Hernandez et al v. Cook County Sheriff's Office et al
Filing
470
MEMORANDUM Opinion and Order: For the foregoing reasons, Defendant's motion to dismiss 452 , is denied. Status hearing held on 12/18/2014. Plaintiff's motion to supplement 468 , is granted. Defendant's answer to count V is due on or before 12/29/14. Status hearing set for 1/23/2015 at 09:00 AM. No appearance required on the notice motion date of 12/22/14. Signed by the Honorable Thomas M. Durkin on 12/18/2014: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 who worked at the Cook County Jail (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. Counts I, II, IV, and VI of the
complaint have been dismissed at various points in time during the course of the
litigation. See R. 226; R. 369 (Hernandez v. Sheahan, 711 F.3d 816 (7th Cir. 2013));
R. 395. More recently, on July 31, 2014, the Court denied Defendants’ motion for
summary judgment on the remaining claims in the case, i.e., Plaintiffs’ Monell
claim against the Sheriff’s Office for political retaliation in violation of the First
Amendment (Count III), and Plaintiffs’ claim against the individual defendants for
intentional infliction of emotional distress in violation of Illinois law (Count V). See
R. 445 (Hernandez v. Cook Cnty. Sheriff’s Office, 2014 WL 3805734 (N.D. Ill. July
31, 2014)). Defendants have now moved pursuant to Federal Rule of Civil Procedure
12(b)(1) to dismiss Count V (the claim for intentional infliction of emotional
distress), arguing that the Court lacks subject matter jurisdiction over the claim
because Plaintiffs failed to administratively exhaust the claim pursuant to the
Illinois Human Rights Act (“IHRA”). R. 452. For the following reasons, the motion is
denied.
Legal Standard
Federal Rule of Civil Procedure 12(b)(1) authorizes the Court to dismiss any
claim over which the Court lacks subject matter jurisdiction “at any time.” See Fed.
R. Civ. P. 12(h)(3). Although Article III, Section 2, of the United States Constitution
defines the outer bounds of a federal court’s subject matter jurisdiction, generally,
the original jurisdiction of federal courts in a non-criminal case arises from a federal
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question or diversity among the parties. See 28 U.S.C. §§ 1331, 1332. A federal
court’s original jurisdiction may be supplemented to include state law claims that
“form part of the same case or controversy.” 28 U.S.C. § 1367(a). However, a federal
court’s ability to exercise supplemental jurisdiction over a state law claim is subject
to any provision in the state law limiting subject matter jurisdiction. See Bell v.
LaSalle Bank N.A., 2005 WL 43178, at *2 (N.D. Ill. Jan. 10, 2005) (holding that the
IHRA, which provides that “‘no court shall have jurisdiction over the subject of an
alleged civil rights violation other than as set forth in this Act’ . . . divests courts,
both state and federal, of jurisdiction to hear state law claims of civil rights
violations unless those claims are brought under the IHRA.”); Guy v. State of
Illinois, 958 F. Supp. 1300, 1312 (N.D. Ill. 1997) (“Illinois state courts (and federal
courts sitting in their stead) lack jurisdiction over [IHRA] claims, which proceed
instead in front of the Illinois Human Rights Commission.”).
“The party asserting federal jurisdiction bears the burden of demonstrating
its existence.” Farnik v. F.D.I.C., 707 F.3d 717, 721 (7th Cir. 2013). When
“considering a motion that launches a factual attack against jurisdiction, the
district court may properly look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction exists.” Apex Digital, Inc. v.
Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). On this motion, which
comes after the Court has already denied summary judgment on the claim at issue,
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the Court will consider all the facts in the record that bear on its subject matter
jurisdiction over the claim.
Analysis
As the Court discussed in greater detail in denying Defendants’ motion for
summary judgment, Plaintiffs—who were correctional officers at the Cook County
Jail—allege that they were investigated and disciplined by Defendants in
connection with an escape from the Cook County Jail, due to their political support
for a certain candidate in the election for Cook County Sheriff. The Court has
original jurisdiction over this case because Plaintiffs claim that Defendants
discriminated against them based on their political affiliation in violation of the
First Amendment. Plaintiffs also claim that Defendants’ actions demonstrated that
they intended to inflict emotional distress on Plaintiffs in violation of Illinois law.
Defendants argue that the IHRA deprives the Court of jurisdiction over
Plaintiffs’ claim for intentional infliction of emotional distress because the IHRA
“divests jurisdiction from both state and federal courts over state law claims of civil
rights violations unless they are brought pursuant to the [IHRA].” R. 452 at 4.
Defendants contend further that Plaintiffs’ claim for intentional infliction of
emotional distress is “inextricably linked” to their First Amendment claim such that
the Act requires them to administratively exhaust the intentional infliction of
emotional distress claim before proceeding in court (whether state or federal). Id.
Plaintiffs argue to the contrary that the IHRA does not apply to claims of First
Amendment violations, and even if it did, Plaintiffs’ intentional infliction of
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emotional distress claim is not “inextricably linked” to their First Amendment
claim.
I.
The IHRA’s Scope
The IHRA provides, “Except as otherwise provided by law, no court of this
state shall have jurisdiction over the subject of an alleged civil rights violation other
than as set forth in this Act.” 775 ILCS 5/8-111(D). The IHRA defines “civil rights
violation” to “include[,] and [to] be limited to[,] only those specific acts set forth in
Sections 2-102, 2-103, 2-105, 3-102, 3-102.1, 3-103, 3-104, 3-104.1, 3-105, 3-105.1, 4102, 4-103, 5-102, 5A-102, 6-101, and 6-102 of this Act.” 775 ILCS 5/1-103(D). Of the
sections included in the definition of “civil rights violation,” the two relevant to
Plaintiffs’ claims are Sections 2-102 and 6-101. Section 2-102 provides that a “civil
rights violation” in the employment context is defined as an employer’s action “to
refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion,
renewal of employment, selection for training or apprenticeship, discharge,
discipline, tenure or terms, privileges or conditions of employment on the basis of
unlawful discrimination or citizenship status.” 775 ILCS 5/2-102(A). Under Section
6-101 it is also a “civil rights violation” to “[r]etaliate against a person because he or
she has opposed that which he or she reasonably and in good faith believes to be
unlawful discrimination . . . or because he or she has made a charge, filed a
complaint, testified, assisted, or participated in an investigation, proceeding, or
hearing under this Act.” 775 ILCS 5/6-101(A). Notably, both of these definitions of
“civil rights violation” are in turn dependent on the term “unlawful discrimination.”
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The IHRA defines “unlawful discrimination” to “mean[] discrimination against a
person because of his or her race, color, religion, national origin, ancestry, age, sex,
marital status, order of protection status, disability, military status, sexual
orientation, or unfavorable discharge from military service.” 775 ILCS 5/1-103(Q).
Notably absent from this list of protected characteristics in Section 1-103 is
“political affiliation” or any reference to the freedom of speech clause in the First
Amendment.1 Defendants do not mention, let alone substantively address, Section
1-103 and its definition of “unlawful discrimination.” Instead, Defendants argue
without citation, that “[n]either [Section 2-102 nor 6-101] contain language limiting
or restricting the term ‘unlawful discrimination.’” R. 460 at 4. Contrary to
Defendants’ argument, however, Section 1-103 expressly applies to the entire IHRA.
See 775 ILCS 5/1-103 (“When used in this Act . . . .”). Because Section 1-103 applies
to the entire IHRA, the definition of “unlawful discrimination” functions to “limit”
the definitions of “civil rights violation” in Section 2-102 and 6-101. Since the plain
language of the IHRA’s definitions of “civil rights violation” and “unlawful
discrimination” do not include protections for political affiliation, the IHRA did not
require Plaintiffs to exhaust administrative remedies for their intentional infliction
“Religion” is included in the list, and the First Amendment, of course, provides
that “Congress shall make no law respecting an establishment of religion,” but
Plaintiffs’ claim of discrimination on the basis of the First Amendment is not
premised on their religious beliefs.
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of emotional distress claim. Therefore, the IHRA does not divest the Court of
jurisdiction over Plaintiffs’ intentional infliction of emotional distress claim.2
II.
Whether Plaintiffs’ Intentional Infliction of Emotional Distress Claim
is “Inextricably Linked” to Their First Amendment Discrimination
Claim
Even if the IHRA protected plaintiffs from retaliation based on their political
affiliation, Plaintiffs’ claim for intentional infliction of emotional distress is not
“inextricably linked” to their retaliation claim, such that the IHRA divests the
Court of jurisdiction over that claim. “A claim is inextricably linked with the [IHRA]
if the [IHRA] furnishes the legal duty that the employer is alleged to have violated,
such as the duty to refrain from discriminating against . . . an employee.” Mendez v.
Perla Dental, 646 F.3d 420, 422 (7th Cir. 2011); see also Naeem v. McKesson Drug
Co., 444 F.3d 593, 604 (7th Cir. 2006) (“That is, if the [defendant’s] conduct would
be actionable even aside from its character as a civil rights violation because the
IHRA did not furnish the legal duty that the defendant was alleged to have
breached, the IHRA does not preempt a state law claim seeking recovery for it.”). In
other words, “[w]here the complaint alleges a tort recognized at common law, such
that the elements of the tort can be established without reference to the legal duties
created by [the IHRA], the state law claim is not preempted by the [IHRA].”
The only authority Defendants cite in support of their argument that the IHRA
covers discrimination based on political affiliation is Zimny v. Cook County Sheriff’s
Office, 2014 WL 4555302 (N.D. Ill. Sept. 15, 2014). That decision, however, was
recently vacated in light of a motion to reconsider, based on analysis of the
definition of “unlawful discrimination” in Section 1-103 that is in accordance with
the Court’s analysis above. See Zimny v. Cook County Sheriff’s Office, 12 C 05963,
Dkt. No. 98 (N.D. Ill. Dec. 15, 2014). To the extent it ever was, Zimny is no longer
persuasive authority in Defendants’ favor.
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Mendez, 646 F.3d at 422; see also Parker v. Side by Side, Inc., 2014 WL 2932211, at
*22 (N.D. Ill. June 27, 2014) (“If a plaintiff can satisfy the elements of a tort without
reference to legal duties that the IHRA creates, the tort claim is not ‘inextricably
linked’ to a civil rights violation, and courts may exercise jurisdiction over it.”
(citing Maksimovic v. Tsogalis, 687 N.E.2d 21 (Ill. 1997))).
In Naeem v. McKesson Drug Co., the Seventh Circuit noted that it has
reached different conclusions with respect to the relationship between the IHRA
and claims for intentional infliction of emotional distress. 444 F.3d at 604. In one
case, the court held that “a claim of intentional infliction of emotional distress was
preempted by the IHRA when ‘the core of [the plaintiff’s] theory’ was that the
plaintiff was a victim of racial harassment,” which is a category of conduct covered
by the IHRA. Id. (quoting Smith v. Chi. Sch. Reform Bd., 165 F.3d 1142, 1151 (7th
Cir. 1999)) (emphasis added). By contrast, in another case the court held that
“‘discrimination and intentional infliction of emotional distress are different
wrongs,’ and so torts that do not depend on a civil rights violation are not
preempted.” Naeem, 444 F.3d at 604 (quoting Sanglap v. LaSalle Bank FSB, 345
F.3d 515, 519 (7th Cir. 2003)). In the Naeem case itself, the Seventh Circuit held
that the IHRA did not divest the district court of jurisdiction over the plaintiff’s
intentional infliction of emotional distress claim. 444 F.3d at 605. The court
reasoned:
Given the extreme behavior outlined by the district court,
and presented to the jury, we must conclude the
defendants committed a tort independent of any duties
not to discriminate against Ms. Naeem. The conduct that
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she alleges is not just sexually harassing conduct; instead,
she alleges a pattern of behavior by the defendants that
created impossible deadlines, set up obstacles to her
performing her job, and sabotaged her work. . . . [I]t is
clear that her claim rests not just on behavior that is
sexually harassing, but rather behavior that would be a
tort no matter what the motives of the defendant.
Id.
Notably, a court in this District has previously found that the IHRA did not
divest the court of jurisdiction over a Cook County Jail corrections officer’s claim for
intentional infliction of emotional distress against the Cook County Sheriff’s Office
alleging that the Sheriff’s Office falsely accused the plaintiff of a crime. See
Swearingen-El v. Cook Cnty. Sheriff’s Dep’t, 416 F. Supp. 2d 612 (N.D. Ill. 2006).
The court in Swearingen-El held that “[a]lthough [the plaintiff] has alleged that
there was a discriminatory motive behind [the Sheriff’s Office’s] actions, these
actions would be equally punishable [as a tort] even if they were not motivated by
discrimination. [The plaintiff] can establish these claims independently without any
reference to the IHRA or any legal duty created by the IHRA.” Id. at 618.
The same reasoning applies here. The “core” of Plaintiffs’ theory of their
claim of intentional infliction of emotional distress is not simply that they were
retaliated against based on their political affiliation (assuming for purposes of this
analysis that a duty to refrain from such retaliation is included in the IHRA, which
the Court has held it is not). Rather, the emotional distress for which Plaintiffs seek
redress is the unwarranted criminal investigation into and discipline of their
conduct at work. As the Court discussed in denying Defendants’ motion for
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summary judgment on this claim, Illinois case law recognizes that a “sham” or
improperly motivated investigation into, and discipline of, an employee’s conduct
can be “extreme and outrageous” such that it satisfies the elements of a claim for
intentional infliction of emotional distress. 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). Moreover, as the Court noted,
“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 would cause Plaintiffs severe
emotional distress, especially since Plaintiffs are correctional officers.” Hernandez,
2014 WL 3805734, at *8. The extreme fear Defendants are alleged to have caused
by abusing not only their power as Plaintiffs’ supervisors, but as law enforcement
officers, is the core of Plaintiffs’ claim. Plaintiffs’ claim for intentional infliction of
emotional distress is not “inextricably linked” to their political discrimination claim,
because Plaintiffs’ intentional infliction of emotional distress claim is based on
Defendants’ alleged violation of a duty not to abuse their power and subject
Plaintiffs to a sham investigation, as opposed to the duty not to discriminate on the
basis of political affiliation. Thus, the IHRA does not divest the Court of jurisdiction
over Plaintiffs’ intentional infliction of emotional distress claim.
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Defendants note that in the Court’s decision denying summary judgment on
Plaintiffs’ intentional infliction of emotional distress claim the Court stated that “‘a
reasonable jury could hold that Defendants’ political motivation for investigating
and disciplining Plaintiffs, if true, is extreme and outrageous conduct.’” See R. 460
at 6 (quoting Hernandez, 2014 WL 3805734, at *7). Defendants contend that the
“language of the Court’s order serves to show just how inextricably linked Plaintiff’s
[sic] claims of unlawful discrimination and political motivation truly are.” R. 460 at
6. Defendants’ argument, however, conflates the particular facts of the case with the
legal duties Defendants are alleged to have breached. See Parker, 2014 WL
2932211, at *23 (“[T]he proper inquiry here is not on whether the facts that support
Plaintiff’s [intentional infliction of emotional distress] claim could also have
supported a harassment or retaliation claim, but on whether Plaintiff can prove the
elements of his [intentional infliction of emotional distress] claim independent of
the legal duties that the IHRA creates.”); Fuesting v. Uline, Inc., 2014 WL 1243939,
at *5 (N.D. Ill. Mar. 21, 2014) (“The Illinois Supreme Court . . . clarified in
Maksimovic that the inquiry focuses on legal duties, not facts.”). As discussed above,
the core of Plaintiffs’ intentional infliction of emotional distress claim is an
allegation that Defendants breached their duty as supervisors not to subject
Plaintiffs to a “sham” or improperly motivated investigation and discipline.
Violation of this duty to avoid abuse of power over employees establishes the tort
here. In this case, it is true, that Defendants’ abuse of power is alleged to have been
motivated by an intent to retaliate against Plaintiffs for their political affiliation.
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But those particular facts are not necessary to establish the tort of intentional
infliction of emotional distress. Rather, the mere fact that Defendants subjected
Plaintiffs to investigation, discipline, and threat of imprisonment, based on any
improper motive is sufficient to establish the tort absent any particular reference to
political discrimination. The particular motivation, or the specific context that made
the motive improper, is irrelevant.
The Seventh Circuit has specifically cited for approval district courts that
have distinguished between the underlying discriminatory intent on the one hand,
and the harassing conduct that was motivated by the discrimination on the other, to
find that claims for intentional infliction of emotional distress based on the
harassing conduct are not preempted by the IHRA. See Naeem, 444 F.3d at 603 n.4
(“[T]he district court [properly] found that an intentional infliction of emotional
distress action was not preempted by the IHRA, even though it involved sexual
elements, because it did ‘not depend on the prohibitions against sex discrimination
for its survival.’” (quoting Roberts v. County of Cook, 213 F. Supp. 2d 882, 884 (N.D.
Ill. 2002)); “[I]f an employer acts in an extreme and outrageous manner, and thus
commits intentional infliction of emotional distress, it is ‘irrelevant whether the
motive for this harassment’ was based on a discriminatory intent.” (quoting Jimenez
v. Thompson Steel Co., Inc., 264 F. Supp. 2d 693, 696 (N.D. Ill. 2003))). This Court
will follow suit.
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Conclusion
For the foregoing reasons, Defendants’ motion to dismiss, R. 452, is denied.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: December 18, 2014
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