Flores et al v. Norwood et al
Filing
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OPINION AND ORDER. Signed by the Honorable Sara L. Ellis on 1/4/2017:Mailed notice(rj, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALMA C. FLORES,
Plaintiff,
v.
FELICIA F. NORWOOD, Individually and as
Director of the Illinois Department of Healthcare
And Family Services, CLINT CALDWELL,
Individually and as Labor Relations Specialist
at Illinois Department of Healthcare
and Family Services, STATE OF ILLINOIS
DEPARTMENT OF HEALTHCARE AND
FAMILY SERVICES, STATE OF ILLINOIS
DEPARTMENT OF CENTRAL
MANAGEMENT SERVICES, and
DOES 1 through 10,
Defendants.
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No. 16 C 2877
Judge Sara L. Ellis
OPINION AND ORDER
Having received a 30-day unpaid suspension, Plaintiff Alma Flores, a current employee
of the Illinois Department of Healthcare and Family Services (“HFS”), brings this suit against
Felicia Norwood, individually and as the Director of HFS, Clint Caldwell, individually and as
the Labor Relations Specialist at HFS, HFS, the Illinois Department of Central Management
Services (“CMS”), and ten unnamed “Doe” defendants (collectively “Defendants”). Flores
alleges that Defendants suspended her in violation of her First and Fourteenth Amendment rights
and seeks monetary damages and injunctive relief against Defendants under 42 U.S.C. §§ 1983
and 1985(3). Defendants move to dismiss [20] all claims, arguing that Flores does not allege the
personal involvement of Caldwell and Norwood (collectively, the “Individual Defendants”)
sufficient to support a claim for monetary damages against them under § 1983, that the Eleventh
Amendment bars her claims for injunctive relief against the Individual Defendants in their
official capacities because she is not seeking prospective relief to remedy an ongoing harm, and
that as state agencies, HFS and CMS are not suable under § 1983. Because Flores has not
adequately alleged the involvement of the Individual Defendants, she has not pleaded an ongoing
harm that can be remedied by prospective injunctive relief, and the state agencies are not
“persons” suable under § 1983, the Court grants the motion to dismiss.
BACKGROUND 1
Flores is an employee of HFS, where she works as a Child Support Specialist II Spanish
Speaking within the Department of Child Support Enforcement. Flores has worked for the State
of Illinois for over 21 years. Flores was an active member of her union until sometime in late
2015. As an active member, she attended meetings, organized union rallies, motivated union
members, educated members about the Union Agreement, and engaged in numerous other union
activities.
In 2011, the Office of the Executive Inspector General (“OEIG”) initiated an
investigation into a scheme to fraudulently obtain cash and food stamp assistance (“SNAP
benefits”) from HFS. Between 2011 and early 2015, OEIG interviewed numerous individuals,
including Flores on three separate occasions, regarding this scheme. OEIG closed its
investigation and issued its final report (“Final Report”) on January 30, 2015. The Final Report
did not include any findings that Flores participated in the SNAP benefits scheme, but it stated
that Flores admitted to accessing confidential department files. Flores did not receive
notification that OEIG issued the Final Report.
1
The facts in the background section are taken from Flores’ Amended Complaint and are presumed true
for the purpose of resolving Defendants’ motion to dismiss. 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).
2
On July 20, 2015, HFS held a pre-disciplinary meeting with Flores regarding the findings
in the Final Report. Tracy Manuel, Regional Manager for HFS, conducted the meeting and
Sylvia Salas, a Union Steward, was also present. Following the meeting, Flores and Salas filed a
written response to the pre-disciplinary meeting in a timely fashion. On July 28, 2015, Caldwell
contacted Salas and informed her of an offer for a five-day suspension for Flores. Caldwell
again contacted Salas on July 29, 2015, repeating the offer. Salas again requested a copy of the
Final Report.
On August 25, 2015, Flores learned that she needed to attend a “reconvened predisciplinary meeting” with Manuel on August 27, 2015. At this meeting, Flores and Salas
learned that they needed to submit a response to the reconvened meeting by September 3, 2015
and that the forty-five day clock for discipline under Flores’ Union Agreement would begin to
run. The forty-five day clock is a requirement of the Union Agreement, which requires that any
discipline must commence within forty-five days of the completion of the pre-disciplinary
hearing. The Union Agreement does not provide for a reconvened pre-disciplinary meeting, and
in her written response Flores objected to the validity of the reconvened pre-disciplinary
meeting.
On September 8, 2015, Warren Cottrell delivered a 30-day 2 unpaid suspension pursuant
to a “Personnel/Position Action Form and Statement of Discipline,” signed by Norwood or her
agent. Between the time of the initial pre-disciplinary meeting, after which she was offered a 5day suspension, and September 8, Flores did not have any additional work performance related
issues. Flores alleges that the motivating factor for increasing the suspension from the 5-day
offer to the 30-day suspension ultimately imposed was that Defendants discovered Flores’ union
2
The amended complaint uses 29 days and 30 days at different points. The exact number of days is not
material for purposes of the motion, therefore the Court uses 30 days for consistency.
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activities. Flores alleges that her suspension was more severe than other employees who
engaged in more flagrant rules violations because of her union activities. Flores’ suspension
began on September 9, 2015. She served her entire suspension. Flores’ suspension was
subsequently reduced to 18 days and she was repaid her lost wages for the reduced portion of the
suspension.
On September 8, 2015, Defendants published the Amended Final Report on the internet.
The Amended Final Report included Flores’ name and embarrassed her. Flores alleges that
Defendants published the report to harm her reputation.
LEGAL STANDARD
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 wellpleaded 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.
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ANALYSIS
I.
Individual Capacity Claims
Flores seeks monetary damages against the Individual Defendants, in their individual
capacities, for their roles in her suspension, which she alleges was imposed in violation of her
First and Fourteenth Amendment rights. Defendants move to dismiss all individual capacity
claims against the Individual Defendants, arguing that Flores has not adequately alleged their
personal involvement in her suspension.
Flores alleges that she was given a 30-day suspension in a manner that violated her union
contract and her constitutional rights. Specifically she alleges that her suspension was longer
than it otherwise might have been because she is an active member of her union and that this
violates her First Amendment Rights. She also argues that her suspension was issued in
violation of her right to procedural due process. It is unclear which part of the process she
alleges was constitutionally defective, and Flores does not argue what additional process she was
due, but the Court assumes for purposes of this motion that Flores is arguing that her reconvened
pre-disciplinary hearing is the source of this violation. Flores also alleges that Defendants
violated her substantive due process rights by suspending her and doing so in a manner that
shocks the conscience. Finally, Flores argues that Defendants violated her right to equal
protection because the decision to hold the reconvened pre-disciplinary meeting and to
subsequently suspend her for 30 days was an irrational or malicious application of the law
directed at her because of her status as an active union member.
In order for an individual to be liable under § 1983, he or she must have been personally
involved in the alleged constitutional violation. See Hildebrandt v. Ill. Dep’t of Natural Res.,
347 F.3d 1014, 1039 (7th Cir. 2003). A defendant may be personally liable “if the conduct
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causing the constitutional deprivation occurs at [his] direction or with [his] knowledge and
consent. That is, he must know about the conduct and facilitate it, approve it, condone it, or turn
a blind eye.” Id. (alteration in original) (quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995)). Therefore, for Caldwell or Norwood to be liable in their personal capacities, Flores must
plead sufficient facts to plausibly show that the Individual Defendants engaged in the offending
conduct or at a minimum knew about it and consented to it. Hildebrandt, 347 F.3d at 1039.
With respect to Caldwell, Flores alleges that he contacted Salas, Flores’ Union Steward, via
email on two occasions—July 28 and 29, 2015—to notify Salas of a five-day suspension offer
for Flores. These are the only allegations with respect to Caldwell, and they in no way indicate
his role in the decision to suspend Flores for 30 days. Flores does not allege that Caldwell was
aware of her union activities, that he was involved in her investigation or the drafting of the Final
Report, or that he had any role in the reconvened pre-disciplinary hearing. In fact, the
allegations against Caldwell all take place in July, shortly after the initial pre-disciplinary hearing
and more than a month before the reconvened pre-disciplinary hearing and Flores’ suspension.
There is no indication that Caldwell had an ongoing role in this process. Flores does not plead
any facts that establish a causal connection between the actions about which she complains (her
30-day suspension) and Caldwell’s two emails. Therefore, the Court dismisses the individual
capacity claims against Caldwell.
With respect to Norwood, Flores alleges that Norwood or her agent executed the
“Personnel/Position Action Form” attached to the amended complaint as Exhibit B. The mere
fact that Norwood, the Director of NFS, signed a disciplinary form is insufficient to support the
inference that she was aware that some other unnamed employees of her department were
violating Flores’ constitutional rights. Norwood is not liable simply because she may have been
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the supervisor over those who violated Flores’ rights. McKinnon v. City of Berwyn, 750 F.2d
1383, 1390 (7th Cir. 1984) (respondeat superior is not applicable to § 1983 claims). The sole
allegation against Norwood is insufficient to show that she was involved in or knew about the
alleged unconstitutional activity. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (“Only
persons who cause or participate in the violations are responsible.”). There is no indication that
Norwood knew about the reconvened pre-termination meeting, participated in the decision to
suspend Flores, or otherwise engaged in illegal activity. Therefore, Flores has alleged
insufficient facts to state a claim against Norwood in her individual capacity and the Court
dismisses those claims.
II.
Official Capacity Claims
Flores seeks injunctive relief against the Individual Defendants in their official
capacities. 3 The Eleventh Amendment bars federal jurisdiction over claims against state officials
in their official capacity. MCI Telecomms. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 336–37 (7th
Cir. 2000). The immunity is not absolute and does not extend to claims to enjoin a state officer
in his or her official capacity from engaging in prospective action that will violate federal law.
Brown, 398 F.3d at 917 (citing Ex Parte Young, 209 U.S. 123, 159–60, 28 S. Ct. 441, 52 L. Ed.
714 (1908)). To determine whether or not a complaint avoids the Eleventh Amendment bar, the
Court needs to determine whether the “complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of
Md., 535 U.S. 635, 645, 122 S. Ct. 1753, 1760, 152 L. Ed. 2d 871 (2002).
3
In her response to the Motion to Dismiss, Flores appears to concede that she is only seeking injunctive
relief, not monetary damages, against the Individual Defendants in their official capacities. This
comports with settled law in this area, which states that monetary damages under § 1983 are only
available on individual capacity claims. Brown v. Budz, 398 F.3d 904, 918 (7th Cir. 2005) (Eleventh
Amendment bars official capacity claims for monetary damages).
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The first question the Court must answer is whether Flores alleges an ongoing violation
of federal law. Flores alleges that she was suspended for thirty days pursuant to a defective
process and that the suspension was retaliation for her union activities. Additionally, she alleges
that the manner in which Defendants imposed the suspension violated her right to equal
protection under the Fourteenth Amendment. Flores has already served this suspension,
however, and she is no longer an active union member. Flores also does not allege that the
disciplinary proceedings related to the suspension are ongoing or that she is party to any other
disciplinary proceedings. Thus, even if the alleged conduct violated her constitutional rights, the
amended complaint does not allege that this or any other violation of federal law is ongoing;
therefore, the Eleventh Amendment bars the relief she seeks. See Graham v. Ill. Dep’t of
Juvenile Justice, 500 F. App’x 534, 535 (7th Cir. 2013) (claims against state employees in their
official capacity barred where plaintiff did not allege an ongoing violation of federal law);
Sonnleitner v. York, 304 F.3d 704, 718 (7th Cir. 2002) (claim for prospective relief barred where
underlying procedural due process claim “cannot be reasonably construed as ‘ongoing’”).
The fact that some of the injunctive relief Flores seeks is aimed at preventing Defendants
from engaging in violating acts in the future does not save her complaint. The existence of an
ongoing violation of federal law is a prerequisite to invoking the exception to the Eleventh
Amendment found in Ex Parte Young. Verizon Md., 535 U.S. at 645. Therefore, the Court
dismisses the claims with respect to the Individual Defendants in their official capacities.
III.
State Agency Defendants
Flores also seeks injunctive relief against HFS and CMS, state agencies. As state
agencies, they are, for purposes of the Eleventh Amendment, considered the state. Kroll v. Bd. of
Trustees of Univ. of Illinois, 934 F.2d 904, 907 (7th Cir. 1991). A state agency with Eleventh
8
Amendment immunity is not a “person” that can be sued under § 1983. See id. at 910 n.7;
Omegbu v. Milwaukee Cty., 326 F. App’x 940, 942 (7th Cir. 2009) (citing Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 64, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)). Flores contends that
this is a misreading of Will and cites Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 364, 116 L. Ed.
2d 301 (1991), in support. But Hafer does not address the issue of whether a state is a person for
purposes of § 1983 at all. It deals with whether the Eleventh Amendment bars claims for
monetary damages against state officials in their individual capacities. Id. at 30–31. States are
not “persons” for purposes of § 1983, therefore, the Court dismisses Flores’ claims with respect
to CMS and HFS with prejudice.
CONCLUSION
For the foregoing reasons, the Court grants Defendants’ motion to dismiss [20]. The
Court dismisses the claims against the Individual Defendants without prejudice and dismisses the
claims against DFS and CMS with prejudice.
Dated: January 4, 2017
________________________
SARA L. ELLIS
United States District Judge
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