Doyle et al v. The City of Chicago et al

Filing 64

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 5/1/2013:Mailed notice(wp, )

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

PATRICK DOYLE, DANIEL HOULIHAN,
JOHN NOLAN, ROBERT OLSON,
MICHAEL PADALINO, JOHN PIGOTT,
EUSEBIO RAZO, VERONICA
RODRIGUEZ, MICHAEL ROMAN,
RICHARD SOTO, and CAROL
WEINGART,
Case No. 12 C 6377

Plaintiffs,

Hon. Harry D. Leinenweber

v.
THE CITY OF CHICAGO, BRIAN
THOMPSON, Individually, TERRY
HILLARD, Individually, and
UNKNOWN AND UNNAMED DEFENDANTS,
Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court are Defendants’ Motion to Dismiss Plaintiffs’
Second Amended Complaint (ECF No. 35) and Plaintiffs’ Motion to
Compel (ECF No. 52).

For the reasons stated herein, Defendants’

Motion is denied, and Plaintiff’s Motion is granted in part and
denied in part.
I.

BACKGROUND

Defendant City of Chicago (the “City”) employed Plaintiff
police officers as Security Specialists in Unit 542.

Security

Specialists are assigned to provide security to the Mayor of
Chicago and other dignitaries in the City.
least twenty-two Security Specialists.

The City employed at

Upon becoming Security

Specialists, Plaintiffs received increased benefits and a pay
raise.

Plaintiffs are Caucasian or Hispanic.

Defendant Brian

Thompson (“Thompson”) was the Unit Commander of the Security
Specialists assigned to Unit 542, and Terry Hillard (“Hillard”) was
the

Interim

Department.

Superintendent

of

the

City

of

Chicago

Policy

Both Thompson and Hillard are African-American.

On February 22, 2011, Rahm Emanuel (“Emanuel”) was elected
Mayor of Chicago.

Plaintiffs allege that in late April or early

May 2011, Hillard, Thompson and unknown individuals (collectively,
the

“Individual Defendants”) transferred several police officers

who were not Security Specialists to Mayor-Elect Emanuel and began
treating them as Security Specialists.

The Individual Defendants

did not promote them officially to that rank, but instead allowed
them to “act up” into the Security Specialist position. Plaintiffs
allege that the officers that the Individual Defendants allowed to
“act up” as Security Specialists had volunteered to work security
for Emanuel when he was a mayoral candidate or were involved
politically in his campaign.

They claim that the Individual

Defendants chose these officers to “act up” as Security Specialists
because of their political affiliation with Emanuel.

Plaintiffs

allege that allowing employees to “act up” in this manner is
disfavored, and that there are restrictions on such practices.
Plaintiffs claim that the Individual Defendants failed to
follow these policies limiting “acting up” because they intended to

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replace Plaintiffs for political reasons.

In addition, Plaintiff

Pigott asked Thompson what factors Thompson would use to determine
which officers stayed on as Security Specialists upon Emanuel’s
inauguration.

Plaintiffs claim Thompson responded that “the color

of your skin is your sin.”

Sec. Am. Compl. ¶ 44.

On May 13, 2011, the Individual Defendants removed Plaintiffs
Doyle,

Houlihan,

Weingart

from

Padalino,

their

Pigott,

Security

Razo,

Rodriguez,

Specialist

positions

Soto

and

without

explanation. When these Plaintiffs were removed, they were demoted
in title and rank and received a reduction in pay and benefits.
Plaintiffs allege Individual Defendants did not remove any AfricanAmerican Security Specialists despite the fact that Plaintiffs has
more seniority.
On May 16, 2011, Emanuel was sworn into office.

That same

day, the Individual Defendants demoted Doyle, Houlihan, Padalino,
Pigott, Razo, Rodriguez, Soto and Weingart and reassigned them to
the training academy.

These officers attended retraining for

several weeks, and then were reassigned to work as police officers
in various districts.

Plaintiffs claim the Individual Defendants

replaced them with officers who were affiliated politically with
Emanuel.
Plaintiffs Nolan, Olson and Roman retained their rank of
Security Specialists on May 16, 2011, but were reassigned to work
security for former Mayor Richard M. Daley.

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Plaintiffs claim that

the Individual Defendants knew that Nolan, Olson and Roman were not
affiliated with Mayor Emanuel.
Daley’s

security

detail

These Plaintiffs worked on Mayor

until

September

15,

2011,

when

the

Individual Defendants reassigned them to the training academy for
retraining.
order

On October 21, 2011, Defendants issued a personnel

officially

removing

Nolan,

Security Specialist assignments.

Olson

and

Roman

from

their

These three Plaintiffs were also

demoted in title and rank and had their pay and benefits decreased.
Plaintiffs claim that the Individual Defendants knew that the
officers

who

replaced

these

three

Plaintiffs

were

affiliated

politically with Mayor Emanuel.
Plaintiffs filed this suit against The City and Thompson on
August 13, 2012.

On August 16, 2012, The City issued a statement

indicating that all decisions relating to Emanuel’s security detail
were made by Hillard while he was interim police superintendent.
Hillard also issued a statement confirming that he was involved in
the selection of the replacement Security Specialists.

Plaintiffs

have amended their Complaint twice since filing, adding Hillard as
a

Defendant

and

naming

“Unknown

and

placeholder Defendants in the process.

Unnamed

Individuals”

as

Plaintiffs Second Amended

Complaint alleges four causes of action. Count I alleges violation
of

the

Shakman

Decrees

against

the

City.

Count

II

alleges

violation of Plaintiffs’ First Amendment rights pursuant to 42
U.S.C. § 1983 by the Individual Defendants.

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Count III alleges

racial discrimination in violation of 42 U.S.C. § 1981 against the
Individual Defendants.

Count IV alleges racial discrimination

against the City in violation of Title VII.

Defendants now move to

dismiss all counts.
II.
A.

ANALYSIS

Defendant’s Motion to Dismiss (ECF No. 35)

In ruling on a motion to dismiss under Rule 12(b)(6), courts
accept

as

true

all

of

the

plaintiff’s

well-pleaded

factual

allegations and any inferences reasonably drawn from them.

Chi.

Police Sergeants Ass’n v. City of Chicago, No. 08-CV-4214, 2011
U.S. Dist. LEXIS 72424 at *7 (N.D. Ill. July 6, 2011).

To survive

a motion to dismiss, the complaint must comply with Rule 8(a) by
providing a short plain statement of the claim showing that the
pleader is entitled to relief while providing defendants fair
notice of what the claim is and the grounds upon which it rests.
Id. The allegations must be sufficient to raise the possibility of
relief above the “speculative level.”

Id. at *8.

Rule 12(b)(1) requires dismissal of any claim over which the
federal court lacks subject matter jurisdiction.
P. 12(b)(1).

FED. R. CIV.

In reviewing a motion challenging subject matter

jurisdiction, the district court may look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been
submitted

on

the

issue

to

determine

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whether

subject

matter

jurisdiction exists.

Maxwell v. County of Cook, No. 10 CV 00320,

2011 U.S. Dist. LEXIS 29130 at *8 (N.D. Ill. Feb. 1, 2011).
1.

Count I – Shakman (City of Chicago)

Plaintiffs’ first cause of action stems from the results of
longstanding litigation in this District that began with Shakman v.
Democratic Org. of Cook County, 310 F.Supp. 1398 (N.D. Ill. 1969).
This litigation led to a consent judgment (the “1972 Consent
Decree”) that prohibited defendants from “conditioning, basing or
knowingly prejudicing or affecting any term or aspect of government
employment, with respect to one who is at the time already a
governmental employee, upon or because of any political reason or
factor.” See O’Sullivan v. City of Chicago, 396 F.3d 843, 848 (7th
Cir. 2005) (providing history of Shakman litigation).

In 1983, a

second consent judgment was entered (the “1983 Consent Decree”)
that enjoined the City from “conditioning, basing or affecting []
employment with the City of Chicago on political reasons or factors
while maintaining the ability of the elected officials of the City
lawfully to establish, manage and direct the policies and affairs
of the City.”

Id.

The 1972 Consent Decree remained in effect, and

the district court retained jurisdiction to ensure compliance with
the two decrees.

Id. at 849.

Defendants argue that Plaintiffs’ Shakman claim must fail for
three reasons.

First, they claim Plaintiffs do not have standing

to assert a Shakman claim.

Second, even if Plaintiffs do have
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standing, they have not pled sufficiently a cause of action under
Shakman.

Third, five of the Plaintiffs are time barred from

asserting a Shakman claim.
a.

Standing

To have standing to bring a claim under the Shakman Decrees,
a plaintiff “must allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be redressed
by the requested relief.”

Everett v. Cook County, 704 F.Supp.2d

794, 804 (N.D. Ill. 2010) (quoting Plotkin v. Ryan, 239 F.3d 882,
884 (7th Cir. 2001)). Plaintiffs meet these standing requirements.
First, they allege a personal injury - their demotion from being
Security Specialists.

Plaintiffs claim their demotions involved

their title, rank, pay and benefits all being decreased.

Second,

Plaintiffs allege that this injury was traceable to Defendants’
unlawful conduct.

Plaintiffs claim that they were replaced by

other officers who were allowed improperly to “act up” as Security
Specialists because they were affiliated politically with Mayor
Emanuel.

Plaintiffs had no such affiliation.

Third, Plaintiffs’

injuries would be redressed by their requested relief, which
includes compensatory damages.
assert their Shakman claim.

Thus, Plaintiffs’ have standing to

See Everett, 704 F.Supp.2d at 804.

Despite this, Defendants argue that Plaintiffs lack standing
based

on

the

language

of

the

applicable

City

Hiring

Plan.

Defendants first argue that the “acting up” of officers to the
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Security Specialist positions and Plaintiffs’ reassignments from
that position “are separate and distinct.”
of Mot. to Dismiss at 4, ECF No. 36.
if

Plaintiffs’

allegations

Defs.’ Mem. in Support

Defendants claim that, even

regarding

officers

being

allowed

improperly to “act up” are true, they suffered no legal injury from
that “acting up” process alone.
Defendants then argue that, even if Plaintiffs’ demotions were
influenced by political factors, they are not actionable because
they did not violate the applicable City Hiring Plan that was
approved and entered by the Court in the Shakman litigation.
Defendants

point

out

specifically

that

the

Chicago

Police

Department Notice, D.N.07-47, referenced in Plaintiffs’ Second
Amended

Complaint

considered

when

states

selecting

that
an

political

officer

factors

assigned

as

cannot
a

be

Security

Specialist, but there is no similar prohibition on considering
political factors in the removal of a Security Specialist. See Id.
Ex. A, ECF No. 36-2.

Similarly, the City Hiring Plan entered by

agreement in Shakman on June 29, 2011 which would apply to the
September

15,

2011

reassignments

provides

that

“[t]he

hiring

department or official must not . . . take into account Political
Reasons or Factors or other Improper considerations when evaluating
or selecting a candidate” for the Security Specialist position.
Id. Ex. C.

But no such prohibition on political affiliation is

discussed with respect to the removal of Security Specialists. Id.

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The Court disagrees with both of Defendants’ contentions.
First, it does not view Plaintiffs’ “acting up” allegations as
being separate from Plaintiffs’ demotion allegations.

A fair

reading of the Second Amended Complaint is that the two sets of
allegations relate to a single larger scheme of improper conduct.
Plaintiffs are alleging that the Defendants replaced Plaintiffs
with officers who were affiliated politically with Mayor Emanuel.
See, e.g., Sec. Am. Compl. ¶ 40 (“The Individual Defendants failed
to follow the relevant policies and procedures for the ‘acting up’
Security

Specialists

because

they

intended

to

replace

the

Plaintiffs with the ‘acting up’ Security Specialists for political
reasons.”); id. ¶ 47 (“On or about May 16, 2011, the Individual
Defendants replaced Plaintiffs . . . with police officers who had
either volunteered for the Rahm Emanuel mayoral campaign or had a
political connection to the Rahm Emanuel campaign.”).

Thus, the

alleged improper “acting up” of some officers and the demotion of
the Plaintiffs should not be viewed as separate occurrences.

As

such, Plaintiffs would be, in fact, harmed by the other officers
“acting up.”
Second, the Court is unconvinced that the Hiring Plan and
related documents bar Plaintiffs from bringing suit.

Defendants

cite no authority for the proposition that for Plaintiffs to have
standing to bring a Shakman claim, there must be an explicit
violation of the City’s Hiring Plan.

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Under the 1973 Shakman

Decree,

the

City

is

enjoined

from

directly

or

indirectly

“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.”

O’Sullivan, 396 F.3d at 847.

Plaintiffs are claiming a violation that fits squarely into this
prohibition – they claim they were demoted and replaced because of
political affiliation.

That the court-approved Hiring Plan fails

to restate explicitly this prohibition with respect to the removal
of Security Specialists should not be a bar to Plaintiffs’ claims,
particularly when the plan clearly acknowledges elsewhere that such
political affiliations should not be considered in the evaluation
and hiring of a Security Specialist.

For these reasons, the Court

finds that Plaintiffs do have standing to assert a Shakman claim
against the City.

Defendants’ Motion to Dismiss Plaintiffs’

Shakman claim pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction is denied.
b.

Plaintiffs’ Shakman Claim is Pled Adequately

“To state a claim under the Shakman Decree, a plaintiff must
establish that a political reason or factor was the cause of the
complained decision.” Chi. Police Sergeants Ass’n, 2011 U.S. Dist.
LEXIS 72424 at *9.

Defendants argue that Plaintiffs’ Complaint is

conclusory and missing key facts. The Court disagrees. Plaintiffs
allege clearly that their lack of political affiliation with Mayor
- 10 -

Emanuel led to them being demoted and replaced by officers who were
affiliated

with

Mayor

Emanuel.

These

allegations

are

not

conclusory, or a mere recitation of the elements of a Shakman
claim.

Plaintiffs allege, step-by-step, facts describing the

election of Mayor Emanuel, the “acting up” of Emanuel supporters as
Security Specialists, and the reassignments and demotions of two
groups of Plaintiffs.

Plaintiffs also allege that Defendants’

actions were taken because they knew Plaintiffs were not affiliated
with Mayor Emanuel.

These allegations are sufficient to give

Defendants fair notice of the nature of Plaintiffs’ claims.

The

level of detail Defendants demand, such as identifying the police
officers who “acted up” and those who remained in their positions
as Security Specialists, is simply not required at the pleading
stage.
c.

Statute of Limitations

Defendants argue that the Shakman claims of five Plaintiffs
(Doyle,

Houlihan,

Neither

party

violation

must

Nolan,

disputes
be

discriminatory act.

Razo
that

filed

and

Weingart)

a

complaint

within

180

Id. at *9.

are

time-barred.

alleging

days

of

a

Shakman

the

alleged

The limitations period begins to

run when a plaintiff discovers an adverse employment action, but
can be subject to equitable tolling doctrines.

See Turner v. City

of Chi., No. 06 C 4786, 2007 U.S. Dist. LEXIS 15655 at *4 (N.D.
Ill. Mar. 5, 2007).

Defendants claim that Doyle, Houlihan, Razo
- 11 -

and Weingart waited over a year to file their Shakman claims, and
Nolan waited nearly a year.
A plaintiff’s failure to adhere to a statute of limitations is
an affirmative defense and therefore generally is not amenable to
dismissal at the complaint stage.

Chi. Police Sergeants Ass’n,

2011 U.S. Dist. LEXIS 72424 at *10.

Dismissal on statute of

limitations grounds is only appropriate where a plaintiff “pleads
herself out of court by establishing that a defendant is entitled
to a limitations defense.”

Id. at *10-11.

However, a complaint

need not contain any information about defenses and may not be
dismissed for that omission.
at *5.

Turner, 2007 U.S. Dist. LEXIS 15655

“At this stage, ‘the only question is whether there is any

set of facts that, if proven, would establish a defense to the
statute of limitations.’” Id. (quoting Clark v. City of Braidwood,
318 F.3d 764, 768 (7th Cir. 2003)).
While Plaintiffs allege the dates on which they were demoted,
they do not allege when they realized that the demotions were
unlawful.

It is thus possible that, despite their best efforts,

Plaintiffs did not discover the demotions were unlawful until
later.

As such, their allegations do not establish unequivocally

that their Shakman claims are untimely and that they have pleaded
themselves out of court.

See id. at *4-6 (denying City’s Motion to

Dismiss plaintiff’s Shakman claim based on unlawful failure to
promote when complaint did not indicate when plaintiff discovered
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the promotions were unlawful). Defendants’ Motion to Dismiss based
on untimeliness is thus denied.
2.

Count II - § 1983 (Individual Defendants)

To state a claim under § 1983 based on political affiliation,
a plaintiff must allege facts that demonstrate (1) that their
conduct was constitutionally protected; (2) that they suffered an
actionable deprivation; and (3) that the protected conduct was the
but for cause of the employer’s actions.
583 F.3d 979, 984, n.1 (7th Cir. 2009).

See Gunville v. Walker,
Individual capacity suits

seek to impose personal liability on government officials for
actions taken under color of state law.

Wells v. Nuwayhid, No. 96

C 4456, 1996 U.S. Dist. LEXIS 17541 at *3 (N.D. Ill. Nov. 13,
1996).

To state a claim under § 1983 against a defendant in their

individual capacity, plaintiffs must allege that the defendant was
involved personally in the deprivation of their constitutional
rights.

Id.

Plaintiffs meet these requirements.

“It is well established

that hiring, firing or transferring government employees based on
political motivation violates the First Amendment, with certain
exceptions for policy-making positions and for employees having a
confidential relationship with a superior.” Hall v. Babb, 389 F.3d
758, 762 (7th Cir. 2004).

It is also undisputed that political

non-affiliation is a right protected under the First Amendment.
Hermes v. Hein, 742 F.2d 350, 354 n.3 (7th Cir. 2004).
- 13 -

The firing

or demotion of an employee based on party affiliation violates the
First Amendment.
Cir.

2011).

Delapaz v. Richardson, 634 F.3d 895, 899 (7th

Plaintiffs

allege

that

they

lacked

political

affiliation with Mayor Emanuel, and political affiliation or nonaffiliation is protected by the First Amendment.

See, e.g., Sec.

Am. Compl. ¶¶ 48, 50, 97.

the Individual

They allege that

Defendants, including Hillard and Thompson, demoted Plaintiffs from
their positions as Security Specialists.

Id. ¶¶ 48, 54, 97.

They

also allege that the Individual Defendants knew that the officers
replacing Plaintiffs were affiliated with Mayor Emanuel, and knew
that Plaintiffs were not.

See, e.g., Id. ¶¶ 48, 50, 56.

Finally,

Plaintiffs allege that their demotion was caused by their nonaffiliation with Mayor Emanuel.

See, e.g., ¶ 97.

Plaintiffs thus

allege that Hillard and Thompson were involved personally in the
demotions.

In addition, they also allege that the City issued a

statement that decisions relating to Mayor Emanuel’s security
detail were made by Hillard, and that Hillard confirmed that he was
involved in the selection of replacement Security Specialists. Id.
¶¶ 59-60.
that

Together, these allegations are sufficient to allege

Hillard

and

Thompson

were

involved

personally

in

the

deprivation of Plaintiffs’ constitutional rights.
Defendants, however, claim that Plaintiffs cannot state a
claim under § 1983 because Security Specialists are exempt from the
First Amendment’s protection against patronage dismissals.

- 14 -

They

base

this

argument

on

Plaintiff’s

allegation

that

Security

Specialists are “assigned to provide security to the Mayor of the
City of Chicago and other dignitaries in the City.”
Compl. ¶ 22.

Sec. Am.

Defendants cite no case finding that Security

Specialists fall into the exception, but instead cite Meeks v.
Grimes, 779 F.2d 417 (7th Cir. 1985), as support.
however, undercuts their argument.

That case,

In that case, a state court

judge who had won a hotly contested election dismissed a number of
bailiffs on the day he was sworn in.

Id. at 418.

The bailiffs

brought suit, alleging that they were discharged because of their
political activities in opposition to the judge.

Id.

After a

trial, the district court found that the bailiffs’ dismissal was
motivated politically, but held that the plaintiffs were “policy
making or confidential” employees within the recognized exception
to the First Amendment prohibition against making politically
motivated patronage discharges.

Id.

The court gave several

reasons for that conclusion, including the fact that the bailiffs
are viewed as the judge’s representatives to the public and must
have

the

problems.

complete
Id.

confidence

of

the

judge

to

avoid

ethical

The Seventh Circuit found no reason to disturb the

finding that the bailiffs’ dismissal was motivated politically, but
instead

examined

whether

the

bailiffs

were

policymaking

confidential employees subject to patronage discharge.

Id.

or
The

Seventh Circuit remanded the case, finding that it was impossible
- 15 -

to conclude that the bailiffs were confidential employees based on
the record or as a matter of law.

Id. at 420-21.

Specifically,

the court ordered a trial limited solely to the issue of the
closeness of the relationship between the judge and bailiffs to
determine if they did, in fact, fall into the narrow exception.
Id. at 423-24.
Unlike Meeks, which was the appeal of a trial verdict, before
this Court is a Motion to Dismiss.

No facts have yet been

developed as to the closeness of the relationship between Security
Specialists

and

those

for which

they

provide

security.

The

Plaintiffs’ allegation that they provided security to the Mayor and
other

dignitaries,

alone,

is

insufficient

for

this

Court

to

determine that Plaintiffs cannot state a § 1983 claim. Defendants’
Motion to Dismiss the § 1983 claim is denied.
3.

Count III - § 1981 (Individual Defendants)

To state a reverse discrimination claim under § 1981, a
plaintiff

must

allege

that

(1)

the

defendants

intended

to

discriminate on the basis of race; (2) the defendants’ activities
concern

the

making,

performance,

modification,

termination,

conditions or benefits of a contract; and (3) that there are
background

circumstances

sufficient

“to

demonstrate

that

the

particular employer has reason or inclination to discriminate
invidiously against whites or . . . that there is something fishy
about the facts at hand.”

Graham v. Village of Dolton, No. 10 C

- 16 -

1562, 2011 U.S. Dist. LEXIS 1530 (N.D. Ill. Jan. 6, 2011).

At the

motion to dismiss stage, a complaint “need not allege facts in
support of each element, and it is sufficient if it alleges that
the employee was discriminated against because of his race.”

Huon

v. Johnson & Bell, Ltd., No. 09 CV 7877, 2012 U.S. Dist. LEXIS
74176 at *18 (N.D. Ill. May 23, 2012).
Plaintiffs’ Second Amended Complaint meets these pleading
requirements. They allege they are Caucasian or Hispanic, and that
their supervisors, Hillard and Thompson, are African-American.
Sec. Am. Compl. ¶¶ 7-17, 19-20.

They claim that the Individual

Defendants “violated Plaintiffs’ rights in violation of 42 U.S.C.
§ 1981 when they demoted the Plaintiffs based on their race.”
¶ 103.

Id.

Plaintiffs claim that the Defendants had knowledge of

Plaintiffs’ race at the time they were demoted and were aware at
that

time

of

similarly

situated

African-American

Specialists who had less seniority and qualifications.

Security
Id. ¶¶ 76,

77. Plaintiffs claim that Individual Defendants did not demote any
African-American Security Specialists at the time the Plaintiffs
were demoted, despite the fact Plaintiffs had greater seniority and
stronger performance records than the African-American Security
Specialists.

Id. ¶¶ 43, 65, 78.

Indeed, the Second Amended

Complaint alleges that Plaintiff Pigott asked Thompson what factors
Thompson would

use

to

Security Specialists.

determine

which

Id. ¶ 44.

- 17 -

officers

stayed

on

as

Allegedly, Thompson responded

“the color of your skin is your sin.”

Id.

Plaintiffs also allege

that Hillard made statements confirming his involvement in the
selection and replacement of Security Specialists.

Id. ¶¶ 59-60.

While Plaintiffs did not state explicitly in their Second
Amended Complaint that the Individual Defendants’ discriminatory
actions involved a contract, they pled enough detail to make it
clear their employment contract with the City was affected by the
discriminatory conduct.

Specifically, Plaintiffs allege that they

were all members of the Fraternal Order of Police, Chicago Lodge 7
(“FOP 7”), and that the terms of Plaintiffs’ employment with the
City are outlined in a collective bargaining agreement negotiated
between FOP 7 and the City.

Sec. Am. Compl. ¶ 63.

Plaintiffs

allege that the Defendants violated this agreement when they
demoted them and not African-American Security Specialists with
less seniority or poorer performance records. Id. ¶¶ 64-66. These
allegations

are

sufficient

actions concern a contract.

to

allege

that

the

discriminatory

See Reyes v. N. Park Univ., No. 11 C

8585, 2012 U.S. Dist. LEXIS 182096 at *10 (N.D. Ill. Dec. 27,
2012).
Plaintiffs have thus pled a claim of reverse discrimination
against Hillard and Thompson.

Defendants’ Motion to Dismiss

Count III is thus denied.

- 18 -

4.

Count IV – Title VII (City of Chicago)

Plaintiffs assert Title VII claims against the City for race
discrimination. Defendants argue that all of Plaintiffs’ Title VII
claims are time barred, as they failed to file a timely charge with
the EEOC.

In Illinois, a complainant must file a charge with the

Equal Employment Opportunity Commission (“EEOC”) within the 300-day
time period after the alleged discriminatory conduct.

Payne v.

Abbott Lab., 999 F.Supp. 1145, 1149 (N.D. Ill. 1998); 42 U.S.C.
§ 2000e-5(e).

Eight of the Plaintiffs admit that their charges of

discrimination

were

received

more

than

300

days

after

their

demotions, and Defendants claim the other three failed to meet the
deadline,

as

well.

Plaintiffs

respond

that

the

continuing

violation doctrine saves their claims because the demotions were
part

of

a

covert

continuing

Specialists based on their race.

practice

of

demoting

Security

Plaintiffs claim they did not

know about this covert effort to demote Security Specialists based
on race until Nolan, Olson and Roman received their official
demotion notice on October 21, 2011.

Plaintiffs thus argue that

the October 21, 2011 notices, which fell within the 300-day window,
is the last discriminatory act and is linked to the other demotions
which fall outside of the window. The continuing violation theory,
“allows a plaintiff to reach back to get relief for an act of
discrimination that occurred outside the statute of limitations by
linking it as one continuous act with a discriminatory act that

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took place within the limitations period.”
215 F.3d 803, 807 (7th Cir. 2000).

Place v. Abbott Labs.,

Defendants respond that

demotions are discrete discriminatory acts to which the continuing
violation theory does not apply.

See id. at 808.

Regardless of whether the demotions were viewed as discrete
acts or part of a larger continuing violation, it is not clear from
the Second Amended Complaint when the Plaintiffs knew or should
have known that their demotions were discriminatory.

As stated

earlier with respect to the Defendants’ argument that some of
Plaintiffs’ Shakman claims should be dismissed on statute of
limitations grounds, Plaintiffs have not alleged in their Complaint
when they believed the demotions were motivated racially.

And it

is not yet clear from their Complaint when they should have known.
If viewed as discrete discriminatory acts, as Defendants
argue, the 300-day filing deadline is tolled until the time when
facts that would support a charge of discrimination were apparent
or should have been apparent to a person with a reasonably prudent
regard for his rights similarly situated to the plaintiff.

Perera

v. Flexonics, Inc., 727 F.Supp. 406, 412 (N.D. Ill. 1989).

Based

solely on the Complaint, it is not clear when the Plaintiffs were
aware of the facts necessary to support a charge of discrimination.
Similarly,

even

if

the

demotions

were

viewed

under

a

continuing violation theory that they were part of a covert effort
to demote Security Specialists based on race, the lack of a

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statement in the Complaint that Plaintiffs felt, at the time, that
their demotions were discriminatory is enough to save Plaintiffs’
claims from a motion to dismiss.

See Adusumilli v. Loyola Univ.,

No. 97 C 8188, 1999 U.S. Dist. LEXIS 17229 at *11-12 (N.D. Ill.
Sept.

30,

1999)

(denying

a

defendant’s

motion

to

dismiss

a

plaintiff’s Title VII claim under a continuing violation theory
because “[w]ithout some clear statement in the complaint, on a
motion to dismiss, the court is reluctant to find that [plaintiff]
knew or should have known that the acts of which she complains were
discriminatory at the time they occurred”).
5.

Relief Sought

Defendants argue that some of the relief Plaintiffs request is
inappropriate

and

should

be

stricken.

Defendants

argue

specifically that Plaintiffs cannot recover liquidated damages or
equitable relief from the Individual Defendants, which Plaintiffs
do not dispute.

As such, to the extent the Second Amended

Complaint seeks such relief from Individual Defendants, those
requests are struck.

Defendants also claim that Plaintiffs’ jury

demand is improper as to their Shakman claim.
Defendants make this assertion.
jury demand under Shakman.

It is unclear why

Plaintiffs are not requesting a

While Shakman claims may confer no

right to a jury trial, Plaintiffs’ other claims may be tried before
a jury.

See Smith v. Chicago, 820 F.2d 916, 918 (7th Cir. 1987).

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For

the

above

reasons,

Defendant’s

Motion

to

Dismiss

Plaintiffs’ Second Amended Complaint is denied.
B.

Plaintiffs’ Motion to Compel (ECF No. 52)

On November 29, 2012, the parties came before the Court on
Plaintiffs’ Motion to Amend their Complaint.

During that hearing,

Plaintiffs’ counsel requested that they be allowed to initiate
discovery because “there are currently unknown defendants, and so
we’d like to at least be able to initiate written discovery so that
we can ascertain the identities of some of the currently unknown
individuals.”

11/29/12 Hearing Tr. at 3.

Based on Plaintiffs’

representation that there may be some additional decision-makers
who could be liable under their § 1981 and § 1983 claims, the Court
allowed the parties to proceed with written discovery.

Id. at 4.

On December 14, 2012, Plaintiffs served extensive discovery on
Defendants. On January 14, 2013, Defendants filed for a Protective
Order, seeking to limit Plaintiffs’ discovery to the identities of
potential unknown Defendants.

On January 17, 2012, the Court

granted the Motion in part, only requiring Defendants to respond to
Plaintiffs’ interrogatories and allowing Defendants to withhold all
other responses until after it ruled on Defendants’ Motion to
Dismiss.

See 1/17/13 Order, ECF No. 38.

Defendants received a

subsequent extension of time to respond to the interrogatories.
Defendants have now provided responses, revised responses and
amended responses.

Plaintiffs were still not satisfied with some

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of the answers.

The parties conducted a Rule 37(a)(1) conference

on February 22, 2013, but much to the disappointment of the Court,
were unable to work out their differences.
Plaintiffs have now filed a Motion to Compel.

Plaintiffs

claim that, contrary to this Court’s November 29, 2012 ruling,
Defendants failed to provide complete interrogatory responses.

In

addition, Plaintiffs claim that Defendants failed to provide a
privilege log with their interrogatory responses.
Generally, parties can obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.
FED. R. CIV. P. 26(b)(1).
motions to compel.

Courts have broad discretion in ruling on

Gile v. United Airlines, Inc., 95 F.3d 492,

495-496 (7th Cir. 1996).

When ruling on a motion to compel, the

Court must “independently determine the proper course of discovery
based on the arguments of the parties.”
1.

Id. at 496.

Local Rule 37.2

The Court first notes that Plaintiffs are not in compliance
with Local Rule 37.2, which requires that all motions for discovery
be accompanied by a statement providing details regarding the
parties’ attempts to confer in good faith over the dispute.

See

N.D. Ill. L.R. 37.2; see also FED. R. CIV. P. 37(a)(1) (requiring
certification that the movant has in good faith conferred or
attempted to confer in an effort to obtain the discovery without
court action).

This rule encourages resolution of discovery

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disputes without judicial involvement.

Biedrzycki v. Town of

Cicero, No. 04 C 3277, 2005 U.S. Dist. LEXIS 16423 at *6 (N.D. Ill.
Aug. 8, 2005).

While Plaintiffs claim that a Rule 37(a)(1)

conference occurred on February 22, 2013, they fail to provide
necessary information required by this rule.

Given the mandatory

language of Local Rule 37.2, the Court could deny Plaintiff’s
motion on this basis alone.

Id. at *7.

Despite Plaintiffs’

failure to meet the requirements of the rule, it appears that the
parties did engage in some meaningful discussions.

As such, the

Court will address the motion. The parties are on notice, however,
that failure to comply with the Local Rule 37.2 for future motions
will result in the motion being dismissed without consideration.
2.

Privilege Log

Plaintiffs’ first complaint as to Defendants’ interrogatory
responses is that Defendants asserted several privileges but did
not provide a privilege log.

Specifically, Defendants invoked the

attorney client privilege, the attorney work product doctrine, the
law enforcement investigative privilege and Section 2-56-110 of the
Municipal Code of Chicago.

Plaintiffs argue that any information

withheld based on any privilege warrants a privilege log.
Defendants argue that in responding to the interrogatories,
they are not obligated to provide a privilege log solely for oral
communications between City attorneys and their clients. As to the
specific privileges invoked, Defendants state that they included

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the objections based on the law enforcement investigative privilege
and Section 2-56-110 of the Municipal Code as protection in case
the interrogatories sought confidential information regarding the
investigations

of

the

City’s

Inspector

General’s

Office.

Defendants state they included these objections “primarily as a
precautionary measure, because two of the Interrogatories at issue
seek ‘the identity of all documents that relate or refer to the
decision.’”

Defs.’ Resp. Mot. Compel at 8 n. 3.

Defendants state

that if the case was not dismissed, they would provide a privilege
log of any documents it believed were privileged.
Now that the Motion to Dismiss has been denied, the stay on
document discovery is lifted.

Defendants will provide a privilege

log for any documents it withholds on privilege grounds.

However,

while the Court recognizes that oral communications arguably fall
under the Rule 26 privilege log requirement, it is also aware of
the problems associated with producing a privilege log for oral
communications when responding to interrogatories.

As one sister

court explained:
[f]or the most part, privilege logs filed with
interrogatory responses are problematic.
Unlike the
situation for responses to document requests, which
identify discrete and tangible documents as privileged,
preparing a privilege log for verbal conversations
attempting to parcel out what is privilege, or not, is
generally uninformative and logistically awkward.
Johnson v. Couturier, 261 F.R.D. 188, 191 n.5 (E.D. Cal. 2009)
(declining to sanction party that did not prepare privilege log for

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verbal communications in connection with interrogatory responses).
In this case, the Court agrees.
privilege

log

with

their

Defendants need not provide a

interrogatory

responses

for

oral

communications.
3.

The Interrogatory Responses

Plaintiffs served each Defendant with four interrogatories.
However, almost all of them have numerous subparts.

Plaintiffs

complain that Defendants’ responses to some of the subparts are
incomplete.

Defendants claim the interrogatories are overbroad,

burdensome, and vague, but claim they have provided complete
responses. The Court has reviewed the interrogatories, and most of
the responses (or proposed amendments to the responses) appear
complete. At the outset, however, the Court is disappointed in all
parties at their handling of this dispute.

Many of Plaintiffs’

interrogatories are overbroad or vague, and greater measures to
clarify and narrow the requests should have been made. Conversely,
it is clear that in several cases Defendants made no attempt to
answer interrogatories to which they objected, when reasonable
attempts could have been made to provide responses.
The Court will not attempt to address specifically all 39
interrogatory
insufficiently.

subparts

Plaintiffs

claim

were

answered

However, it will briefly address those it finds

require further response.

- 26 -

a.

Interrogatories Requiring Additional Responses
i.

The City’s Interrogatory Responses

In Interrogatory 2(a), Plaintiffs request “each and every
reason the Defendant removed each of the Plaintiffs from their
position of Security Specialist.”
No. 52-1 PageID #966.

Pls.’ Mot. to Compel Ex. B, ECF

Defendants respond that Hillard asked

Thompson which Security Specialists should remain in Unit 542, and
provided Thompson the qualities he believed such individuals should
possess.
Specialists.

Thompson

identified

himself

and

eight

Security

During the Rule 37 conference, the City offered to

clarify its answer “to make it clear that Hillard determined the
first eight Plaintiffs were reassigned because Hillard determined,
following his review, that they did not have the qualities that
each police officer assigned to protect the Mayor and his family
should

possess.”

Defs.’

Resp.

to

Pls.’

Mot.

Compel

at

12.

Plaintiffs refused this amendment, and in their Motion demand that
Defendants “identify and explain any ‘qualities’ relied upon in
making such decision.”

Pls.’ Mot. to Compel, ECF No. 52 at PageID

#954.
Defendants current answer is unsatisfactory, specifically
because it says why individuals were retained but not why the
Plaintiffs were removed.

Their proposed amended answer that they

were removed because they did not possess the attributes Hillard
valued, would be satisfactory and Defendants should amend their

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response accordingly.

Plaintiffs demand that Defendants identify

and explain these “qualities” is a follow up question appropriate
for another interrogatory or a deposition.
Interrogatory

3

requests

extensive

information

regarding

individuals selected to work as Security Specialists in the year
before

Mayor

Emanuel

was

elected.

This

includes

individuals who were hired during that time period.

non-party
Plaintiffs

state that such information is relevant because:
it relates directly to the hiring process followed during
the period of time immediately before the election of the
City’s new Mayor.
Thus, the information sought will
provide a useful comparison of hiring practices before
and after the election – information that is directly
relevant to Plaintiff’s claims that they were demoted
under suspicious circumstances suggesting impermissible
political and/or racial motivations.
Id., ECF No. 52, PageID #947-48.
The Court questions how material such information is to
Plaintiffs’ claims.

They are claiming they were demoted and

replaced because of their political affiliation and race.

For

those claims, Plaintiffs need not show that the hiring policies
changed from one year to the next, but that race and political
affiliation were considered improperly in their evaluation and
demotion.

Compounding the problem with this interrogatory is that

is seeks information that may infringe on the privacy interests of
non-parties.
personnel

While it is true that no privilege exists to protect

files,

courts

recognize

that

such

information

is

sensitive, and that they should weigh the value of the information
- 28 -

sought against the burden of providing it.

As one court in this

Circuit explained:
district courts have broad discretion to limit a request
for the discovery of personnel files, in order to prevent
the dissemination of personal or confidential information
about employees. The court should consider “the totality
of the circumstances, weighing the value of the material
sought against the burden of providing it,” and taking in
account society’s interest in furthering “the truthseeking function” in the particular case before it.
Craig v. Corizon, Inc., No. 11-CV-1191-JMS-DKL, 2012 U.S. Dist.
LEXIS 53712 at *6-7 (N.D. Ind. Apr. 17, 2012) (quoting Brunker v.
Schwan’s Home Serv., Inc., 583 F.3d 1004, 1010 (7th Cir. 2009)).
In responding to Interrogatory 3, Plaintiffs identified four
individuals who were hired the year before Mayor Emanuel took
office.

Two of those individuals are Plaintiffs in this action,

and two are not. After weighing the materiality of the information
sought against the potential burden on the non-parties, the Court
sees no

reason

officers

is

why

information

necessary.

related

Defendants

to the
should

two non-party
respond

to

paragraphs 3(e), 3(f) and 3(I) with respect to Plaintiffs Rodriguez
and Soto.

Plaintiffs will thus receive the type of information

they are seeking without infringing on the privacy of the two nonparty witnesses.

Defendants need not provide a supplemental

response to 3(g), however, since Rodriguez and Soto should possess
such information.
In

Interrogatory

4(d),

with

respect

to

the

Security

Specialists selected after January 1, 2011, Plaintiffs seek “the
- 29 -

identity by name, title, and race of all persons who had any impact
on and/or took any part in the decision.”
Ex. B, ECF No. 52-1, PageID #970.

Pls.’ Mot. to Compel,

The request is overbroad.

However, Defendants should at least respond with any individuals
whose input or involvement impacted significantly the selection of
Security Specialists after January 1, 2011.
ii.
Plaintiffs

Hillard’s Interrogatory Responses
claim

that

Responses are deficient.

some

of

Hillard’s

Interrogatory

The Court agrees that Hillard needs to

supplement his responses to answer completely 2(b), 2(c), 2(I), 3
and 4.

Request 2(b) asks for Hillard to “identify all individuals

that you consulted with regarding the decision to remove the
Plaintiffs from their positions as Security Specialists by name,
race and last known address.”
No. 52-2, PageID #980.

Pls.’ Mot. to Compel, Ex. B, ECF

Plaintiffs believe Hillard’s response is

deficient, because a Chicago Tribune article indicated that Hillard
spoke to security experts and the U.S. Secret Service in making the
Security Specialist decisions.

However, Hillard clarified that he

spoke to the U.S. Secret Service regarding general information
about criteria

for

the

Mayor’s

security

detail,

and

decision to remove the Plaintiffs from their positions.

not

the

Hillard

offers to supplement his response to state that he consulted with
Special Agent-In-Charge John Gulickson, and verify that they did
not

discuss

specific

individuals

- 30 -

who

might

be

assigned

or

reassigned from the security detail. The Court finds this proposed
amendment satisfactory, and Hillard should thus supplement his
response.
In

Interrogatory

2(c),

Plaintiffs

request

that

Hillard

describe conversations he had with individuals regarding removing
Plaintiffs from their Security Services positions.

Hillard claims

this interrogatory was overbroad and burdensome, and made little
attempt to answer it. The Court disagrees. Hillard should respond
to

this interrogatory.

The

Court sees nothing

overbroad

or

burdensome about providing the dates of such discussions, the
individuals present, and the nature of the discussions.
With respect to 2(I), Plaintiff seeks the identity of all
documents that relate or refer to this decision.

Defendants will

now be able to identify such documents as discovery proceeds.
In Interrogatory 3 (and its fourteen subparts), Plaintiffs
seek to know whether Hillard participated in “the process of
selecting officers to work as Security Specialists.” Pls.’ Mot. to
Compel, ECF No. 52-2, PageID #982.

Hillard responds that he did

not participate in selecting Security Specialists during that time
and had no information responsive to this interrogatory.

In his

brief, he admits that as the Interim Superintendent from March 2 to
May 13, 2011, he was involved “only in the decision as to which
officers would remain in and which officers would be assigned or
reassigned from the mayoral security detail in May 2011.”

- 31 -

Defs.’

Resp.

to

Pls.’

Mot.

to

Compel

at

19.

Hillard

argues

that

Plaintiffs misapprehend his role, as he was not involved in the
appointment of new Security Specialists, which occurred in December
2011.

But Interrogatory 3 does not ask if he was involved in their

appointment, but rather in their selection.

By Hillard’s own

admission, he was involved in selecting which officers continued to
work as Security Specialists and which did not.
to answer Interrogatory 3.

As such, he needs

His reading that the interrogatory is

asking simply for whether he was involved in the appointment of
Security Specialists is too narrow.
Plaintiffs argue that Hillard’s response to Interrogatory 4,
which asks Hillard to identify individuals not employed by the City
of Chicago that Hillard consulted regarding the decision to remove
or select Security Specialists, is incomplete.

The Court finds

Hillard’s proposed supplement, which includes adding the name and
title of the Secret Service agent with whom he consulted, to be
sufficient.

See Defs.’ Resp. to Pls.’ Mot. to Compel at 20.
iii.

Thompson’s Interrogatory Responses

Plaintiffs seek to compel Thompson to respond to several
subsections

of

their

lengthy

Interrogatory

3,

which

asks

if

Thompson participated in the process of selecting officers to work
as Security Specialists after January 1, 2011.

Plaintiffs seek

specifically responses to 3(h), 3(I), 3(j), 3(m), 3(n) and 3(o).
Thompson objects to these requests, often stating that they are

- 32 -

overbroad, vague or that they would invade the privacy rights of
non-parties.
The Court disagrees for each of these.

They do not appear

overbroad or unduly burdensome, and they appear to seek relevant
information.

To the extent that information regarding private

matters of third parties may be involved, Defendants should offer
an appropriate protective order for the Court to enter to protect
such information.

Thompson claims that 3(m) and 3(n) are beyond

his knowledge, so he should simply say so in his supplemental
response instead of claiming that they are overly broad and unduly
burdensome.
b.

Interrogatories Requiring No Further Responses

Plaintiffs’ request to compel responses to any interrogatories
not discussed above are denied, as the Court finds either that
Defendants’ response was sufficient or that Plaintiffs’ request was
too flawed to require further response.
III.

CONCLUSION

For the reasons stated herein, the Defendants’ Motion to
Dismiss (ECF No.35) is denied.

Plaintiff’s Motion to Compel

(ECF No.52) is granted in part and denied in part.

In light of the

extensions already provided to Defendants in responding to these
interrogatories, Defendants have until Thursday, May 9, 2013 to
supplement their interrogatory responses and file a protective
order with regard to any third-party confidential information it

- 33 -

seeks to protect.

The only exception to this May 9, 2013 deadline

is for any request that seek the identification of documents. Such
interrogatories can be more fully answered as document discovery
proceeds.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date: 5/1/2013

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