Jordan et al v. Chief Judge of the Circuit Court of Cook County, Illinois et al

Filing 69

OPINION AND ORDER. Signed by the Honorable Sara L. Ellis on 9/20/2016. Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY JORDAN,
KENNETH GREENLAW,
THEODIS CHAPMAN,
PATRICK NELSON,
and A CLASS OF UNKNOWN PERSONS
SIMILARLY SITUATED,
Plaintiffs,
vs.
TIMOTHY EVANS, CHIEF JUDGE
OF THE CIRCUIT COURT
OF COOK COUNTY, ILLINOIS,
Defendant.

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No. 15 C 5907
Judge Sara L. Ellis

OPINION AND ORDER
Plaintiffs Anthony Jordan, Kenneth Greenlaw, Theodis Chapman, and Patrick Nelson,
(“Plaintiffs”) are current and former employees of the Cook County Probation Department.
Plaintiffs bring this suit against Timothy Evans, Chief Judge of the Circuit Court of Cook County
(“Chief Judge”) on behalf of themselves and seek to represent a class of similarly situated
persons, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. 2000e, et seq. Plaintiffs assert that the Chief Judge
abandoned his statutory duty in violation of the Illinois Probation and Probation Officers Act,
730 Ill. Comp. Stat. 110/13 (“Probation Act”). Plaintiffs also allege race discrimination in
violation of the Illinois Civil Rights Act of 2003, 740 Ill. Comp. Stat. 23/5(b) (“ICRA”). The
Chief Judge moves for partial judgment pursuant to Federal Rule of Civil Procedure 12(c) on
Plaintiffs’ Title VII and ICRA claims (Counts I, II, and IV) insofar as they are alleged against
him in his individual capacity, and on Plaintiffs’ Probation Act claim (Count III) on the bases

that the Eleventh Amendment bars this claim and that there is no private right of action under the
Probation Act. Pl.’s Mem., 1, [65]; Fed. R. Civ. P. 12(c). The Court grants in part and denies as
moot in part the Chief Judge’s motion. Because Plaintiffs concede that they only bring this suit
against the Chief Judge in his official capacity, the Court denies as moot the Chief Judge’s
motion for partial judgment on Counts I, II, and IV. Additionally, because sovereign immunity
bars Plaintiffs’ claim under the Probation Act, the Court grants the Chief Judge’s motion for
judgment on Count III.
BACKGROUND 1
Jordan is an African American who worked as a probation officer from 1998 to 2015. On
February 4, 2015, the Probation Department terminated him for failing to properly monitor and
respond to electronic monitoring (“EM”) alerts of a particular youth assigned to his EM Unit.
When this particular youth committed a crime while on Jordan’s EM Unit, the Probation
Department fired him. Although the Probation Department had never disciplined Jordan
previously for failure to properly monitor and respond to EM alerts, he had entered into a “Last
Chance Agreement” as a result of a prior allegation of poor work performance. The Probation
Department invoked this Last Chance Agreement as the reason for his firing. Plaintiffs allege
that the Last Chance Agreement was unfair and that Jordan, “as an African American, was a
convenient scapegoat for the Department.” Second Am. Compl. ¶ 57, ECF No. 55.
Greenlaw is an African American, who worked as a probation officer from 1999 to 2014,
assigned to the Intensive Probation Services Unit, which requires frequent contact with youths on
probation and extensive driving. In 2014, the Probation Department terminated Greenlaw for

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The facts in the background section are taken from Plaintiffs’ Second Amended Complaint and are
presumed true for the purpose of resolving the Chief Judge’s motion for partial judgement. See Virnich v. Vorwald,
664 F.3d 206, 212 (7th Cir. 2011); Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779,
782 (7th Cir. 2007).

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misusing an assigned gas card and failing to submit gas receipts and vehicle inspection forms at
certain times. Plaintiffs again allege that the Probation Department fired Greenlaw because of
his race and to provide a convenient scapegoat and example for other probation officers who
made record keeping errors.
Chapman is an African American who began working as a probation officer in 2003, and
continues to work in that position currently. He has consistently received positive performance
reviews and has no history of discipline. He has applied for the position of Supervisor, but he
has failed the supervisor’s written examination twice despite diligent preparations. Chapman has
requested and been denied copies of his results for the supervisor’s written examination.
Plaintiffs allege that African Americans are disproportionately told that they fail this written
examination and are not allowed to review their results. Plaintiffs allege that the examination is
either intentionally or effectively discriminatory.
Nelson is an African American who began working as a probation officer in 2001, and
currently holds that position. Both Nelson and Chapman traveled to job-related training but were
denied compensation for their travel time, whereas white employees engaging in similar travel
received compensation. Chapman and Nelson have filed grievances related to their lack of
compensation. These grievances were denied, and Nelson and Chapman allege that they were
reassigned to field positions in retaliation for filing grievances.
Plaintiffs further allege that from 2008 to 2013, African American probation officers
constituted three quarters of the total officers suspended and/or terminated by the Probation
Department. Plaintiffs contend that this disparity in disciplinary practices suggests a pattern of
racial discrimination. Plaintiffs allege that the Chief Judge did not exercise his supervisory

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authority in taking any of the above adverse employment actions to ensure that such actions did
not violate any State or federal laws.

LEGAL STANDARD
“A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil
Procedure is governed by the same standards as a motion to dismiss for failure to state a claim
under Rule 12(b)(6).” Adams v. City of Indianapolis, 742 F.3d 720, 727–28 (7th Cir. 2014). A
motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits.
Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In
considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in
the plaintiff’s complaint and draws all reasonable inferences from those facts in the plaintiff’s
favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule
12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim’s
basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
ANALYSIS
I. Probation Act Claim
Plaintiffs claim that the Chief Judge failed to exercise his general supervisory authority
over disciplinary actions in violation of the Probation Act and seek injunctive relief. The Chief
Judge moves for judgment on Plaintiffs’ claim arguing that it is barred by sovereign immunity,

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and that Plaintiffs do not have a private right of action to bring a claim under the Probation Act.
For the reasons stated below, the Court grants the Chief Judge’s motion.
A. Sovereign Immunity
The Eleventh Amendment states: “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. The Supreme Court extended the Eleventh Amendment to prohibit suits by
citizens against their own State. Hans v. Louisiana, 134 U.S. 1 (1890). Furthermore, “[t]he
Eleventh Amendment bars a suit against state officials when the state is the real, substantial party
in interest.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S. Ct. 900, 79
L. Ed. 2d 67 (1984) (internal quotations omitted) (quoting Ford Motor Co. v. Department of
Treasury, 323 U.S. 459, 464, 65 S. Ct. 347, 89 L. Ed. 389 (1945)). Because Plaintiffs bring suit
against the Chief Judge in his official capacity, the State is the real, substantial party in interest.
Guzman v. Sheahan, 495 F.3d 852, 859 (7th Cir. 2007) (“An official capacity suit is tantamount
to a claim against the government entity itself.”). Therefore, the Eleventh Amendment bar
applies to this case unless there is some exception.
Plaintiffs argue that in this case the “officer suit exception” to sovereign immunity
applies because the Chief Judge “abdicated” or “abandoned” his responsibilities under the
Probation Act. In Ex Parte Young, the Supreme Court recognized the officer suit exception to
sovereign immunity where a plaintiff seeks prospective injunctive relief against a state officer
who has exceeded his or her authority and in doing so violates federal law. 209 U.S. 128, 160,
28 S. Ct. 441, 52 L. Ed. 714 (1908). That officer is “stripped of his official or representative
character and subjected in his person to the consequences of his individual conduct.” Id. When

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action in excess of a state officer’s authority strips him of his official status, “his conduct is not
then regarded as the conduct of the State, nor is the action against him considered an action
against the State.” PHL, Inc. v. Pullman Bank and Trust Co., 216 Ill. 2d 250, 261, 836 N.E. 2d
351, 296 Ill. Dec. 828 (2005) (quoting Moline Tool Co. v. Department of Revenue, 410 Ill. 35,
37, 101 N.E. 2d 71 (1951)).
This exception does not apply, however, where there is not an ultra vires act. PHL, Inc.,
216 Ill. 2d 250, at 266 (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682,
689-90, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949)) (“[W]here the officer’s powers are limited by
statute, his actions beyond those limitations are considered individual and not sovereign
actions… [h]is actions are ultra vires his authority and therefore may be made the object of
specific relief… [however], [a] claim of error in the exercise of that power is . . . not sufficient.”)
(emphasis in original). “It is well settled that a state officer’s erroneous exercise of a broad grant
of authority does not constitute an ultra vires act.” Id. (denying officer suit exception to
sovereign immunity). Plaintiffs claim that the Chief Judge “abandoned or abdicated his statutory
duty to exercise meaningful administrative and supervisory authority.” Second Am. Compl. ¶
84. “Abandoning” or “abdicating” does not constitute an ultra vires act; because it is a nonaction, it is properly classified as an “erroneous exercise of a broad grant of authority.” PHL,
Inc., 216 Ill. 2d 250, at 266. Indeed, it is an assertion that there was no act, let alone an ultra
vires act. Therefore, the Court finds that the officer suit exception does not apply, and the
Eleventh Amendment bars Plaintiffs’ claim under the Probation Act.
Even if “abandoning” or “abdicating” constituted an ultra vires act, the officer suit
exception still would not apply in this case because the Supreme Court has refused to extend Ex
Parte Young to suits “against state officials on the basis of state law.” Pennhurst, 465 U.S. at

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106; See Anderson v. U.S. Dept. of Agriculture, 604 Fed. Appx. 513, 517 (7th Cir. 2015)
(dismissing plaintiff’s state-law fraud and misrepresentation claim and claim under state’s
Whistleblower Act on sovereign immunity grounds). The Pennhurst Court stated that Young
“rests on the need to promote the vindication of federal rights.” Pennhurst State School &
Hosp., 465 U.S. 89, at 105. The competing needs to protect the supremacy of federal law and the
constitutional immunity of the States’ rights is “wholly absent, however, when a plaintiff alleges
that a state official has violated state law. In such a case the entire basis for the doctrine of
Young and Edelman disappears.” Id., at 106 (emphasis in original). Here Plaintiffs are asking
the Court to do exactly what the Pennhurst Court said federal courts must avoid.
Therefore, the officer suit exception does not apply to Plaintiffs’ claim against the Chief
Judge and sovereign immunity bars Plaintiffs’ Probation Act claim.
B. Private Right of Action
The Chief Judge also argues that the Probation Act does not grant Plaintiffs a private
right of action. Plaintiffs argue that a private right of action is not required in this case and that
the Court may grant prospective injunctive relief under the Court’s general equitable authority.
However, because the Court finds sovereign immunity bars Plaintiffs’ Probation Act claim, it
need not consider whether a private right of action exists with respect to the Probation Act.
II. Individual and Official Capacity
The Chief Judge argues that he cannot be sued in his individual capacity for alleged
violations of Title VII or ICRA. In their response, Plaintiffs confirm that they do not allege any
claim against the Chief Judge in his individual capacity. Pl.’s Mem., 1, [65]. Because Plaintiffs
do not allege any claim against the Chief Judge in his individual capacity, nor could the Court
grant the relief sought by Plaintiffs against the Chief Judge in his individual capacity, the Court

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denies as moot the Chief Judge’s motion for partial judgment on Counts I, II, and IV, as they
pertain to the Chief Judge in his individual capacity. Counts I, II, and IV may proceed against
the Chief Judge in his official capacity.
CONCLUSION
For the foregoing reasons, the Court denies as moot the Chief Judge’s motion [58] for
partial judgment on Counts I, II, and IV, and grants his motion for judgment on Count III.

Dated: September 20, 2016

________________________
SARA L. ELLIS
United States District Judge

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