Opp v. Devine et al

Filing 40

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 5/15/2009:Mailed notice(mpj, )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

) ) ) Plaintiff, ) ) v. ) RICHARD A. DEVINE, in his individual ) ) capacity; ANITA ALVAREZ, in her ) official capacity; ROBERT J. MILAN, ) in his individual capacity; BERNARD ) J. MURRAY, in his individual ) capacity; JOHN G. MURPHY, in his ) individual capacity; THE OFFICE OF ) THE STATE'S ATTORNEY OF COOK COUNTY, ) an agency of the State of Illinois; ) THE COUNTY OF COOK, an Illinois ) municipal corporation, body politic ) and unit of local government; and ) ) THE COOK COUNTY BOARD OF COMMISSIONERS in their official capacity, CHRISTINE A. OPP, Defendants.

No. 08 C 6120

MEMORANDUM OPINION AND ORDER Plaintiff brought a three count complaint asserting

violations of the consent decree entered in Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D. Ill. 1979) (Count I), violations of the Age Discrimination in Employment Act, 29 U.S.C. § 626 ("ADEA") (Count II), and "punitive discharge" (Count III) against all defendants.1 Defendants moved to dismiss

Anita Alvarez, currently the Cook County State's Attorney, automatically substitutes for defendant Richard Devine in his official capacity pursuant to Fed. R. Civ. P. 25(d)(1).

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the complaint2 pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), and moved for sanctions pursuant to Fed. R. Civ. P. 11. This

opinion resolves both motions, as well as plaintiff's motion to amend her complaint. I. Plaintiff was an Assistant State's Attorney employed by

defendant Office of the State's Attorney of Cook County ("OSA") from January of 1997 to February of 2007. At a meeting on February

16, 2007, when plaintiff was fifty-seven years old, defendants Murphy and Murray informed plaintiff that her employment was being terminated as a result of budget cuts mandated by defendant Cook County Board of Commissioners (the "Board"). Plaintiff claims that the proffered reason for her termination was pretextual. not dispute that OSA reduced She its workforce as a She does of was

result she

countywide

budget

cuts.

alleges,

however,

that

Although defendants' motion seeks dismissal of the "Complaint," the body of the motion seeks dismissal of her Shakman claim, her punitive dismissal claim, and other claims not in fact presented here (under the Americans with Disabilities Act ("ADA") and § 1983), while it does not mention plaintiff's ADEA claim at all. It appears defendants failed to make the appropriate edits to the motion they filed on the same day in Barrett v. Devine, 08 C 6124, which did assert ADA and § 1983 claims but no ADEA claim. Plaintiff's responses reflect similar oversights. Although I admonish both parties to be more careful in the future, rather than penalize them for these formalistic errors, I rely on the substance of their arguments to ascertain their respective positions. That said, as discussed in more detail below, I am unable to determine the scope of defendants' motion as to Count II. Because plaintiff is entitled to all reasonable inferences in her favor, I interpret the motion in the most restrictive manner suggested by the pleadings and memoranda. 2

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selected for termination over less qualified or equally qualified peers based on 1) her lack of a "political sponsor" with sufficient "clout" to have her name removed from the termination list; 2) her age; and 3) her refusal to go along with an alleged unlawful scheme proposed by defendant Cassidy in August of 2006. Defendants argue that defendant Board is a non-suable entity, and that defendants Alvarez and OSA are immune from liability under the Eleventh Amendment for the Shakman and punitive discharge claims.3 Defendants also argue that plaintiff's Shakman claim, which seeks a monetary award for asserted violations of the consent decree entered in Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D. Ill. 1979), should be dismissed against all defendants because 1) individual defendants cannot be held liable for violations of the Shakman order, and 2) the Shakman order does not provide a legal basis for a damages claim.

Defendants next argue that the ADEA claim must be dismissed against the individual defendants because individual supervisors who are not otherwise employers cannot be sued under ADEA. Finally,

defendants argue that plaintiff's "punitive discharge" claim does not state a cause of action. Defendants seek sanctions on the

grounds that plaintiff objectively lacked a reasonable basis for

Defendants originally argued that were immune from suit entirely, but argument, acknowledging that Illinois claims such as plaintiff's pursuant to 3

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defendants OSA and Alvarez they later withdrew this has waived immunity from 745 ILCS 5/1.5(d) (2009).

bringing any of these claims against the state agent defendants,4 for bringing the Shakman and ADEA claims against the individual defendants, and for bringing the "fictional" claim of punitive discharge. II. Defendant's Motion to Dismiss A motion to dismiss tests the sufficiency of a complaint, not its merits. Gibson v. Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). I must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006). The plaintiff must, nevertheless, allege sufficient factual material to suggest plausibly that she is entitled to relief. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). A. The Board as Defendant Plaintiff concedes that defendant Board is a non-suable entity and joins defendants' motion to dismiss all claims against this defendant. The motion is granted. B. Plaintiff's "Punitive Discharge" Claim Plaintiff concedes that this count does not state a cause of action and joins defendants' motion to dismiss Count III in its entirety. This motion is also granted.

Presumably, defendants also withdraw this argument as to Count II based on their recognition that Alvarez and OSA are not immune from the ADEA claim. Their motion to withdraw their argument for dismissal of Count II as to these defendant is silent as to this corollary issue, however. 4

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C. Plaintiff's Shakman claim Plaintiff alleges that "defendants' actions in terminating Plaintiff's employment," while less qualified or equally qualified employees violates with the "political sponsorship" issued in were not v. terminated, Democratic

consent

decree

Shakman

Organization of Cook County, 481 F.Supp. 1315 (N.D. Ill. 1979). The Shakman order enjoined certain government employers from

"conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor." Id. at 1358.5 Defendants plaintiff's raise several arguments First, as for to the dismissal of

Shakman

claim.

defendants

OSA and

Alvarez, defendants assert Eleventh Amendment immunity under Garcia v. City of Chicago, 24 F.3d 966 (7th Cir. 1994). Seventh Circuit held: The Eleventh Amendment prohibits federal courts from deciding suits brought by private litigants against states or their agencies, and that prohibition extends to state officials acting in their official capacities. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). Whether a The decades-long Shakman litigation produced several consent decrees. The one relevant to plaintiff's claims, excerpted above, was entered on May 5, 1972. In her complaint, plaintiff also cites Shakman v. Dunne, 829 F.2d 1387 (7th Cir. 1987), which vacated and remanded certain portions of a separate consent decree, issued in 1983, which does not appear to be relevant here, since it related to "patronage hiring" practices, not to employment decisions affecting current employees such as plaintiff. 5
5

In Garcia, the

particular official is the legal equivalent of the State itself is a question of that State's law, Santiago v. Daley, 744 F.Supp. 845, 845 & n. 1 (N.D.Ill.1990), and the Illinois Supreme Court decided in 1990 that State's Attorneys are state officials. Ingemunson v. Hedges, 133 Ill.2d 364, 140 Ill.Dec. 397, 400, 549 N.E.2d 1269, 1272 (1990) (State's Attorneys are state, not county, officials). Id. at 969. Plaintiff does not deny that state agents are

generally immune from suit in federal court under Garcia. Instead, she argues that Garcia was wrongly decided because state's attorneys should be considered agents of the county, not the state. I am not at liberty to disregard controlling

precedent, however, and plaintiff advances no colorable theory under which her Shakman claim against OSA and Alvarez survives Garcia. Plaintiff's citation to EEOC v. Board of Regents of the University of Wisconsin System, 288 F.3d 296 (7th Cir. 2002), is puzzling. In plaintiff's words, the Board of Regents

court "reaffirmed its authority to determine whether or not a government agency is an office of the state, or,

alternatively, the local government."

Plaintiff does not

direct me to any portion of the Board of Regents decision that purportedly articulates that proposition. In Board of

Regents, there was apparently no dispute that the defendant was an arm of the state. The Eleventh Amendment issue in that

case related to whether the EEOC's action on behalf of four

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individuals should be considered an individual lawsuit (in which case the defendant was entitled to sovereign immunity) or an action by a federal agency (in which case it was not). The court allowed the case to proceed because it concluded that the suit was properly characterized as an action brought by a federal agency, not because it concluded, as plaintiff wishfully suggests, that the defendant was not an arm of the state. Id. at 299.

Plaintiff's citation to Mackey v. Stanton, 586 F.2d 1126 (7th Cir. 1978), is similarly unavailing because the Mackey court-­like the Garcia court-­looked to state law to establish whether the agency defendant was an arm of the state or local government. 586 F.2d at 1130-31. As Garcia observed, the law

of Illinois provides that Illinois State's Attorneys are state officials. 24 F.3d at 969 (citing Ingemunson v. Hedges, 133

Ill.2d 364, 140 Ill.Dec. 397, 400, 549 N.E.2d 1269, 1272 (1990)). Mackey offers plaintiff no escape from these

dispositive holdings.6

The same is true of the Second Circuit case plaintiff cites in her supplemental response. Woods v. Rondout Valley Central School District Board of Education, 466 F.3d 232, 237 (2nd Cir. 2006)(Eleventh Amendment inquiry "looks to those provisions of New York State law" to define the defendant's character). The remaining authorities plaintiff cites are equally unavailing. 7

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Based on the foregoing, I conclude that the Eleventh Amendment immunizes defendants Alvarez and OSA from liability for plaintiff's Shakman claim. Defendants individual individual next argue, and be plaintiff held concedes, in that their of the

defendants capacities

cannot for any

liable

alleged

violations

Shakman consent decree.

Accordingly, the Shakman claim is

also dismissed as to the individual defendants. This leaves only defendant Cook County as potentially liable for the violation plaintiff alleges in Count I. As

noted above, defendants argue that the consent judgment in Shakman does not provide an independent cause of action for damages, citing Everett v. Cook County Board of Commissioners, 2008 WL 94791 at *4 (N.D. Ill., Jan. 8, 2008) (Kendall, J.). Defendants misread Everett. indeed observed that Although the court in Everett proceedings are equitable,

"Shakman

typically seek immediate injunctive relief, and confer no right to a jury trial," it specifically rejected the argument that the Shakman consent decrees establish no independent federal cause of action. Everett, 2008 WL 94791 at *4. In

particular, the Everett court noted that jurisdiction over claims seeking to enforce the Shakman consent decrees (as opposed to claims seeking to modify the decrees), is not limited to the court that originally issued the decrees, 8

citing Perlman v. Cook County Bd. Of Commissioners, 2007 WL 1302973 at *5 (N.D. Ill., May 2, 2007) (Manning, J.) ("a plaintiff may sue to vindicate a right established by the Shakman consent decree"), and may be brought as independent civil actions. See id. Indeed, a November 30, 2006

Supplemental Relief Order ("SRO") that was issued by the Shakman court and agreed to by Cook County provides that "[a]ny individual who alleges that she or he is a victim of unlawful political discrimination in connection with any

aspect of government employment with the County in violation of the [1972 or 1994 Shakman consent decrees] or the SRO at any time after the final approval of this SRO may seek relief through the claim and arbitration procedure established by this SRO or may pursue his or her claim under applicable law." Shakman v. Democratic Organization of Cook County, 69 C 2145, Docket No. 531 (N.D. Ill., Nov. 30, 2006)(Anderson, J.)

(emphasis added). Moreover, it is clear that the law generally forbids political patronage dismissals. In Elrod v. Burns, 427 U.S.

347 (1976), one of the seminal cases involving politically motivated employment decisions, public employees alleged that they were "discharged or threatened with discharge solely for the reason that they were not affiliated with or sponsored by the Democratic Party." Id. at 350. 9 The Elrod plaintiffs

sought

declaratory,

injunctive,

and

other

relief

for

violations of the First and Fourteenth Amendments and of 42 U.S.C. §§ 1983, 1985, 1986, and 1988. After noting that the

case was governed by the "specific limiting principles of the First Amendment" id. at 357 n. 10 (quoting Board of Education v. Barnette, 319 U.S. 624, 639 (1943)), the Elrod court held that "the practice of patronage dismissals clearly infringes First Amendment interests," id. at 360, a conclusion it

reaffirmed in Branti v. Finkel, 445 U.S. 507, 515-516 (1980). Of course, plaintiff has not alleged any constitutional violation as a result of her dismissal, only that her

dismissal violated rights established by the Shakman consent decree.7 Regardless of her theory of liability, it appears

her claim may ultimately be barred by Livas v. Petka, 711 F.2d 798 (7th Cir. 1983). In Livas, the Seventh Circuit held that

Assistant State's Attorneys may be hired and fired for reasons of political patronage under the exception, recognized in Elrod and Branti, applicable to public employees who occupy policy-making or confidential positions. See also Hernandez v. O'Malley, 98 F.3d 293, 294 (7th Cir. 1996) (noting that Livas "holds that politics are a constitutionally permissible

The Everett court noted that First Amendment or other constitutional claims "typically accompany a Shakman petition," 2008 WL 94791 at *4, but the absence of a specific constitutional claim was not fatal to the Shakman claim in that case. 10

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consideration attorneys.")

when

hiring

and

firing

assistant

state's

Defendant has not raised Livas,

however.

Moreover,

plaintiff asserts that defendant OSA "withheld" decisionmaking authority from her and concludes that she was not an exempt employee as contemplated by the Shakman decrees. It is

not clear that these assertions will enable her to overcome Livas in her claim against Cook County, but without meaningful input from the parties on this issue, it is premature to hold that plaintiff's claim is barred by Livas. Because her claim

otherwise appears to satisfy the notice pleading requirements of Fed. R. Civ. P. 8(a), defendants' motion to dismiss

plaintiff's Shakman claim against Cook County is denied. D. Plaintiff's ADEA claim Defendants argue that the individual defendants cannot be liable under ADEA. Although the Seventh Circuit has not

expressly held that there can be no individual liability under ADEA, it has repeatedly be suggested liable as much, the holding that with

individuals

cannot

under

Americans

Disabilities Act ("ADA"), EEOC v. AIC Security Investigations, 55 F.3d 1276 (7th Cir. 1995), or Title VII, Williams v. Banning, 72 F.3d 552 (7th Cir. 1995), and likening these statutes to ADEA in this respect. Matthews v. Rollins Hudig

Hall Co., 72 F.3d 50, 52 N. 2 (7th Cir. 1995) (principle of no 11

individual liability under ADA applies equally to ADEA); see also Cianci v. Pettibone Corp., 152 F.3d 723, 729 (7th Cir. 1998) ("we decline Cianci's invitation to reconsider our

decisions holding that individual supervisors who are not otherwise employers cannot be sued under Title VII or the ADEA"); Horwitz v. Board of Education, 260 F.3d 602, 610 N.2 (7th Cir. 2001) ("we have suggested that there is no individual liability under the ADEA"). respond to this argument. dismiss plaintiff's ADEA In any event, plaintiff does not

Accordingly, defendants' motion to claim against the individual

defendants is granted. This leaves defendants Alvarez, OSA, and Cook County potentially alleges. answerable for the ADEA violation plaintiff

Defendants have now conceded that this claim may It is not clear, however,

proceed against Alvarez and OSA.

whether defendants seek dismissal of plaintiff's ADEA claim against Cook County. As noted above, their motion makes no Although the introduction

mention at all of the ADEA claim.

to their brief states that they seek dismissal of the entire case, the conclusion to the brief seeks only "to dismiss all individual defendants from the Complaint,8 as well as Counts

I presume based on their arguments that defendants originally intended to include Alvarez and OSA here, though they later acknowledged that plaintiff's ADEA claim may proceed against these defendants. 12

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I, and III of Plaintiff's Complaint in their entirety."

This

conclusion appears not to challenge plaintiff's ADEA claim against Cook County. In any event, defendants offer no

reasoned argument as to why this claim cannot proceed against Cook County, so to the extent they intended to seek dismissal of this claim, their motion is denied. Count II against

defendants Alvarez, OSA, and Cook County survives. III. Defendant's Motion for Sanctions Defendants seek Rule 11 sanctions on the grounds that plaintiff's counsel engaged in unreasonable conduct when he employed "the ostrich-like tactic of pretending a that

potentially

dispositive

authority

against

litigant's

position does not exist." Bank, N.A. 880 and F.2d made 928,

Mars Steel Corp. v. Continental 939 (7th Cir. 1988) legal (imposing arguments.

sanctions),

various

frivolous

Although I find that several of plaintiff's arguments are indeed without merit, it does not appear that she or her counsel brought these claims for any improper purpose.

Moreover, defendants' own submissions can hardly be deemed exemplary, as their motion facially sought to dismiss claims not even asserted, while errors and inconsistencies in their supporting memoranda complicated the court's task and made it impossible to discern exactly what relief they seek. Under

the circumstances, defendants' motion for sanctions is denied,

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and both parties are admonished to exercise due care in the preparation of future submissions. IV. Plaintiff's Motion to Amend Complaint Fed. R. Civ. P. 15(a) sets forth a liberal standard for allowing plaintiffs to amend their complaints. "In the

absence of any apparent or declared reason-such as undue delay, ... undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be `freely given.'" Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1298 (7th Cir.

1993) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Plaintiff proposes to amend her original complaint by adding a fraud/conspiracy claim and by recaptioning her noncognizable "punitive discharge. discharge" claim as a claim for retaliatory

Plaintiff's motion is granted, though I caution

her to bring the proposed claims in a manner that is both consistent with this opinion and mindful of the heightened pleading standard applicable to claims of fraud. V. Conclusion For the reasons set forth above, defendants' motion to dismiss is granted in part; defendants' motion for sanctions is denied; and plaintiff's motion for leave to amend her complaint is granted. Count I survives against defendant Cook

County, and Count II survives against Cook County, Alvarez,

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and OSA. with this

Plaintiff may file an amended complaint, consistent opinion, within the proposed twenty-eight day

period.

ENTER ORDER: ____________________________ Elaine E. Bucklo United States District Judge Dated: May 15, 2009

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