Hower v. Cook County Sheriff's Office et al

Filing 23

MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 2/16/2016: Granting in part and denying in part Defendants' motion to dismiss 19 . Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EDUARDO HOWER,
Plaintiff,
v.
COOK COUNTY SHERIFF’S OFFICE,
et al.,
Defendants.

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No. 15 C 6404

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ motion to dismiss. For the
reasons stated below, the motion to dismiss is granted in part and denied in part.

BACKGROUND
Plaintiff Eduardo Hower (Hower) allegedly began working for the Cook
County Sheriff’s Office (Sheriff’s Office) as a correctional officer in April 1997. In
2005, Hower was allegedly promoted to the Cook County Sheriff’s Police
Department (Department). In February 2013, Hower allegedly complained to the
Sheriff’s Office’s Shakman Compliance Officer, Defendant Robert Egan (Egan) that
the officer promotional process violated the Sheriff’s Employment Action Manual
and Illinois statutes. Hower contends that in March 2013, he supplemented his
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complaint with further information, and that in May 2013, he made a complaint with
the Office of Professional Review. Hower contends that he then suffered retaliation
for making such complaints such as being ordered to return his Department cell
phone, being subjected to false investigations, passed over for promotions, denied
special assignments, and denied awards.
In November 2013, Hower allegedly submitted a written complaint to the
Sheriff’s Office, contending that he was suffering retaliation and discrimination
based on his race. In September 2014, Hower allegedly filed a Charge of
Discrimination with the Equal Employment Opportunity Commission contending
that he was being discriminated against because of his race and in retaliation for
complaining about discrimination. Hower includes in his complaint claims brought
under 42 U.S.C. § 1983 (Section 1983) based on alleged retaliation for exercising his
First Amendment rights (Count I), Illinois Whistleblower Act, 740 ILCS 174/1 et
seq. claims (Count II), a claim brought under Title VII of the Civil Rights Act of
1964 (Title VII), 42 U.S.C. § 2000e et seq. alleging race discrimination (Count III), a
Title VII retaliation claim (Count IV), Section 1983 Equal Protection claims (Count
IV), and claims alleging violations of the Shakman decree (Count V). Defendants
now move to dismiss all claims.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences
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that favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir.
2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive
a motion to dismiss, the complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,” and that “[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”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations
omitted).

DISCUSSION
I. Claims Brought Against Sheriff’s Office and Cook County
Defendants argue that Hower has not alleged sufficient facts to state a valid
Monell claim against the Sheriff’s Office. For a Section 1983 Monell claim, a
plaintiff must “establish an official policy through (1) an express policy that causes a
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constitutional deprivation when enforced; (2) a widespread practice that is so
permanent and well-settled that it constitutes a custom or practice; or (3) an
allegation that the constitutional injury was caused by a person with final
policymaking authority.” Teesdale v. City of Chicago, 690 F.3d 829, 834 (7th Cir.
2012)(internal quotes omitted)(quoting Estate of Sims, 506 F.3d 509, 515 (7th Cir.
2007)). Defendants argue that Hower has not alleged that the Sheriff’s Office
engaged in a policy or practice that could support a Monell claim. Hower argues in
response to the motion to dismiss that there was a widespread practice that could
support a Monell claim. (Resp. 9-11). Hower, acknowledges, however, that he did
not specifically allege such a widespread practice in his complaint. (Resp. 9).
Hower contends that since he alleges various types of conduct over a certain period
of time, it can be inferred that there was a widespread practice. To make such an
inference based on Hower’s allegations would be nothing more than speculation.
Hower must allege sufficient allegations to make it plausible that there was a
widespread practice. The mere fact that Defendants allegedly took actions such as
denying Hower special assignments and that some of Defendants were in supervisory
positions does not mean that such actions were part of a widespread practice. Hower
also presents in his complaint a conclusory statement that “Defendants” acted as
“final policymakers for the Cook County Sheriff’s Office and its respective
agencies.” (Compl. Par. 80). Not only is such a statement conclusory and vague, it
is inaccurate on its face. Such a statement, if accepted as true, would mean that the
Sheriff’s Office is an individual who is a policy-maker for the Sheriff’s Office and
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that Defendant Cook County (County) is also an individual who is a policy-maker for
the Sheriff’s Office. Hower has thus failed to present sufficient allegations to state a
valid Monell claim. Therefore, the motion to dismiss the Section 1983 claim brought
against the Sheriff’s Office is granted. In regard to the remaining claims brought
against the Sheriff’s Office, the Seventh Circuit has held that it is a suable entity.
See Ruffino v. Sheahan, 218 F.3d 697, 700 (7th Cir. 2000)(stating that “[i]n Illinois,
the office of the Sheriff as an institutional matter is also ordinarily a suable entity
under § 1983”); DeGenova v. Sheriff of DuPage Cty., 209 F.3d 973, 977 (7th Cir.
2000)(stating that “the Sheriff’s office has a legal existence separate from the county
and the State, and is thus a suable entity”). The Seventh Circuit has also held that the
County may properly be joined as a Defendant, not based upon its participation in
any conduct, but because the County will have to pay any damages owed by the
Sheriff’s Office. See Askew v. Sheriff of Cook Cty., Ill., 568 F.3d 632, 636 (7th Cir.
2009)(finding that the plaintiff was required to join the County when suing the
Sheriff’s Office).

II. Section 1983 Claims Brought against Individual Defendants
Defendants argue that the Section 1983 individual capacity claims brought
against Defendant Thomas Dart (Dart), Egan, Defendant Dana Wright (Wright), and
Defendant Rosemarie Nolan (Nolan) (collectively referred to as “Individual
Defendants”) should be dismissed. Defendants contend that there are no allegations
that Individual Defendants participated in the alleged constitutional violations and
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therefore they cannot be subject to suit under Section 1983. To hold an individual
liable under Section 1983, a plaintiff must show that the person “caused or
participated in an alleged constitutional deprivation.” Kuhn v. Goodlow, 678 F.3d
552, 555-56 (7th Cir. 2012)(internal quotations omitted)(quoting Wolf-Lillie v.
Sonquist, 699 F.2d 864, 869 (7th Cir. 1983))(stating that Section 1983 “liability is
premised on the wrongdoer’s personal responsibility”). Hower references conduct
in the complaint that he believes to have been a part of the alleged wrongful
discrimination and retaliation. For example, Hower alleges that he was subject to
false investigations, passed over for promotions, denied special assignments, and
denied awards all in retaliation for the filing of his complaints. (Compl. Par. 60-63).
Hower also specifically alleges that “Dart, Egan, Nolan, Wright and White made the
decision, or at the very least directed or influenced the decision, to deny [Hower]
special assignments, awards, and/or promotions,” and “to place [Hower] under
investigation and transfer him to desk duty.” (Compl. Par. 64-65). This court is not
finding that Individual Defendants actually participated in any of the alleged
misconduct. Hower has simply alleged sufficient facts, which must be accepted as
true at this juncture, to state valid Section 1983 claims against Individual Defendants.
At the summary judgment stage, Hower will need to point to sufficient evidence to
support such Section 1983 claims.
Defendants also argue that Section 1983 claims brought against Individual
Defendants should be dismissed based on qualified immunity. Law enforcement
officers are protected by qualified immunity, “so long as their conduct does not
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violate clearly established statutory or constitutional rights that a reasonable person
would know about.” Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015). Hower
alleges, for example, that Individual Defendants subjected him to false investigations
in the Office of Professional Responsibility in retaliation for him complaining about
matters such as race discrimination. The court cannot find at this juncture based on
such alleged facts, which must be accepted as true at this juncture, that Individual
Defendants are entitled to qualified immunity. At the summary judgment stage,
Individual Defendants will have an opportunity to present evidence on the qualified
immunity issue and may seek summary judgment on all claims based on qualified
immunity. Therefore, the motion to dismiss the Section 1983 claims brought against
Individual Defendants is denied.

III. Illinois Whistleblower Act Claims Brought Against Individual Defendants
Defendants argue that Hower cannot pursue Illinois Whistleblower Act claims
against individuals. Hower asserts in this case that Individual Defendants violated
740 ILCS 174/15, which provides that “[a]n employer may not retaliate against an
employee. . . .” Id. While Individual Defendants are not the entity that employs
Hower, the Illinois Whistleblower Act defines the term “Employer” to include “an
individual, sole proprietorship, partnership, firm, corporation, association, and any
other entity that has one or more employees in this State,” and “any person acting
within the scope of his or her authority express or implied on behalf of those entities
in dealing with its employees.” 740 ILCS 174/5; see also Bello v. Vill. of Skokie,
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2014 WL 4344391, at *8-9 (N.D. Ill. 2014)(finding individual liability under Illinois
Whistleblower Act). In this case, Hower alleges that Individual Defendants were
acting within the scope of their authority when dealing with Hower as an employee.
Therefore, the motion to dismiss the Illinois Whistleblower Act claims brought
against Individual Defendants is denied.

CONCLUSION
Based on the foregoing analysis, Defendants’ motion to dismiss the Section
1983 claims against the Sheriff’s Office is granted, and the remainder of the motion
to dismiss is denied.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: February 16, 2016

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