Soto v. Yarbrough et al

Filing 71

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 8/5/19.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEANNETTE SOTO,
Plaintiff,
v.
KAREN YARBROUGH, ERWIN ACOX,
JR., COOK COUNTY RECORDER OF
DEEDS OFFICE, and COOK COUNTY,
Defendants.

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18 C 4337
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff Jeannette Soto has brought this lawsuit against Defendants Karen
Yarbrough, Erwin Acox, Jr., and the Cook County Recorder of Deeds Office (“the
Recorder’s Office”), and Cook County (“the County”), alleging that they discriminated
and retaliated against her on the basis of her political affiliation, in violation of 42
U.S.C. § 1983. Yarbrough has moved to dismiss Soto’s amended complaint under
Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the motion is
denied.
Background1
Soto began working as the Director of Human Resources at the Recorder’s
Office on October 31, 2016. Am. Compl. ¶ 12, ECF No. 18. At that time, Yarbrough

When reviewing a motion to dismiss, the Court assumes the alleged facts in the
complaint are true and draws all possible inferences in favor of Plaintiff. See Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
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was the elected Cook County Recorder of Deeds. Id. ¶ 8. Soto is not politically
affiliated with Yarbrough. Id. ¶ 13.
Soto reported to Acox, the Chief of Human Resources at the Recorder’s Office.
Id. ¶¶ 9, 15–19. She alleges that she experienced various difficulties in working with
Acox; for example, Acox refused to act on a report Soto submitted about attendance
policy violations by an employee who was politically connected to Yarbrough. Id.
¶¶ 15–16. According to Soto, Acox also excluded her from meetings and gave her poor
performance reviews. Id. ¶¶ 17–20. After receiving a negative evaluation in March
2017, Soto complained to the Recorder Compliance Administrator (“RCA”)2 that she
believed she was being discriminated against because she was not politically
affiliated with Yarbrough. Id. ¶¶ 18, 21.
Later that month, Soto was asked to assist in hiring a new Director of
Compliance for the Recorder’s Office. Id. ¶ 22. Specifically, she was assigned the
task of reviewing applicants and categorizing them as qualified or not qualified for
the position. Id. ¶ 23. Acox was “not supposed to be involved” in this process because
he was one of the people who would be interviewing candidates. Id.
After Soto had compiled a list of qualified candidates, Acox asked to review the
list and “check [her] work.” Id. ¶ 25. He then “indicated to [Soto] that there were a
few candidates” she incorrectly categorized as not qualified. Id. Interviews were
conducted on March 21, 2017, but Acox had to recuse himself from the process

In Soto’s complaint, she refers to the “Recorder’s Compliance Director (‘RCA’).” Am.
Compl. ¶ 21. The Court takes judicial notice of publicly filed documents in Shakman v. Cook
County Recorder of Deeds, No. 69-CV-02145 (N.D. Ill.) that refer to the person in this role as
the Recorder Compliance Administrator. See, e.g., ECF No. 6148.
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because he knew one or more of the candidates. Id. ¶ 26. After the interviews were
completed, Soto was tasked with entering the candidates’ names into a spreadsheet,
in the order in which they had been ranked. Id. ¶ 27. Although he had recused
himself from the interview process, Acox ordered Soto to show him the spreadsheet.
Id.
Yarbrough eventually selected Kevin Thomas for the Director of Compliance
position on March 23, 2017.

Id. ¶ 28.

According to Soto, Acox knew Thomas

personally. Id. Thomas was not the highest ranked candidate for the position, so
Yarbrough was required to submit a statement as to why she had not chosen the first
ranked candidate. Id. When Acox subsequently asked Soto to prepare an offer letter
for Thomas, she told him she could not do so without Yarbrough’s statement as to
why Thomas had been selected. Id. ¶ 29.
Soto also voiced concerns about Acox’s participation in the hiring process to the
RCA, who allegedly told her that Acox’s involvement had been improper. Id. ¶ 30.
Soto was then designated the Acting Head of the Human Resources Department and
was asked to suspend the hiring process. Id. ¶ 31. The next day, on March 24, 2017,
Acox and Yarbrough fired Soto, stating that she was an “at will employee,” that it
was “not working out,” and that she was still within her six-month probationary
period. Id. ¶ 32.
Legal Standard
Rule 8 provides that a complaint need only include “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(2). To survive a motion to dismiss under Rule 12(b)(6), 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).
Additionally, 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) (citing
Luevano v. Wal–Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013)). At the same
time, “allegations in the form of legal conclusions are insufficient to survive a 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). As such, “[t]hreadbare recitals of the
elements of the cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
Analysis
I.

Political Discrimination (Count I)
In Count I, Soto claims that Yarbrough and Acox discriminated against her

because she was not politically affiliated with Yarbrough, in violation of her First
Amendment rights. Yarbrough argues that this claim must be dismissed because
Soto has failed to sufficiently allege Yarbrough’s personal involvement in the alleged
discrimination.

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To state a claim under § 1983 for a First Amendment violation, a public
employee must show that: (1) her conduct was constitutionally protected; (2) she
suffered a deprivation likely to deter free speech; and (3) the constitutionally
protected conduct caused the adverse employment action. Gunville v. Walker, 583
F.3d 979, 984 (7th Cir. 2012). Additionally, for a supervisor to be held liable under
§ 1983, she must have been personally involved in the alleged constitutional
violation. Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017). Thus, Soto
must allege that Yarbrough “kn[ew] about the conduct and facilitate[d] it, approve[d]
it, condone[d] it, or turned a blind eye toward it[.]” Id.
Here, Soto has sufficiently alleged Yarbrough’s personal involvement in the
claimed political discrimination. The complaint states that Acox and Yarbrough were
both aware that Soto was not politically affiliated with Yarbrough.3 Am. Compl. ¶ 13.
She describes Acox’s involvement in the hiring process for the Director of Compliance,
despite the fact that he had recused himself. Id. ¶¶ 22–29. As a result of this
involvement, she alleges, Yarbrough ultimately selected a candidate personally
connected to Acox. Id. ¶ 28. And when Soto raised concerns about the selection of
that candidate and pushed back against Acox’s instruction to prepare an offer letter
for Thomas without having first received the required explanatory statement from
Yarbrough, Yarbrough and Acox fired her. Id. ¶¶ 29–32.

It is well established that political affiliation (or non-affiliation) “is a right protected
under the [F]irst [A]mendment.” Hermes v. Hein, 742 F.2d 350, 353 n.3 (7th Cir. 1984).
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These allegations support a reasonable inference that Yarbrough was aware of
and approved of Acox’s participation in the hiring process, and that she fired Soto
because Soto was politically unaffiliated with her and opposed to Acox’s involvement.
At this stage, that is sufficient to state a claim for political discrimination against
Yarbrough. Accordingly, the motion to dismiss is denied as to Count I.4
II.

Political Retaliation (Count II)
In Count II, Soto alleges that Yarbrough and Acox retaliated against her in

violation of her First Amendment rights when she was fired after she had reported
what she believed to be improper actions by her supervisor to the RCA. A First
Amendment retaliation claim requires that a plaintiff’s speech be constitutionally
protected, Gunville, 583 F.3d at 983, and a public employee’s speech is protected only
if she is speaking “as a citizen on a matter of public concern.” Garcetti v. Ceballos,
547 U.S. 410, 418 (2006). Yarbrough argues that Soto’s speech is not constitutionally
protected because Soto made these complaints in the course of her job duties.
It is well settled that “when public employees make statements pursuant to
their official duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications from
employer discipline.” Id. at 421. Soto contends, however, that she did not make the
complaints in question as part of her job duties because she “had no formal

The Court does not consider Yarbrough’s argument that Count I must be dismissed
because she is entitled to qualified immunity. This argument was raised for the first time in
her reply brief. Accordingly, it has been waived. See, e.g., Billhartz v. C.I.R., 794 F.3d 794,
801 n.4 (7th Cir. 2015) (“[I]t is well-settled that arguments first made in the reply brief are
waived.”).
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responsibilit[y] to report to the RCA––a separate and independent body that monitors
political corruption.” Pl.’s Resp. Opp. Mot. Dismiss at 8, ECF No. 41.
The Court agrees. Nothing in Soto’s complaint suggests that reporting to the
RCA was a responsibility of her position. In contrast to the cases cited by Yarbrough,
Soto has not alleged that she made an internal workplace complaint that was “part
of the job.” See Forgue v. City of Chi., 873 F.3d 962, 967 (7th Cir. 2017) (quoting
Roake v. Forest Pres. Dist. of Cook Cty., 840 F.3d 342, 346 (7th Cir. 2017)) (finding
that a police officer’s internal complaint of police misconduct was not entitled to First
Amendment protection); Kubiak v. City of Chi., 810 F.3d 476, 482 (7th Cir. 2016)
(same).

Rather, Soto states that she reported suspected misconduct to an

independent authority responsible for monitoring political corruption in the
Recorder’s Office. This is sufficient to allege that she was speaking as a citizen, rather
than an employee. See Kristofek v. Vill. of Orland Hills, 832 F.3d 785, 793 (7th Cir.
2016) (noting that courts must be “especially careful in concluding that employees
have spoken pursuant to their official duties when the speech concerns allegations of
public corruption”).
What is more, Soto has sufficiently alleged that she was speaking on a matter
of public concern. Yarbrough characterizes Soto’s complaint as personal, arguing that
Soto merely took issue with “Acox’s supervision of her” and her “negative 90-day
evaluation.” Def.’s Mem. Supp. Mot. Dismiss at 4, ECF No. 35. But Soto states that
she complained to the RCA about “unlawful political discrimination,” and
irregularities in the hiring process for the Director of Compliance. Am. Compl. ¶¶ 21,

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30–31. The Seventh Circuit has repeatedly held that “speech alleging government
corruption and malfeasance is of public concern in its substance.” Spiegla v. Hull,
371 F.3d 928, 937 (7th Cir. 2004) (collecting cases). Accordingly, the Court will not
dismiss Soto’s First Amendment retaliation claim on this basis.
III.

Violation of the Shakman Decree (Count III)
In Count III, Soto alleges that Cook County and the Recorder’s Office are liable

for a violation of the consent decree issued in Shakman v. Democratic Org. of Cook
County, 481 F. Supp. 1315, 1358 (N.D. Ill. 1979), vacated sub nom. Shakman v.
Dunne, 829 F.2d 1387, 1389 (7th Cir. 1989).

The consent decree prohibits the

Recorder’s Office from taking certain employment actions based on political
considerations and binds the County and the Recorder’s Office to liability for the
actions of their employees under a respondeat superior analysis. See Everett v. Cook
Cty., 704 F. Supp. 2d 794, 804 (N.D. Ill. 2010) (citing Wzorek v. City of Chi., 906 F.2d
1180, 1184 (7th Cir. 1990)).
In her reply brief, Yarbrough argues that Count III must be dismissed because
“Plaintiff has failed to sufficiently plead that Recorder’s Office’s agents engaged in
political discrimination and retaliation.” Def.’s Reply Supp. Mot. Dismiss at 7, ECF
No. 53. But as explained above, the Court declines to dismiss Counts I and II.
Accordingly, the Recorder’s Office and the County could still be held liable for a
violation of the Shakman decree. The motion to dismiss is denied as to Count III.
IV.

Indemnification (Count IV)

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In Count IV, Soto brings an indemnification claim against the County, in the
event that one or more of the individual defendants is found liable. Again, Yarbrough
argues that this claim must be dismissed. But, as with Count III, Count IV remains
as long as Soto has viable claims against an individual Defendant. Because Counts
I and II survive, the motion to dismiss is denied as to Count IV.
Conclusion
For the reasons stated herein, Yarbrough’s motion to dismiss [is denied.
IT IS SO ORDERED.

ENTERED 8/5/19

__________________________________
John Z. Lee
United States District Judge

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