Loizon v. Evans et al
Filing
199
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/3/20.Mailed notice(ca, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PHILIPPE Y. LOIZON,
Plaintiff,
v.
HONORABLE TIMOTHY C. EVANS,
CHIEF JUDGE OF THE CIRCUIT
COURT OF COOK COUNTY, ILLINOIS,
individually, and THE OFFICE OF THE
CHIEF JUDGE OF THE CIRCUIT
COURT OF COOK COUNTY, ILLINOIS,
Defendants.
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18 C 2759
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Philippe Y. Loizon (“Loizon”) has brought numerous claims against Timothy C.
Evans, the Chief Judge of the Circuit Court of Cook County, Illinois (“Chief Judge
Evans”), as well as the Office of the Chief Judge of the Circuit Court of Cook County,
Illinois (“OCJ”) (collectively “Defendants”), arising out of his termination from the
Cook County Adult Probation Department (“APD”), an agency managed and
supervised by the OCJ. Defendants have moved to dismiss most of Loizon’s claims
pursuant to Fed. R. Civ. P. 12(b)(6), to strike some allegations in Loizon’s complaint
pursuant to Fed. R. Civ. P. 12(f), and to dismiss Chief Judge Evans in his individual
capacity. For the reasons below, Defendants’ motion to dismiss is granted in part and
denied in part, their motion to strike is denied, and their motion to dismiss Chief
Judge Evans in his individual capacity is denied.
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I.
A.
Background
Factual Background1
Loizon started working for the APD in 1988, beginning what would prove to be
a long career as a probation officer (“PO”). Am. Compl. ¶ 8. Roughly a decade later,
Chief Judge Evans was elected to his present post, the duties of which include
responsibility for the management and operation of the APD and the OCJ. Id. ¶ 6.
During Loizon’s nearly thirty years of service as a PO, he received uniformly
positive performance evaluations. See id. ¶¶ 21, 22, 34, 37, 41, 44, 60, 141. He was
promoted to Supervisor in 1996, id. ¶ 16, and to Deputy Chief PO in 2003. Id. ¶ 23.
At one point, Loizon supervised almost three times more employees than any other
Deputy Chief in the APD, covering roughly 125 POs and about 7,000 probationers.
Id. ¶¶ 31–32.
Despite his strong employment record, Loizon’s tenure at the APD was
tumultuous. He repeatedly corresponded with Chief Judge Evans and Acting APD
Chief Jesus Reyes (“Reyes”) regarding the APD’s “need for additional manpower, the
need for new policies and procedures and clarification of existing policies and
procedures, [and] the need for holding officers accountable.” Id. ¶ 39. Not only were
these communications allegedly ignored, but Reyes purportedly ordered Loizon to
These facts are alleged in the Amended Complaint, ECF No. 61. On a motion to
dismiss, the court “accept[s] as true all well-pleaded factual allegations [in the complaint]
and draw[s] all reasonable inferences in favor of the plaintiff.” Heredia v. Capital Mgmt.
Servs., L.P., 942 F.3d 811, 814 (7th Cir. 2019).
1
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cease writing regarding his “concerns about deficiencies in the APD’s management
and operation.” Id. ¶ 40.
Some time later, in 2013, Loizon presented a new caseload management
strategy for POs at an APD executive staff meeting. Id. ¶¶ 63–64. For reasons
unknown, Reyes put a stop to Loizon’s presentation and ordered Loizon to destroy the
materials related to it. Id. ¶ 68. Several months later, Loizon complained to the
OCJ’s
Human
Resources
department
that
Reyes
had
subjected
him
to
“discriminatory and harassing conduct.” Id. ¶ 72. Loizon never received a response
to his complaint. Id. ¶ 73.
But the real trouble for Loizon began in May 2014, when the Chicago Tribune
(the “Tribune”) published an article containing many troubling allegations against
him. For example, the article claimed that Loizon had built inappropriate “alliances
with the police and FBI” during his work as a PO, that POs serving under him were
inadequately trained, that he conducted illegal raids, and that he had an “improper
personal relationship with [some] probationers.” Id. ¶ 83. Loizon maintains that all
of the allegations against him in this article were false. Id. ¶ 84.
In response to the piece, Chief Judge Evans publicly announced that Loizon
had been placed on “desk duty” pending an investigation into his behavior. Id. ¶ 117.
While on desk duty, Loizon was prohibited from going into the field as part of his
normal responsibilities. Id. ¶ 119.
Chief Judge Evans received the results of the investigation in August 2014,
but has never disclosed any details to the public or to Loizon. Id. ¶ 121. Loizon
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himself was never “afforded any opportunity to respond” to the Tribune’s allegations,
id. ¶ 118, and his request to Chief Judge Evans that he be provided counsel to assist
him in refuting the allegations was denied. Id. ¶ 125.
Almost two years later, in March 2016, the Tribune published an article critical
of Chief Judge Evans’ silence regarding the investigation into Loizon. Id. ¶ 142. Two
days after this article was published, the Chief PO ordered Loizon to appear at a
meeting to discuss the allegations against him. Id. ¶ 146. At this meeting, Loizon
was asked a number of questions, but, according to him, no facts were cited or
evidence presented in support of any of the allegations. Id. ¶ 148. For his part,
Loizon provided the meeting’s attendees with the names of a number of witnesses he
believed would clear his name, but none of these witnesses were ever interviewed by
the OCJ or APD. Id. ¶¶ 153–54.
About a year later, in March 2017, the Tribune published a third article; this
one reported the approximately thousands of hours of compensatory time Loizon had
accrued with the APD. “The article was critical of the high number of Loizon’s
accrued comp hours . . . and referred to Loizon as ‘a controversial figure in the
[APD].’” Id. ¶¶ 157–58. About two weeks after this piece was published, Chief Judge
Evans directed that Loizon be terminated. Id. ¶ 160. This litigation followed.
B.
Procedural Background and Summary of Counts
Loizon initially filed a five-count complaint against the OCJ and Chief Judge
Evans in his official capacity, alleging violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
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§ 201 et seq., and the Illinois Wage Payment and Collection Act (“IWPCA”), 820 Ill.
Comp. Stat. 115 et seq. See 2/12/19 Order at 1, ECF No. 55. The Court granted
Defendants’ motion to dismiss Loizon’s claims against Chief Judge Evans in his
official capacity as duplicative of his claims against the OCJ, but denied Defendants’
motion to dismiss Loizon’s claim under the IWPCA. Id. As to that claim, the Court
determined Loizon had alleged that, “contrary to the applicable OCJ policies,” he had
not received payment for the compensatory time he had accrued with the APD and
therefore, had adequately pleaded he “was owed compensatory time under an
agreement.” Id. at 4.
Loizon amended his complaint to add six more counts against the OCJ and
Chief Judge Evans, this time in his individual capacity. Pl.’s Resp. Mot. Dismiss
and/or Strike (“Pl.’s Resp.”) at 1, ECF No. 150. Defendants have now moved to strike
Loizon’s references to his accrued compensatory time in Count III, to dismiss Counts
IV through XI for failure to state a claim, and to dismiss as a defendant Chief Judge
Evans in his individual capacity. Defs.’ Mem. Supp. Mot. Dismiss (“Defs.’ Mem.”) at
1, ECF No. 146.
At this junction, a brief summary of Loizon’s claims relevant to the motion to
dismiss would be helpful. In Count III,2 Loizon claims that the OCJ violated the
FLSA by failing to pay him for the “at least 2,877 . . . compensatory hours” he accrued
Defendants have not moved to dismiss Counts I and II, and they have only moved to
strike certain factual allegations from Count III.
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with the APD. Am. Compl. at 60, ¶ 238. 3 The OCJ’s alleged failure to cash out
Loizon’s comp hours also largely forms the basis for Counts IV and V, respectively
asserting claims under the IWPCA and the Illinois Minimum Wage Law (“IMWL”),
820 Ill. Comp. Stat. 105/1 et seq.
Count VI claims a violation of the Consolidated Omnibus Reconciliation Act of
1985 (“COBRA”), 29 U.S.C. § 1161 et seq. Loizon alleges that the OCJ failed to notify
him of his right to continued insurance coverage under COBRA at the time of his
termination. Am. Compl. at 63, ¶ 219. As a result, Loizon’s insurance coverage
lapsed, and he was forced to procure alternative insurance “nearly three times more
costly” than his plan with the APD. Id. at 64, ¶ 223.
In Count VII, brought against both the OCJ and Chief Judge Evans in his
individual capacity, Loizon alleges that the treatment he experienced at the APD, as
well as his termination, constituted intentional infliction of emotional distress
(“IIED”) under Illinois law. Id. at 64–66, ¶¶ 217–27.
Count VIII, against the OCJ only, is based on the Family and Medical Leave
Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq .
The
FMLA
entitles
“eligible
employees” to take a twelve-week leave if they suffer from a “serious health
condition.” 29 U.S.C. § 2612(a)(1)(D). Loizon claims that the OCJ retaliated against
him for exercising his rights under the FMLA because “he was on approved medical
leave” at the time he was terminated. Am. Compl. at 68, ¶ 222.
Loizon’s counts suffer from a numbering problem. Some paragraph numbers are
duplicated in different counts. When this issue occurs, the Court will specify the page
number on which the correct paragraph appears.
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Counts IX and X, against the OCJ and Chief Judge Evans in his individual
capacity, allege that Loizon was deprived of a property interest in his continued
employment (Count IX) and a liberty interest in the pursuit of his chosen occupation
(Count X) without due process of law, in violation of 42 U.S.C. § 1983. See generally
Am. Counts IX and X to Am. Compl. (“Am. Counts”), ECF No. 141.4
Finally, Count XI, which also names the OCJ and Chief Judge Evans in his
individual capacity, alleges that Defendants violated Loizon’s First Amendment
rights by retaliating against him for speaking out regarding his concerns about APD
operations. Am. Compl. at 75, ¶¶ 217–21.
II.
Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, a complaint must “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
That said, when considering motions to dismiss, the Court accepts “all wellpleaded factual allegations as true and view[s] them in the light most favorable to the
plaintiff.” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). At the
same time, “allegations in the form of legal conclusions are insufficient to survive a
The Court gave Loizon leave to amend Counts IX and X on October 7, 2019. Pl.’s
Resp. at 2. Amended Counts IX and X will be treated as part of Loizon’s complaint for the
purposes of this motion. See Board v. Gill, No. 05-2102, 2005 WL 8163037, at *1 (C.D. Ill.
Nov. 4, 2005) (considering a motion to dismiss amended counts filed separately from the
main complaint in the case).
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Rule 12(b)(6) motion.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885
(7th Cir. 2012) (citing Iqbal, 556 U.S. at 678).
Federal Rule of Civil Procedure 12(f) permits the Court to “strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.”
The Court will exercise this power “only if the challenged
allegations are so unrelated to the present claim as to be void of merit and unworthy
of consideration.” Geschke v. Air Force Ass’n, No. 02 C 50271, 2002 WL 31253746, at
*1 (N.D. Ill. Oct. 8, 2002).
III.
A.
Analysis
Defendants’ Motion to Dismiss: Loizon’s Claims Against the OCJ
1.
Whether Counts IV–V, VII, and IX–X Against the OCJ
Are Barred by the Eleventh Amendment
At the outset, Defendants assert that the Eleventh Amendment immunizes the
OCJ from several of Loizon’s claims, while Loizon claims that Defendants waived
their Eleventh Amendment defense and that, in any event, the Amendment is
inapplicable to Counts IX and X.
The Constitution provides that “[t]he Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment
prohibits private suits against states and state agencies in federal court unless (1)
the state “by unequivocal language waive[s] the protections of the [E]leventh
[A]mendment” or (2) “Congress . . . by unequivocal language use[s] its enforcement
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powers under the [F]ourteenth [A]mendment to abrogate the states’ [E]leventh
[A]mendment immunity.” Kroll v. Bd. of Trs. of Univ. of Ill., 934 F.2d 904, 907 (7th
Cir. 1991).
As a threshold matter, Loizon maintains that Defendants waived Eleventh
Amendment immunity by failing to raise it in their first motion to dismiss. Pl.’s Resp.
at 17. Nonetheless, courts are entitled to raise Eleventh Amendment immunity on
their own initiative. Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs.
Admin., 603 F.3d 365, 370 (7th Cir. 2010). The Court will do so here.
The OCJ is an “arm of the state” of Illinois. Haag v. Cook Cty. Adult Probation,
No. 17 C 05403, 2018 WL 5249228, at *5 (N.D. Ill. Oct. 22, 2018). Therefore, the
Eleventh Amendment protects it from private suits in this Court unless one of the
exceptions applies. Loizon, however, provides no indication that Illinois has expressly
waived immunity with respect to any of the causes of action alleged in Counts IV and
V, VII, or IX and X.5 Illinois’ sovereign immunity statute makes no exceptions for
any of these causes of action. 745 Ill. Comp. Stat. 5/1; see also 745 Ill. Comp. Stat.
5/1.5 (listing exceptions).
And, indeed, Illinois has expressly safeguarded state
employees from liability under the IWPCA. 820 Ill. Comp. Stat. 115/1. Moreover,
Congress has not abrogated Illinois’ immunity regarding any of these causes of action.
See Kroll, 934 F.2d at 909 (stating § 1983 does not abrogate states’ Eleventh
Amendment immunity).
As stated above, Count IV arises under the IWPCA, Count V under the IMWL,
Count VII under Illinois IIED law, and Counts IX and X under 42 U.S.C. § 1983.
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Loizon also argues, however, that Counts IX and X are not subject to the
Eleventh Amendment at all because they seek “prospective injunctive relief.” Pl.’s
Resp. at 19. But Loizon stretches the applicable case law too far. While it is true
that the Eleventh Amendment does not bar suits against state officials in their
official capacity for prospective injunctive relief, this narrow exception “has no
application in suits against the states and their agencies.” Quick v. Ill. Dep’t of Fin.
& Prof’l Regulation, No. 19-cv-7797, 2020 WL 3429772, at *5 (N.D. Ill. June 23, 2020)
(quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
146 (1993)). Accordingly, the Eleventh Amendment prevents the OCJ from being
sued even for prospective injunctive relief. Therefore, Counts IX and X, as well as
Counts IV, V, and VII, are dismissed as against the OCJ.
2.
Count VI (COBRA)
With the Eleventh Amendment question answered, the Court turns to the
remaining Counts against the OCJ. As to Count VI, Defendants do not challenge the
substance of Loizon’s claim that the OCJ violated COBRA, but they argue Loizon’s
requested relief is statutorily barred.
The parties essentially agree that Defendants’ COBRA liability is governed by
the Public Health Services Act (“PHSA”).
6
This legislation mandates that
Loizon asserts, in a section heading, that “[t]he PHSA is [i]napplicable” to Count VI.
Pl.’s Resp. at 3. But Loizon does not actually argue this. Rather, as explained below, he
insists that the relief Count VI seeks is available under the PHSA. Id. Loizon’s bare
statement that the PHSA does not apply to Count VI is unsupported by any authority and,
thus, waived. United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“[P]erfunctory
and undeveloped arguments, and arguments that are unsupported by pertinent authority,
are waived.”).
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governmental health plans “make continuation coverage available for qualified
beneficiaries who would lose coverage as a result of a qualifying event.” Mansfield v.
Chi. Park Dist. Group Plan, 946 F. Supp. 586, 591 (N.D. Ill. 1996). Moreover, the
PHSA “requires governmental employers to provide each employee with notice of his
PHSA rights (1) at the time that he joins a government-sponsored group health plan
and (2) at the time his employment is terminated.” Bigelow v. United Healthcare of
Miss., Inc., 220 F.3d 339, 345 (5th Cir. 2000) (citing 42 U.S.C. § 300bb–6).
The statute allows plaintiffs to seek “appropriate equitable relief” for violations
of this provision. 42 U.S.C. § 300bb–7. “Equitable relief typically does not include
money damages,” Lyons v. Bd. of Regents of Univ. of Wis. Sys., No. 14-CV-460, 2015
WL 59425, at *2 (E.D. Wis. Jan. 5, 2015), but plaintiffs may seek payment in the form
of equitable restitution “where money or property identified as belonging in good
conscience to the plaintiff c[an] clearly be traced to particular funds or property in
the defendant’s possession.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S.
204, 213 (2002).
In Count VI, Loizon asserts that Defendants failed to notify him of his rights
under COBRA when he was terminated, and that this failure compelled him to
purchase insurance “nearly three times more costly” than his policy with the APD.
Am. Compl. at 63–64, ¶¶ 220–25. As a result, he asks for “compensatory damages in
the amount of extra medical expenses and the increase in premiums that he incurred
post-termination, . . . punitive damages, [and] payment of all reasonable attorney’s
fees and costs.” Id. at 64.
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This is not a claim for equitable restitution as described in Knudson. Loizon
“does not seek the return of any particular funds that the [D]efendants received from
him” and indeed does not allege “that he ever paid anything to the [D]efendants;”
rather, he “seeks compensation” for expenses he incurred from third parties. See
Lyons, 2015 WL 59425, at *3 (emphasis added) (holding that such a claim is legal,
not equitable). As such, Loizon’s requested relief is barred by the PHSA.
Undeterred, Loizon maintains that Count VI complies with the PHSA, because
“an award of money as restitution for pecuniary losses caused by a defendant, where
such relief is necessary to make a plaintiff whole,” is a form of equitable relief. Pl.’s
Resp. at 3 (quoting Mansfield, 946 F. Supp. at 592). But the Court does not find
Mansfield persuasive, because it was decided before “the Supreme Court clarified the
distinction between restitution at law and restitution in equity” in Knudson. See
Lyons, 2015 WL 59425, at *3 (declining to follow Mansfield’s holding respecting
equitable relief in light of Knudson).
Count VI also requests “such additional relief as the Court may deem just and
proper,” which may include equitable relief. Am. Compl. at 64. But in his response
to Defendants’ motion to dismiss, Loizon argues only that he is entitled to a monetary
award to make him whole. Because the Court has determined that this form of relief
is not “equitable” and Loizon has identified no other basis for relief, Count VI is
dismissed. See Lyons, 2015 WL 59425, at *3 (dismissing a COBRA claim seeking
“any and all relief” and “such other relief as may be just and appropriate” because the
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plaintiff “ma[de] no attempt to argue” that he was entitled to any relief other than a
monetary award).
3.
Count VIII (FMLA Retaliation)
Turning to Count VIII, in which Loizon claims that the OCJ retaliated against
him for taking FMLA leave, Defendants assert that Loizon has not even pleaded he
was entitled to FMLA leave to begin with.
The FMLA prohibits employers from retaliating against an employee who
takes, or attempts to take, FMLA leave. Pagel v. TIN Inc., 695 F.3d 622, 626 (7th
Cir. 2012) (citing 29 U.S.C. § 2615(a)(2)). A plaintiff bringing a claim of FMLA
retaliation must “be entitled to FMLA benefits.” Id. at 631.
Employees are entitled to FMLA leave if they suffer from a “serious health
condition” that makes them “unable to perform” their job. 29 U.S.C. § 2612(a)(1)(D).
A serious health condition is one that involves “inpatient care in a hospital, hospice,
or residential medical care facility” or “continuing treatment by a health care
provider.” 29 U.S.C. § 2611(11)(A)–(B).
Loizon does not even state, much less support with specific factual allegations,
that he has ever had a health condition that satisfies these requirements. All Loizon’s
complaint says is that he “was approved for a personal leave of absence due to medical
reasons from October 28, 2016 through October 28, 2017.” Am. Compl. at 67, ¶ 220.
Loizon offers no details about the condition(s) that gave rise to this leave, and his
vague assertion that the leave was for “medical reasons” does not support the
inference that he was entitled to FMLA benefits. See Jackson v. Dakkota Integrated
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Sys., LLC, No. 1:14-cv-06384, 2015 WL 1138565, at *2 (N.D. Ill. Mar. 10, 2015)
(holding an employee had not pleaded that she had a serious health condition when
she merely stated that she took off work to see a physician regarding treatment for a
condition). Even weaker than the Jackson plaintiff’s unsuccessful attempt to plead
an FMLA claim, Loizon does not even claim that he sought or received medical advice
or treatment at all during his leave.
Nor has Loizon pleaded that any health
condition he may have had rendered him unable to perform his duties as a PO. See
Bucks v. Mr. Bults, Inc., 218 F. Supp. 3d 776, 780 (S.D. Ill. 2016) (holding a truck
driver had not adequately alleged that injuries caused by a fall that required surgery
rendered him unable to perform his job, because he had offered only conclusory
allegations to that effect). If the plaintiff in Bucks, whose injuries required surgery,
did not sufficiently plead that he was incapacitated from his job, then Loizon, who
has not even identified a specific condition that precipitated his leave, certainly has
not. Accordingly, Count VIII is dismissed.7
4.
Count XI (First Amendment)
With respect to Count XI, Loizon claims that Defendants retaliated against
him for engaging in constitutionally protected speech regarding matters of public
Loizon also draws the Court’s attention to ¶ 156 of his Amended Complaint, in which
he alleges that he “took what turned out to be an extended leave to care for his mother and
for himself and family resulting from injuries sustained when his family van was rear ended
outside of Indianapolis on the way to a softball tournament in Columbus, Ohio.” This
allegation suffers from the same deficiencies discussed above. Loizon does not allege that he
or any of his family members sought or received medical treatment as a result of this accident,
or that any injuries he sustained rendered him unable to perform the duties of a PO.
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concern.
Defendants respond that Loizon’s speech is not protected by the
Constitution because it was performed pursuant to his professional duties.
“[T]he First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.” Garcetti
v. Ceballos, 547 U.S. 410, 417 (2006) (emphasis added). But the First Amendment
affords no protection to speech “employees make pursuant to their professional
duties.” Id. at 426. “The proper inquiry” as to whether an employee has spoken as a
citizen or pursuant to his professional duties “is a practical one.”
Id. at 424.
Employees may speak as citizens even if their speech “concerns the subject matter of”
their employment and “occurs inside the[ir] office.” Chrzanowski v. Bianchi, 725 F.3d
734, 738 (7th Cir. 2013). But speech promulgated in furtherance of an employee’s
“daily professional activities” is not constitutionally protected. Id. at 739 (quoting
Garcetti, 547 U.S. at 422).
In support of his First Amendment claim, Loizon points to the following
allegations. He wrote to Reyes “concerning a severe supervisor shortage in the field
service units.” Am. Compl. ¶ 38. He “provided written requests to his superiors”
regarding “the need for additional manpower, the need for new policies and
procedures and clarification of existing policies and procedures, [and] the need for
holding officers accountable.” Id. ¶ 39. He “expressed concerns about deficiencies
and dysfunctionalities within the APD” to Chief Judge Evans. Id. ¶ 61. And he
proposed a new case management strategy to high-ranking APD officials at a meeting
in 2013. Id. ¶¶ 63–71.
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The Court has no difficulty concluding that, in all of these instances, Loizon
spoke as an APD employee rather than as a citizen. As a Deputy Chief PO, Loizon’s
responsibilities included “[r]eview[ing] and evaluat[ing] staff performance,” “[b]e[ing]
actively involved with policymaking,” “recommend[ing] the issuance of employee
discipline as needed,” “[w]orking closely with all the directors in the department to
address department issues,” and “preparing reports.” Id. ¶ 24. All of the speech he
alleges he undertook was plainly in furtherance of his daily professional obligations
as he describes them, and, thus, the speech at issue is not constitutionally protected.
Of course, Loizon is correct that “there are few matters ‘of greater public
concern in a large metropolitan area than police protection and public safety.’” Pl.’s
Resp. at 15 (quoting Gustafson v. Jones, 290 F.3d 895, 907 (7th Cir. 2002)). But the
mere fact that Loizon’s job implicated matters of public concern does not grant
constitutional significance to speech that is clearly within the scope of that job.
Otherwise, a great majority of public employees’ speech related to their professional
duties would be protected by the First Amendment.
Loizon’s argument is simply foreclosed by Garcetti and Seventh Circuit
precedent. In Sigsworth v. City of Aurora, Illinois, the plaintiff, an employee of a city
police department, reported to his supervisors his “suspicions” that members of a task
force had tipped off “key targets in a drug raid.” 487 F.3d 506, 507 (7th Cir. 2007).
The Seventh Circuit found that the plaintiff’s report was not constitutionally
protected speech, as “he was merely doing what was expected of him as a member of
the task force.” Id. at 511. Sigsworth is on point here. In voicing his concerns about
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the operations of the APD and proposing policy changes, Loizon was merely doing
what he himself says was expected of him as a Deputy Chief PO. Put differently,
Loizon engaged in the speech at issue in this case “because that is what he,” as a
Deputy Chief, “was employed to do.” See Garcetti, 547 U.S. at 421. Accordingly,
Loizon has not pleaded a cause of action under the First Amendment, and Count XI
is dismissed as to both the OCJ and Chief Judge Evans.
B.
Claims Against Chief Judge Evans in His Individual Capacity
1.
Whether the Eleventh Amendment Bars Claims Against
Chief Judge Evans in His Individual Capacity
Here, Defendants argue that the Eleventh Amendment immunizes Chief
Judge Evans, in his individual capacity, from the claims against him, while Loizon
claims the Eleventh Amendment does not apply to individual capacity claims.
Generally, lawsuits against state officials in their individual capacities are not
barred by the Eleventh Amendment, because any judgment from such a suit would
be paid from the official’s personal assets rather than the state’s treasury. Luder v.
Endicott, 253 F.3d 1020, 1022–23 (7th Cir. 2001). “But even when a suit is against a
public officer in his or her individual capacity, the court is obliged to consider whether
it may really and substantially be against the state.” Id. at 1023.
A suit is against a state, rather than an individual official, “if the judgment
sought would expend itself on the public treasury or domain, or interfere with the
public administration, or if the effect of the judgment would be to restrain the
Government from acting, or to compel it to act.” Id. (quoting Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984)). As such, public employees cannot
17
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obtain relief like back pay or reinstatement from individual defendants, because
these remedies would require state action to implement. Benjamin v. Ill. Dep’t of Fin.
& Prof’l Regulation, 837 F. Supp. 2d 840, 852 (N.D. Ill. 2011).
Defendants contend that Loizon’s complaint “contains no plausible claim for
relief against [Chief] Judge Evans in his individual capacity” because it fails to allege
that he “undertook any actionable conduct outside the scope of his employment.”
Defs.’ Mem. at 5. This argument misapprehends the Eleventh Amendment analysis.
Defendants’ position would accord state officials blanket immunity for acts performed
pursuant to their official duties, but the Supreme Court has expressly held such
immunity does not exist. See Hafer v. Melo, 502 U.S. 21, 28 (1991). As indicated
above, the capacity in which a defendant is sued depends not on the “official” or
“individual” character of his actions but on the effect that a judgment against that
defendant would have on the operations of a sovereign state. See Luder, 253 F.3d at
1022–23.
Loizon is explicitly suing Chief Judge Evans “individually” and therefore seeks
judgment against his assets. Am. Compl. at 1 (case caption). Defendants have given
the Court no reason to believe that a judgment against Chief Judge Evans would
necessarily
expend
itself on Illinois’ treasury,
interfere with
the
public
administration, or restrain Illinois from acting or compel it to act. Accordingly, the
Eleventh Amendment has no bearing on Loizon’s individual-capacity claims against
Chief Judge Evans, and Defendants’ motion to dismiss Chief Judge Evans,
individually, from this action is denied.
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But this conclusion comes with significant caveats. Some of the Counts in
which Chief Judge Evans is named request relief that would require state action to
implement, such as Loizon’s reinstatement. This relief cannot properly be granted
by an individual defendant. Accordingly, the Court dismisses Count X against Chief
Judge Evans in his individual capacity to the extent Loizon seeks reinstatement. Am.
Counts at 13.8
2.
Count VII (IIED)
As to Count VII, Defendants insist that Chief Judge Evans did not allegedly
engage in any extreme or outrageous conduct.
Loizon counters that his own
emotional vulnerability, as well as Chief Judge Evans’ alleged abuse of official power,
aggravate the severity of the conduct at issue.9
The Court acknowledges that this result is in tension with the Court’s February 12,
2019 Order, in which it dismissed claims against Chief Judge Evans in his official capacity
as duplicative of claims against the OCJ. 2/12/19 Order at 3. Loizon had argued that the
official capacity claims against Chief Judge Evans should remain because he would be
“responsible for carrying out any requested prospective injunctive relief.” Id. at 2. The Court
nevertheless dismissed the official capacity claims because Loizon had “not presented any
argument as to why the OCJ would not also be responsible for obeying any injunction issued
in this case.” Id. at 3. As discussed, however, prospective injunctive relief may only be sought
against state officials in their official capacity. The parties had not previously addressed the
Eleventh Amendment or its implications when briefing the prior motion to dismiss. Because
the issue has now been brought to light, the Court holds sua sponte that Loizon may assert
Count X against Chief Judge Evans in his official capacity to the extent that prospective
injunctive relief is requested. The Court grants Loizon leave to amend his complaint in this
respect.
8
In response to this Count, Defendants also assert that Chief Judge Evans is protected
by Illinois’ sovereign immunity statute. 745 Ill. Comp. Stat. 5/1. The Court will bypass this
defense and proceed to the merits of Loizon’s IIED claim, because it plainly fails as a matter
of law. See, e.g., Jose-Nicolas v. Berry, No. 3:15-cv-964-NJR-DGW, 2018 WL 1466769, at *9
(S.D. Ill. Mar. 2, 2018) (declining to address an Illinois state sovereign immunity defense to
an IIED claim because the claim was meritless).
9
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To prevail on an IIED claim under Illinois law, a plaintiff must show (1) that
the defendant engaged in a course of extreme and outrageous conduct; (2) that the
defendant intended, or was aware of a high probability, that his conduct would cause
the plaintiff severe emotional distress; and (3) that the plaintiff in fact suffered severe
emotional distress. McGrath v. Fahey, 126 Ill. 2d 78, 86 (1988). The element of
extreme and outrageous conduct requires that a defendant took actions “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency.” Pub. Fin. Corp. v. Davis, 66 Ill. 2d 85, 90 (1976) (quoting Restatement
(Second) of Torts sec. 46, comment D (1965)). “[I]n the absence of conduct calculated
to coerce an employee to do something illegal, [Illinois] courts have generally declined
to find an employer’s . . . conduct sufficiently extreme and outrageous as to give rise
to an action for [IIED].” Arroyo v. Volvo Grp. N. Am., LLC, 805 F.3d 278, 288 (7th
Cir. 2015) (quoting Welsh v. Commonwealth Edison Co., 713 N.E.2d 679, 684 (Ill. App.
Ct. 1999)).
Loizon has failed to allege that Chief Judge Evans engaged in any extreme and
outrageous conduct.
While Chief Judge Evans did publicly subject Loizon to
potentially embarrassing discipline, and eventual termination, it is clear as a matter
of Illinois law that such actions, without more, do not give rise to an IIED claim. See
Graham v. Commonwealth Edison Co., 742 N.E.2d 858, 866 (Ill. App. Ct. 2000)
(noting that Illinois courts “often hesitate to find a claim for [IIED] in employment
situations” based on concern that “if everyday job stresses resulting from discipline,
personality conflicts, job transfers, or even terminations could give rise to a cause of
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action for [IIED], nearly every employee would have a cause of action.”); see also
Harriston v. Chi. Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (holding that a
plaintiff had not alleged the required level of extreme and outrageous conduct where
she alleged her employer reprimanded her for no reason, rebuked her for asking about
policy changes, and falsely accused her of failing to perform her duties).
In an effort to preserve his IIED claim, Loizon asserts that Chief Judge Evans
was, or should have been, aware that he was “particularly susceptible to emotional
distress.” Pl.’s Resp. at 7. But while Illinois courts may consider susceptibility to
emotional distress as a factor in evaluating an IIED claim, it is not dispositive.
Edwards, 2015 WL 6445417, at *4 (holding that defendants’ actions were not extreme
and outrageous even though the plaintiff alleged they knew she suffered from posttraumatic stress disorder); Khan v. Am. Airlines, 266 Ill. App. 3d 726, 733 (1994)
(dismissing an IIED claim despite plaintiff’s insistence that defendants were aware
of his “added sensitivity”). Even taking Loizon’s alleged susceptibility to emotional
distress into account, Chief Judge Evans’ conduct did not go beyond all possible
bounds of decency.
Loizon also contends that Chief Judge Evans’ “position of power” over him
aggravated the outrageousness of his conduct. Pl.’s Resp. at 7. The Court is not
persuaded by this argument. Employers generally hold significant power over their
employees, and, yet, Illinois courts have refused to find employers’ conduct extreme
and outrageous absent an allegation they coerced an employee to break the law.
Miller v. Equitable Life Assur. Soc. of U.S., 181 Ill. App. 3d 954, 958 (1989) (finding
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the plaintiff had not alleged extreme and outrageous conduct because her employer
did not “coerce” her into “illegal activity”); Harris v. First Fed. Sav. & Loan Ass’n of
Chi., 129 Ill. App. 3d 978, 982 (1984) (same). Loizon has made no such allegations,
so he has failed to state a claim for IIED.
As a last resort, Loizon points out that Chief Judge Evans placed him on desk
duty and asserts a court in this district has recognized that desk duty “‘is an
extremely embarrassing form of discipline’ within the APD.” Pl.’s Resp. at 6 (quoting
Flanagan v. Office of Chief Judge of Circuit Court of Cook Cty., Ill., No. 06 C 1462,
2007 WL 2875726, at *10 (N.D. Ill. Sept. 28, 2007)). Loizon’s reliance on Flanagan is
misplaced.
The Flanagan court was not considering an IIED claim, but rather
various employment discrimination and retaliation claims. Id. at *1. Furthermore,
in the portion of the opinion Loizon quotes, the court was merely reciting testimony
given by a witness in the case at hand, not drawing independent conclusions about
the “embarrassing” nature of desk duty. Id. at *10. Because Loizon has failed to
allege extreme and outrageous conduct on Chief Judge Evans’ part, Count VII is
dismissed.
3.
Count IX (Deprivation of Property Interest Without
Due Process)
Turning to Loizon’s § 1983 claims, Defendants contend that Loizon had no
property interest in his continued employment with the APD, while Loizon argues
that an employment document granted him such an interest.
To plead a cause of action under § 1983, a plaintiff must allege that a
defendant acted “under color of state law” and “deprived [the plaintiff] of rights,
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privileges or immunities guaranteed by the Constitution or laws of the United
States.” Bayview-Lofberg’s, Inc. v. City of Milwaukee, 905 F.2d 142, 144 (7th Cir.
1990).
Defendants do not dispute that they acted under color of state law in
terminating Loizon.
To establish a due process claim, however, a plaintiff also must show “(1) that
the claimed interest is a property or liberty interest under the [F]ourteenth
[A]mendment; (2) that ‘the alleged loss . . . amounted to a deprivation’; and (3) that
the deprivation was without due process of law.” Id. (quoting Polenz v. Parrott, 883
F.2d 551, 555 (7th Cir. 1989)). Property interests “are created and their dimensions
are defined by existing rules or understandings that stem from an independent source
such as state law.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
In Illinois, “‘terms of employment must provide that termination will be only for cause
or otherwise evince mutually explicit understandings of continued employment’ in
order for there to be a property interest in employment.” Meade v. Moraine Valley
Cmty. Coll., 770 F.3d 680, 686 (7th Cir. 2014) (quoting Cromwell v. City of Momence,
713 F.3d 361, 364 (7th Cir. 2013)).
In their arguments related to Count IX, both parties zero in on the APD’s
“Administrative & Sworn Supervisor Corrective Action Procedures” (“CAP”). Am.
Counts, Ex. B, Administrative & Sworn Supervisor Corrective Action Procedures
(“CAP”) at 1, ECF No. 141. The CAP is meant “[t]o provide a process to investigate
an infraction of policy/procedure, job responsibility or other behavior deemed
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unacceptable,” and it applies “[t]o all [APD] department managers and
administrative staff.” Id.
Loizon pleads, and Defendants do not dispute, that the CAP applied to him
because he was an APD department manager at the time he was terminated. Am.
Counts ¶ 223.
Loizon asserts that the CAP created a property interest in his
employment, citing Duldulao v. Saint Mary of Nazareth Hospital Center. In that
case, the Illinois Supreme Court held that an employment document “creates
enforceable contractual rights” when (1) the document “contain[s] a promise clear
enough that an employee would reasonably believe an offer has been made,” (2) the
document is “disseminated to the employee in such a manner that the employee is
aware of its contents and reasonably believes it to be an offer,” and (3) the employee
“accept[s] the offer by commencing or continuing to work after learning” of the
document. 115 Ill. 2d 482, 490 (1987).
Loizon argues that the CAP’s repeated use of mandatory language, such as
“discharge shall include all the steps found in the above section,” creates a clear
promise of, and therefore a property interest in, continued employment. Pl.’s Resp.
at 11 (quoting Am. Counts ¶ 261) (emphasis added). In response, Defendants note
that the CAP states corrective action “may be given for any policy infraction,” and
insist that the use of the word “may” shows that the CAP is permissive rather than
mandatory. Defs.’ Reply at 6, ECF No. 154 (quoting CAP at 1, Am. Counts).
But Loizon points to Robinson v. Ada S. McKinley Community Services, Inc.
In that case, the Seventh Circuit determined that an employment document
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contained a sufficiently clear contractual promise because its disciplinary procedures
section repeatedly used mandatory language, even though the section also stated that
“[v]iolations of agency standards by an employee may warrant disciplinary action.”
19 F.3d 359, 362–63 (7th Cir. 1994) (emphasis added).
Both parties’ arguments in this regard largely miss the mark.
Neither
Duldulao nor Robinson dealt with § 1983 claims or the creation of a property interest
in employment. The question in this case is not whether an employment document
makes certain disciplinary procedures contractually mandatory (the issue addressed
in Duldulao and Robinson) but whether it grants Loizon a constitutionally protected
property interest in his continued employment at the APD. These questions are not
the same.
As the Seventh Circuit has made clear, “not every employment contract creates
a property right.” Campbell v. City of Champaign, 940 F.2d 1111, 1112 (7th Cir.
1991). Thus, even an employment document that satisfies the criteria set forth in
Duldulao does not necessarily create a property interest in continued employment
protected by § 1983. Id. (rebuffing plaintiff’s attempt to “tack” Duldulao on to her
§ 1983 claim). “[A] contract that creates merely a right to a procedure does not create
a property right within the meaning of the due process clause.” Lim v. Cent. DuPage
Hosp., 871 F.2d 644, 647–48 (7th Cir. 1989); see id. (holding that a hospital’s breach
of “procedures for determining whether a member of the staff will be reappointed”
may have violated the plaintiff’s contractual rights but did not constitute a
deprivation of a constitutionally protected property interest); see also Cheli v.
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Taylorville CUSD #3, No. 19-cv-03085, 2020 WL 2802815, at *5 (C.D. Ill. May 29,
2020) (holding that an employment document entitling employees “to a conference
prior to a suspension or discharge” did not create a constitutional entitlement to
continued employment). In short, “[w]hen the claimed deprivation of property is the
loss of a job, the entitlement must be to a job, rather than just to a set of disciplinary
procedures.” Campbell, 940 F.2d at 1113.
With these general principles in mind, the Court turns to the CAP. As noted
by Defendants, nothing in this document entitles Loizon to continued employment at
the APD. The CAP does not provide fixed terms of employment for department
managers or administrative staff; nor does it state that such employees shall be
terminated only for cause. See Davis v. Vill. of Hazel Crest, No. 17-cv-3724, 2018 WL
835224, at *5 (N.D. Ill. Feb. 13, 2018) (dismissing a due process claim where the
plaintiff failed to allege that he had a guarantee of employment). Even if Loizon’s
arguments were to prevail, he would merely have established a contractual
entitlement to certain pre-termination procedures. But that, in and of itself, does not
give Loizon a property interest in his employment that may be vindicated through
§ 1983. Accordingly, Count IX is dismissed.
4.
Count X (Impairment of Liberty Interest Without Due Process)
Even though Loizon has not pleaded that he had a property interest in his job,
his claim for deprivation of his liberty interest in pursuing his occupation may
proceed, as Defendants have provided no pertinent arguments for its dismissal.
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Even a plaintiff who does not have a property interest in his job may claim that
a defendant deprived him of a constitutionally protected liberty interest. Czupryn v.
Burke, No. 2:07-cv-350-WTL-WGH, 2009 WL 972841, at *2 n.2 (S.D. Ind. Apr. 9,
2009). “[W]hen a state actor casts doubt on an individual’s ‘good name, reputation,
honor or integrity’ in such a manner that it becomes ‘virtually impossible for the
[individual] to find new employment in his chosen field,’ the government has
infringed upon that individual’s liberty interest to pursue the occupation of his
choice.” Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 617 (7th Cir. 2002) (quoting
Townsend v. Vallas, 256 F.3d 661, 670 (7th Cir. 2001)). Such infringement occurs
without due process when the plaintiff is not afforded “an opportunity to clear his
name.” Roth, 408 U.S. at 573 n.12.
Though liberty and property interests are legally distinct, Defendants’ filings
treat Counts IX and X as one and the same. Because Defendants have offered no
argument unique to Count X that is supported by pertinent authority, they have not
carried their burden of showing that Count X fails to state a claim, and their motion
to dismiss that Count therefore fails. See Berkowitz, 927 F.2d at 1384 (“[P]erfunctory
and undeveloped arguments, and arguments that are unsupported by pertinent
authority, are waived.”). Accordingly, Count X survives dismissal as against Chief
Judge Evans.
C.
Defendants’ Motion to Strike
Finally, Defendants have moved to strike Loizon’s references to his accrued
compensatory time in support of Count III, arguing that he cannot recover damages
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for comp hours accrued in excess of the FLSA’s statutory maximum.
Although
Plaintiff asserts that Defendants have waived the argument by not raising it in their
previously filed motion to dismiss, the Court concludes that Defendants’ position
lacks merit, and, thus, there is no harm in addressing it.
The FLSA permits states and their political subdivisions, such as the APD and
OCJ, to offer their employees, “in lieu of overtime compensation, compensatory time
off at a rate not less than one and one-half hours for each hour of employment for
which overtime compensation is required by this section.” 29 U.S.C. § 207(o)(1);
Christensen v. Harris Cty., 529 U.S. 576, 578 (2000). Employees engaged in public
safety work may only accrue 480 hours of comp time. 29 U.S.C. § 207(o)(3)(A).
Defendants do not dispute that, as a PO, Loizon was engaged in public safety work.
Public safety employees must receive standard “overtime compensation” for comp
time accrued in excess of the 480-hour maximum. Id.
Loizon has alleged that he has accrued “thousands of hours” in comp time,
clearly exceeding the FLSA’s cap. Am. Compl. ¶ 128. Defendants thus refer to
Loizon’s attempt to recover compensation for this comp time as a “clear legal
impossibility.” Defs.’ Reply at 12. But the FLSA plainly states that employees
“shall . . . be paid overtime compensation” for “additional overtime hours of work”
above the 480-hour maximum. 29 U.S.C. § 207(o)(3)(A). Loizon has explicitly alleged
that the OCJ violated this statutory requirement. Am. Compl. ¶¶ 128–30. What is
more, Loizon indicates that other APD employees’ “accrued, unpaid comp time was
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paid,” id. at 5, and that the OCJ’s director of personnel “confirmed” his number of
accrued comp hours following his termination. Id. at 61, ¶ 240.
The mere fact that Loizon could not legally accrue more than 480 hours of
compensatory time does not relieve the OCJ of its obligation to pay him for his
overtime work. See Beck v. City of Cleveland, Ohio, 390 F.3d 912, 920 (6th Cir. 2004)
(“Congress, however, did not intend to relieve . . . governmental entities of all
financial costs of overtime, as reflected in Section 207(o)(3)(A) that limits
compensatory time to 480 hours and requires any excess to be paid in cash.”). Indeed,
if the OCJ allowed Loizon to accrue comp time in excess of 480 hours without cashing
him out, that itself would violate the FLSA. Baker v. Stone Cty., Mo., 41 F. Supp. 2d
965, 997 (W.D. Mo. 1999). As such, Loizon’s references to his compensatory time are
material to his case, and the Court will not strike them from his amended complaint.
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IV.
Conclusion
For the reasons set forth above, Defendants’ motion to dismiss is granted in
part and denied in part. In summary, the motion is granted as to Counts IV, V, VI,
VII, VIII, IX, and XI. The motion is also granted as to Count X against the OCJ and
to the extent it seeks reinstatement, but it is otherwise denied. But Loizon is granted
leave to amend Count X to add a claim against Chief Judge Evans in his official
capacity for the sole purpose of securing prospective injunctive relief. Defendants’
motion to dismiss Chief Judge Evans in his individual capacity is denied. Defendants’
motion to strike Loizon’s references to his compensatory time in support of Count III
also is denied.
IT IS SO ORDERED.
ENTERED 9/3/20
__________________________________
John Z. Lee
United States District Judge
30
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