Young v. City of Chicago, Department of Transportation et al

Filing 102

WRITTEN Opinion entered by the Honorable John A. Nordberg on 6/21/2012: Defendant City of Chicagos motion to dismiss the "counterclaim" of defendant Annunziom 82 is granted. (For further details see attached order)Mailed notice(tlp, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

John A. Nordberg

CASE NUMBER

10 C 989

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

6/21/2012

Young vs. City of Chicago et al.

DOCKET ENTRY TEXT

Defendant City of Chicago’s motion to dismiss the “counterclaim” of defendant Annunziom [82] is granted.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Before the Court is a motion to dismiss defendant Joseph Annunzio’s counterclaim against defendant
City of Chicago. (As the City points out, since it is also a defendant, the claim is really a cross-claim rather
than a counterclaim.) In the “counterclaim,” Annunzio, who is now represented by appointed counsel, seeks
an order requiring the City to pay his past and future attorney fees based on § 2-152-170 of the Chicago
Municipal Code. This section provides:
If any claim or action, either civil or criminal in nature, is instituted against a current or former
elected official, current or former appointed official or current or former employee of the City
of Chicago or any agency of the City of Chicago where such claim arises out of any act or
omission, made in good faith, occurring within the scope of such person’s office or
employment, the chairman of the committee on finance of the city council, with the approval
and concurrence of the mayor, may at the request of such person appoint counsel to defend
such person against any such claim or action.
Annunzio complains that the City, relying on the above section, agreed to pay the legal fees for all the other
co-defendants who, according to Annunzio, allegedly engaged in the same type of behavior that he allegedly
engaged in but that the City refused to pay his legal fees. Annunzio believes that the City’s decision is based
on the fact that all these other employees are City Commissioners whereas Annunzio is not. Annunzio
asserts a single claim under § 1983 for violation of the Equal Protection clause of the U.S. Constitution.
In its opening brief, the City argues that the Equal Protection claim fails if the City’s decision can be
upheld under any conceivable rationale ground. The City next states that the Municipal Code section quoted
above is discretionary, as evidenced by the provision that the City “may” appoint counsel if it believes the
employee was acting in good faith. Exercising this discretion, the City concluded that it did not want to
spend the money to pay Annunzio’s legal fees. The City has offered two primary rationales for why it
10C989 Patty Young vs. City of Chicago et al.

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STATEMENT
believes Annunzio’s situation is different from the other individual defendants. First, Annunzio was the only
individual defendant fired for his role in the alleged events set forth in the complaint. This firing was upheld
by the Illinois Appellate Court in a 20-page decision. See City of Chicago v. Annunzio, (No. 08 CH 1139) (Ill.
App. Ct., Jan. 14, 2011) (Docket # 91-2). Second, Annunzio is the only defendant who is alleged to have
made racist remarks in the workplace and who allegedly was verbally abusive and discourteous to coworkers. (Defs. Mem. at 2.)
In considering these arguments, we begin with the legal standard. First, because this motion is brought
pursuant to Rule 12(b)(6), Annunzio must in his counterclaim allege “sufficient factual matter” to show that
his claim is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). Second, the parties agree that Annunzio’s claim should be evaluated
under the lenient “rational basis” standard. See Defs. Mem. at 3; Pl. Resp. at 5-6. This standard of review
applies when the claim does not rest on a fundamental right or on an inherently suspect class such as race.
Smith v. City of Chicago, 457 F.3d 643, 650 (7th Cir. 2006). Under the rational basis standard, the
government’s classification “must be upheld against [an] equal protection challenge if there is any reasonably
conceivable state of facts that could supply a rational basis for the classification.” Id. at 651 (quoting Heller
v. Doe, 509 U.S. 312, 320 (1993)). This standard is a lenient one for the City; for Annunzio, it is difficult as
he has the ultimate burden of eliminating any “reasonably conceivable” state of facts that could support a
rational explanation for the classification at issue. Smith. 457 F.3d at 652. In addition, it should be noted that
the Supreme Court has generally cast doubt on Equal Protection claims brought by parties in their role as
public employees because the “government has significantly greater leeway in its dealings with citizen
employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon
Dept. of Agriculture, 553 U.S. 591, 599 (2008). (The City has not argued that Engquist completely
forecloses the Equal Protection claim.)
Applying this standard here, we find that Annunzio has failed to offer facts that would plausibly cast
doubt on both of the two rationales. Specifically, in his response brief, he does not deny that he was (a) the
only employee fired for his misconduct and (b) the only one who allegedly made racist remarks and treated
co-workers discourteously. Instead, Annunzio includes a long discussion of the factual background and
context, all of which are designed to suggest that the plaintiff’s allegations are unproven at this point and to
make clear that Annunzio will try to tell a different story at trial from the one told in the complaint. It is
certainly possible that Annunzio’s view of the facts may, after discovery and a trial, prove to be persuasive.
However, these arguments do not undermine the twin rationale for the City’s decision made before trial. For
one thing, the facts now relied upon by Annunzio are taken mostly from the fact section of the Illinois
Appellate Court’s decision. Many of these facts are simply summaries of what Annunzio’s character
witnesses testified to at the Board hearing. See Docket # 91-2 at pp. 9-10. Therefore, the Illinois Appellate
Court was aware of these facts when it ruled to uphold the decision to fire Annunzio. Moreover, in the
course of its ruling, the Appellate Court stated that “the record is full of evidence that [Annunzio] repeatedly
made racist, derogatory, and disparaging remarks about both co-workers and employees.” Id. at 17. As the
City explains in its briefs, it rationally could believe that Annunzio’s alleged conduct was “markedly
different in kind, severity and degree from the allegations made against the other individual defendants.”
(Defs. Reply at 5.) Similarly, in our earlier ruling denying defendants’ motions to dismiss, we summarized
the original complaint this way:
This is a race discrimination case brought by plaintiff Patty Young individually and on behalf
of a class of at least 24 other similarly situated employees at the City of Chicago’s Department
of Transportation (“CDOT”) office located at 2350 W. Ogden in Chicago. The defendants are
the City of Chicago and seven individuals working at the Ogden office. The complaint focuses
mostly on one individual, Joseph Annunzio, who was the Field Director at the Ogden office
and who plaintiff alleges was the key perpetrator of the alleged discrimination.
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STATEMENT
(Docket # 43) It was thus this Court’s conclusion after an initial and straightforward reading of the original
complaint that plaintiff’s allegations focus “mostly on one individual, Joseph Annunzio” and that he
allegedly was the “key perpetrator.” (This complaint was subsequently amended twice but the current second
amended complaint does not appear, insofar as we can tell, to have any major salient differences from the
factual allegations in the original complaint. Cf. Cmplt. ¶ 21 to 2AC ¶ 23.) The complaint thus does not, in
this Court’s view, treat Annunzio similarly to other employees. In sum, we find that Annunzio has not come
forward with a plausible story, as required by the current Iqbal/Bell Atlantic standard, to suggest that the
City’s stated twin rationales were false or lacked a rationale basis. For all the above reasons, the motion to
dismiss the counterclaim is granted.

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