “express policy” are insufficient; (2) Plaintiffs have not

sufficiently pled that Defendant Dart is a final policymaker; and (3) Plaintiffs have not properly

alleged an unconstitutional custom and practice. Each theory is addressed in turn.

First, Plaintiffs’ allegations of an express policy that violates the Constitution is insufficient

to make out a Monell claim. “The express policy theory applies * * * where a policy explicitly

violates a constitutional right when enforced.” Calhoun v. Ramsey, 408 F.3d at 375 (7th Cir. 2005)

(emphasis added). Plaintiffs’ TAC does not allege that there is any express policy that explicitly

violates a constitutional right. Rather, according to Plaintiffs, Sheriff Dart utilized his powers

under “SEAM, Article S” to “select Plaintiffs for layoff.” See, e.g., [54 at ¶ 84]; see also [id. at

¶ 119]. As the Court understands these allegations, they merely state that SEAM, Article S

provided Defendant Dart with expansive or discretionary powers that he nefariously used to

retaliate against Plaintiffs. See [67 at 10.] Even accepting as true Plaintiff's allegation that SEAM

was enacted solely to provide a mechanism to fire Plaintiffs [54 at ¶ 84], Plaintiffs have still not

pled that SEAM, Article S “explicitly violates a constitutional right when enforced.” Calhoun, 408

F.3d at 375. Indeed, Plaintiffs' express policy theory contains little more than “a formulaic

recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555.

Plaintiffs’ allegation that Sheriff Dart was a final policymaker, however, fares better. “The

determination of whether a person has policymaking authority is a question of state law.”

Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664, 675 (7th Cir. 2009) (citation omitted). “In

order to have final policymaking authority, an official must possess ‘[r]esponsibility for making

law or setting policy,’ that is, ‘authority to adopt rules for the conduct of government.’” Rasche

v. Vill. of Beecher, 336 F.3d 588, 599 (7th Cir. 2003) (quoting Auriemma v. Rice, 957 F.2d 397,

401 (7th Cir. 1992)). The Seventh Circuit has explained that “a sheriff in Illinois has final policy-

making authority” for Monell purposes. Brokaw v. Mercer Cnty., 235 F.3d 1000, 1013 (7th Cir.

2000) (internal omitted) (holding that an allegation that a county sheriff caused constitutional harm

is sufficient to make out a Monell claim). Here, Plaintiffs have pled that Defendant Dart “passed

and enforced SEAM, Article S,” and that this policy provided the mechanisms for laying off

employees. [54 at ¶¶ 70, 73, 119]. That is, Defendant Dart has “set” the SEAM policy, thereby

adopting “rules for the conduct of government” regarding employee termination in the CCSO. See

Rasche, 336 F.3d at 599. Plaintiffs also have pled that Defendant Dart caused their injury while

acting pursuant to his policymaking authority when he selected Plaintiffs for termination and then

ultimately approved of their dismissal. [54 at ¶¶ 68, 74.] These allegations, along with the fact

that “a sheriff in Illinois has final policy-making authority,” Brokaw, 235 F.3d at 1013, are

sufficient to allow the Court to infer that Defendant Dart is a final policymaker with respect to

firing and that he caused Plaintiffs’ injury.

Third, because Plaintiffs have adequately alleged that Defendant Dart is a final

policymaker for the CCSO and caused Plaintiffs’ injuries, the Court need not address Plaintiff’s

allegations that Defendant Dart has implemented a widespread custom or practice of retaliation.

Plaintiffs’ Count V can proceed. However, as a matter of prudent case management, the Court

will discuss with counsel at the next status hearing whether the Monell claim (Count V) should be

bifurcated.

D. Illinois Tort Immunity11

Plaintiffs also bring two counts under state tort law, Count VI (Illinois Whistleblower Act)

and Count VII (common-law retaliatory discharge). Defendants move to dismiss both of these

counts claiming that they are immune from suit. [60-1 at 14–16]; see generally Illinois Tort

Immunity Act, 745 ILCS 10/2–101 et seq. (TIA). In relevant part, the TIA provides that “a public

employee serving in a position involving the determination of policy or the exercise of discretion

is not liable for an injury resulting from his act or omission in determining policy when acting in

the exercise of such discretion even though abused.” 745 ILCS 10/2–201. Defendants claim that

this statute provides absolute immunity against both state-law claims because they are

policymakers and firing Plaintiffs was a discretionary policy decision. [60-1 at 14–16.] Plaintiffs

counter that their firing was not a policy decision, and thus was not protected by the TIA. [67 at

14–15.] In the alternative, Plaintiffs argue that public employees can never be immunized against

a retaliatory discharge suit and that the TIA does not provide immunity for violations of the IWA.

[Id. at 12–14.]

Section 2–201 of the TIA has two prongs. First, a public employee must hold “either a

position involving the determination of policy or a position involving the exercise of discretion.”

Harinek v. 161 North Clark St. Ltd., 692 N.E.2d 1177, 1181 (Ill. 1998); 745 ILCS 10/2–201.

Second, the public employee’s act or omission giving rise to litigation “must be both a

determination of policy and an exercise in discretion.” Id. (emphasis added); 745 ILCS 10/2–201.

Discretion is defined in contra-distinction to ministerial functions: “[D]iscretionary acts are those

which are unique to a particular public office, while ministerial acts are those which a person

11 Because the Court concludes that Defendants are immune from the state law tort actions, it is not

necessary to address the adequacy of the TAC with regard to Counts VI and VII, IWA and retaliatory

discharge, respectively.

performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal

authority, and without reference to the official’s discretion as to the propriety of the act.” Van

Meter v. Darien Park Dist., 799 N.E.2d 273, 281 (Ill. 2003) (quoting Snyder v. Curran Twp., 657

N.E.2d 988, 993 (Ill. 1995)). Policy decisions are “those decisions which require the municipality

to balance competing interests and to make a judgment call as to what solution will best serve each

of those interests.” Harinek, 692 N.E.2d at 1181 (quoting West v. Kirkham, 588 N.E.2d 1104,

1109 (Ill. 1992)).12

Illinois courts are unwilling to read exceptions into section 2–201 of the TIA. For example,

public employees are immunized for “willful and wanton” misconduct, absent explicit statutory

language to the contrary. Barnett v. Zion Park Dist., 665 N.E.2d 808, 813–814 (Ill. 1996).

Similarly, Illinois courts refuse to “recognize an exception for conduct inspired by ‘corrupt and

malicious motives.’” Vill. of Bloomingdale v. CGD Enters., Inc., 752 N.E.2d 1090, 1097–98 (Ill.

2001). Indeed, “[s]ection 2–201 of the Act offers the most significant protection afforded to public

employees under the Act.” Smith v. Waukegan Park Dist., 896 N.E.2d 232, 236 (Ill. 2008).

As far as the Court can tell, Plaintiffs do not contest that each Defendant holds a position

“involving the determination of policy or * * * the exercise of discretion.” Plaintiff's own

pleadings identify each Defendant as “a final policymaker and decisionmaker for the CCSO.” [54

at ¶¶ 30–31, 33–35.] Likewise, Plaintiffs do not appear to contest that the act or omission giving

rise to this litigation—firing the Plaintiffs—was discretionary. [Id. at ¶¶ 68–69 (pleading that the

Defendants “selected” the Plaintiffs for firing).] Nor could they under their theory that Defendants

singled them out for termination. See Van Meter, 799 N.E.2d at 281.

12 The Court notes that the definition of policymaking under the TIA is different from that used to determine

Monell liability.

Regardless, under Illinois law, “[m]unicipal decisions regarding the hiring, firing,

discipline, and supervision of employees are discretionary policy decisions.” Graham v. Bd. of

Educ. of City of Chicago, 2019 WL 215098, at *6 (N.D. Ill. Jan. 16, 2019) (collecting cases); see

also, e.g., Brooks v. Daley, 29 N.E.3d 1108, 1116–17, (Ill. App. Ct. 2015) (reviewing cases and

concluding that defendants made policy decision when forcing plaintiff to resign even if

defendants “acted with corrupt and malicious motives”); Ellis v. City of Chicago, 272 F. Supp. 2d

729, 735 (N.D. Ill. 2003) (“the decision to fire someone involves balancing a set of given

circumstances”); Zinnermon v. City of Chicago Dept. of Police, 209 F. Supp. 2d 908, 911 (N.D.

Ill. 2002) (dismissing complaint because defendants made policy decision in firing plaintiff for

reporting police brutality and were thus immune from suit).13

In the case at bar, Plaintiffs do not—and cannot—plausibly plead that their discharge

should not be treated as a discretionary policy decision. First, the overwhelming weight of

authority supports the conclusion that under Illinois law, the decision to fire an employee is a

discretionary policy decision even if inspired by corrupt or malicious motives. Graham, 2019 WL

215098 at *6; Brooks, 29 N.E.3d at 1117. Indeed, the decision to lay off “an entire rank”

necessarily entails “balancing competing interests,” including how the CCSO would staff the jail

after losing such experienced personnel. See [54 at ¶¶ 2, 3, 5.] This conclusion is buttressed by

the fact that Plaintiffs were fired four years after they started the unionization campaign and began

complaining about jail conditions. Second, even assuming that the layoffs were motived entirely

13 To be sure, some courts have recognized narrow exceptions to this rule of thumb. In Valentino v. Village

of South Chicago Heights, the Seventh Circuit refused to extend TIA immunity to a former employer based

on a “one-time decision to fire one employee.” 575 F.3d at 679. According to the court, the stated reason

for firing that employee, that she had photo-copied time sheets, does not “involve competing interests and

judgment calls that would meet the Illinois courts’ definition of a ‘policy decision.’” Id. (citing Van Meter,

799 N.E.2d at 281). In a similar vein, when a plaintiff alleged that his superiors cooked up a departmental

reorganization to provide a pretext to eliminate his position, the question of immunity survived a motion

for summary judgment. Weiler v. Vill. of Oak Lawn, 86 F. Supp. 3d 874, 885–86 (N.D. Ill. 2015).

by retaliatory malice, the TIA still protects malicious firing as a discretionary policy decision.

Brooks, 29 N.E.3d at 1117; Bloomingdale, 752 N.E.2d at 1097–98. Finally, even if the exceptions

in Valentino and Weiler are consistent with Brooks and Bloomingdale, Plaintiffs do not allege that

their termination was a “one-time decision to fire one employee,” as in Valentino. As Plaintiffs’

TAC notes, Defendants not only “terminated an entire rank,” [54 at ¶ 120(b)] but did so as part of

a larger reorganization that involved transfers, demotions, and pay cuts for other employees. [Id.

at ¶¶ 18, 57, 63.] Plaintiffs’ termination was thus part of a larger set of policy moves that

unquestionably required Defendants to “balance competing interests.” Harinek, 692 N.E.2d at

1181. Likewise, the case at bar is a far cry from Weiler, where the plaintiff alleged that a

departmental reorganization was entirely motivated by the desire to provide a pretext for

eliminating his position. Here, Plaintiffs concede that the termination of their employment was

part of the CCSO’s broader response to the fiscal crisis, and that the CCSO’s response to its budget

deficits was not entirely pretextual. [67 at 5 n.1.] As noted above, the timing of Plaintiffs’

discharge, years after motive allegedly arose, also negates any inference that Defendants did not

consider any other competing interest.

Plaintiffs’ two other arguments to avoid the TIA are also unconvincing. First, Plaintiffs

posit that 745 ILCS 10/2–201 is inapplicable in cases of retaliatory discharge, citing the Illinois

Supreme Court’s decision in Smith v. Waukegan Park Dist. [67 at 13.] Smith, however, held only

that a different statutory section, 2–109, did not apply to retaliatory discharge. 896 N.E.2d at 236–

37. Because Defendants move to dismiss under a statutory section not covered by Smith’s holding,

one that provides more “significant protection” to public employees no less, they are immune from

suit. See, e.g., Vasquez v. Bd. of Educ. for School Dist. U-46, 2017 WL 1250839, at *4 (N.D. Ill.

Apr. 5, 2017) (collecting cases and noting that most allow immunity under non-section 2–109

provisions of the TIA); Smith, 896 N.E.2d at 237; but see Zelman v. Hinsdale Twp. High Sch.

Dist. 86, 2010 WL 4684039, at *2 (N.D. Ill. Nov. 12, 2010) (reading Smith broadly as holding

“that the Tort Immunity Act did not apply in cases of retaliatory discharge”). In any event,

Plaintiff’s argument on this front ignores the recent Illinois Appellate Court decision in Brooks v.

Daley, which held that section 2–201 in fact provided city employees with immunity against

retaliatory discharge tort suits. Brooks, 29 N.E.3d at 1117. Following that decision and the

majority approach taken by the federal courts, the Court concludes that 745 ILCS 10/2–201 applies

to retaliatory discharge and Defendants are entitled to immunity.

Second, Plaintiffs’ argument that the TIA does not apply to violations of the Illinois

Whistleblower Act (IWA) is similarly unconvincing. Plaintiff cites Illinois cases that refuse to

grant immunity under the TIA when the employer discharges an employee for seeking relief under

the Illinois Workers’ Compensation Act, 820 ILSC 305/1 et seq. (IWCA). [67 at 13–14 (citing

Smith, 896 N.E.2d at 237).] This attempt to analogize to the IWCA, however, ignores the plain

language of the TIA: The TIA, by its own terms, does not apply to cases arising under the IWCA.

745 ILCS 10/2–101. In contrast, the TIA contains no such provision regarding the IWA, and the

IWA does not include any language limiting the applicability of the TIA. See 745 ILCS 10/2–

101; 740 ILCS 174/1 et seq.; see also Thompson v. Bd. of Educ. of Chicago, 2014 WL 1322958,

at *7 n.7 (N.D. Ill. Apr. 2, 2014). Furthermore, the Court cannot disregard the Illinois courts’

refusal to read additional exceptions into their immunity laws. See Barnett, 665 N.E.2d at 813–

814 (refusing to recognize exception for “willful and wanton” conduct); Bloomingdale, 752 N.E.2d

at 1097–98 (refusing to recognize exception for actions taken with “corrupt and malicious

motives”). As other courts have concluded, “‘[t]hough it seems anomalous that public employees

would have immunity from actions taken against whistleblowers, that is the result dictated by the

plain language of the Tort Immunity and Whistleblower Acts.’” Weiler, 86 F. Supp. 3d at 886

(quoting Thompson, 2014 WL 1322958 at *7 n.7). Counts VI and VII must accordingly be

dismissed because the Defendants are immune from Illinois tort suits stemming from firing

decisions.

IV. Conclusion

For the reasons state above, Defendants’ motion to dismiss [62] is granted in part and

denied in part. This case is set for further status hearing on October 3, 2019 at 9:00 a.m.

Dated: September 17, 2019

Robert M. Dow, Jr.

United States District Judge

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