Hernandez et al v. Cook County Sheriff's Office et al

Filing 445

MEMORANDUM Opinion and Order:For the foregoing reasons, Defendants' motion for summary judgment 396 is denied. A status hearing is set for 8/6/2014 at 09:00 a.m., at which time the parties should be prepared to schedule a prompt trial to resolve this case that is more than seven years old. Signed by the Honorable Thomas M. Durkin on 7/31/2014:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IVAN HERNANDEZ, ROBERTO RODRIGUEZ,
BILL JONES, GENE MICHNO, MARVIN
BAILEY AND RICHARD DAVIS,
Plaintiffs,

No. 07 C 855

v.

Judge Thomas M. Durkin

COOK COUNTY SHERIFF’S OFFICE,
MICHAEL F. SHEAHAN, in his official
capacity, CAROL KAUFMAN, as
representative of the estate of TIMOTHY
KAUFMANN, in his individual capacity,
SCOTT KURTOVICH, in his individual
capacity, DENNIS ANDREWS, in his
individual capacity, THOMAS SNOOKS, in
his individual capacity, the COUNTY OF
COOK,
Defendants.
MEMORANDUM OPINION AND ORDER
Six correctional officers with the Cook County Sheriff’s Office, Department of
Corrections (“DOC”), (namely, Ivan Hernandez, Roberto Rodriguez, Bill Jones, Gene
Michno, Marvin Bailey, and Richard Davis (collectively “Plaintiffs”)), allege that the
Cook County Sheriff’s Office, former Cook County Sheriff Michael Sheahan, and
certain officials in his office (namely, Timothy Kaufmann, Scott Kurtovich, Dennis
Andrews, and Thomas Snooks) (collectively, “Defendants”), violated the First
Amendment and state law by conspiring to discriminate and retaliate against
Plaintiffs for their support of a certain candidate in the election for sheriff by

investigating and disciplining Plaintiffs in connection with an escape from the Cook
County Jail. R. 55. The Seventh Circuit previously found that the individual
defendants are qualifiedly immune to Plaintiffs’ First Amendment political
retaliation and conspiracy claims (Counts I and IV). See Hernandez v. Sheahan, 711
F.3d 816 (7th Cir. 2013).1 Defendants have moved for summary judgment on the
remaining First Amendment political retaliation claim against the Sheriff’s Office
(Count III) and the claim for intentional infliction of emotional distress against the
individual defendants (Count V). R. 396.2 For the following reasons, Defendants’
motion for summary judgment is denied.
Background
Plaintiffs were assigned to the Special Operations Response Team (“SORT”),
which was responsible for guarding the most dangerous inmates in the Abnormal
Behavioral Observation Unit (the “ABO”) at the Cook County Jail. R. 434 ¶ 9.
SORT’s Superintendent was Richard Remus, and SORT was known in the Sheriff’s
Office as “Remus’s Unit.” Id. ¶ 11. All of the Plaintiffs actively supported Remus in
his campaign leading up to the March 21, 2006 Democrat primary election for Cook
County Sheriff against Tom Dart—the chief of staff to Sheriff Sheahan—who

The Court also previously granted summary judgment to Defendants on a
separate First Amendment retaliation claim—unrelated to the election for sheriff—
in which Plaintiffs alleged that Defendants retaliated against them for complaints
they made about conditions at the Cook County Jail (Count II). R. 226. The Court
also dismissed Plaintiffs’ claim of false imprisonment (Count VI). R. 371; R. 395.
1

The parties do not address the conspiracy claim as it relates to the Sheriff’s Office,
and the Court will not address it except to note that the questions of fact the Court
identifies with respect to Plaintiffs’ retaliation claim serve equally to create
questions of fact regarding the conspiracy claim.

2

2

Sheahan supported as a candidate in the sheriff election. See R. 434 ¶ 11; R. 148-2
at 67-70 (266:3–268:10).
On February 11, 2006, just before midnight, several detainees escaped from
the ABO at the Cook County Jail. See R. 177 ¶¶ 5-6. Shortly after the escape, early
on February 12, Michno, Davis, and Bailey heard Kaufmann—the Director of
Internal Affairs for the DOC—scream the following statements: “this smells like
Remus”; “this is a Remus set up”; “these fucking jail guards”; “you fucking jail
guards, you’ll pay for this”; “this smelled like Remus’s shit.” R. 147-4 at 26 (90:24–
91:3, 93:6-7); R. 147-5 at 24 (85:21–86:2), 27 (98:12), 34 (127:13-16); R. 148 at 20
(61:1-9), 25 (78:18-20). Miriam Rentas—who was the Assistant Director of Internal
Affairs for the DOC—has filed an affidavit in which she states that she was also
present when Kaufmann is alleged to have made these statements, but she does not
recall him saying, “this smells of Remus.” R. 199-2 ¶¶ 1-2, 6-7.
Later that day, a correctional officer, Darin Gater, confessed to being
complicit in the escape. See R. 150-2; R. 154-2. Gater also implicated Plaintiffs
(except for Hernandez) and stated they were motivated to “help [Richard] Remus” in
his campaign to be elected sheriff by discrediting Sheriff Sheahan and Dart. R. 1502 at QH03222; R. 154-2 at 134. Plaintiffs note that Gater claims that his statement
was coerced. R. 433 at 8 n.5. This argument was raised in Gater’s state court trial
and the state court found that the statement was not coerced. R. 312-4 at 5-6. The
Seventh Circuit found that Defendants had probable cause to investigate Plaintiffs
on the basis of Gater’s statement. Hernandez, 711 F.3d at 817-18. In addition to

3

Gater’s statement, the investigation into the jail break revealed that Hernandez
was notified on the day of the jail break by Captain Earnest Wright that there
might be a shank in the ABO, and Hernandez failed to communicate this
information to any officer on duty in the ABO the night of the escape. See R. 400-7
at 33 (124:8-9); R. 401-5 at 26-27 (QH02764-65).
On February 13, 2006, Plaintiffs were suspended pending the investigation
into the jail break. R. 149 at 73-78. Plaintiffs’ suspensions were signed by
Kurtovich—the Assistant Executive Director of the DOC. Id. Plaintiffs were also dedeputized pending the investigation. Id. at 85-90. Kaufmann and Kurtovich signed
the order de-deputizing Plaintiffs. Id. Andrews—the Director of External
Operations of the DOC—also “signed off” on the complaints against the Plaintiffs.
R. 434 ¶ 44.
On February 23, 2006, Plaintiffs were “reinstated from ‘Suspension with Pay’
. . . to ‘Active’ duty with De-Deputized status. . . . [and were] transferred [out of
SORT].” R. 177 ¶ 54; R. 154-6 at 3-7; R. 199 ¶ 8. When Andrews informed Michno
and Bailey of their reassignments he told them that the investigations were
“political.” R. 177 ¶ 64; R. 147-4 at 31 (112:20-24). Specifically, Bailey testified that
Andrews “gave [them] a handshake and a pat on the back and said, guys, this is -don’t worry about it. It’s political, some political bullshit, and it should pass over
pretty soon.” R. 148 at 28 (93:2-5).
Four days later on February 27, 2006, Investigator Stanley Augustyniak
submitted an investigation report finding that Davis and Bailey had deserted their

4

posts the night of the escape. R. 401-5 at 21-24 (QH02759-62). Kaufmann signed the
memoranda recommending their termination. R. 149 at 25-26 (QH02735-36). On
October 6, 2008, the Cook County Sheriff’s Merit Board overturned the
investigation’s findings with regard to Davis. R. 178-3 at 44-47. Bailey’s termination
was upheld after several rounds of appeal. See Bailey v. Dart, 2012 WL 6951971 (Ill.
App. Ct. 1st Dist. Jan. 17, 2012). Augustyniak also found that Hernandez failed to
conduct a search of the jail after he received word that an inmate might be in
possession of a shank. R. 401-5 at 25 (QH02763). Kaufmann signed the
memorandum suspending Hernandez for five days. R. 149 at 27 (QH02737). The
investigation found insufficient evidence to sustain the charges against Jones,
Rodriguez, and Michno, and the administrative charges against them were
dismissed. R. 434 ¶ 27.
Augustyniak filed an affidavit stating that his “investigation and the
subsequent report prepared as a result of the investigation [were] not influenced in
any way by the actions, directives or other input of [the individual defendants].” R.
400-2 at 3 (¶ 7). Assistant State’s Attorney Bonnie Greenstein also participated in
the

investigation

and

submitted

an affidavit describing her work. Like

Augustyniak, she stated that her “review was not influenced in any way by the
actions, directives or other input of [the individual defendants].” R. 400-4 at 2 (¶ 5).
Sergeant Robert Fitzgerald of the Cook County Sheriff’s Police Department Jail
Enforcement Unit also participated in the investigation and preparation of the
report. Fitzgerald submitted an affidavit stating that he followed procedure in

5

conducting the investigation and producing the report, but he did not mention the
individual defendants. See R. 400-3 at 2-4.
Plaintiffs allege that they have suffered severe emotional distress as a result
of the investigations into, and discipline of, their conduct. Specifically, the six
plaintiffs submit the following evidence regarding emotional distress:


Michno filed an affidavit stating that he has suffered “severe emotional
distress” as a result of the investigation and discipline Defendants imposed
on him after the jail escape. See R. 435-2 at 481 (¶ 13). Due to this emotional
distress, Michno applied for “duty disability” with the Cook County Pension
Board. The Pension Board Hearing Officer found that “Michno is entitled to
duty related disability benefits for a psychological injury occurring on or
about February 13, 2006.” R. 311-1 at 103. Dr. Martins A. Adeoye, a
psychiatrist, diagnosed Michno as suffering from depression, anxiety, and
post-traumatic stress disorder. R. 435 Ex. S-1 at KLO01896 (filed under
seal).3 Dr. Adeoye prescribed medications for these conditions and concluded
that Michno was “unable to return to work” and that his “disability may
continue to last about 6 months to 2 years.” Id. at KLO01905. Michno has
also submitted a letter from a licensed clinical social worker describing
Michno’s depression. Id. at KLO01899.



Hernandez filed an affidavit describing his “severe emotional distress and
depression” that he suffers “as a result of the discrimination and retaliation”
by Defendants. R. 435-2 at 484 (¶ 3). Hernandez is on disability leave from
the Sheriff’s Office and has filed an application for duty-related disability
with the Cook County Pension Board, which is still pending. R. 440 ¶ 62. Dr.
Richard S. Abrams has diagnosed Hernandez with a “severe depressive
reaction to [his] job circumstance.” R. 435 Ex. S-2 at RB00114 (filed under
seal). Dr. Abrams prescribed medications to address these conditions. Id. at
RB00113. Hernandez filed an affidavit stating that his “depression affects all
aspects of [his] life,” that he is “terrified to go anywhere,” and that he suffers
from nightmares. R. 435-2 at 484 (¶ 3).



Davis testified that he has suffered “[e]motional damage, humiliation,
disgrace of [his] family, [his] wife, [and] [i]t’s caused a great strain with [his]

The Court describes generally the information about Plaintiffs’ diagnoses and
medications contained in the medical records Plaintiffs have filed under seal as the
specific diagnoses and medications are unnecessary to decide this motion.
3

6

wife.” R. 398-3 at 61 (240:13-15). Davis cites no other evidence to support his
claim of severe emotional distress.


Rodriguez filed an affidavit describing his “severe emotional distress and
depression” that he suffers “as a result of the discrimination and retaliation”
by Defendants. R. 435-2 at 487 (¶ 2). Rodriguez describes his emotional state
as follows: “I suffered humiliation, anger, and fear. I withdrew from my
family and friends. My kids suffered as a result. I was paranoid and afraid
that supervisors would set me up again. I was worried about my safety and
the safety of my children. I could not sleep, and was only sleeping about an
hour or two a day for over a year. I got rid of both of my firearms because I
did not want to be set up again. I had thoughts of suicide because I was so
depressed.” Id. Rodriguez also states, “My character has been altered and I
am not the same person that I was before all of this. Before February 2006, I
was fun-loving and trusting, and had a strong belief in law enforcement and
the justice system. I don’t anymore. I also don’t let people get close to me and
have lost trust in people.” Id. (¶ 3). Rodriguez cites no other evidence to
support his claim of severe emotional distress.



Jones filed an affidavit describing his “severe emotional distress and
depression” that he suffers “as a result of the discrimination and retaliation”
by Defendants. R. 435-2 at 490 (¶ 2). Jones describes his emotional state as
follows: “[a] I had to start taking blood-pressure medication and started
biting my nails; [b] I am always paranoid of supervisors, even to this day,
every day that I am at work; [c] I isolate myself at work and from friends and
family; [d] I have withdrawn and I don’t socialize any more or as much at
work or outside of work; [e] It is difficult for me to do my job, and I am always
worried when I am moved from one Division to another for fear that they are
going to set me up; [f] I lost intimacy with my wife. We sleep in separate
bedrooms even to this day; and [g] I had nightmares and still have
nightmares.” Id. Jones cites no other evidence to support his claim of severe
emotional distress.



Bailey testified that he experienced “anxiety attacks shortly after the escape
[and] after [he] was accused of being part of the escape,” and that he saw a
doctor for this reason. R. 400-10 at 5 (11:7-9). Bailey also testified, “After the
escape I was feeling paranoid as if the sheriff’s department was plotting
against me, so I couldn’t sleep, stayed in my house probably for a week or so
and [was] just depressed.” Id. at 6 (15:7-11). Dr. Gerri C. Browning diagnosed
Bailey as suffering from depression, anxiety, and panic attacks, and
described his symptoms as “trouble sleeping, headache, diminished appetite .
. . and [increased] heart rate.” R. 435 Ex. S-3 (filed under seal). He was
prescribed medication to address these conditions. Id.

7

Legal Standard
Summary judgment is appropriate “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Analysis
I.

Count III: First Amendment Retaliation Claim Against the Sheriff’s
Office
Plaintiffs argue that Kaufmann’s statements the night of the escape and

Andrews’s statements during the course of the investigation create a question of
material fact regarding whether Defendants’ decisions to investigate and discipline
Plaintiffs was motivated by Plaintiffs’ support of Remus in the election for sheriff.
Defendants argue that the investigation and discipline were driven by probable
cause based on Gater’s confession, and thus, they did not violate Plaintiffs’ civil

8

rights. Defendants also argue that there is insufficient evidence to show that the
Sheriff’s Office is responsible for any civil rights violation that may have occurred.
A.

Evidence of a Constitutional Violation

In order to establish that an employer discriminated or retaliated against an
employee for speech protected by the First Amendment, a plaintiff must show that:
“[1] the employee’s speech [was] constitutionally protected; [2] the plaintiff must
demonstrate that but for the protected speech the employer would not have taken
the same action; and [3], the plaintiff must have suffered a deprivation because of
the employer’s action.” Kodish v. Oakbrook Terrace Fire Protection Dist., 604 F.3d
490, 501 (7th Cir. 2010). A plaintiff survives a motion for summary judgment on
such a claim “if he can demonstrate triable issues as to whether the discrimination
motivated the adverse employment action.” Id. (internal quotation omitted).
However, summary judgment in the defendant’s favor is appropriate if the
defendant can demonstrate that there is no genuine question of material fact as to
whether the employer would have taken the action even absent the protected
speech; in other words, “the harm would have occurred anyway” despite the
motivation to violate the plaintiff’s First Amendment rights. See Thayer v.
Chiczewski, 705 F.3d 237, 252 (7th Cir. 2012).
Here, the question is whether Kaufmann and Andrews’s statements
indicating a political motivation for Defendants’ decision to investigate and
discipline Plaintiffs create a triable issue of fact regarding the motivation for
Defendants’ decision to investigate and discipline Plaintiffs despite the fact that

9

Defendants had probable cause to take those actions. The Seventh Circuit held that
Defendants had probable cause to investigate Plaintiffs, and Defendants argue that
even assuming that Kaufmann and Andrews made the statements they are alleged
to have made, Gater’s statements and the evidence against Hernandez demonstrate
that the investigation and discipline would have occurred anyway.
The existence of probable cause might have been enough to grant Defendants’
motion if Kaufmann’s statements were the only evidence of political motivation.
“Relief for the violation of a constitutional right is inappropriate . . . ‘in cases where
. . . dramatic and perhaps abrasive [protected speech] is inevitably on the minds of
those responsible for [an adverse action] . . . and does indeed play a part in that
decision . . . if the same decision would have been reached had the incident not
occurred.’” Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011) (quoting Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86 (1977)). The Seventh
Circuit illustrated this principle with a hypothetical, noting that a jail warden’s
policy to “discipline any inmate who filed a grievance against [the warden] no
matter how justified the grievance” would be a sufficient condition of the inmate’s
constitutional harm, but not a necessary condition if the inmate violated a prison
regulation in the course of filing his grievance (i.e., photocopying prison library
documents without permission) that resulted in the same discipline the warden
intended to impose for filing the grievance itself. See Greene, 660 F.3d at 978.
Applying the principle to this case, even if Kaufmann’s statements show that the
Sheriff’s Office intended to politically retaliate against Plaintiffs, the injury for

10

which Plaintiffs seek redress would have occurred anyway due to the probable cause
created by Gater’s confession.
The problem with Defendants’ argument is that, according to Michno and
Bailey, Andrews told them that the investigation was politically motivated several
days after Gater’s confession. Since Andrews stated that the investigation was
politically motivated after Gater confessed, Andrews’s statement is evidence that
Defendants themselves did not put much stock in Gater’s confession and that
Defendants’ true motivation was discriminatory and retaliatory. If Gater’s
statement was a sufficient basis to investigate Plaintiffs, Andrews would most
likely not have continued to maintain that the investigation was politically
motivated. Andrews’s statement is evidence that political motivation was not
merely a sufficient cause of the harm Plaintiffs’ suffered, but a necessary cause,
because Andrews’s statement indicates that Gater’s statement was an insufficient
basis for the investigation and discipline in Defendants’ estimation. A rational jury
could find on the basis of Kaufmann and Andrews’s statements taken together that
Gater’s statement was not a sufficient cause of Defendants’ decision to investigate
and discipline Plaintiffs, and that political animus was the true motivation.
Defendants make two other arguments that do not alter the Court’s analysis.
First, Defendants cite a Sheriff’s Office policy that mandates an investigation of any
jail escape. See R. 397 at 10. Of course, it is not surprising that the Sheriff’s Office
investigated the escape. The issue here, however, is the motivation for choosing the
individuals who were the focus of the investigation, not the mere fact that the

11

Sheriff’s Office undertook an investigation of the escape. An investigation was
required, but there is no Sheriff’s Office policy that mandated that these particular
six individuals needed to be the investigation’s targets.
Second, Defendants cite Augustiniak and Greenstein’s affidavits stating that
none of the individual defendants influenced their investigation to support their
argument that any political motivation Defendants may have had to investigate
Plaintiffs did not cause the investigation and discipline. R. 439 at 5-6. Augustiniak
and Greenstein’s statements, however, do not negate the evidence (specifically, the
statements by Kaufmann and Andrews) that the investigation and discipline was
politically motivated. Moreover, Kaufmann, Kurtovich, and Andrews signed the
papers initiating the investigation and suspending and de-deputizing Plaintiffs.
This evidence shows that Sheriff Sheahan, Kaufmann, Kurtovich, and Andrews—
not Augustiniak and Greenstein—had the power to initiate the investigation and to
determine the resulting discipline. Augustiniak and Greenstein most likely had
control over the course and manner of investigation, but there is no evidence that
they were involved in the decision to initiate the investigations or determine
whether discipline would actually be imposed. Despite the investigators’ statements
of independence and impartiality, a question of fact remains as to the cause of the
investigation and discipline Plaintiffs suffered.
Therefore, summary judgment in Defendants’ favor regarding whether
Plaintiffs’ civil rights were violated is not warranted.

12

B.

Evidence of the Sheriff’s Office’s Liability

Defendants also argue that even if the individual defendants violated
Plaintiffs’ civil rights, there is no evidence that the Sheriff’s Office was the “moving
force” behind the constitutional violation, as is required for municipal liability
under 42 U.S.C. § 1983. See Monell v. City of New York, 436 U.S. 658, 694 (1978);
see also City of Canton v. Harris, 489 U.S. 378, 389 (1989); accord Teesdale v. City of
Chicago, 690 F.3d 829, 833 (7th Cir. 2012). “A local governing body,” like the
Sheriff’s Office, “may be liable for monetary damages under § 1983 if the
unconstitutional act complained of is caused by: (1) an official policy adopted and
promulgated by its officers; (2) a governmental practice or custom that, although
not officially authorized, is widespread and well settled; or (3) an official with final
policy-making authority.” Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303
(7th Cir. 2010). The official in question does not have to be “a policymaker on all
matters for the municipality, but . . . [only] a policymaker in [the] particular area, or
on [the] particular issue.” Valentino v. Village of South Chicago Heights, 575 F.3d
664, 676 (7th Cir. 2009). Whether a particular official is a policymaker can be a
question of fact for a jury. See Kujawski v. Bd. of Comm’rs of Bartholomew Cnty.,
183 F.3d 734, 739 (7th Cir. 1999).
Here, there is at least a question of fact as to whether the investigation into,
and discipline of, Plaintiffs’ conduct was caused by “an official with final policymaking authority.” Michno, Davis, and Bailey have testified that Kaufmann stated
that the investigation and discipline was politically motivated. Kaufmann was the

13

Director of Internal Affairs for the DOC and he signed the forms de-deputizing
Plaintiffs, firing Davis and Bailey, and suspending Hernandez. Furthermore,
Defendants admit that “Sheriff Sheahan testified that Chief Kaufmann was not
required to report to him in any investigation.” R. 199 ¶ 7 (citing R. 148-2 at 20
(72:13-17)). Based on this evidence, a reasonable juror could conclude that
Kaufmann was a policymaker for purposes of the investigation into the jail break
because he had the power to both initiate the investigation into Plaintiffs’ conduct
and to discipline them for it. Thus, summary judgment in Defendants’ favor on the
issue of the Sheriff’s Office’s liability for any violation of Plaintiffs’ civil rights is not
warranted.4
II.

Count V: Intentional Infliction of Emotional Distress Claim Against
the Individual Defendants
Under Illinois law, for an intentional infliction of emotional distress claim to

be successful the following elements must be proven: “(1) the defendants’ conduct
was extreme and outrageous; (2) the defendants knew that there was a high
probability that their conduct would cause severe emotional distress; and (3) the
conduct in fact caused severe emotional distress.” Swearnigen–El v. Cook Cnty.
Sheriff’s Dep’t, 602 F.3d 852, 864 (7th Cir. 2010) (citing Kolegas v. Heftel Broad.
Plaintiffs’ also cite evidence from Shakman v. Cook County Democratic, 69 C
02145 (N.D. Ill.), and Burruss v. Cook County, 08 C 6621 (N.D. Ill.), and testimony
from Douglas Zimny, to support their argument that the Sheriff’s Office has a
practice or custom of discriminating against employees based on their political
affiliations. R. 433 at 18-20. Based on the Court’s holding, it is not necessary for the
Court to reach this argument, and the Court reserves ruling on whether this
evidence is relevant or admissible in this case. The parties should be prepared to
fully brief the relevance of this evidence (citing relevant case law authority) on
motions in limine prior to trial.

4

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Corp., 607 N.E.2d 201, 211 (Ill. 1992)). “To meet the ‘extreme and outrageous’
standard, the defendants’ conduct ‘must be so extreme as to go beyond all possible
bounds of decency, and to be regarded as intolerable in a civilized community.’”
Swearnigen–El, 602 F.3d at 864 (quoting Kolegas, 607 N.E.2d at 211). In
determining whether conduct meets the “extreme and outrageous” standard, courts
consider three main factors: (1) “the more power or control the defendant has over
the plaintiff, the more likely the conduct will be deemed extreme”; (2) “whether the
defendant reasonably believed its objective was legitimate”; and (3) “whether the
defendant was aware the plaintiff was ‘peculiarly susceptible to emotional distress,
by reason of some physical or mental peculiarity.’” Franciski v. Univ. of Chi.
Hosp., 338 F.3d 765, 769 (7th Cir. 2003) (quoting McGrath v. Fahey, 533 N.E.2d
806, 811 (Ill. 1998)). The Illinois Supreme Court has explained, “Conduct is of an
extreme and outrageous character where ‘recitation of the facts to an average
member of the community would arouse his resentment against the actor, and lead
him to exclaim, ‘Outrageous!’” Doe v. Calumet City, 641 N.E.2d 498, 507 (Ill. 1994)
(quoting Restatement (Second) of Torts § 46, cmt. D, at 73 (1965)).
A.

Extreme and Outrageous Conduct

Although “typical disagreements or job-related stress caused by the average
work environment” are insufficient to support a claim for intentional infliction of
emotional distress, see Lewis v. Sch. Dist. # 70, 523 F.3d 730, 747 (7th Cir. 2008),
such conduct can be extreme and outrageous when the employer or supervisor
knows that there is no legitimate objective for the disciplinary investigation. See

15

Franciski, 338 F.3d at 769. In such circumstances, the “extreme and outrageous
nature of the conduct may arise not so much from what is done as from abuse by the
defendant of some relation or position which gives him actual or apparent power to
damage the plaintiff's interests. The result is something very like extortion.” Milton
v. Ill. Bell Tel. Co., 427 N.E.2d 829, 832 (Ill. App. Ct. 1st Dist. 1981) (citation
omitted). In the employment context, “courts have found extreme and outrageous
behavior to exist . . . where the employer clearly abuses the power it holds over an
employee in a manner far more severe than the typical disagreements or job-related
stress caused by the average work environment.” Honaker v. Smith, 256 F.3d 477,
491 (7th Cir. 2001). Indeed, Illinois courts have held that a “sham” or improperly
motivated investigation into, and discipline of, an employee’s conduct can be
“extreme and outrageous.” See Graham v. Commonwealth Edison Co., 742 N.E.2d
858, 868 (Ill. App. Ct. 1st Dist. 2000); see also Vickers v. Abbott Labs., 719 N.E.2d
1101, 1115 (Ill. App. Ct. 1st Dist. 1999) (“a conspiracy or a systematic effort to
remove plaintiff from his managerial position” in the employment context can be
extreme and outrageous). Thus, a reasonable jury could hold that Defendants’
political motivation for investigating and disciplining Plaintiffs, if true, is extreme
and outrageous conduct.
Defendants argue that the Seventh Circuit’s holding that Defendants had
probable cause to investigate and discipline Plaintiffs precludes the possibility that
Defendants’ conduct was improperly motivated. As the Court held previously in the
course of this litigation, however, probable cause is not a bar to liability for

16

intentional infliction of emotional distress. See Hernandez v. Cook Cnty. Sheriff’s
Office, 2013 WL 5913746, at *4 (N.D. Ill. Oct. 7, 2013). Rather, “the existence of
probable cause [is] relevant” to whether a decision to investigate was “extreme and
outrageous.” Id.
Despite the fact that probable cause is not a bar to liability for intentional
infliction of emotional distress, in Swearnigen-El the Seventh Circuit upheld a
district court’s summary judgment decision that the Sheriff’s Office could not be
liable for intentional infliction of emotional distress for investigating an employee
based on probable cause, even though there was a question of fact in that case as to
whether the investigation and discipline of an employee was “triggered” by a
discriminatory and retaliatory motive. 602 F.3d at 864. Unlike Swearnigen-El,
however, the evidence here does not merely show that Defendants’ investigation
was “triggered” by a retaliatory motive, and subsequently justified by evidence
uncovered creating probable cause. Rather, the evidence here (in the form of
Andrews’s stating that the investigation was politically motivated after Gater had
made his confession) tends to show that the Sheriff’s Office did not put much stock
in the evidence supporting probable cause (i.e., Gater’s confession) and instead
continued to pursue the investigations against Plaintiffs for political reasons. This
evidence that Defendants’ investigation into, and discipline of, Plaintiffs was both
triggered and maintained by a retaliatory motive is a sufficient basis for a jury to
conclude that Defendants’ conduct was extreme and outrageous.

17

B.

Severe Emotional Distress

Defendants also argue that there is insufficient evidence for a jury to find
that each plaintiff suffered severe emotional distress. R. 397 at 13-14. “Courts have
consistently held that ‘[a]lthough fright, horror, grief, shame, humiliation, etc. may
fall within the ambit of the term ‘emotional distress,’ these mental conditions alone
are not actionable.’” Redd v. Dougherty, 578 F. Supp. 2d 1042, 1058 (N.D. Ill. 2008)
(quoting Sornberger v. City of Knoxville, 434 F.3d 1006, 1030 (7th Cir. 2006)).
Rather, “‘[t]he law intervenes only where the distress inflicted is so severe that no
reasonable [person] could be expected to endure it.’” Honaker, 256 F.3d at 495
(quoting Welsh v. Commonwealth Edison Co., 713 N.E.2d 679, 684 (Ill. 1999)).
Nevertheless, Illinois courts have found that symptoms of emotional distress similar
to Plaintiffs’ can be sufficient to support a claim of intentional infliction of
emotional distress. See Graham, 742 N.E.2d at 869 (“[The employee] received
treatment from a psychologist and also suffered physical manifestations of the
distress. [The employee] endured stomach pain, lack of sleep, headaches, and saw a
dermatologist for stress-related acne.”). Additionally, the Illinois Supreme Court
has held that the “extreme and outrageous character of the defendant’s conduct [can
be] in itself important evidence that the distress has existed.” Kolegas, 607 N.E.2d
at 213. The Seventh Circuit has likewise noted that point, explaining that “Illinois
courts . . . have tended to merge the issue of the outrageousness of the defendant’s
conduct with the issue of the severity of the plaintiff’s emotional distress, in effect
requiring more evidence of outrageousness the weaker the evidence of distress.”

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Honaker, 256 F.3d at 496; cf. Denius v. Dunlap, 330 F.3d 919, 929 (7th Cir. 2003)
(“[B]are allegations by a plaintiff that the defendant’s conduct made [the plaintiff]
‘depressed,’ ‘humiliated,’ of the like are not sufficient to establish injury unless the
facts underlying the case are so inherently degrading that it would be reasonable to
infer that a person would suffer emotional distress from the defendant’s action.”).
Michno, Hernandez, and Bailey have presented evidence sufficient for a
reasonable juror to conclude that they suffered severe emotional distress. In
addition to their own personal statements describing the stress and anxiety they
have suffered due to the criminal investigation to which Defendants subjected them,
these three plaintiffs have submitted medical records corroborating their
descriptions of their conditions, and prescribing them medication. This evidence
creates a genuine question of fact as to whether Michno, Hernandez, and Bailey
suffered severe emotional distress.
Unlike Michno, Hernandez, and Bailey, the other three plaintiffs—Davis,
Rodriguez, and Jones—have failed to produce direct evidence to corroborate their
statements that they have suffered severe emotional distress. Nevertheless, if a jury
were to find that Defendants initiated a criminal investigation against Plaintiffs
based on political motivation, a reasonable jury could also find that the “character”
of Defendants’ conduct is such that it would inevitably cause severe emotional
distress. See Kolegas, 607 N.E.2d at 213. Defendants’ conduct did not merely expose
Plaintiffs to the threat of the loss of their employment; Plaintiffs faced the threat of
imprisonment as well. Defendants surely knew that the threat of imprisonment

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would cause Plaintiffs severe emotional distress, especially since Plaintiffs are
correctional officers. Moreover, if Defendants’ actions were in fact politically
motivated, causing such distress was likely their goal. Notably, Kaufmann and
Andrews allegedly stated as much. Thus, a reasonable jury could find that all of the
individual plaintiffs suffered severe emotional distress.
Conclusion
For the foregoing reasons, Defendants’ motion, R. 396, is denied. A status
hearing is scheduled for August 6, 2008 at which the parties should be prepared to
schedule a prompt trial to resolve this case that is more than seven years old.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: July 31, 2014

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