Garner v. The City of Country Club Hills, Illinois et al

Filing 94

MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 7/23/2012. Mailed notice(tbk, )

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

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Plaintiff,
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v.
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THE CITY OF COUNTRY CLUB HILLS,
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ILLINOIS, STEVEN BURRIS, Alderman of
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The City of Country Club Hills, sued in his
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individual capacity, JOHN EDWARDS,
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Alderman of the City of Country Club Hills,
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sued in his individual capacity, VINCENT
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LOCKETT, Alderman of the City of Country
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Club Hills, sued in his individual capacity,
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FRANK MARTIN, Alderman of the City of
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Country Club Hills, sued in his individual
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capacity, CYNTHIA SINGLETON, Alderman of )
The City of Country Club Hills, sued in her
individual capacity, LEON WILLIAMS,
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Alderman of the City of Country Club Hills,
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sued in his individual capacity,
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Defendants.
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Case No.: 11-cv-5164
Judge Robert M. Dow, Jr.

)

MEMORANDUM OPINION AND ORDER
Plaintiff, Michelle Garner (“Garner”), filed a seven-count lawsuit, alleging that
Defendant, the City of Country Club Hills (“City”), through the actions of the City Council,
violated her constitutional rights when, for purposes of political retaliation, they fired her in
response to her support for the mayor during the most recent election. Before the Court is
Defendant’s motion to dismiss Counts IV, V, VI, and VII [38] of Plaintiff’s amended
complaint [31]. 1 For the reasons stated below, the Court denies Defendants’ motion [38].

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Counts I, II, and III have been brought against individual defendants Burris, Davis, Edwards,
Lockett, Martin, Singleton, and Williams and are not at issue in this ruling.

I.

Background 2
Garner was an employee of the City from May 2008 through June 2011, working first

in City Hall as a front counter clerk and later for the Superintendent of Parks and Recreation
as a site coordinator. Garner was also a political supporter of Mayor Welch (“Mayor” or
“Welch”) and worked on his April 2011 re-election campaign by going door-to-door,
attending meetings, handing out campaign literature, and working the election polls. Welch
was re-elected in April, and two of his former mayoral opponents retained their position as
Aldermen on the City Council.

Individual Defendants Alderman Burris and Alderman

Lockett allegedly knew of Garner’s support of the Mayor and followed and harassed her in
response to her involvement. On April 29, Welch sent a letter to all city employees notifying
them that certain members of City Council were planning to eliminate several positions with
the city for purposes of political retaliation. After the election, the City Council Finance
Committee (“Finance Committee”) held meetings during which they discussed the proposed
terminations and named several of Welch’s supporters by name. Subsequently, the City
Council passed a budget plan that included the elimination of thirteen city employees, all of
whom were political supporters of the Mayor. Garner was included in these employees and
was subsequently terminated in July of 2011.
Plaintiff filed the instant suit against Defendant under 42 U.S.C. § 1983 (“Section
1983”) alleging First Amendment Retaliation Claims for Freedom of Speech (Count IV),
Assembly (Count V), and Freedom of Association (Count VI). Plaintiff alleges that the City
terminated her position in retaliation for her support of the Mayor. In addition, Plaintiff
brings a claim against the City under 745 ILCS 10/9-102 for payment of any final awards
(Count VII). Defendant has moved to dismiss claims IV, V, VI, and VII.

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For purposes of Defendants’ motion to dismiss, the Court assumes as true all well-pleaded
allegations set forth in the complaint. See, e.g., Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d
614, 618 (7th Cir. 2007).

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II.

Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910
F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint
first must comply with Rule 8(a) by providing “a short and plain statement of the claim
showing that the pleader is entitled to relief” (Fed. R. Civ. P. 8(a)(2)), such that the defendant
is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the
possibility of relief above the “speculative level,” assuming that all of the allegations in the
complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.
2007) (quoting Twombly, 550 U.S. at 555). “[O]nce a claim has been stated adequately, it
may be supported by showing any set of facts consistent with the allegations in the
complaint.” Twombly, 550 U.S. at 563. The Court accepts as true all of the well-pleaded
facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See
Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).
III.

Analysis
Section 1983 provides that any person who, under the color of law, causes the

deprivation of “any rights, privileges or immunities secured by the Constitution and laws,
shall be liable to the party injured. . . .” 42 U.S.C. § 1983 (2006). To succeed on a § 1983
claim, Plaintiff must allege: (1) that she was deprived of a constitutional right, (2) as a result
of an official municipal policy or custom, (3) which was the proximate cause of her injury.
Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91 (1978). Plaintiff’s
alleges that her First Amendment constitutional rights—Freedom of Association, Assembly,

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and Freedom of Speech—were violated as a result of the City’s final decision makers’
decision to terminate her position. 3
A.

First Amendment Retaliation Claims – Counts IV, V, and VI

In Counts IV, V, and VI, Plaintiff argues that she was retaliated against for political
beliefs in violation of the First Amendment. 4 To plead a retaliation claim, a plaintiff must
allege that (1) she engaged in constitutionally protected speech and (2) the defendant’s
retaliation was caused by the speech. Bd. of County Com'rs, Wabaunsee County, Kan. v.
Umbehr, 518 U.S. 668, 675 (1996); see also Gardunio v. Town of Cicero, 674 F. Supp. 2d
976, 989 (N.D. Ill. 2009) (citing Roger Whitmore's Auto. Services, Inc. v. Lake County,
Illinois, 424 F.3d 659, 668 (7th Cir. 2005). If the employee is able to prove that his or her
participation in a protected activity was a substantial or motivating factor in the terminal
decision, the government still may avoid liability by showing that it had legitimate, nonpolitical reasons for firing the employee. Umbehr, 518 U.S. at 675.
The Seventh Circuit has concluded that both endorsement of a candidate for office,
Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982), and political campaigning and
involvement, Brown v. U.S. Civil Service Commission, 553 F.2d 531, 534 (7th Cir. 1977)
(quoting Elrod, 427 U.S. at 370–71), are politically protected expressions of speech under the
First Amendment. Garner’s activities—going door-to-door, attending campaign meetings,
handing out campaign literature, and working the election polls—fall within the ambit of

3  Municipal

liability under § 1983 attaches when a policy maker takes an action that results in a
lawsuit. Reed v. Village of Shorewood, 704 F.2d 943, 953 (7th Cir.1983) (citations omitted). A
policymaker is defined as someone who is ultimately responsible for final policy decisions. Pembaur
v. City of Cincinnati, 475 U.S. 469, 480–81 (1986). Defendants do not contest that the City Council is
considered a final policy maker for the City.

4  Unless

political affiliation is reasonably required as one of the job qualifications, an employee may
not be terminated for supporting or affiliating with a particular political party. Rutan v. Republican
Party of Illinois, 497 U.S. 62, 64 (1990); see Branti v. Finkel, 445 U.S. 507 (1980); see also Elrod v.
Burns, 427 U.S. 347, 381 (1976). Neither party contends that Garner’s position was one that required
a particular political affiliation.

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protected speech and thus the Court turns to the issue of whether Garner has adequately
alleged that protected speech was the cause of the retaliation.
Both circumstantial evidence, such as suspicious timing, ambiguous oral or written
statements, or behavior or comments, as well as direct evidence, such as near-admissions of
the actions, may serve as proof of causation. Ibarra v. City of Chicago, 816 F. Supp. 2d 541,
551 (N.D. Ill. 2011) (internal quotations omitted). Plaintiff’s complaint offers as evidence
that two months after the mayoral election, Alderman Burris and Alderman Lockett, who had
lost to the Mayor in the election, implemented a budget plan that included a number of
terminations, all of which would result in the termination of a person who was a political
supporter of the Mayor. Defendant contends that this does nothing more than prove that
there are thirteen disgruntled former employees. But, as Plaintiff notes, the fact that all
thirteen terminated employees were political supporters of the Mayor raises suspicion as to
the motive behind the terminations. Suspicious circumstances and timing alone, however, are
insufficient elements of proof to establish retaliation. Sauzek v. Exxon Coal USA, Inc., 202
F.3d 913, 918 (7th Cir. 2000). Thus, in order to survive a motion to dismiss, a complaint
must plead facts beyond the suspicious circumstances and timing.
In this case, Plaintiff’s complaint offers several additional pieces of evidence in
support of her claims: (1) a letter from the Mayor notifying employees that the aldermen were
planning to fire a number of city employees for purposes of political retaliation; (2) an
allegation that during budget meetings in May, the Finance Committee discussed terminating
several of the Mayor’s supporters by name; and (3) an allegation that two individual
aldermen not only knew of Garner’s involvement with Welch’s campaign, but also followed
and harassed her in retaliation for her contributions.

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Defendant argues that Plaintiff’s second 5 allegation is defective in two ways: (1)
Garner does not allege that the Finance Committee explicitly stated that they were
terminating the employees because of their political affiliations (as opposed to simply
mentioning the two concurrently); and (2) Garner fails to connect members of the Finance
Committee to the City Council by name, stating only that it is logical to infer that the Finance
Committee is comprised of members of the City Council.
But as Plaintiff argues, Defendant’s contention that Plaintiff must plead that the
Finance Committee explicitly stated that they were terminating the employees because of
their political affiliations misunderstands the pleading standard at the motion to dismiss stage.
Plaintiff is not required to plead specific evidence of intent at this stage; she is only required
to plead facts that if true raise the possibility of relief above a “speculative level.” E. E.O.C.
v. Concentra Health Servs., Inc., 496 F.3d at 776; Benson v. Cady, 761 F.2d 335, 342 (7th
Cir. 1985) (quotations omitted) (“Because retaliation for the exercise of a constitutionally
protected right rarely can be supported with direct evidence of intent that can be pleaded in a
complaint, courts have found sufficient complaints that allege a chronology of events from
which retaliation may be inferred.”); see also Cobbs v. Sheahan, 319 F. Supp. 2d 865, 871
(N.D. Ill. 2004) (denying motion to dismiss where defendants argued that plaintiff’s claim
could not survive because she failed to allege a causal connection between the speech and the
demotion because such arguments raise “detailed factual questions and are therefore better
suited for a summary judgment motion.”) In this case, while the connection between the
Finance Committee and the City Council is vague in the complaint, it is not illogical, and the
inference that Plaintiff asks the Court to draw is reasonable at the motion to dismiss stage.
Caldwell v. City of Elwood, Ind., 959 F.2d 670, 672-73 (7th Cir. 1992) (the court confirmed

5 The

Court notes that absent from Defendant’s motion is any response to Plaintiff’s contention that
the Mayor sent a letter notifying employees that the aldermen were planning to fire a number of city
employees for purposes of political retaliation.  

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that reasonable inferences can and should be drawn during the pleading stage so long as they
do not attempt to bridge illogical gaps.); Kodish v Oakbrook Terrace Fire Protection Dist.,
604 F.3d. 490, 501-502 (7th Cir. 2010) (stating that causal connections may be proven, not
only by direct evidence, but also “circumstantial evidence which suggests discrimination
through a longer chain of inferences.”).
Finally, Defendant argues that knowledge of individual members of the City Council
cannot be imputed to the entire board, and thus Garner has failed to allege facts that lead to
the conclusion that the City Council as a whole was aware of her involvement with Welch’s
campaign. Defendant relies primarily on Massey v. Johnson, 457 F.3d 711, 718 (7th Cir.
2006), in support of its contention. In Massey, the court refused to impute motive from one
supervisor to another because the prior supervisor who allegedly had motive for retaliation
was removed from the chain of command and had no contact or power over the supervisor
responsible for terminating the individual. Id. Massey is distinguishable, however, because
the court reached its decision at the summary judgment stage, not at the motion to dismiss
stage.
In fact, all of the decisions that Defendant cites in support of its argument that courts
refuse to impute knowledge or motive between defendants were issued at the summary
judgment phase. See Land v. Kaupas, 2009 WL 3187788 (N.D. Ill. Sept. 30, 2009); see also
Napoli v. Bd. of Trustees of Thornton Cmty. Coll., 1986 WL 6263 (N.D. Ill. May 23, 1986).
But at the pleading stage, Rule 8 does not require Plaintiff to prove factual support for
allegations, nor plead direct evidence of the causation element of a First Amendment
retaliation claim. Benson v. Cady, 761 F.2d at 342 (7th Cir. 1985) (internal quotations
omitted); Cobbs v. Sheahan, 319 F. Supp. 2d 865, 871 (N.D. Ill. 2004); see also Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, (1977); Hartman v. Moore, 547 U.S.

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250, 260, (2006) (accepting evidence in a retaliation case of the motive and of discharge as
sufficient proof of causation).
Accordingly, the Court concludes that the evidence included in Plaintiff’s
complaint—(1) that Alderman Burris and Lockett, through their positions on the City
Council, terminated thirteen employees who were political supporters of the Mayor,
including Plaintiff, for purposes of political retaliation; (2) that the Mayor wrote a letter
warning employees of the planned retaliation; (3) that during a recent Finance Committee
meeting, members discussed the terminations and mentioned the Mayor’s supporters by
name; and (4) that individual aldermen knew of Garner’s political activity—is sufficient to
survive Defendant’s motion to dismiss. While it is possible that discovery may belie these
allegations, accepting the facts pled as true and drawing reasonable inferences in the light
most favorable to the Plaintiff—as the Court must at this time—Plaintiff’s allegations raise
the possibility of relief above a speculative level.
B.

State Claim – Claim VII

Because the Court now denies Defendant’s motion as to Claims IV, V and VI, and
neither Defendant nor Plaintiff addressed Claim VII in their respective briefs, the Court also
denies Defendant’s motion as to Claim VII. .
IV.

Conclusion
For the foregoing reasons, the Court denies Defendants’ Motion to Dismiss [38].

Dated: July 23, 2012

__________________________________
Robert M. Dow, Jr.
United States District Judge

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