Barry v. Chicago Fire Department et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 3/25/2020. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Gerald Barry,
Plaintiff,
Case No. 18 C 2183
Case No. 19 C 2275
v.
City of Chicago,
Judge John Robert Blakey
Defendant.
MEMORANDUM OPINION AND ORDER
In this age discrimination case, the Court previously dismissed Plaintiff’s
complaint as time barred because he failed to file an EEOC charge within 300 days
of the alleged unlawful employment practice.
See [26].
Plaintiff amended his
complaint, and Defendant once again moved to dismiss. For the reasons explained
below, the new allegations cannot save Plaintiff’s claim and therefore this Court
grants the motion [41].
I.
Background & Procedural History
On March 26, 2018, Plaintiff Gerald Barry, proceeding pro se, sued his former
employer, the City of Chicago, alleging age discrimination. See [1]. The City moved
to dismiss the case, arguing that the applicable statute of limitations barred
Plaintiff’s claim. See [13]. Consistent with its normal practice, this Court gave
Plaintiff an immediate opportunity to amend his complaint to address the deficiencies
raised by the City, and Plaintiff amended. See [19]. The City again moved to dismiss,
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[20], and the parties briefed the motion. See [23], [24]. The Court granted the City’s
motion and dismissed Plaintiff’s amended complaint on August 7, 2018. See [26]. In
doing so, the Court noted that the applicable statute of limitations required Plaintiff
to file an EEOC charge within 300 days of the alleged unlawful discriminatory act or
practice and that failing to file a charge within that time period renders the complaint
untimely. [26] at 4 (citing 29 U.S.C. § 626(d); Casteel v. Exec. Bd. of Local 703 of Int’l
Bhd. of Teamsters, 272 F.3d 463, 466 (7th Cir. 2001); Filipovic v. K & R Express Sys.,
Inc, 176 F.3d 390, 396 (7th Cir. 1999)). Because the alleged misconduct—refusing to
recognize Plaintiff’s status as a cross-trained firefighter/paramedic in January 2015;
reassigning him to a different position in February 2016; and forcing him to retire in
April 2016—all occurred years before he filed his EEOC charge on December 14, 2017,
the Court held that Plaintiff filed his charge too late and dismissed his complaint.
[26] at 4–6.
After dismissing Plaintiff’s complaint, the Court gave him time to hire an
attorney and seek assistance from the Court’s Pro Se Assistance Program, the Hibbler
Help Desk, and also granted him leave to file an amended complaint if he believed he
could do so consistent with this Court’s opinion and his obligations under Federal
Rule of Civil Procedure 11. Thereafter, Plaintiff filed further amendments on January
4, 2019 [33] and May 28, 2019 [39]. The most recent amended complaint—the fourth
amendment and the operative complaint—alleges that Plaintiff filed an EEOC charge
on December 3, 2018 and received a right-to-sue letter on January 3, 2019. [39] at 2–
3. Plaintiff did not attach the charge to his complaint, but he did attach the charge
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to a later filing, see [53]; it alleges the same misconduct as the prior charge, but also
alleges for the first time that the City “ended [his] retirement healthcare benefits due
to [his] being forcibly retired for discriminatory reasons.” [53] at 2.
Consistent with this new allegation, the operative complaint alleges that, on
April 1, 2018, Plaintiff “lost the health care coverage that he had from the City of
Chicago, resulting in a significant diminishment of his benefits.” [39] at 5. He alleges
that the loss of health care benefits is “consequential to the misapplication of the
Mandatory Retirement Ordinance” and that the City’s decision to take away his
health care coverage violates his rights under the “Lilly Ledbetter amendment to the
Equal Pay Act.” Id. In addition, he alleges that the City
has shown a continual effort of discrimination, harassment, and
retaliation towards the plaintiff since January 2015 when the city
denied plaintiff recognition as a cross-trained Firefighter/Paramedic,
and ongoing to the present by denying the plaintiff the opportunity to
serve on his assigned position in the CFD on Ambulance 46, violating
the 5 year agreement to recognize plaintiff’s status, said agreement
expiring in 2020.
Id. As he did in his prior complaint, Plaintiff alleges that the City “attempted to deny
[him] status as a medic in 2015”; detailed him “to other assignments for a two month
period nonconsensually in violation of the [Collective Bargaining Agreement between
Firefighter’s Union Local 2 and the City of Chicago]”; and retired Plaintiff “in a
misapplication of the City of Chicago mandatory retirement ordinance for Firefighter
and Police personnel on April 16, 2016.” Id. at 5–6.
Between his two most recent amended complaints, Plaintiff, on April 3, 2019,
also filed another lawsuit, Case No. 19 C 2275; the complaint in that case [1] includes
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the exact same allegations as the most recent complaint filed in this case [39] on May
28, 2019. As a result, the City moved to consolidate the two cases and to have the
second case reassigned to this Court, see [44], and the Court granted the motion, see
[49].
Thereafter, the City moved to dismiss both operative complaints (docket entry
[39] in this case and docket entry [1] in case No. 19 C 2275), arguing that the new
allegations fail to save Plaintiff’s claim. See [41]. For the reasons explained more
fully below, this Court agrees.
II.
Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “challenges
the sufficiency of the complaint for failure to state a claim upon which relief may be
granted”; such motions do not generally reach questions of fact. Gen. Elec. Capital
Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997); Int’l Mktg., Ltd.
v. Archer-Daniels-Midland Co., Inc., 192 F.3d 724, 729–30 (7th Cir. 1999). To survive
a motion to dismiss, a complaint must allege “sufficient factual matter” to “state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial
plausibility “when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556). In evaluating a complaint, this Court draws
all reasonable inferences in the plaintiff’s favor and accepts all well-pleaded
allegations as true; the Court need not, however, accept legal conclusions or
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conclusory allegations. Id.; McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.
2011).
III.
Discussion & Analysis
This Court previously determined that the alleged discriminatory conduct
included in Plaintiff’s December 14, 2017 EEOC charge all occurred more than 300
days prior to the filing date. See [26]. Plaintiff challenges the same conduct in his
December 3, 2018 charge, and any claim as to that conduct would be time barred for
the reasons explained in the Court’s prior dismissal order (incorporated here by
reference).
The question raised in the present motion is whether Plaintiff’s new
allegations—the allegations relating to the loss of health care—give rise to a timely,
viable claim.
Initially, Plaintiff alleges that he lost his health care coverage on April 1, 2018
and that the loss of health care was “consequential to the misapplication of the
Mandatory Retirement Ordinance.” [39] at 5. He filed his new EEOC charge on
December 3, 2018. Id. Thus, Plaintiff unquestionably filed the new charge within
300 days of the challenged conduct and a claim relating to the loss of health care
would be timely. This claim cannot survive, however, because his allegations fail to
state a federal cause of action. Even after four amendments, Plaintiff’s complaint
still falls short of stating a claim under the ADEA or the Lilly Ledbetter Equal Pay
Act of 2009.
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Lilly Ledbetter, a female employee at Goodyear Tire & Rubber Company, sued
her employer alleging sex discrimination in violation of Title VII; she claimed that
she received negative performance evaluations because of her gender and those
evaluations affected her pay. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618
(2007). After the lower courts rejected her claim as time barred, she argued before
the United States Supreme Court that each paycheck (reflecting pay at a rate less
than her similarly situated male co-workers as a result of negative, discriminatory
evaluations) constituted a separate and discrete wrong that triggered a new
limitations period. The Supreme Court rejected the argument, 550 U.S. at 621, but
then Congress effectively overruled the Court’s decision when it passed the Lilly
Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 2000e-5(e)(3)(A), which provides that an
“unlawful employment practices” occurs when:
(1) a discriminatory compensation decision or other practice is adopted;
(2) an individual becomes subject to a discriminatory compensation
decision or other practice; and (3) an individual is affected by
application of a discriminatory compensation decision or other
practice, including each time wages, benefits, or other
compensation is paid, resulting in whole or in part from such a
decision or other practice.
Groesch v. City of Springfield Ill., 635 F.3d 1020, 1024–25 (7th Cir. 2011) (quoting 42
U.S.C. § 2000e–5(e)(3)(A)) (emphasis added). Thus, as Plaintiff correctly notes, the
Act provides that the statute of limitations for filing an EEOC charge alleging pay
discrimination resets with each paycheck affected by the discriminatory decision.
But simply alleging a reduction in benefits or pay is not enough to trigger a
reset under the Act.
Plaintiff still has to allege that the paycheck reflects a
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discriminatory compensation decision or discriminatory practice. The ADEA makes
it unlawful for an employer to take adverse action against an employee who is forty
years or older “because of such individual’s age.” 29 U.S.C. §§ 623(a)(1), 631(a). Thus,
to state a claim under the ADEA, Plaintiff must at least allege that age was the
reason for the challenged adverse employment action. E.g., Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 180 (2009). And such an allegation is wholly absent here. Plaintiff
checked the box marked “age” on the Court’s form employment discrimination
complaint, see [39] at 3; Case No. 19 C 2275, [1] at 3, but he fails to allege any facts
to support an age discrimination claim.
He alleges that the loss of health care
coverage “was a violation of his rights under the Lilly Ledbetter amendment to the
Equal Pay Act,” [39] at 5; [1] at 5, but he does not say why or how. He alleges that
the loss of health care: resulted “from the discriminatory mandatory retirement on
April 16, 2016”; was “consequential to the misapplication of the Mandatory
Retirement Ordinance”; and was part of a “continual effort of discrimination.” [39]
at 5; [1] at 5.
But he never explains why the forced retirement constituted a
discriminatory action or how the City misapplied the MRO. His allegations constitute
legal conclusions, which this Court need not accept; to state a claim Plaintiff must
allege facts from which this Court could infer age discrimination. And, even liberally
construed, his complaints lack any allegations to support an inference that the City
discriminated against Plaintiff because of his age (or, for that matter, because of any
other descriptor protected by federal law). In short, Plaintiff has not alleged any facts
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showing that his age constituted a motivating factor in the City’s decision to change
his health care, or even in the initial decision to subject him to mandatory retirement.
Nor does Plaintiff allege that the City handled his health care coverage in a
manner that differed discriminatorily from the manner in which it handled the health
benefits of other retired employees. Plaintiff does not allege that he was treated
differently from other employees who were subject to the MRO. Instead, Plaintiff
alleges that the City misapplied its mandatory retirement policy, forcing him to retire
in April 2016 (in violation of both the collective bargaining agreement between the
City and the Firefighters’ Union and an August 2015 settlement agreement he and
the City executed to resolve a grievance he filed), and causing him to lose health care
coverage in 2018. [39] at 5; Case No. 19 C2275, [1] at 5. Significantly, he does not
allege that the City misapplied the MRO or changed his benefits because of his age.
Plaintiff’s pleadings demonstrate that age was not a factor in the decision to
cut Plaintiff’s health care coverage, as other workers in the same protected age
category received the benefits he claims the City denied him. 1 He alleges that the
City allowed individuals who were not subject to mandatory retirement to work and
receive benefits, while the City did not allow him to do either of these things. But,
absent some claim that the loss of health care coverage had something to do with age
(or sex, or religion, or national origin, or some other protected class category), such
Indeed, he concedes that workers, like him, in the protected age category received the benefits he
alleges the City cut from his package. See [51] at 4 (“Plaintiff contends that the Ledbetter FPA applies
to plaintiff’s loss of healthcare, loss of pay and benefits from 5 year contract, and additionally, the loss
of equitable acrual of pension benefits . . . vis a vis other similarly situated members who being over
age 63 and still on the CFD payroll are exempt from the mandatory retirement requirement which is
duty specific to firefighting duties as is plaintiff.”).
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allegations do not amount to an “unlawful employment practice” and do not implicate
the ADEA or the Lilly Ledbetter Fair Pay Act.
At bottom, Plaintiff claims that the City applied its Mandatory Retirement
Ordinance in his case when it should not have, and that, in doing so, the City violated
the collective bargaining agreement between Firefighter’s Union Local 2 and the City,
and also violated a settlement agreement he and the City executed in August of 2015.
Plaintiff’s allegations may support a claim for breach of contract or a claim seeking
to enforce the arbitration award.
But they do not support a claim for age
discrimination.
IV.
Conclusion
For the reasons explained above, this Court finds that Plaintiff’s amended
complaint in this case and his original complaint in Case No. 19 C 2275 fail to state
a claim. The Court therefore grants Defendant’s motion to dismiss [41] and dismisses
both cases.
Dated: March 25, 2020
Entered:
____________________________________
John Robert Blakey
United States District Judge
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