Sroga v. Preckwinkle et al

Filing 79

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the motion 65 to dismiss the Second Amended Complaint is granted in part and denied in part. The status hearing of 01/25/2017 is reset to 02/02/2017 at 9 a.m., when the Court will set the remainder of the fact discovery schedule (which the parties previously described, see R. 74, so scheduling of those depositions should start promptly). Emailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Kevin Sroga,

)
)
Plaintiff,
)
)
v.
)
)
Toni Preckwinkle, Arnold Randal, Lisa Lee, )
Michelle Gage, Daniel Betts, John Jekot, and )
the Cook County Forest Preserve District,
)
)
Defendants.
)

No. 14 C 06594
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Kevin Sroga used to work as an Aquatic Center Manager at a recreational
swimming facility run by the Cook County Forest Preserve District. R. 63, Second
Am. Compl. ¶¶ 11, 30.1 In August 2012, the District fired Sroga, which led him to
bring this suit against County and District officials and employees, as well as the
District itself. See Second Am. Compl. Sroga alleges that, when he tried to unionize
Aquatic Center employees, the Defendants retaliated against him, in violation of
the First Amendment and Illinois state law.2 Id. The Defendants now move to
dismiss Sroga’s claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)
for failure to state a claim and for lack of subject-matter jurisdiction. See R. 65,
Defs.’ Mot. to Dismiss. For the reasons discussed below, the Defendants’ motion to
dismiss is granted in part and denied in part.
Citations to the record are noted as “R.” followed by the docket number and the
page or paragraph number.
2 This Court has subject-matter jurisdiction over the federal claims under 28 U.S.C.
§ 1331, and supplemental jurisdiction over the state-law claims under 28 U.S.C. § 1367.
1

I. Background
For purposes of this motion, the Court accepts as true the allegations in the
Second Amended Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Sroga
began working for Defendant Cook County Forest Preserve District as a seasonal
lifeguard in 2011. Second Am. Compl. ¶ 21. The next year, the District promoted
Sroga to Aquatic Center Manager at one of the three aquatic facilities run by the
District. Id. ¶¶ 11, 30. Around this time, the District also hired Defendants Michelle
Gage, Daniel Betts, and John Jekot. Id. ¶¶ 16, 31. Betts and Jekot oversaw the
District’s Aquatic Centers and were Sroga’s immediate supervisors, and Gage
served as the District’s Director of Human Resources. Id. ¶¶ 8-10, 31-32, 50.
During the 2011 and 2012 aquatic seasons, the District enacted new rules
and regulations for Aquatic Center employees. Second Am. Compl. ¶¶ 19, 33. The
new rules limited the number of hours that Aquatic Center employees could work at
the Aquatic Centers, as well as at any other job they held down. Id. ¶¶ 34, 37.
Lifeguards also could have their shifts cut short or be placed “on call” under the new
rules. Id. ¶ 35. Sroga alleges that these rules displeased many Aquatic Center
employees and lowered employee morale. Id. ¶¶ 27, 39.
In response to all of this, Sroga tried to organize Aquatic Center employees
into a union. Second Am. Compl. ¶ 40. Sroga’s efforts included speaking directly to
Aquatic Center staff about unionizing, as well as to union representatives at the
S.E.I.U. Local 73. Id. ¶¶ 41-42. Sroga also met with Defendant Lisa Lee, a Labor
Relations Attorney for the District. Id. ¶¶ 44-45. During that meeting, Sroga told

2

Lee about the issues plaguing the Aquatic Center—including “the District’s failure
to properly safeguard the facility, hiring of inadequate staffers, hiring of unqualified
staffers, promoting and retention of staff members that should not be in a role of
responsibility or performing supervisory functions, and the effect of the policies and
procedures on employee morale and the District’s Lifeguard Service.” Id. ¶ 47. Sroga
also informed Lee that these issues had prompted him to try and organize Aquatic
Center employees. Id. ¶ 49.
According to Sroga, Lee immediately relayed her conversation with Sroga—
including, “[o]n information and belief,” Sroga’s efforts to unionize—to Betts, Jekot,
and Gage. Second Am. Compl. ¶¶ 50-51. The next morning, Jekot called Sroga to
schedule a meeting for later that day. Id. ¶ 52. When Sroga asked what the meeting
was about, Jekot responded: “We [Betts and Jekot] need to talk to you. … We have
to have a meeting.” Id. ¶ 53. Sroga thereafter called Lee to see if she knew what was
going on, but she denied any knowledge of the meeting. Id. ¶¶ 54-56. (Sroga (on
information and belief) alleges that Lee did know that “the District’s true intentions
were to [fire] Sroga … .” Id. ¶ 57.)
At the meeting, Jekot and Betts handed Sroga a termination letter. Second
Am. Compl. ¶¶ 59-60. The letter did not state the reason(s) for Sroga’s firing. Id.
¶ 65. (Neither did Sroga receive any other documents at the time that may have
helped explain his termination. Id.) When Sroga asked why he was fired, Betts told
him, “We don’t have to give you any reasons.” Id. ¶ 63; see also id. ¶ 66 (“Sroga was
not given any reasons for his discharge.”).

3

Several weeks later, Sroga showed-up unannounced at the District’s General
Headquarters. Second Am. Compl. ¶ 77. He wanted access to his personnel file so
that he could find out the reasons for the firing. Id. ¶ 78. Sroga alleges that he was
not allowed to see his personnel file and was told that he would have to make an
appointment with the Legal Department to do so, which he eventually did. Id. ¶¶
80-81. Though the file contained “purported deficiencies in [his] work performance,”
Sroga alleges that no one had ever discussed those deficiencies with him before the
firing. Id. ¶ 82. (Indeed, the District never took disciplinary action against Sroga
during his tenure as an Aquatic Center employee. Id. ¶¶ 26, 76.) He also alleges
that those deficiencies were pretextual, and that Jekot’s anti-union animus was the
driving force behind his termination. Id. ¶ 83.
Based on these allegations, Sroga brings nine counts against the Defendants
in the Second Amended Complaint: (1) a Section 1983 claim based on violating the
First Amendment’s freedom-of-association clause against Jekot (Count One); (2)
supervisory-liability claims based on the “cat’s paw” doctrine against Betts and
Gage (Counts Two and Three, respectively); (3) a municipal liability claim based on
the “cat’s paw” doctrine against the District (Count Four); (4) a freedom-ofassociation claim based on Article I, Section 5 of the Illinois Constitution against
Jekot, Betts, and Gage (Count Five); (5) an Illinois common law retaliatory
discharge claim against the District (Count Six); (6) an Illinois common law
intentional interference with prospective economic advantage claim against Jekot
(Count Seven); (7) a respondeat superior claim under Illinois common law against

4

the District (Count Eight); and (8) an indemnification claim under the Illinois Local
Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/9102 (Count Nine). The Defendants now move to dismiss Counts Five and Six for
lack of subject matter jurisdiction and the remaining counts for failure to state a
claim. See Defs.’ Mot. to Dismiss; R. 66, Defs.’ Br.
II. Standard
The

Defendants

bring

their

motion under

Federal

Rules

of

Civil

Procedure 12(b)(1) and 12(b)(6). A Rule 12(b)(1) motion tests whether the Court has
subject-matter jurisdiction, Hallinan v. Fraternal Order of Police of Chi. Lodge No.
7, 570 F.3d 811, 820 (7th Cir. 2009); Long v. Shorebank Dev. Corp., 182 F.3d 548,
554 (7th Cir. 1999), while a Rule 12(b)(6) motion tests the sufficiency of the
complaint, Hallinan, 570 F.3d at 820; Gibson v. City of Chi., 910 F.2d 1510, 1520
(7th Cir. 1990). When reviewing a motion to dismiss under either rule, the Court
accepts as true all factual allegations in the complaint and draws all reasonable
inferences in the plaintiff’s favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d
614, 618 (7th Cir. 2007).
Under Rule 8(a)(2), a complaint generally need only include “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The complaint must “give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (alteration in original) (internal quotation marks and citation
omitted). These allegations “must be enough to raise a right to relief above the

5

speculative level,” id., and must “contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The allegations entitled to the
assumption of truth are those that are factual, rather than mere legal conclusions.
Iqbal, 556 U.S. at 678-79.
In order to survive a Rule 12(b)(1) motion, the plaintiff must establish that
the district court has jurisdiction over an action. United Phosphorous, Ltd. v. Angus
Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on other grounds by MinnChem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). “If subject matter
jurisdiction is not evident on the face of the complaint, [then] the … Rule 12(b)(1)
[motion is] analyzed [like] any other motion to dismiss, by assuming for the
purposes of the motion that the allegations in the complaint are true.” United
Phosphorus, 322 F.3d at 946. But “if the complaint is formally sufficient but the
contention is there that there is in fact no subject matter jurisdiction, [then] the
movant may use affidavits and other material to support the motion.” Id. (emphasis
in original).
III. Analysis
A. Count One (Jekot)
Count One alleges that Jekot violated the First and Fourteenth
Amendments by firing Sroga for trying to union-organize the Aquatic Center staff.
Second Am. Compl. ¶¶ 89-111. In response, Jekot contends that Count One should
be dismissed, asserting that “[t]here is no factual substantiation for the conclusory

6

statement that Jekot terminated [Sroga] because of anti-union animus.” Defs.’ Br.
at 6.
To make out a prima facie case for First Amendment retaliation, Sroga must
establish that: (1) he was engaged in constitutionally protected activities; (2) he
suffered a deprivation likely to deter associational activity; and (3) the First
Amendment activity was a motivating factor in the employer’s decision. Redd v.
Nolan, 663 F.3d 287, 294 (7th Cir. 2011); Greene v. Doruff, 660 F.3d 975, 977 (7th
Cir. 2011); Campion, Barrow & Assocs., Inc. v. City of Springfield, Ill., 559 F.3d 765,
768 (7th Cir. 2009). “Although making a ‘prima facie case’ is an evidentiary
requirement and not a pleading standard, … this requirement lends guidance to the
Court’s determination whether [a plaintiff] ha[s] sufficiently alleged [his] First
Amendment retaliation claim … .” Schmidt v. Vill. of Glenwood, 2015 WL 3918952,
at *3 (N.D Ill. June 24, 2015). The parties do not dispute the second element—
indeed, neither party even addresses it—so only the first and third elements are at
issue for purposes of deciding this motion to dismiss.3
1. Constitutionally Protected Activity
To survive the motion to dismiss, Sroga must first allege facts establishing
that his union-related activity falls within the purview of the First Amendment. See
Williams v. Seniff, 342 F.3d 774, 782 (7th Cir. 2003); Kasak v. Vill. of Bedford Park,
514 F. Supp. 2d 1071, 1076 (N.D. Ill. 2007). Courts apply the Connick-Pickering test
to determine whether an employee’s associational activity is constitutionally

3The

defense did not raise qualified immunity in the dismissal motion.

7

protected.4 Gregorich v. Lund, 54 F.3d 410, 414 (7th Cir. 1995) (discussing Pickering
v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138
(1983)); see also, e.g., Wright v. Vill. of Franklin Park, 2008 WL 820560, at *19 (N.D.
Ill. Mar. 25, 2008) (applying Connick-Pickering test to determine whether the
plaintiff engaged in any protected expressive activity); Kasak, 514 F. Supp. 2d at
1076 (same). Under that test, an employee’s associational activity will only receive
protection if it was “on a matter of public concern.” Gregorich, 54 F.3d at 414
(citations omitted); see also Connick, 461 U.S. at 141-42; Pickering, 391 U.S. at 56870. Associational activity is of public concern so long as it relates to “any matter of
political, social, or other concern to the community.” Kuchenreuther v. City of
Milwaukee, 221 F.3d 967, 973 (7th Cir. 2000) (citation omitted). Whether this
standard is met depends on “the content, form, and context” of the activity. Connick,
461 U.S. at 147-48. The second element of the Connick-Pickering test requires
courts to determine whether the employee’s interest in the activity “outweigh[s] the
The Seventh Circuit has questioned whether the public concern standard applies to
pure freedom-of-association claims, as opposed to hybrid claims that involve both First
Amendment speech and associational activity. See Balton v. City of Milwaukee, 133 F.3d
1036, 1040 (7th Cir. 1998); id. at 1041 (Cudahy, J., concurring in judgment); see also Berry
v. Ill. Dep’t of Human Servs., 2003 WL 22462547, at *12 (N.D. Ill. Oct. 29, 2003) (“To the
extent [union rights and organizing] is purely an issue of exercising the right to associate,
the public concern standard does not necessarily apply. … In hybrid situations, where there
is an issue of speaking out on union-related activities, the public concern standard should
be applied while recognizing that there may be distinctions when applying it to conduct
that also involves associational rights.”); Quinn v. Vill. of Elk Grove Bd. of Fire & Police
Comm’rs, 2002 WL 31875464, at *3 (N.D. Ill. Dec. 24, 2002) (observing that “[t]here is a
disagreement within the Seventh Circuit about the appropriate legal standard to apply to
First Amendment retaliation claims arising from associational rights.”). Nevertheless, the
Seventh Circuit has applied the Connick-Pickering test to freedom-of-association rights, see
Klug v. Chi. Sch. Reform Bd. of Trs., 197 F.3d 853, 857 (7th Cir. 1999); Gregorich v. Lund,
54 F.3d 410, 414 (7th Cir. 1995); Marshall v. Allen, 984 F.2d 787, 798 (7th Cir. 1993);
Griffin v. Thomas, 929 F.2d 1210, 1214-15 (7th Cir. 1991);, and that is what the Court will
do here too.
4

8

State’s interest in promoting the efficiency of public services.” Gregorich, 54 F.3d at
414 (citations omitted); see also Pickering, 391 U.S. at 568-70; Connick, 461 U.S. at
150-51. If so, then the employee’s associational activity will receive First
Amendment protection.
Here, the allegations in the Second Amended Complaint are sufficient to
establish that Sroga’s union-organizing activity constitutes freedom of association
protected by the First Amendment. Courts in this Circuit routinely hold that union
activity touches upon matters of public concern, particularly if the employee’s
motivation for doing so was of public concern, and not for some purely private
interest. See, e.g., Gregorich, 54 F.3d at 416 (holding that the plaintiff’s “attempt to
obtain representation for all research attorneys in the Fourth district went beyond
his self-interest and made his activity subject to the requirements of Pickering and
Connick”); Wright, 2008 WL 820560, at *20 (“[T]o the extent that Wright’s
association with the Union was intended to further the union’s advocacy of issues
such as these, that association would address a matter of public concern as well.”);
Kasak, 514 F. Supp. 2d at 1077 (“Plaintiff’s participation in the [Village Collective
Bargaining Unit’s] formation and his representation of the Unit Members’ interests
exceeded his self-interest and his activity touched upon matters of public concern.”).
So too here. Sroga has alleged that he sought to unionize the Aquatic Center staff in
response to new policies implemented by the District that limited the number of
hours employees could work. Second Am. Compl. ¶¶ 19, 33-34, 37, 39-40. The Court
can also infer that the workplace issues that Sroga discussed with Lee—“the

9

District’s failure to properly safeguard the facility, hiring of inadequate staffers,
hiring of unqualified staffers, promoting and retention of staff members that should
not be in a role of responsibility or performing supervisory functions, and the effect
of the policies and procedures on employee morale and the District’s Lifeguard
Services,” id. ¶ 47—motivated Sroga’s union-organizing efforts. Not only did Sroga
listen to (and then convey) Aquatic Center employees’ concerns, id. ¶ 41, he
specifically spoke with union representatives and Defendant Lee (a Labor Relations
Attorney for the District) on behalf of those employees, id. ¶ 42. These allegations
are enough to establish that Sroga sought to obtain union representation to
effectuate a change in the District’s policies for the benefit of the Aquatic Center
staff. See Gregorich, 54 F.3d at 416. Sroga’s alleged union-organizing activity meets
the public concern requirement.
The union-organizing activity also satisfies the Pickering balancing test—
that is, Sroga’s interest in promoting unionization outweighs (so far as the
complaint shows) the disruptive impact that the activity had on the District’s
delivery of services to the public and on the efficacy of the workplace. See Pickering,
391 U.S. at 568-70. To be sure, the government has an interest in “avoid[ing]
potential disruption in light of any close working relationships essential to
administering public responsibilities, and the ‘practical reality of governance that
those with policy-making responsibilities must have faithful agents.’” Kasak, 514 F.
Supp. 2d at 1078 (quoting Gregorich, 54 F.3d at 417 (quotations omitted)). So the
fact that Sroga was an Aquatic Center manager attempting to obtain union

10

representation for employees could indeed impact the extent to which Sroga had a
constitutional right to promote union organization for those employees. See id. But
there are, at the dismissal-motion stage, too many unanswered factual questions to
conclusively resolve the Pickering balance. For example, what is the extent of
Sroga’s supervisory authority over employees (he himself had at least two
supervisors, and probably more layers of supervision above that)? What disruptive
effect (if any) would his union-organizing have on his own workplace relationships
with his supervisors? These are questions for which discovery is needed, and then
the defense may, depending on what is uncovered, renew the argument at the
summary judgment stage. For now, Sroga has plausibly alleged that his
unionization effort qualifies for First Amendment protection. See Cunningham v.
Vill. of Mount Prospect, 2002 WL 31628208, at *5 (N.D. Ill. Nov. 19, 2002)
(observing that “[t]he First Amendment protects the right to advocate, either
individually or through association, on behalf of a union. As a result, for purposes of
this motion to dismiss, Cunningham’s speech and association can only be concluded
to be related to matters of public concern and protected by the First Amendment”
(citation omitted)).
2. Motivating Factor
Next to consider is whether the Second Amended Complaint sufficiently
alleges that Sroga’s constitutionally protected activity was a motivating factor for
his firing. Although Sroga must sufficiently prove (at the trial stage) that his unionorganizing was a “substantial” motive for his firing, he need not prove that it was

11

the sole factor. Mount Healthy City Sch. Dist. Bd. v. Doyle, 429 U.S. 274, 287 (1977);
Greene v. Doruff, 660 F.3d 975, 978 (7th Cir. 2011); Spiegla v. Hull, 371 F.3d 928,
941-42 (7th Cir. 2004).5 Timing is one consideration when determining whether an
employer had a retaliatory motive: “When an adverse employment action follows on
the close heels of protected expression and the plaintiff can show the person who
decided to impose the adverse action knew of the protected conduct, the causation
element of the prima facie case is typically satisfied.” Lalvani v. Cook Cty., Ill., 269
F.3d 785, 790 (7th Cir. 2001). An inference of causation may even be drawn solely
on the basis of suspicious timing where “no more than a few days … elapse between
the protected activity and the adverse action.” Kidwell v. Eisenhauer, 679 F.3d 957,
966 (7th Cir. 2012). Of course, in addition to suspicious timing, an employee can
also rely on oral or written statements that could be reasonably interpreted as
evidence of retaliatory motive. Id.
Here, the Second Amended Complaint adequately alleges facts from which to
plausibly infer that Sroga’s unionization effort was a motivating factor in the firing.
The timing of the firing alone is suspicious enough, at least when the allegations
are assumed to be true. Sroga sought to unionize the Aquatic Center staff beginning
in Summer 2012. Second Am. Compl. ¶¶ 39, 40. Sroga then met with District labor
relations attorney Lee on August 23, 2012 to tell her about his unionization efforts.
Id. ¶¶ 44-45, 49. The very next afternoon, Sroga was fired during a meeting that
Jekot had just set-up earlier in the day. Id. ¶¶ 52, 58. The fact that no one would
5If

Sroga does prove that unionizing was a motive for his firing, then the defense can
still avoid liability by proving (the defense would bear the burden of proof) that the District
would have fired Sroga even absent the protected activity. Mount Healthy, 429 U.S. at 287.

12

tell Sroga why he was being fired that day also suggests that Jekot had a
retaliatory motive. Id. ¶¶ 63, 65. This is especially so given Sroga’s allegations that
the District had never taken disciplinary action against him before the firing. Id. ¶
76. What’s more, the Second Amended Complaint also alleges that once Sroga was
finally able to obtain his personnel file, he discovered that “[t]he file contained
purported deficiencies in [his] work performance, none of which had ever been
communicated to or discussed with [him].” Id. ¶¶ 80-82. These allegations, which
the Court must accept as true at this stage in the litigation, are enough for the
retaliation claim (Count One) to survive the dismissal motion.
B. Counts Two (Betts) and Three (Gage)
Counts Two and Three allege that Daniel Betts, who was Jekot’s supervisor,
and Michelle Gage, Director of Human Resources for the Cook County Forest
Preserve District, also violated the First and Fourteenth Amendments by
dismissing Sroga on account of his union-organizing activity. Second Am. Compl. ¶¶
112-129. Sroga argues that “under the cat’s paw theory of individual supervisor
liability,” both Betts and Gage should be liable to him for violations of his rights
under 42 U.S.C. § 1983, because each either “supervised and directed” Jekot “in the
termination of Sroga’s employment” or “knew, or reasonably should have known”
that a subordinate was acting in a way to deprive Sroga of his rights of free
assembly and association. Id. ¶¶ 114-115, 120, 123-124, 129. In response,
Defendants contend that Counts Two and Three should be dismissed because there
are no factual allegations from which to infer that Betts or Gage “was personally

13

involved in unconstitutional conduct.” R. 73, Defs.’ Reply Br. at 3. More specifically,
Defendants argue that “there is no factual basis for the contention that Betts relied
upon any alleged discriminatory conduct of Jekot in terminating [Sroga’s]
employment.” Defs.’ Br. at 7. With regard to Gage, Defendants claim that there is
no “allegation that Gage participated in any form or fashion” in Sroga’s dismissal
decision. Id. at 8.
It is true that Sroga cannot rely on any theory of vicarious liability to snare
either Betts or Gage. Neither the “cat’s paw theory” of liability nor any other
respondeat superior theory of liability applies to supervisors in Section 1983 cases.
Coleman v. Dunlap, 695 F.3d 650, 654 (7th Cir. 2012) (“If [the defendant] was not
personally involved with the employment decisions, or was a cat’s paw of someone
else who held a political grudge, that would be a substantive problem with [the
plaintiff’s] claim against [the defendant]—for there is no vicarious liability for a
subordinate’s acts … .” (citation omitted)); McKinnon v. City of Berwyn, 750 F.2d
1383, 1390 (7th Cir. 1984) (“Not only is the doctrine of respondeat superior, which
makes the employer liable without fault on his part for torts committed by his
employees in the furtherance of their employment, not applicable in actions under
section 1983, but the doctrine has no reference (despite its name) to the liability of
another employee who happens merely to be the supervisor, but not the employer,
of the employee who commits the tort.” (citation omitted)). In order to state a claim
against Betts and Gage for retaliation, Sroga must plead facts from which to

14

plausibly infer that those two were “personally at fault” for violating Sroga’s First
Amendment rights. Id. at 1391.
With regard to Gage, the Second Amended Complaint does not come close to
doing this. Sroga alleges only that he “encountered” Gage sometime during Sroga’s
post-firing visit to the Human Resources office, with no further detail about what
happened during this “encounter[].” See Second Am. Compl. ¶ 79. Every other
allegation against Gage is based on an assumption about Gage’s supervisory role,
but even there Sroga does not explain what supervisory authority Gage (who was
the Director of Human Resources) exercised over Sroga’s firing. There is no
allegation that Gage was present at the termination meeting, or how she was
otherwise involved in the firing decision. Gage must be dismissed from the case for
now; if Sroga develops any facts in discovery against Gage, then he may move to
add her back to the case.
In contrast, there are enough allegations to keep Betts in the case. Betts was
Jekot’s supervisor, and leading up to the hastily arranged termination meeting,
Jekot said that “[w]e”—which Sroga interpreted to be Betts and Jekot—needed to
meet with Sroga. Second Am. Compl. ¶ 53. And then Betts did attend the crucial
termination meeting; indeed, the only attendees were Betts, Jekot, and Sroga. Id.
¶ 59. During the meeting, when Sroga asked why he was being fired, it was Betts
who allegedly responded like a villain from a low-budget movie script: “Betts replied
stating, ‘We don’t have to give you any reasons,’ while simultaneously placing both
hands behind the back of his head (as if he were going to do a sit-up), and leaned

15

back in his office chair.” Id. ¶ 63. Based on Betts’s participation in the firing
meeting and his refusal to tell Sroga why he was being fired, it is plausible to infer
that he knew about, and even agreed with, Jekot’s alleged retaliatory motive for
firing Sroga. Of course, it is one thing to allege this set of facts and enjoy the benefit
of the dismissal-motion standard, and quite another to prove it to a jury when Sroga
bears the burden of proof. But, for now, the claim against Betts survives.
C. Count Four (Monell claim v. District)
Count Four attempts to allege a Monell claim against the Cook County Forest
Preserve District for the same violation of Sroga’s rights of assembly and
association. Second Am. Compl. ¶¶ 130-132. The District argues that Sroga’s claim
fails to satisfy any path to municipal liability under Monell: (1) “an actual official
policy”; (2) “a practice or custom that, although not officially authorized, is
widespread and well-established”; or (3) “a deliberate act from a District employee
with final policy-making authority which caused an unconstitutional deprivation of
protected rights.” Defs.’ Br. at 9 (summarizing the holding of Monell v. Department
of Socical Services, 436 U.S. 658 (1978)).
Sroga appears to argue that the “cat’s paw” theory of liability can apply
against the District. “In employment discrimination law the ‘cat’s paw’ metaphor
refers to a situation in which an employee is fired or subjected to some other
adverse employment action by a supervisor who himself has no discriminatory
motive, but who has been manipulated by a subordinate who does have such a
motive and intended to bring about the adverse employment action.” Cook v. IPC

16

Int’l Corp., 673 F.3d 625, 628 (7th Cir. 2012). The Seventh Circuit has not yet
definitively answered whether the cat’s paw theory of liability applies to Section
1983 cases against municipalities. Simstad v. Scheub, 816 F.3d 893, 902 (7th Cir.
2016) (“It is not clear how, or whether, this type of imputed motive applies in the
municipal liability context. [Monell] … prohibits finding municipal liability through
the theory of respondeat superior. We have wondered whether the cat’s-paw theory
can support entity liability under the civil rights laws when the entity is a
municipal corporation and the biased or retaliatory subordinate is not a policymaker. This is not the case, however, in which we need to confront that issue.”
(citations omitted); see also Greene v. Cook Cty. Sheriff’s Office, 79 F. Supp. 3d 790,
812 (N.D. Ill. 2015).
The Supreme Court’s decision in City of Saint Louis v. Praprotnik, 485 U.S.
112 (1988), however, suggests that the cat’s paw theory does not provide a fourth
route to municipal liability outside of the three ways set forth in Monell. In
Praprotnik, the Supreme Court rejected the notion that the employment decision of
a supervisor who was not a final policymaker of the municipality could subject the
city to liability under § 1983. 485 U.S. at 128-130. Confining municipal
responsibility to final policymakers under local law respects the State-federal
balance: “The States have extremely wide latitude in determining the form that
local government takes, and local preferences have led to a profusion of distinct
forms.” Id. at 124. Here, Sroga is trying to do exactly what the plaintiff
unsuccessfully tried in Praprotnik—specifically, to hold a municipality liable for a

17

supervisor’s exercise of discretion even though the supervisor is not a final
policymaker. Allowing an expansion of Monell via the cat’s paw theory would be “a
step towards overruling Monell and adopting the doctrine of respondeat superior.”
Praprotnik, 485 U.S. at 131.
To be sure, the Supreme Court has interpreted other federal statutory
remedies for employment discrimination to allow for a form of cat’s paw liability.
See Staub v. Proctor Hosp., 562 U.S. 411, 417-19 (2011) (interpreting Uniformed
Services Employment and Reemployment Rights Act, and noting textual similarity
to Title VII, 42 U.S.C. § 2000e-2(a), (m)). But Staub emphasized that its analysis
was based on the overlay of traditional common-law principles to employmentdiscrimination statutes, 562 U.S. at 419-20, whereas Monell and Praprotnik make
clear that those ordinary tort and agent-employer principles specifically do not
apply to municipal liability under § 1983. Monell, 436 U.S. at 692-94; Praprotnik,
485 U.S. at 121-22; see Waters v. Chicago, 580 F.3d 575, 586 n.2 (7th Cir. 2009)
(noting, but not definitively resolving, the problem with extending Staub to
municipal liability under § 1983). Without any allegation for municipal liability
grounded in Monell, the municipal-liability claim (Count Four) is dismissed.
D. Counts Five and Six (Illinois Constitution and common law)
In addition to the federal-law claims, Sroga asserts two state-law claims
premised on the same conduct that underlies the federal-law claims—that is, he
was fired in retaliation for his union-organizing activity. Sroga argues that the
retaliatory firing violated not only the First Amendment in the federal Constitution,

18

but also the Illinois Constitution’s guarantee of the right to assemble (Count Five),
Second Am. Compl. ¶¶ 133-141, and Illinois common law (Count Six), id. ¶¶ 142145. The Illinois constitutional claim is asserted against Jekot, Betts, and Gage,
while the common-law retaliatory discharge claim is brought against the District.
The defense responds that these claims should be dismissed because “the
State of Illinois has placed exclusive jurisdiction for this claim within the Illinois
Labor Relations Board,” specifically through the Illinois Public Labor Relations Act.
Defs.’ Br. at 12. The Labor Relations Act does contain language that ostensibly
covers Sroga’s allegation that he was fired for trying to organize a union: “It shall be
an unfair labor practice for an employer or its agents: (1) to interfere with, restrain
or coerce public employees in the exercise of the rights guaranteed in this Act or to
dominate or interfere with the formation, existence or administration of any labor
organization … .” 5 ILCS 315/10(a)(1). With this statutory definition in hand, some
Illinois cases hold that any claim that is characterized as an “unfair labor practice”
under the Labor Relations Act automatically comes under the exclusive jurisdiction
of the Labor Relations Board. Foley v. Am. Fed’n of State, Cty., & Mun. Emps.,
Council 31, Local No. 2258, 556 N.E.2d 581, 582-84 (Ill. App. Ct. 1990); Cessna v.
City of Danville, 693 N.E.2d 1264, 1268 (Ill. App. Ct. 1998); Stahulak v. City of Chi.,
684 N.E.2d 907, 911-912 (Ill. App. Ct. 1997). By this logic, the Defendants reason,
Sroga’s state constitutional and common-law claims must be preempted because
interference with union formation is an “unfair labor practice.”

19

The problem with this argument is that Sroga is not trying to bring an
“unfair labor practice” claim. Sure, as the cases cited earlier hold, it is clear that a
plaintiff who brings an unfair labor practice claim under the Labor Relations Act
itself must present that claim to the Labor Relations Board. But Sroga is not
invoking the Labor Relations Act; instead, he is asserting the state-law claims
under the Illinois Constitution and under Illinois common law. So the cases cited
earlier do not answer whether the Labor Relations Act preempts the state
constitutional and common-law claims. An analysis from first principles is needed.6
In order for an Illinois statute to deprive trial courts of original jurisdiction
over other claims, the statute must explicitly provide that the state agency has
exclusive jurisdiction. City of Kankakee v. Dep’t of Revenue, 988 N.E.2d 723, 729 (Ill.
App. Ct. 2013) (“Trial courts may be divested of their original jurisdiction by the
legislature where it places original jurisdiction in an administrative agency.
Employers Mutual Cos. v. Skilling, 644 N.E.2d 1163 (Ill. 1994). A statute that
divests the trial court of original jurisdiction must do so explicitly.”). Absent explicit
divestment of jurisdiction, an Illinois state agency authorized to hear cases of a
given type shares jurisdiction concurrently with the trial court. See Fredericks v.
Liberty Mut. Ins. Co., 627 N.E.2d 782, 787 (Ill. App. Ct. 1994) (“[C]ourts need not
relinquish their authority over a matter to the agency” in cases where “agency’s
technical expertise is not likely to be helpful or there is no need for uniform
6Lauth

v. McCollum, 424 F.3d 631, 632 (7th Cir. 2005), cited multiple times by the
Defendant, is not on point. Defs.’ Br at 11-12; Defs.’ Reply Br. at 6. The part of the opinion
that the Defendants rely on is entirely a side discussion and not necessary to the decision’s
holding; the actual issue decided by that opinion was whether the plaintiff stated a viable
Equal Protection Clause “class of one” claim.

20

administrative standards.”). Here, the Labor Relations Act does not contain explicit
text vesting exclusive jurisdiction over unfair labor practices (or any other type of
claim) in the Labor Relations Board. See 5 ILCS 315/1 et seq.
That said, even when a law—like the Labor Relations Act—does not contain
explicit text calling for preemption, an Illinois statute still could, by clear
implication, divest trial courts of jurisdiction over a claim. Indeed, because the
Labor Relations Act creates a comprehensive regulatory scheme, Illinois courts hold
that giving the Board exclusive jurisdiction is necessary to prevent forum shopping
and avoid burdening the state courts, as well as to preserve the uniformity
promoted by vesting exclusive jurisdiction in the Board. See, e.g., Foley, 556 N.E.2d
at 584. For example, to avoid undermining the Labor Relations Act, the Illinois
Appellate Court held in Foley v. American Federation of State, City, and Municipal
Employees that the Labor Relations Act requires that only the Board may hear
duty-of-fair-representation claims brought against unions. Id. And Foley relied on
an Illinois Supreme Court decision, Board of Education of Community School
District No. 1, Coles County v. Compton, that arrived at the same exclusivejurisdiction conclusion for enforcing collective-bargaining arbitration awards under
the Illinois Educational Labor Relations Act (IELRA). 526 N.E.2d 149 (Ill. 1988). As
Foley explained, the Educational Labor Relations Board had exclusive jurisdiction
“even though no express language appears in the IELRA which divests the courts of
such jurisdiction,” on account of “a comprehensive regulatory scheme for public
sector bargaining in Illinois” and concerns over “forum shopping” and “unnecessary

21

litigation” in an “already overburdened court system.” Foley, 556 N.E.2d at 584
(describing holding of Compton, 526 N.E.2d at 153-54) (quotations omitted); see also
Cessna, 693 N.E.2d at 1268 (“We agree with the reasoning of Foley and conclude
that plaintiff’s claims against the Unions are within the exclusive jurisdiction of the
Board … despite absence of the word “exclusive.”).
Cases like Foley and Compton demonstrate that the Labor Relations Act,
even without an explicit textual basis, can vest exclusive jurisdiction in the Labor
Relations Board for labor-management disputes. Indeed, a plausible argument
could be made that even an Illinois constitutional claim or common-law claim that
somehow arises from a collective bargaining agreement or from a failure of a union
to fairly represent a member would still be subject to the exclusive jurisdiction of
the Labor Relations Board. Non-exclusive jurisdiction over collective bargaining
agreements in particular would multiply litigation and undermine the stability that
comes with uniform interpretation of those agreements by the Labor Relations
Board. The Labor Relations Act specifically provides that the Board “shall have
jurisdiction over collective bargaining matters … .” 5 ILCS 315/5(a-5).7 The Labor
Relations Act also elevates collective bargaining agreements negotiated under the
Act over any other laws, executive orders, or administrative regulations relating to

7Section

5(a-5) refers to a “State Panel,” but in 2000, the Labor Relations Board
replaced two separate boards (including what had been known as the “State Panel”) and
took on all of “the powers, duties, rights, and property, including contractual rights and
obligations” of both the Illinois State Labor Relations Board and the Illinois Local Labor
Relations Board. 5 ILCS 315/5.1(a), (b).

22

wages, hours, and employment conditions or relations. 5 ILCS 315/15(a), (b) (2010).8
So disputes over a collective bargaining agreement, even if dressed as an Illinois
constitutional or common-law claim, still might very well be under the Board’s
exclusive jurisdiction.
But as applied to Sroga’s case, this principle gets the defense only so far.
That is because, as noted earlier, Sroga’s claims are premised not on the Labor
Relations Act, but on the Illinois Constitution and Illinois common law. Put another
way, Sroga’s claims are independent of the Labor Relations Act, so they are outside
of the Board’s exclusive jurisdiction. In an analogous context, the Seventh Circuit
applied that test of independence to determine whether the Illinois Human Rights
Act preempted a common-law tort. In Mendez v. Perla Dental, the Seventh Circuit
explained that even when an agency has exclusive jurisdiction over claims arising
under its Act (there, the Illinois Human Rights Commission’s jurisdiction over
claims under the Human Rights Act), a common-law claim that can be established
completely independently of the Act is not preempted. 646 F.3d 420, 422 (7th Cir.
2011) (“Where the complaint alleges a tort recognized at common law, such that the
elements of the tort can be established without reference to the legal duties created
by the Act, the state law claim is not preempted by the Act.”).9 The converse also

8The

2010 version of this statute is cited because the 2014 amendment to this
section, along with the entirety of the Public Act 98-599 (which reformed the Pension Code),
was held unconstitutional in In re Pension Reform Litigation, 32 N.E.3d 1, 30 (Ill. 2015).
9The Illinois Supreme Court also has noted the distinction between new rights
created by statutory schemes versus already existing common-law rights; the legislature
undoubtedly may set the jurisdictional limits on newly created statutory rights. See Bd. of
Educ. of Warren Twp. High Sch. Dist. v. Warren Twp. High Sch. Fed’n of Teachers, 538
N.E.2d 524, 529 (Ill. 1989) (holding that the legislature may “preclude or limit the

23

makes sense: if a claim’s viability depends on a statute that otherwise puts a
comprehensive remedial scheme in the hands of an administrative agency, then the
claim really is a statutory claim that is in that agency’s exclusive jurisdiction. For
example, a union’s “duty of fair representation” arises from the Labor Relations
Act—that duty has no previously existing counterpart in the common law or in state
constitutional law—so the Labor Relations Board has exclusive jurisdiction over
that type of claim. Cessna, 693 N.E.2d at 1269( (“[T]here simply is no common law
duty of fair representation.”).
Here, Sroga can state a claim for relief under the Illinois Constitution and
Illinois common law independently of the Labor Relations Act.10 On the
constitutional claim, Article I, Section 5 of the Illinois Constitution provides for a
right to assembly: “The people have the right to assemble in a peaceable manner, to
consult for the common good, to make known their opinions to their representatives
and to apply for redress of grievances.” Ill. Const. art. I, § 5. The Defendants do not
actually argue that the Illinois Constitution’s right to associate is any different from
the federal version of that right in the First Amendment of the United States
Constitution; instead, the defense put all its eggs in the exclusive-jurisdiction
argument. Defs.’ Br. at 11-12. So, because Sroga stated an adequate claim against
Jekot and Betts for a violation of the First Amendment, Count Five also survives
jurisdiction of the circuit courts” when it “enacts a comprehensive statutory scheme,
creating rights and duties which have no counterpart in common law or equity”).
10There are district court cases that come out different ways on this issue when it
comes to the Illinois Educational Labor Relations Act, compare Jones v. Harris, 1989 WL
24132, at *4-5 (N.D. Ill. Mar. 16, 1989), with Andrekus v. Bd. of Educ. of Dist. U-46, 2003
WL 1475033, at *3-4 (N.D. Ill. Mar. 20, 2003), but the Seventh Circuit has set forth the
applicable preemption test under Illinois law.

24

against Jekot and Betts. Because no First Amendment claim was sufficiently stated
against Gage, she is correspondingly dismissed from Count Five.
With regard to the common-law retaliatory discharge claim against the
District (Count Six), here too the claim can be established without any reference to
the Labor Relations Act. To make out a claim for retaliatory discharge, Sroga must
show: (1) that he was discharged in retaliation for his activities; and (2) that his
discharge violates a clear public policy mandate. Barr v. Kelso-Burnett Co., 478
N.E.2d 1354, 1358 (Ill. 1985); Palmateer v. Int’l Harvester Co., 421 N.E.2d 876 (Ill.
1981). To determine Illinois public policy, state courts look at the state’s
constitution, its statutes, and in some cases the state courts’ judicial decisions.
Zientara v. Long Creek Twp., 569 N.E.2d 1299, 1303-04 (Ill. App. Ct. 1991) (“In
general, it can be said that public policy concerns what is right and just and what
affects the citizens of the State collectively. It is to be found in the State’s
constitution and statutes and, when they are silent, in its judicial decisions.”). Here,
Sroga can point to the Illinois Constitution as the source of the public policy to
protect union-organizing activity without the threat of a retaliatory firing. The
defense simply invokes the Labor Relations Act and does not actually present any
argument on whether the elements of the common-law claim can be established
without reference to the Act. Defs.’ Br. at 12. Thus, in the end, Sroga’s common-law
retaliatory discharge claim against the District is essentially the same as the state
constitutional claim, so the claim survives.

25

E. Count Seven (Intentional Interference)
In Count Seven, Sroga alleges that Jekot is liable under Illinois common law
for intentional interference with prospective economic advantage. Second Am.
Compl. ¶¶ 146-149. To maintain this claim, one must show: “(1) plaintiff’s
reasonable expectation of entering a valid business relationship; (2) the defendant’s
knowledge of the plaintiff’s expectancy; (3) purposeful or intentional interference by
the defendant that prevents the plaintiff’s legitimate expectancy from ripening into
a valid business relationship; and (4) damages to the plaintiff resulting from such
interference.” Soderlund Bros. v. Carrier Corp., 663 N.E.2d 1, 7-8 (Ill. App. Ct.
1995). Jekot responds that Sroga’s intentional interference claim should be
dismissed because “an employer cannot interfere with its own business relationship
with its employee.” Defs.’ Br. at 13.
Illinois case law is not entirely consistent on whether an employee can be
sued for tortious interference with a coworker’s employment relationship with their
joint employer. The bulk of relevant Illinois decisions do allow plaintiffs to bring
tortious interference claims against coworkers. See, e.g., HPI Health Care Servs.,
Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 678 (Ill. 1989); Popko v. Cont’l Cas.
Co., 823 N.E.2d 184, 187 (Ill. App. Ct. 2005) (observing that jury returned a verdict
against defendant—the plaintiff’s supervisor—on the plaintiff’s tortious interference
claim); Citylink Grp., Ltd. v. Hyatt Corp., 729 N.E.2d 869, 877 (Ill. App. Ct. 2000);
Chapman v. Crown Glass Corp., 557 N.E.2d 256, 263 (Ill. App. Ct. 1990); Stewart v.
Ost, 491 N.E.2d 1306, 1309 (Ill. App. Ct. 1986); Powers v. Delnor Hosp., 481 N.E.2d

26

968, 970 (Ill. App. Ct. 1985); accord Constantino v. Morningstar, Inc., 2004 WL
842508, at *2 (N.D. Ill. Apr. 15, 2004); Mustafa v. Ill. Dept. of Public Aid, 1997 WL
194980, at *5 (N.D. Ill. March 14, 1997); Otterbacher v. Nw. Univ., 838 F. Supp.
1256, 1261 (N.D. Ill. 1993); Diamond v. Chulay, 811 F. Supp. 1321, 1334 (N.D. Ill.
1993). A few Illinois decisions, however, have held otherwise, dismissing
interference claims brought against a coworker. See, e.g., Quist v. Bd. Of Trs. of
Cmty. Coll. Dist. No. 525, 629 N.E.2d 807, 812 (Ill. App. Ct. 1994) (“Inasmuch as
plaintiff in this case charges that the president of defendant college made a
statement allegedly threatening to her future employability, she is alleging
interference by an agent of her employer, defendant college. … Accordingly, we hold
that the trial court properly dismissed plaintiff’s [tortious interference claim].”);
Eisenbach v. Esformes, 582 N.E.2d 196, 199 (Ill. App. Ct. 1991) (same). These few
courts reason that alleging an interference claim against a coworker is akin to
alleging that the employer interfered with its own employment relationship. But
the majority view is more sensible. Unless the defendant-coworker is the owner of
the business (like a sole proprietor), then the plaintiff is indeed suing an
individual—be it a coworker or not—for getting in the way of the plaintiff’s
relationship with the employer; in that situation, the plaintiff is not suing the
employer for interfering with its own relationship.
It is worth noting, however, that in most of the decisions allowing for this
type of interference claim against a coworker, there is an additional element of the
interference claim: the plaintiff must show that the coworker acted in his or her

27

own interests and against the interests of the principal (that is, the employer). See,
e.g., Citylink Grp., 729 N.E.2d at 877 (“Corporate … agents are normally privileged
against claims that their activities interfered in a third party’s relationships with
their principals. … To overcome the privilege, plaintiffs must allege or prove that a
defendant acted in its own interests and contrary to the interests of its principal, or
engage in conduct totally unrelated or antagonistic to the interest giving rise to the
privilege.”). So, although Jekot’s motion to dismiss Count Seven is denied, Sroga
should be aware that this claim may be subject to dismissal at the summary
judgment stage if he cannot establish that his firing was not in the District’s best
interests.
F. Counts Eight (Respondeat Superior) and Nine (Indemnification)
The final two counts are easy to decide. In Count Eight, Sroga alleges that
the Forest Preserve District is liable for Counts One, Two, Three, Five, and Seven
through respondeat superior. Second Am. Compl. ¶¶ 150-152. In Count Nine, Sroga
alleges that the District, through the County, is liable to indemnify plaintiff for
judgments against the District or the named individual defendants. Id. ¶¶ 153-158.
On Count Eight, as discussed earlier, it is well established that respondeat
superior is not applicable to § 1983 claims. Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir. 2001) (“The doctrine of respondeat superior does not apply to § 1983
actions; thus to be held individually liable, a defendant must be ‘personally
responsible for the deprivation of a constitutional right.’”) (quoting Chavez v. Ill.
State Police, 251 F.3d 612, 651 (7th Cir. 2001)). So the District cannot be held liable

28

under respondeat superior liaibility for Counts One, Two, and Three (and Count
Three against Gage was dismissed anyway for failure to state a claim). But Count
Eight survives as to the state-law claims in Count Five (Illinois Constitution right
to associate) and Count Seven (tortious interference).
Lastly, on Count Nine, the District would be required under the Illinois Tort
Immunity Act to pay any judgment against its employees, provided they acted
within the scope of employment. 745 ILCS 10/9-102. So to the extent that counts
against individual Defendants survived, this indemnification claim survives too.
IV. Conclusion
In sum, the following claims are dismissed:
►

Count Three (First Amendment) against Gage.

►

Count Four (Monell claim) against the District.

►

Count Five (Illinois Constitution) as against Gage.

Count Eight (respondeat superior) against the District as to Counts
One, Two, and Three.
►

Count Nine (indemnification) against the District as to Count Three
and Count Five (as against Gage).
►

The remaining claims are:
►

Count One (First Amendment) against Jekot.

►

Count Two (First Amendment) against Betts.

►

Count Five (Illinois Constitution) as against Jekot and Betts.

►

Count Six (Illinois retaliatory discharge) against the District.

►

Count Seven (tortious interference) against Jekot.
29

Count Eight (respondeat superior) against the District as to Counts
Five and Seven.
►

Count Nine (indemnification) against the District as to Counts One,
Two, Five, and Seven.
►

The status hearing of January 25, 2017, is reset to February 2, 2017, at 9
a.m., at which time the Court will set the fact discovery deadline. The parties
previously described the remaining discovery that would be needed, see R. 74, so
scheduling of those depositions should start promptly.

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: January 24, 2017

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