Schloss v. City of Chicago

Filing 47

MEMORANDUM Opinion and Order: Defendants' motion to dismiss 20 is denied. Status hearing held on 10/4/2018. Written discovery is to issue by 10/15/2018. Status hearing set for 12/4/2018 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 10/4/2018:Mailed notice(srn, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MAUREEN BRESNAHAN,
Plaintiff,
v.
CITY OF CHICAGO, a municipal
corporation, and SGT. JAMES EGAN, in
his individual capacity,
Defendants.
And
ALLISON SCHLOSS,
Plaintiff,
v.
CITY OF CHICAGO, a municipal
corporation, and DEPUTY CHIEF
STEVE E. GEORGAS, SGT.
FREDERICK HARNISH, SGT.
KAROLY HADJU,
ANGEL ROMERO, and
ROBERT FITZSIMMONS, in
their individual capacities,
Defendants.

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Case No. 18-cv-1974

Case No. 18-cv-1880
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiffs Allison Schloss and Maureen Bresnahan brought two separate
actions both alleging sex discrimination against the City of Chicago and various City
of Chicago Police Department (“CPD”) employees. Plaintiffs challenge the CPD’s
alleged pattern and practice of sex discrimination against women applying for

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promotion to and employed in prestigious units within the CPD. Schloss v. City of
Chicago et al., No. 18-cv-1880 (“Schloss”), R. 16 ¶ 2; Bresnahan v. City of Chicago et
al., No. 18-cv-1974 (“Bresnahan”), R. 15 ¶ 2.
Schloss brings her action against defendants City of Chicago and CPD current
and former employees Steve Georgas, Frederick Harnish, Karoly Hadju, Angel
Romero, and Robert Fitzsimmons in their individual capacities (collectively, the
“Schloss defendants”). Schloss brings the following claims: sex discrimination in
violation of Title VII of the Civil Rights Act of 1964 against the City of Chicago
(Counts I, II, and III); the Equal Protection Act under 42 U.S.C. § 1983 against the
City of Chicago (“Monell claim”) (Count IV); the Equal Protection Act against
defendant Georgas (Count V); the Equal Protection Act as a result of a civil conspiracy
by the individual defendants (Count VI); the Illinois Civil Rights Act against the City
of Chicago (Count VII); and the Illinois Whistleblower Act against the City of Chicago
(Count VIII).
Bresnahan brings her action against defendants City of Chicago and CPD
employee James Egan in his individual capacity (collectively the “Bresnahan
defendants”). Bresnahan alleges sex discrimination in violation of Title VII against
the City of Chicago (Count I); violation of the Equal Protection Act against the City
of Chicago (“Monell claim”) (Count II); violation of the Equal Protection Act against
defendant Egan (Count III); and violation of the Illinois Civil Rights Act against the
City of Chicago (Count IV).

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The defendants in both cases have filed motions to dismiss. Specifically, the
Schloss defendants have moved to dismiss Counts IV, VI, and VIII of Schloss’s
amended complaint. 1 Schloss, R. 20. The Bresnahan defendants have moved to
dismiss Counts II and IV of Bresnahan’s complaint. Bresnahan, R. 31. Plaintiffs filed
a consolidated response in opposition to the motions to dismiss. Because many of the
facts and issues overlap, the Court will address both motions to dismiss in this
opinion. For the reasons explained below, both motions are denied.
LEGAL STANDARD
A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.
Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must
provide “a short and plain statement of the claim showing that the pleader is entitled
to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of
the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
This standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed
factual allegations” are not required, “labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
The complaint must “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual

The defendants originally moved to dismiss Count V as well, but withdrew that
motion during reply. See R. 45 at 1 n.1.
1

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content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d
362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws all reasonable inferences
in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).
BACKGROUND
A. Allison Schloss
Lieutenant Allison Schloss has been a CPD officer since March 1990. Schloss,
R. 16 ¶ 27. In May 2014, Schloss was promoted to commanding officer of the Marine
and Helicopter Units of the CPD Special Functions Division. Id. ¶ 4. She alleges she
was the first, and only, female commanding offer of the units. Id. ¶ 37. The Marine
and Helicopter Units are located within the Special Functions Division of the CPD.
That division includes the Marine and Helicopter Units, the Bomb Squad, the Special
Weapons and Tactics (“SWAT”) Team, and other high-profile operations. Id. ¶ 5.
Schloss alleges a history of harassment and discrimination against women by
Steve Georgas, Deputy Chief of the Special Functions Division. Id. Schloss explains
that under Georgas’s command, the number of women employed in the division was
abysmal, consisting of no more than ten women in the entire division of about 175
people. Id. ¶¶ 6-7. Georgas’s gender discrimination affected Schloss on a day to day
basis as well. Georgas constantly blamed Schloss for problems that were outside of
her control, demanded she write (and unnecessarily re-write) reports explaining
alleged faults or problems outside the scope of her responsibility, denied her approval

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to attend training that he approved for male officers, undermined her authority with
her subordinates, and disciplined her for following CPD policy. Id. ¶¶ 40-54.
In May 2016, Georgas’s discrimination reached its peak. Schloss alleges that
around May 9, 2016, she presented to Captain Marianovich her projections for the
number of officers needed in the Marine and Helicopter Units to adequately staff the
2016 boating season. Id. ¶ 55. Those projections reflected that the units did not have
a sufficient number of trained officers in the event of an emergency. Id. Despite these
numbers, Schloss was not given any additional resources and was told not to allow
officers to work overtime.
On the Sunday of Memorial Day Weekend, a boater was reported missing. Id.
¶ 59. Schloss was not scheduled to be on duty that weekend, but Schloss responded
to the report and took charge of the search regardless. Id. Unfortunately, the boater
drowned. Id. Following the incident, on May 31, 2016, Georgas removed Schloss from
her command of the Marine Unit, citing the drowning as the purported basis for his
action. Id. ¶ 61. Georgas did not discipline the male sergeant who was on duty when
the boater drowned. Id.
On June 7, 2016, Schloss filed an internal workplace discrimination complaint
with the Office of Legal Affairs, claiming that she had been subjected to unlawful sex
discrimination by Georgas through her removal. Id. ¶ 65. The same day that Schloss
filed an internal complaint, she alleges that Georgas conducted a meeting of Marine
Unit supervisors, which included individual defendants Fitzsimmons, Harnish,
Romero, and Hadju. Id. ¶ 66. Schloss alleges that in that meeting, the defendants

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conspired to file a sexual harassment complaint against her. Id. ¶ 68. Following the
meeting on June 7, 2016, Fitzsimmons, Harnish, Romero, and Hadju filed a sexual
harassment complaint against Schloss, alleging that she touched an officer’s arm
without his consent. Id. ¶ 70. On June 8, 2016, Schloss was formally removed from
her command of the Helicopter Unit and transferred to the Major Accident
Investigation Unit. Id. ¶ 72.
B. Maureen Bresnahan
Maureen Bresnahan is a detective for the CPD. Bresnahan, R. 15 ¶ 4. In
February 2015, she applied for a promotion to the position of Explosives Technician
I on the Bomb Squad. Id. The Bomb Squad is one of the prestigious units in the
Special Functions Division. When Bresnahan applied for the promotion, Georgas
oversaw the Special Functions Division as deputy chief. Id. ¶ 5.
During the application process, Bresnahan obtained the top score along with
two male candidates on the written MultiCraft Aptitude Test. Id. ¶ 9. This test was
used to evaluate a candidate’s mechanical and electrical aptitude. Id. Ex. A. Sgt.
James Egan, the commanding officer of the Bomb Squad and its hiring manager,
described the other two top candidates as follows. The first, Candidate 53, was
assigned to News Affairs. His “typical day at work” involved “coffee, news clips, [and]
media inquiries.” Id. ¶ 13, Ex. B at 1. Candidate 53 had not worked on the street since
2009. Id. Notably, in response to a question asking him about his ability to make
quick decisions, Candidate 53 described his arrest for domestic violence. Id. ¶ 14.

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The other top candidate, Candidate 62, had “little experience” but had done his
“homework.” Id. ¶ 17. Egan noted he “demonstrates some of the competency” on the
Department Procedures and Scenario portion of the interview. Id. Egan thought
Candidate 62’s description of the role of an Explosives Technician I was “OK.” Id. At
the conclusion of the selection process, both candidates were placed on the Explosives
Technician I promotions list. Id.
Bresnahan received more points on the Department Procedures and Scenario
portion than Candidate 62. Id. ¶ 18. The interviewers noted she “clearly
demonstrate[d] competency” on the Scenario. Id. Bresnahan also received higher
scores than a third candidate, Candidate 93, who was also placed on the promotions
list. Id. ¶ 19. Bresnahan was not placed on the promotions list. The notes from the
deciding meeting stated that Bresnahan was rejected for the promotion because she
was “[b]est suited for clerical, office [work].” Id. ¶ 12,
Defendants now seek to dismiss counts of both Schloss and Bresnahan’s
complaints. The defendants argue that the Monell claims against the City of Chicago
of both complaints must be dismissed because Plaintiffs failed to allege a policy,
practice, or custom in the CPD. The Schloss defendants also seek to dismiss Schloss’s
Equal Protection Act conspiracy claim and her Illinois Whistleblower Act claim.
Along with the Monell claim, the Bresnahan defendants also seek to dismiss
Bresnahan’s Illinois Civil Rights Act claim. The Court will address each claim in turn.

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DISCUSSION
I.

Monell Claims (Schloss Count IV; Bresnahan Count II)
Defendants first argue that both Plaintiffs’ Monell claims fail because they do

not allege a sufficient number of incidents to establish a widespread practice by the
CPD. A local government may not be sued under § 1983 for an injury inflicted solely
by its employees or agents. Monell v. Department of Social Services of the City of N.Y.,
436 U.S. 658, 694. But a local government may be liable for a § 1983 claim if a policy
upheld by the entity caused the alleged violation. Plaintiffs may demonstrate the
existence of a municipal policy through proof of an express policy causing the loss, a
widespread practice constituting custom or usage causing the loss, or causation of the
loss by a person with final policymaking authority. Kujawski v. Bd. of Comm’rs, 183
F.3d 734, 737 (7th Cir. 1999). At the pleading stage, a plaintiff must allege facts that
permit the reasonable inference that the practice is so widespread so as to constitute
a governmental custom. See McCauley v. City of Chicago, 671 F.3d 611, 618 (7th Cir.
2011) (citing Iqbal, 556 U.S. at 683).
Defendants argue that each Plaintiffs’ allegations of her own treatment and
the treatment of her co-plaintiff are merely isolated incidents insufficient to allege a
widespread practice. In making this argument, defendants ignore Plaintiffs’ reliance
on statistical analyses showing a poor showing of female representation in Special
Functions units and allegations of hostility towards women in the Special Functions
Division that are so pervasive that they establish an intent to discriminate.
Specifically, Plaintiffs cite to the low number of women employed in various divisions

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of the CPD Special Functions Division in March 2016 and March 2018 as evidence of
CPD’s policy of discrimination against women. See Schloss, R. 16 ¶¶ 6-7. 2 Plaintiffs
then point to a series of factual allegations related directly to CPD’s alleged custom,
pattern, and practice of sex discrimination in the Special Functions Division. Schloss,
R. 16 ¶¶ 77-80. 3 For example, Plaintiffs allege (a) women have been historically and
continue to be excluded not just from “line” positions in Special Functions but also
from command positions (for example, Schloss was the first and only woman to ever
command the Marine and Helicopter Units); (b) the use of sexually biased procedures,
such as non-blinded oral interviews, for promotions to the Bomb Squad and other
positions in Special Functions (such as the interviews used to exclude Bresnahan); (c)
reliance upon subjective, sexually biased procedures rather than objective standards
in making final selection decisions for jobs in Special Functions; (d) the use of invalid
physical fitness testing to exclude women from certain units, such as the SWAT
Team; and (e) the City’s continuing failure to take adequate measures to eliminate
gender bias from selection procedures in Special Functions despite the availability of
measures that would reduce or eliminate discrimination against women. Id. Finally,
as specific examples of these generalized allegations, Plaintiffs reference the conduct

The Seventh Circuit has held that statistical evidence may support a claim of a
pattern or practice of discrimination when used in conjunction with other factual
evidence in the record. See Adams v. Ameritech Services, Inc., 231 F.3d 414, 423-24
(7th Cir. 2000).
3 Both complaints cite the same facts. The Court cites to Schloss’s complaint only for
reference.
2

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against them—Schloss’s termination from the Marine and Helicopter Units and
Bresnahan’s denied promotion despite her clear (and likely superior) qualifications.
The Court finds that Plaintiffs’ statistical analyses and the general allegations
of discrimination, combined with the specific allegations regarding Schloss and
Bresnahan, plausibly allege a widespread practice that discriminates against women.
Defendants’ motion to dismiss the Monell claims is denied.
II.

Equal Protection Conspiracy Claim (Schloss Count VI)
In Count VI, Schloss alleges that individual defendants Georgas, Fitzsimmons,

Harnish, Romero, and Hadju conspired to file false sexual harassment complaints
against her to create a pretext for her removal from command of the Marine and
Helicopter Units. Schloss, R. 16 ¶ 103. To plead a § 1983 conspiracy claim, Schloss
must show “(1) that the individuals reached an agreement to deprive her of her
constitutional rights, and (2) overt acts in furtherance actually deprived her of those
rights.” Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015). The Schloss
defendants argue Schloss cannot proceed on her claim because the intra-corporate
conspiracy doctrine precludes it and because she has failed to state a claim for relief.
The Court will address each argument in turn.
A. Intra-Corporate Conspiracy Doctrine
Under the intra-corporate conspiracy doctrine, a conspiracy cannot exist solely
between members of the same entity. Wright v. Illinois Dept. of Children & Family
Services, 40 F.3d 1492, 1508 (7th Cir. 1992). Under this doctrine, managers of a
corporation jointly pursuing its lawful business do not become “conspirators” when

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acts within the scope of their employment are said to be discriminatory or retaliatory.
Id. The doctrine also applies to municipal corporations. Id. The Seventh Circuit has
not extended the doctrine to conspiracy claims under § 1983. See Reitz v. Creighton,
2015 WL 5081485, at *4 (N.D. Ill. 2015). A majority of district courts in this circuit
have found the intra-corporate conspiracy doctrine inapplicable to § 1983 cases
involving police. See Cannon v. Burge, 2006 WL 273544, at *14 (N.D. Ill. Feb. 2, 2006)
(collecting cases), aff’d, 752 F.3d 1079 (7th Cir. 2014). The Court need not decide
whether the doctrine applies, because it finds that an exception to the doctrine is
dispositive.
There are two recognized exceptions to the intra-corporate conspiracy
doctrine: (1) where corporate employees are shown to have been motivated solely by
personal bias; and (2) where the conspiracy was part of some broader discriminatory
pattern or permeated the ranks of the organization’s employees. Spalding v. City of
Chicago, 24 F. Supp. 3d 765, 779 (N.D. Ill. 2014) (citing Hartman v. Bd. of Trustees
Community College Dist. No. 508, Cook County, Ill., 4 F.3d 465, 470-71 (7th Cir.
1993)). The second exception applies here—at least on the pleadings—as the
complaint alleges a widespread pattern of discrimination in the Special Functions
Division, as discussed above. Schloss alleges that defendants Georgas, Fitzsimmons,
Harnish, Romero, and Hadju conspired to submit sexual harassment complaints
against her to further that widespread pattern of discrimination. 4

Even if that exception did not apply, courts have refused to extend the doctrine
where the alleged conspiracy comprised an “independent course of conduct not
intended by the employee to serve any purpose of the employer.” See Calabrese v.

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B. Failure to State a Claim
Defendants also argue that Schloss’s conspiracy allegations fail to state a claim
because Schloss alleges that her removal as commander of the Marine Unit happened
a week before the conspirators’ meeting. Schloss, R. 20 at 4. They point to the
allegations that Schloss was removed from command “based upon sex discrimination
and in retaliation for the filing of an internal sex discrimination complaint,” not
because of the sexual harassment claim against her. See Schloss, R. 16 ¶ 72.
Defendants misconstrue the complaint’s allegations. Schloss alleges she was removed
from command of the Helicopter Unit on June 8, 2016, the day after the meeting and
the individual defendants’ sexual harassment charges. Id. ¶ 72. Schloss also alleges
the sexual harassment complaint was a “pretext to remove her from command.” Id. ¶
68. Based on these allegations, it is plausible that the individual defendants
conspired to create a false basis to remove Schloss that would not depend on her sex
or on the fact that she filed an internal complaint. The Schloss defendants’ motion to
dismiss Count VI is denied.
III.

Illinois Whistleblower Act (Schloss Count VIII)
In Count VIII, Schloss alleges Georgas terminated her because she filed an

internal complaint, in violation of the Illinois Whistleblower Act. Id. ¶¶ 13, 110. That
act provides that “an employer may not retaliate against an employee for disclosing
information to a government or law enforcement agency, where the employee has

Foxx, 2017 WL 5517247, at *8 (N.D. Ill. Nov. 17, 2017). Because police misconduct
cases usually involve “rogue activity by a small group of officers,” courts often decline
to apply the doctrine in police misconduct cases. Id. at *7.
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reasonable cause to believe that the information discloses a violation of state or
federal law, rule, or regulation.” 740 ILCS 174/15(b). The defendants argue Schloss
fails to explicitly allege that Georgas had any knowledge of Schloss’s internal
complaint when he terminated her. Such a strict reading of the complaint is not
required on a motion to dismiss. Instead, “‘[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.’” Boucher, 880 F.3d at 366
(quoting Iqbal, 556 U.S. at 678). Here, the Court can easily draw the inference that
Georgas knew of the complaint when he removed Schloss from command. Schloss
alleges she filed an internal complaint on June 7, 2016. See Schloss, R. 16 ¶ 11. Two
hours later, Georgas called a meeting that excluded Schloss. In that meeting, Georgas
and the rest of the individual defendants allegedly conspired to file the false sexual
harassment complaint against Schloss as a pretext for her termination. Id. at ¶ 12.
The next day, Georgas removed Schloss from her command of the Helicopter Unit.
Id. at ¶ 13. Schloss has plausibly alleged a violation of the Illinois Whistleblower Act.
IV.

Illinois Civil Rights Act (Bresnahan Count IV)
Finally, the Bresnahan defendants seek to dismiss Count IV of Bresnahan’s

complaint as duplicative of her Title VII gender discrimination claim in Count I. 5
Courts have authority to dismiss claims as duplicative of another where “the parties,

Defendants also argue that Bresnahan’s claim should be dismissed if her Monell
claim is dismissed because Count IV merely “repackages” the Monell claim. R. 31 at
6. Because the Court found Bresnahan’s Monell claim to be sufficient, it declines to
dismiss Bresnahan’s Illinois Civil Rights Act claim on that basis.

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claims, facts and requested relief are substantially the same.” Van Vliet v. Cole Taylor
Bank, 2011 WL 148059, at *2 (N.D. Ill. Jan. 18, 2011) (citing Norfleet v. Stroger, 297
Fed. App’x. 538, 540 (7th Cir. 2008)). Bresnahan points out that the two claims offer
different relief—Title VII damages are capped at $300,000, while damages under the
Illinois Civil Rights Act are not. Because the two claims do not offer the same relief,
they are not duplicative. Defendants’ motion to dismiss is denied.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss Counts IV, VI, and
VIII of Schloss’s complaint (No. 18-cv-1880, R. 20) is denied. Defendants’ motion to
dismiss Counts II and IV of Bresnahan’s complaint (No. 18-cv-1974, R. 31) is also
denied.
ENTERED:

Dated: October 4, 2018

_____________________________
Honorable Thomas M. Durkin
United States District Judge

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