Rinella v. City Of Chicago et al
Filing
34
MEMORANDUM Opinion and Order. Signed by the Honorable Andrea R. Wood on 12/14/2016. Mailed notice(lcw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH RINELLA,
Plaintiff,
v.
CITY OF CHICAGO and
CHARLES WAGNER,
Defendants.
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No. 16-cv-04088
Judge Andrea R. Wood
MEMORANDUM OPINION & ORDER
This case concerns allegations of various workplace hostilities in the City of Chicago’s
Bureau of Forestry. Plaintiff Joseph Rinella, a tree-trimmer employed by Defendant City of
Chicago (“City”), alleges that his supervisor, Defendant Charles Wagner, subjected him to verbal
and psychological abuse and improper employment-related retaliation. Accordingly, Rinella has
sued Wagner pursuant to 42 U.S.C. § 1983 for allegedly retaliating against him for exercising his
First Amendment rights and for violations of the Equal Protection Clause.1 Rinella also asserts
claims against the City and Wagner under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 (“Section 1981”). Rinella additionally alleges
that the City violated the consent decree it entered into in the litigation Shakman v. Democratic
Organization of Cook County, Case No. 69-cv-02145 (N.D. Ill.). Finally, Rinella brings Illinois
state law claims against the City for retaliation and against Wagner for intentional infliction of
emotional distress. Before the Court is Defendants’ motion to dismiss all of Rinella’s claims
under Federal Rule of Civil Procedure 12(b)(6). For reasons discussed below, the Court grants
1
Rinella has voluntarily dismissed Count II of his Complaint, which asserts a class-of-one claim under the
Equal Protection Clause. (Pl.’s Resp. at 10, Dkt. No. 19.) Therefore, the Court dismisses that claim without
further discussion.
Defendants’ motion in part and denies it in part.
BACKGROUND2
Plaintiff Joseph Rinella is a tree trimmer working in the City’s Department of Streets and
Sanitation, Bureau of Forestry (“Forestry”). (Compl. ¶¶ 8, 50, Dkt. No. 1.) Rinella has been with
Forestry since 1996 and for years worked under several supervisors without incident. (Id. ¶¶ 5,
11.) Then, in early 2014, Wagner became “General Superintendent” in Forestry, which was a
supervisory role over Rinella. (Id. ¶¶ 6, 12.) Since then, according to Rinella, “Wagner has been
verbally and psychologically abusive towards [him].” (Id. ¶ 14.) Specifically, Rinella alleges that
Wagner used profanity, engaged in “harassment and bullying,” “yelled, screamed, and cursed at
[Rinella],” and “threatened to send [Rinella] to Gary, Indiana.” (Id. ¶¶ 16–19, 21, 23–25.) Rinella
also claims that on several occasions Wagner called him a “rat,” complaining about the fact that
Rinella reported occurrences to his union. (Id. ¶ 16.)
On August 24, 2015, Rinella complained to the City’s Department of Human Resources
that Wagner had violated the City’s policy against violence in the workplace. (Id. ¶ 27.) The
Department of Human Resources informed him that it could not open an investigation because
Wagner’s conduct did not constitute violence in the workplace per the City’s policy. (Id. ¶ 28.)
On September 12, 2015, Rinella “submitted a grievance to [the City] concerning Wagner’s hostile
and abusive working environment.” (Id. ¶¶ 29–30.) In that grievance, Rinella stated that he “had
been harassed by Wagner due in large part to [his] affiliation with union Laborer’s Local 1001
and because of prior complaints regarding Wagner.” (Id. ¶ 30.) Rinella also noted that Wagner
had mistreated other employees and that the mistreatment had led two of the other employees to
retire early. (Id. ¶ 31.) This grievance was also denied by the City. (Id. ¶ 33.)
2
For the purposes of Defendants’ motion to dismiss, the Court takes the allegations in Rinella’s complaint
as true and draws all reasonable inferences in his favor. See, e.g., Apex Digital, Inc. v. Sears, Roebuck &
Co., 572 F.3d 440, 443–44 (7th Cir. 2009).
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Rinella alleges that he then suffered retaliation, specifically in the form of his failure to
obtain promotions within Forestry, due to his filing of these complaints. Beginning in September
2015, seven jobs—three supervisor positions and four training agent positions—opened up in
Forestry. (Id. ¶ 35.) The application process for the training agent positions consisted of three
parts: a written test, a hands-on test, and an interview. (Id. ¶ 39.) Rinella passed the written test
and the hands-on test, but he does not believe that he passed the verbal interview. (Id. ¶¶ 41–42.)
According to Rinella, Wagner had “effective” control over the hiring process and refused to hire
Rinella because of the complaints Rinella filed against Wagner and Rinella’s “political
affiliations.” (Id. ¶ 43.) Rinella further alleges that he should have been hired as a training agent
based on his qualifications and seniority. (Id. ¶ 51.)
In addition, Rinella states that the application process for the supervisor position was
composed of an essay question and an interview. (Id. ¶ 40.) But Rinella provides no detail about
his application for the supervisor positions; indeed, he does not even allege that he actually
applied for these positions. He does allege, however, that Wagner picked friends for these
supervisor roles over more qualified individuals. (Id. ¶ 74.)
DISCUSSION
Federal Rule of Civil Procedure 8(a) requires that a complaint contain a short plain
statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a). To
survive a Rule 12(b)(6) motion, the short plain statement must overcome two hurdles. First, the
complaint’s factual allegations must be enough to give the defendant fair notice of the claim and
the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Second,
the complaint must contain sufficient allegations based on more than speculation to state a claim
for relief that is plausible on its face. Id. This pleading standard does not necessarily require a
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complaint to contain “detailed factual allegations.” Id. (citing Sanjuan v. Am. Bd. of Psychiatry
and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)). Rather, “[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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
As mentioned above, Rinella brings claims for First Amendment retaliation against
Wagner (Count I); violations of the Shakman consent decree against Wagner and the City (Count
III); and unlawful retaliation under Title VII and Section 1981 against Wagner and the City
(Counts IV and V, respectively). Rinella also brings Illinois state law claims for unlawful
retaliation under the Illinois Whistleblower Act, 740 ILCS 174/10, against the City (Count VI);
intentional infliction of emotional distress against Wagner (Count VII); and indemnity and
respondeat superior liability against the City (Counts VIII and IX, respectively). The Court
addresses these claims in turn.
I.
First Amendment Retaliation Claim
The First Amendment protects freedom of speech and expressive conduct, and generally
prevents the government from proscribing such activities. RAV v. City of St. Paul, Minn., 505 U.S.
377, 382 (1992). “The Supreme Court has made clear that public employees do not surrender all
of their First Amendment rights by reason of their employment. Rather, the First Amendment
protects a public employee’s right, in certain circumstances, to speak as a citizen addressing
matters of public concern.” Morales v. Jones, 494 F.3d 590, 595 (7th Cir. 2007). “In such
circumstances, an employer may not retaliate against an employee for engaging in protected
speech.” Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 509 (7th Cir. 2007). To prevail on a claim
of retaliation under the First Amendment, a plaintiff must establish that: (1) she engaged in a
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protected activity; (2) she suffered a deprivation likely to prevent future protected activities; and
(3) there was a causal connection between the two. See Watkins v. Kasper, 599 F.3d 791, 794 (7th
Cir. 2010).
Defendants here contend that Rinella’s claim must be dismissed because he did not engage
in any activity protected by the First Amendment. To show that his public-employee speech is
protected, “the employee must establish that [he] spoke as a citizen on a matter of public
concern.” Kubiak v. City of Chicago, 810 F.3d 476, 481 (7th Cir. 2016) (citing Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006)). “[T]he threshold inquiry is whether the employee was
speaking as a citizen; only then do we inquire into the content of the speech [to determine if the
speech related to a matter of public concern].” Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007)
(citation omitted). “[P]ublic employees speaking ‘pursuant to their official duties’ are speaking as
employees, not citizens, and thus are not protected by the First Amendment regardless of the
content of their speech.” Id. (citing Garcetti, 547 U.S. at 410). “The Supreme Court has defined
‘public concern’ to mean ‘legitimate news interest,’ or ‘a subject of general interest and of value
and concern to the public at the time of publication.’” Kubiak, 810 F.3d at 482–83 (internal
citations omitted). “Whether an employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement . . . .” Id. at 483 (citing Connick
v. Myers, 461 U.S. 138, 147–48 (1983)).
Defendants argue that Rinella’s speech was not protected by the First Amendment because
he was speaking in his capacity as a public employee and not a private citizen. But Rinella alleges
that one of the reasons Wagner harassed him and refused to promote him was due to his affiliation
with his union and participation in union activities. (Compl. ¶¶ 16, 30, 75, Dkt. No. 1.) In
particular, Rinella claims that Wagner frequently and derogatorily voiced his objection to the fact
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that Rinella reported to his union what was going on at Forestry. (Id. ¶ 16.) When Rinella was
communicating with his union about his workplace, he was speaking as a private citizen. Swetlik
v. Crawford, 738 F.3d 818, 826 (7th Cir. 2013) (holding that statements “made in [] capacity as a
union member” are not part of official duties and thus made in capacity as private citizen); see
also Shefcik v. Vill. of Calumet Park, 532 F. Supp. 2d 965, 974 (N.D. Ill. 2007) (holding that
officer speaking as union representative “is speaking as a citizen, not as an employee”); Nagle v.
Vill. of Calumet Park, 554 F.3d 1106, 1123 (7th Cir. 2009) (same).
Defendants also contend that Rinella’s speech did not touch a matter of public concern
because it amounted to nothing more than personal grievances intended only to benefit Rinella
himself. With this argument, Defendants address Rinella’s grievances and complaints to the City
but they do not address his communications with his union. To be sure, the Complaint does not
elucidate what exactly Rinella told his union. However, the Complaint does indicate that Rinella
reported “everything” to his union. (Compl. ¶ 16, Dkt. No. 1.) Moreover, the Complaint explicitly
alleges, inter alia, that Rinella complained to the City that Wagner was promoting unqualified
family friends at the expense of others, that Rinella was being retaliated against because of his
union membership, and about Wagner’s severe verbal abuse of other employees. (Id. ¶¶ 48, 49,
74; id. ¶¶ 16, 30, 75; id. ¶¶ 16, 75; id. ¶ 31.)
Inferring that Rinella also conveyed these grievances to his union, his speech arguably
touched issues of public concern. Nepotism in government hiring clearly addresses an issue of
public concern. Brooks v. Univ. of Wisc. Bd. of Regents, 406 F.3d 476, 479 (7th Cir. 2005)
(holding that government corruption is a quintessential matter of public concern). So too does
Rinella’s reporting that he—a government employee—was suffering adverse employment
consequences for his membership with the union, as that would be “of general interest and of
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value and concern to the public.” Kubiak, 810 F.3d at 482–83; see also Shub v. Westchester Cmty.
College, 556 F. Supp. 2d 227, 246 (S.D.N.Y. 2008) (“Retaliation against public employees solely
for their union activities violates the First Amendment.”); Donovan v. Inc. Vill. of Malverne, 547
F. Supp. 2d 210, 218 (E.D.N.Y. 2008) (stating that union membership, in and of itself, satisfies
the public concern requirement). And although reporting singular instances of abuse in the
workplace may not touch an issue of public concern, reporting systemic abuses can be of public
concern. Thus, drawing all reasonable inferences in Rinella’s favor, the Complaint plausibly states
a claim for First Amendment retaliation on the theory that Rinella was retaliated against for his
communications with his union and that those communications touched on matters of public
concern.
II.
Shakman Consent Decree Violation
Rinella also claims that the City3 violated the Shakman consent decree by wrongfully
denying him promotions to the “training agent” and “forest supervisor” positions. As Rinella
recognizes, the City was dismissed from the Shakman litigation in June 2014. (Order, Dkt. No.
3861, Shakman, et al. v. Democratic Org. of Cook County, et al., Case No. 69-cv-02145 (N.D.
Ill.) (“Shakman Dismissal”).) However, the Shakman Dismissal contains the following carve out:
Notwithstanding anything set forth herein, the rights and remedies set forth in
Section IV of the Accord shall apply to City employees who participated in the
Department of Streets and Sanitation, Bureau of Forestry hiring sequences of the
Forestry Supervisor positions that have been rescinded and are in the process of
being redone. Any such employee may submit an Accord Complaint or file suit to
enforce the Accord within 180 days of the date the City provides such employee
written notice of its final decision.
(Shakman Dismissal ¶ 9 (emphasis added).)
3
Insofar as Rinella purports to bring a claim against Wagner under the Shakman consent decree, his claim
is dismissed. Wagner was not a party to that consent decree and cannot be held personally liable for
alleged violations of the decree. Hernandez v. O’Malley, 98 F.3d 293, 294 (7th Cir. 1996); Plotkin v. Ryan,
1999 WL 965718, at *7 (N.D. Ill. Sept. 29, 1999).
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Under the Shakman Dismissal, Rinella’s claim based on his application for a training
agent position fails, as the City has been dismissed from the Shakman consent decree with respect
to that job title. Rinella nonetheless argues that the training agent position is actually a variety of
the forest supervisor position discussed in the carve-out. He further contends that even if he is
ultimately mistaken in that argument, it is a fact question inappropriate for resolution at this stage
of the litigation. The Court disagrees. First, the interpretation of a district court’s order is a
question of law for this Court. See, e.g., Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565,
572 (6th Cir. 2008) (“The interpretation of a district court’s order is a question of law . . . .”).
Substantively, the Shakman Dismissal specifically identifies the positions subject to the carve-out
as “Forestry Supervisor positions.”4 Rinella’s own Complaint indicates that the training agent
position was a separate and distinct position from the forestry supervisor position. (See, e.g.,
Compl. ¶¶ 35, 38, 39, 40 (stating that Forestry had two types of openings, for forestry supervisor
as opposed to training agent, and describing their different hiring procedures).) Thus, applying the
plain reading of the Shakman Dismissal to Rinella’s own allegations, the carve-out does not apply
to the training agent position, and Rinella’s claim relating to his application to the training agent
position fails.
Rinella’s claim based on the denial of his forest supervisor application also fails but for a
different reason: his allegations do not plausibly state that he was denied the position due to his
political affiliations. Indeed, Rinella does not even allege that he applied for the Forestry
Supervisor position. Even if he did, his Complaint merely states that Wagner improperly favored
his friends for these positions—which is not the same as favor based on political affiliation. Thus,
Rinella’s claims arising under the Shakman consent decree are dismissed.
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Notably, it is not enough that Rinella was applying for a “Forestry Supervisor” position—he needs to
have applied to a Forestry Supervisor position that was “rescinded and [] in the process of being redone.”
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III.
Title VII and Section 1981 Retaliation Claims
Rinella also asserts retaliation claims under Title VII and Section 1981. Title VII prohibits
discrimination based on an “individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e–2(a)(1). “Section 1981 applies to allegations of discrimination based on race . . . .”
Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 756 (7th Cir. 2006), as amended on denial of reh’g
(May 25, 2006). Rinella has not alleged that he, himself, was discriminated against based on any
of the protected grounds. Rather, Rinella argues that he was retaliated against because he opposed
Title VII and Section 1981 violations perpetuated against himself and others.
Title VII relevantly states:
It shall be an unlawful employment practice for an employer to discriminate
against any of his employees or applicants . . . [or] any individual, because he has
opposed any practice made an unlawful employment practice by this
subchapter . . . or because he has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e–3 (emphasis added). Section 1981 similarly prohibits “retaliation for opposing
discriminatory practices that [Section 1981] proscribe[s].” O’Leary v. Accretive Health, Inc., 657
F.3d 625, 630 (7th Cir. 2011) (citing CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2008)).
Thus, to proceed under a retaliation theory, Rinella must allege that he opposed an employment
practice prohibited by Title VII or Section 1981. He has not done so. He only alleges that he
reported Wagner’s conduct in severely berating him and other employees, without any indication
that the abuse was based on any of the protected grounds of race, color, religion, sex, or national
origin. Even if Wagner’s behavior was wrongful, that alone is not enough to state a claim under
Title VII or Section 1981.
Rinella protests that he believed Wagner’s conduct was wrongful under Title VII and
Section 1981 and that is enough to support his retaliation claim. Again he is mistaken, and the
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cases he cites do not support his position. Both Fine v. Ryan International Airlines, 305 F.3d 746
(7th Cir. 2002), and Berg v. LaCrosse Cooler Co., 612 F.2d 1041 (7th Cir. 1980), stand for the
proposition that if a complainant reasonably believed they were opposing a Title VII (or, by
analogy, a Section 1981) violation, then they cannot be retaliated against for such opposition.
In Fine, the Seventh Circuit found that a complainant could proceed on her Title VII
retaliation claim, even though the underlying conduct that was the subject of her complaint did
not in fact violate Title VII. 305 F.3d at 752. There, the plaintiff filed a Title VII suit against her
employer alleging sexual harassment, sex discrimination, and retaliation based on her
participation in opposing the alleged harassment and discrimination. Id. at 751. The district court
granted the employer summary judgment on the first two claims, finding that the sexual
harassment claims were time-barred and that the employee had failed to adduce evidence
sufficient to sustain the sex discrimination claims. Id. But the court nonetheless denied summary
judgment on the retaliation claim; that claim proceeded to trial where a jury returned a verdict in
the plaintiff’s favor. Id. The employer appealed the denial of summary judgment on the retaliation
claim, arguing that, in light of the district court’s grant of summary judgment on the underlying
harassment and discrimination claims, the plaintiff could not have held a reasonable belief that the
complained-of conduct violated Title VII. Id. The Seventh Circuit rejected this argument. Id. at
752. Detailing the robust factual basis on which the plaintiff brought her claim, the Seventh
Circuit concluded that, although ultimately unsuccessful, she could reasonably have believed that
her employer was engaging in unlawful sex discrimination. Id.
In Berg, the Seventh Circuit held that a complainant could proceed on a Title VII
retaliation claim, even if her Title VII claim based on the discrimination about which she
complained failed as a matter of law. 612 F.2d at 1043. In that case, the plaintiff opposed the
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discrimination of her coworker based on the coworker’s pregnancy and was subsequently
discharged for that opposition. Id. at 1041–42. The plaintiff filed suit against her employer,
principally arguing that, because discrimination on account of pregnancy is a type of sex
discrimination, she was unlawfully retaliated against for opposing discrimination that violated
Title VII. Id. at 1042. Subsequent to the plaintiff filing her suit, the Supreme Court in General
Electric Co. v. Gilbert, 429 U.S. 125, 145–46 (1976), rejected the determination of the Equal
Employment Opportunity Commission and numerous lower courts to hold that discrimination on
the basis of pregnancy and maternity did not violate Title VII.5 Id. at 1043. In light of the
Supreme Court’s holding, the district court granted summary judgment to the employer on the
retaliation claim, reasoning that the employer’s conduct in discriminating against an employee
based on her pregnancy could not have constituted unlawful discrimination and so the plaintiff
could not have been opposing unlawful discrimination. Id. at 1045. The Seventh Circuit
disagreed, stating that a retaliatory discharge based on a plaintiff’s opposition to conduct that she
reasonably believed to violate Title VII is prohibited, even if as a legal matter there was no Title
VII violation. Id. Given that the weight of the authority when the plaintiff opposed the
discrimination against her coworker supported the position that discrimination based on
pregnancy violated Title VII, the Seventh Circuit concluded that the plaintiff could have
reasonably believed she was opposing a Title VII violation, in which case she should be protected
from retaliation. Id. Thus, the Seventh Circuit reversed the district court’s grant of summary
judgment and allowed the plaintiff’s claim to proceed. Id.
The lessons from Fine and Berg do not save Rinella’s claim. He has not plausibly alleged
that he reasonably believed that there were Title VII or Section 1981 violations afoot at his
5
Afterwards, Congress amended Title VII, effective October 31, 1978, to provide expressly that Title VII
sex discrimination includes discrimination “because of or on the basis of pregnancy, childbirth, or related
medical conditions.” 42 U.S.C. § 2000e(k).
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workplace. Unlike in Fine, Rinella has presented no factual basis at all to support that anyone was
discriminated against on one of the statutorily-protected grounds (i.e., race, color, religion, sex, or
national origin). And, unlike in Berg, Rinella’s purported belief that his employer’s abusive
conduct violated Title VII or Section 1981—even though the conduct had no apparent basis in the
targeted employees’ race, color, religion, sex, or national original—was simply not reasonable
under any interpretation of the law. The text of the statutes and the case law clearly set forth that
to proceed on a Title VII or Section 1981 claim the alleged discrimination must be on the basis of
a statutorily-protected ground. See, e.g., Jennings v. Sallie Mae, Inc., 358 F. App’x 719, 721 (7th
Cir. 2009) (stating that dismissal of Title VII and Section 1981 claims is proper when complaint
fails to allege discrimination on basis of protected grounds). Thus, Rinella’s Title VII and Section
1981 claims are dismissed.
IV.
Illinois State Law Claims
Defendants do not raise any substantive arguments for the dismissal of Rinella’s Illinois
state law claims. Instead, they argue simply that because the federal claims should be dismissed,
the Court should not exercise supplemental jurisdiction over the Illinois state law claims. (Defs.’
Memo. in Supp. Mot. to Dismiss at 15, Dkt. No. 14.) As the Court has denied Defendants’ motion
to dismiss as to the federal law claim in Count I, however, the Court will exercise supplemental
jurisdiction over Rinella’s state law claims and therefore denies Defendants’ motion to dismiss in
this regard. See 28 U.S.C. § 1367(a).
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss (Dkt. No. 13) is granted in part
and denied in part. The Court grants the motion with respect to Counts II, III, IV, and V of the
Complaint, but denies the motion with respect to Counts I, VI, VII, VIII, and IX. The dismissals
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are without prejudice. Rinella may amend his Complaint, if he can do so consistently with the
requirements of Federal Rule of Civil Procedure 11.
ENTERED:
Dated: December 14, 2016
__________________________
Andrea R. Wood
United States District Judge
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